Petition for Writ of Certiorari — Aretha Townsend, Petitioner v. National Labor Relations Board

No.

IN THE

SUPREME COURT OF THE UNITED STATES

WASHINGTON, D.C.

UNITED STATES ex. rel./Townsend(“Pro se litigant”)—PETITIONER

Vs.

NATIONAL LABOR RELATIONS BOARD (“NLRB”)—General Counsel, et al.—

RESPONDET(s).

APPENDIX RECORD

[ATTACHED TO: Petitioners’ Writ of Certioraril

ATTACHMENT

Appendix A

Decision of Court of Appeals for the Eleventh Circuit, 1 of 3

pgs.; dated May 23, 2019.

Case: 19-11086

Date Filed: 08/12/2019

Page: 1 of 2

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING

56 Forsyth Street, N.W.

Atlanta, Georgia 30303

For rules and forms visit

www.cal 1 .uscourts.gov

David J. Smith

Clerk of Court

August 12, 2019

Clerk - Northern District of Georgia

Richard B. Russell Bldg & US Courthouse

2211 UNITED STATES COURTHOUSE

75 TED TURNER DR SW

STE 2211

ATLANTA, GA 30303-3309

Appeal Number: 19-11086-A

Case Style: Aretha Townsend v. National Labor Relations Board

District Court Docket No: 1:18-cv-05750-LMM

The enclosed copy of the Clerk's Entry of Dismissal for failure to prosecute in the above

referenced appeal is issued as the mandate of this court. See 11th Cir. R. 41-4.

Sincerely,

DAVID J. SMITH, Clerk of Court

Reply to: Denise E. O'Guin, A

Phone#: (404) 335-6188

Enclosure(s)

DIS-2 Letter and Entry of Dismissal

Case: 19-11086

Date Filed: 08/12/2019

Page: 2 of 2

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 19-11086-A

UNITED STATES EX REL.,

Plaintiff,

ARETHA TOWNSEND,

Plaintiff - Appellant,

versus

NATIONAL LABOR RELATIONS BOARD,

(NLRD), General Counsel,

Defendant - Appellee.

Appeal from the United States District Court

for the Northern District of Georgia

ENTRY OF DISMISSAL: Pursuant to the 11th Cir.R.42-l(b), this appeal is DISMISSED for

want of prosecution because the appellant Aretha Townsend has failed to pay the filing and

docketing fees to the district court within the time fixed by the rules., effective August 12, 2019.

DAVID J. SMITH

Clerk of Court of the United States Court

of Appeals for the Eleventh Circuit

by: Denise E. O'Guin, A, Deputy Clerk

FOR THE COURT - BY DIRECTION

Case: 19-11086

Date Filed: 05/23/2019

Page: 1 of 3

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 19-11086-A

UNITED STATES EX REL.,

Plaintiff,

ARETHA TOWNSEND,

Plaintiff-Appellant,

versus

NATIONAL LABOR RELATIONS BOARD,

(NLRD), General Counsel,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Georgia

ORDER:

In December 2018, Aretha Townsend filed the instant civil complaint, which she

self-styled as a “Wrongfiil Dismissal, )) uAmended Redress,” and “Reply Brief’ against the

National Labor Relations Board (“NLRB”). As background, in August 2016, Townsend filed a

separate complaint in the district court against the NLRB. Townsend v. Nat 7 Labor Relations B<L,

CM/ECF for U.S. Dist Ct. for N.D. of GA, No. l:16-cv-03169-WSD CTownsend F). Her

complaint in Townsend I alleged that her employers, Dawn Foods, Inc., and Ambassador Staffing

Coip., had retaliated against her and wrongfully terminated her. She stated that following her

termination, she filed a charge with the NLRB, alleging that her employer had terminated her in

Case: 19-11086

Date Filed: 05/23/2019

Page: 2 of 3

violation ofthe National Labor Relations Act (“NLRA”). The NLRB’s Regional Director declined

to issue a complaint on Townsend’s charge, and the NLRB’s Office of General Counsel upheld

the Regional Director’s decision on appeal. In Townsend I, Townsend sought reversal of that

NLRB decision. She also moved the district court for leave to proceed in forma pauperis (“IFP”).

The district court sua sponte dismissed Townsend’s complaint as frivolous, noting that it had

dismissed that complaint because the General Counsel’s decision to decline to file a complaint was

unreviewable by federal courts. The court denied her IFP status on appeal.

