Purpose of This Post
The purpose of this post is to set forth documentation to prove that the Eleventh Circuit, U.S. Court of Appeals, will take extreme measures to keep from holding U.S. Dist. Judge Donald L. Graham accountable for his abusive behavior and lawless decisions. This post examines two opinions of the Eleventh Circuit, an unpublished opinion and a published opinion, that were rendered within two days of each other. The published opinion declared "prior restraints" to be in violation of the first amendment. The unpublished opinion, which also involved prior restraints, declines to discuss the validity of the prior restraints. The unpublished opinion avoids appellate review of orders or injunctions that were rendered by Judge Grahams' Magistrate, Frank Lynch, Jr. Additionally, the unpublished opinion declines to discuss other important issues such as whether Judge Graham should have disqualified or not. Simply put, the unpublished Opinion was deployed to attain the desired result. In summary, the "rule of law" was a casualty in the unpublished opinion. Lastly, this post documents other cases where the Eleventh Circuit used unpublished opinions to make lawless decisions that are completely at odds with published opinions involving the same material facts.
Thesis
Unpublished dispositions mark out a zone where no law prevails, but only the predilections and preferences of the judges. Stated alternatively, unpublished opinions very often have nothing to do with the law or the facts. In fact, material facts are often omitted and "new facts" maybe conjured up. If a US Circuit Court Appeals Judge desires a certain outcome, he or she can whip out an unpublished opinion and get the desired outcome. No less a "disgruntled litigant", then former U.S. Circuit Judge Richard Arnold, now deceased, suggested such a thing could happen:
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for some extraneous reason, wish to reject it, they can easily do so through the device of an abbreviated, unpublished opinion, and no one will ever be the wiser.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 judge share 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. In fact, Judge Arnold felt uneasy about his own participation in unpublished opinions. Judge Arnold surely cannot be resting comfortably. In
Anastasoff. v. United States, 223 F.3d 898 (8th Cir. 2000), Judge Arnold and his panel declared unpublished opinions to be unconstitutional. This opinion was subsequently vacated on other grounds,
235 F.3d 1054 (8th Cir. 2000) by an en banc court.
The Published Opinion
On October 18, 2002, the Eleventh Circuit decided
Weaver v. Bonner, 309 F.3d 1312 (11th Cir. 2002), a published opinion. On this date, the Eleventh Circuit was adamantly opposed to "prior restraints" and held:
The First Amendment provides that "Congress shall make no law ... abridging the freedom of speech...." U.S. Const. amend. I.
Weaver at ¶21."Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963). "The term prior restraint is used `to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.'" Alexander v. United States, 509 U.S. 544, 550, 113 S.Ct. 2766, 2771, 125 L.Ed.2d 441 (1993) (quoting M. Nimmer, Nimmer on Freedom of Speech § 4.03 (1984)). "Temporary restraining orders and permanent injunctions — i.e., court orders that actually forbid speech activities — are classic examples of prior restraints." Id.
Weaver at ¶32.In
Weaver, the Eleventh Circuit held that a "cease and desist order" which prohibited false statements by a judicial candidate to be an unconstitutional prior restraint.
The Unpublished Opinion
Two days prior to deciding
Weaver, October 16, 2002, the court decided another case involving a prior restraint, Mason v. Heartland Library Cooperative, Highlands County Board of County Commissioners, No. 01-13664, (11th Cir. 2002). In Mason v. Highlands County, Judge Graham's Magistrate, Frank Lynch, Jr. issued the following injunctions:
“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. These orders are clearly prior restraints according to the Eleventh Circuit's and the Supreme Court's definition as a mere Magistrate prohibited direct communication with the government defendants in this matter. In their unpublished opinion, the Eleventh Circuit, U.S. Circuit Judge Stanley F. Birch, Jr., Judge Stanley Marcus, and Judge Susan Black, while refusing to cite legal authority, apparently considered the following communications with the government to be unprotected speech.
-
"They claimed that, during the week of 5 February 2001 , Mason had demanded to yiew his personnel file from Highlands County's Human Resource Director Fred Carino, a named defendant in the case." Opinion, pg. 4.
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They stated that, on 13 and 14 February 2001, Mason also appeared at Carino's office and demanded to view the billing records for Highlands County's attorney and Highlands County's liability insurance documents. Opinion, pgs. 4,5.
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They asserted that Mason made these requests of Carino without first requesting the documents from their counsel in compliance with the magistrate judge's order and became aggressive, disruptive, and threatening with Carino. Opinion, pgs. 5.
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They indicated that they had produced the documents for Mason, and attached a copy of a letter from Carino to Mason reminding Mason that he was to correspond only with their counsel. Opinion, pgs. 5.
Case No. 01-13664 is a virtual cesspool of dishonesty and trickery. See
Eleventh Circuit Case No. 01-13664: The Appeal From Hell. It is impossible to exaggerate the odor that surrounds this opinion.
Eleventh Circuit Case No. 01-13664, an unpublished opinion, represents Circuit Judge Richard Arnold's worst fears. See "Eleventh Circuit Case No. 01-13664: The Appeal From Hell". This opinion is incredulous in the level of dishonesty involved. It is hard to imagine a more dishonest opinion. The tactics used by the Eleventh Circuit to reach the desired outcome, a vindication of Judge Graham personally, included, but is not limited to the following:
- The Eleventh Circuit chose an unpublished opinion.
- The opinion was never released the Internet.
- The Eleventh Circuit denied a motion to proceed on appeal in forma pauperis.
- The Eleventh Circuit attacked the Appellants briefs for superficial reasons such as not having "indexing tabs".
- The Eleventh Circuit denied multiple requests to review its jurisdiction.
- The Eleventh Circuit struck the Appellant's Brief for arguing against a sua sponte issued pre-filing injunction because they said it was "beyond the scope of appeal". The Eleventh Circuit made the Appellant go through the expense of filing all new briefs less any mention of the sua sponte issued pre-filing injunction. See Putrid Dishonesty:Beyond the Scope of Appeal”.
- The Appellees filed their brief and argued in support of the sua sponte issued pre-filing injunction. The Eleventh Circuit granted the Appellant's motion to strike the Appellees Briefs, but declined to make the heavily insured Appellees all new briefs as they had done to the mere pro se Appellant. The Eleventh Circuit stated that it would not consider the sua sponte issued pre-filing injunction in its decision.
- The Eleventh Circuit declined to review and omitted pertinent issues on appeal from discussion.
- The Eleventh Circuit declined to review the validity of the very orders that it claimed the Appellant [Mason] violated, the orders of June 19, 2000, (DE #246), and July 25, 2000, (DE #246), that caused the case to be dismissed. See Background.
- Judge Graham is accused of misconduct, abuse, and mismanagement and that Judge Graham should have recused or disqualified because of this behavior. There is no discussion of this issue in the appeal, much less a remedy. This issue and the allegations supporting it are simply ignored.
- The Appellant challenged the authenticity and relevancy of emails that were used as evidence of violations of out of court communications in violations the orders of June 19, 2000, (DE #246), and July 25, 2000, (DE #246).
- On October 16, 2002, when the Eleventh Circuit rendered its opinion, it then used the same sua sponte issued pre-filing injunction that it had previously said it was "beyond the scope of appeal" and struck the Appellant's brief to affirm Judge Graham.
See "Eleventh Circuit Case No. 01-13664: The Appeal From Hell". Similarly, along this same time interval, a petition for mandamus was filed which, among other things, accused Judge Graham of misconduct, abuse, and mismanagement. The petition met a similar and even worse fate. See Eleventh Circuit Disses The U.S. Supreme Court Chooses To Protect Judge Graham.
I Got Your Lawless Unpublished Depositions
In testimony before the House Judiciary Committee on "
Unpublished Judicial Opinions", Judge Alex Kosinski stated:
Lawyers sometimes darkly suggest that unpublished dispositions make up a secret body of law wholly at odds with our published decisions—that unpublished dispositions mark out a zone where no law prevails, but only the predilections and preferences of the judges. We have discussed this among the judges of my court and are, frankly, baffled by the claim because none of us perceives that this is what we are doing. These claims are always made with reference to some unnamed earlier case; lawyers seldom, if ever, present concrete evidence of lawlessness in unpublished dispositions to back up their claims. This is surprising because if the practice were happening with any frequency, the losing lawyers would have every incentive to make a fuss about it.
Nevertheless, we have worried about claims like these, and so in recent years we have taken two initiatives to help discover whether unpublished dispositions are, in fact, in wholesale, lawless conflict with published precedents. First, in February and March 2000 we distributed a memorandum to all district judges, bankruptcy judges, magistrate judges, lawyer representatives, senior advisory board members, and law school deans within the Ninth Circuit, as well as other members of the academic community, seeking information on unpublished dispositions that conflicted with other published or unpublished decisions. The memorandum was also posted on the court's website. Responses were collected by e-mail, fax, and a response form at the website. Only six responses were received. Of these, we found two to be meritorious and, despite our instructions, both responses identified conflicts between two published Ninth Circuit decisions—conflicts of which we were already aware. No one identified an unpublished disposition that conflicted with a published opinion or with another unpublished disposition.
See URL:
http://commdocs.house.gov/committees/judiciary/hju80454.000/hju80454_0f.htm. The Eleventh Circuit has a series of unpublished opinions that are directly at odds with published opinions
A Tale of Two Appeals, Same Facts, Same Law, Different Results.
Judge Graham has been affirmed on appeal while some of his colleagues at the S.D. Florida and other federal judges were reversed on the same set of facts. The Eleventh Circuit used unpublished opinions to affirm Judge Graham while his colleagues were reversed using published opinions. Essentially the Eleventh Circuit has created a secret underground body of law. See Tale of Two Appeals Home Page.
Eleventh Circuit Uses Same Set of Facts To Reverse One Florida Judge While Affirming Another Florida Judge U.S. District Judge Donald L. Graham was affirmed or upheld on appeal for the exact same set of facts that his colleague, Judge Daniel T. K. Hurley, at S.D. Fla. was reversed on appeal. In Martinez, v. Kristi Kleaners, Inc., 364 F.3d 1305 (11th Cir. 2004), the Eleventh Circuit vacated and remanded Judge Daniel T. K. Hurley's denial of an IFP application for failing to a reason for the denial. However, Judge Donald L. Graham in the same Court, Southern District of Florida, did the exact thing as Judge Hurley, but Judge Graham was affirmed. This fact can be verified in five minutes by reading mmason.freeshell.org/martinez.htm . Incidentally, Judge Graham has a documented history of denying in forma pauperis petitions without providing any explanation. See Judge Graham's History of Arbitrary IFP denials.
“Teflon Don” Avoids Reversal While Colleague Judge Ursula Ungaro-Benages Suffers Reversal“.
U.S. Dist. Judge Ursula Ungaro-Benages was reversed on appeal by the Eleventh Circuit for failing to make Fed.R.Civ.P. 41(b)’s requisite finding that “lesser sanctions would not suffice” while her colleague U.S. Dist. Judge Donald L. Graham, “Teflon Don”, failed to make the same finding but was affirmed on appeal. Similarly in World Thrust Films v. International Family Entertainment, 41 F. 3d 1454 (11th Cir. 1995), U.S. District Judge Ursula Ungaro-Benages, United States District Court for the Southern District of Florida, was reversed on appeal for failing to make an explicit finding under Fed.R.Civ.P. 41(b), while U.S. District Judge Donald L. Graham, S.D. Fla., failed to make the same explicit finding, but was affirmed on appeal. See mmason.freeshell.org/WorldThrust.htm. As if this was bad enough, the Eleventh Circuit used an invalid sua sponte issued pre-filing injunction that issued on September 20, 2001 to make an implicit finding under Fed.R.Civ.P. 41(b) to justify a dismissal of a case that was closed three months earlier on June 20, 2001. The Eleventh Circuit used the very same invalid sua sponte issued pre-filing injunction that it struck Mason's brief for arguing because the Eleventh Circuit claimed that this sua sponte issued pre-filing injunction was "beyond the scope of appeal." For more see, mmason.freeshell.org/methods.htm
Eleventh Circuit Uses Unpublished Opinion and Omission(Deception) To Invoke Res Judicata
In Pleming v. Universal-Rundle Corp., 142 F.3d 1354 (11th Cir. 1999), 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. Other Judges in the Eleventh Circuit and particular judges at the Southern District of Florida have suffered reversals in published opinions for the same set of facts that Judge Graham has been affirmed for.
U.S. Dist. Judge William P. Dimitrouleas Reversed While Colleague Judge Donald L. Graham Affirmed by Killing The Appeal
U.S. Dist. Judge William P. Dimitrouleas was reversed on appeal by the Eleventh Circuit for Imposition of Sanctions beyond the litigant’s ability to pay. During the same time period, Judge Dimitrouleas’ colleague, U.S. Dist. Judge Donald L. Graham, “Teflon Don”, awarded $200,000 in attorneys’ fees against an indigent who was proceeding in forma pauperis but was nevertheless affirmed on appeal by the Eleventh Circuit. Judge Graham was affirmed by what can only be described as a very pernicious act in that the Eleventh Circuit affirmed Judge Graham by denying the indigent litigant the right to an appeal the mammoth award of $200,000 in forma pauperis. Moreover, the Eleventh Circuit had to take the following extreme measures to keep from reversing “Teflon Don” in the underlying merits appeal, Case No. 01-13664:
- The Eleventh Circuit, though admittedly briefed, failed to review for validity the very orders that were used by Judge Graham to justify dismissal of the case under Fed.R.Civ.P. 41(b). See Documents Nos. 201 and 246. The Eleventh Circuit was quite willing to discuss violations of these orders, but not their validity. See Post, “Eleventh Circuit Repeatedly Refuses To Review Orders For Validity“
- The Eleventh Circuit, though admittedly briefed, failed to review the issue as to whether or not Judge Graham should have disqualified or not. See post, "Are Allegations of Misconduct Reviewable on Appeal?"
- The Eleventh Circuit struck Mason the Appellant/Plaintiff’s brief for arguing an order that it deemed beyond the scope of appeal and then turned around used the very same order to affirm Judge Graham. “Putrid Dishonesty:Beyond the Scope of Appeal”
Another One Bites the Dust: Same Set of Facts, Judge Graham Affirmed While Colleague Judge Forrester Reversed
U.S. Dist. J. Owen Forrester was reversed on appeal in a published opinion while U.S. Judge Graham was affirmed. Judge Forrester. In Arsenio Leal v. Georgia Department Of Corrections, 254 F.3d 1276 (11th Cir. 2001), the Eleventh Circuit held that a notice of appeal filed before the final judgment was issued met the legal requirements. In so doing, the Eleventh Circuit proceeded to the merits of the appeal and reversed. In stark contrast, Mason filed a notice of appeal prior to final judgment and the Eleventh Circuit, using an unpublished opinion, dismissed the appeal to avoid reaching the merits of the appeal. The order being appealed was a clearly void sua sponte issued pre-filing injunction.
Judge Graham Disagrees With The Fifth Circuit, U.S. Court of Appeals
Judge Vanessa D Gilmore in Test Masters Educational Services, Inc. v. Singh, 428 F.3d 559 (5th Cir. 2005) who was reversed for issuing an unconstitutional prior restraint, while Judge Graham has escaped appellate review because the Eleventh Circuit has declined to review his orders or injunctions for validity in what has to be a record number of times. See this site's posting "Eleventh Circuit Repeatedly Refuses To Review Orders For Validity".