Returning to the instant December 2018 complaint, Townsend reiterated the arguments set

forth in her initial complaint in Townsend I as to why the General Counsel should have filed a

complaint. She also appeared to be seeking to appeal the district court’s decision denying her

previous complaint in Townsend /. She moved the district court for IFP status as well. The district

court sua sponte construed her complaint as a Rule 60(b), Fed. R. Civ. P., motion and dismissed it

as frivolous, concluding that she impermissibly filed the Rule 60(b) motion in a separate case from

Townsend I and that she had failed to show extraordinary circumstances that would entitle her to

relief. Townsend appealed, and now seeks IFP status from this Court.

Because Townsend has moved for leave to proceed on appeal, her appeal is subject to a

frivolity determination. See 28 U.S.C. § 1915(e)(2)(B). “[A]n action is frivolous if it is without

arguable merit either in law or fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002)

(quotations omitted). This Court reviews the denial of a Rule 60(b) motion for an abuse of

discretion. See Cano v. Baker, 435 F.3d 1337,1341-42 (11th Cir. 2006). To demonstrate that the

district court abused its discretion in denying a Rule 60(b) motion, a movant “must demonstrate a

justification so compelling that the district court was required to vacate its order.” Id at 1342

(quotation and alteration omitted).

2

Case: 19-11086

Date Filed: 05/23/2019

Page: 3 of 3

The district court did not abuse its discretion by denying Townsend’s construed Rule 60(b)

riiotion. Townsend’s Rule 60(b) motion for reconsideration was filed in a new case, which was,

by itself, grounds for dismissal. Bankers Mortg. Co. v. United States, 423 F.2d 73, 78 (5th Cir.

1970). Moreover, Townsend’s motion, which reiterated her claims that already had been rejected

by the district court in Townsend I, failed to cite extraordinary circumstances warranting the

reopening of judgment. Gonzalez v. Crosby, 545 U.S. 524, 535 (2005) (noting that a movant

seeking relief under Rule 60(b) must show extraordinary circumstances justifying the reopening

of final judgment). Accordingly, Townsend failed to present any nonfrivolous issues on appeal.

Her motion for IFP status is DENIED.

'

/s/ Robin S. Rosenbaum

UNITED STATES CIRCUIT JUDGE

3

Appendix B

Decision (Petitioners’ Motion), Court of Appeals for the

Eleventh Circuit, lpage, attached letter from Clerk of Court;

dated July 16, 2019.

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 19-11086-A

UNITED STATES EX REL.,

Plaintiff,

ARETHA TOWNSEND,

Plaintiff-Appellant,

versus

NATIONAL LABOR RELATIONS BOARD,

(NLRD), General Counsel,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Georgia

Before: ROSENBAUM and BRANCH, Circuit Judges.

BY THE COURT:

Aretha Townsend has filed a motion for reconsideration, pursuant to 11th Cir. R. 27-2, of

this Court’s order dated May 23,2019, denying her motion for leave to proceed in forma pauperis

in her appeal of the district court’s sua sponte dismissal as frivolous of her civil complaint, which

the district court construed as a Fed. R. Civ. P. 60(b) motion for reconsideration. Because

Townsend has not alleged any points of law or fact that this Court overlooked or misapprehended

in denying her motion, her motion for reconsideration is DENIED.

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING

56 Forsyth Street, N.W.

Atlanta, Georgia 30303

David J. Smith

Clerk of Court

For rules and forms visit

www.cal 1 .uscourts.gov

July 16, 2019

Aretha Townsend

PO BOX 1197

AUSTELL, GA 30168

Appeal Number: 19-11086-A

Case Style: Aretha Townsend v. National Labor Relations Board

District Court Docket No: 1:18-cv-05750-LMM

This Court requires all counsel to file documents electronically using the Electronic Case

Files ("ECF") system, unless exempted for good cause.

The enclosed order has been ENTERED.

Pursuant to Eleventh Circuit Rule 42-1(b) you are hereby notified that upon expiration of

fourteen (14) days from this date, this petition will be dismissed by the clerk without further

notice unless the docketing fee is paid to the clerk of this court.

Sincerely,

DAVID J. SMITH, Clerk of Court

Reply to: Denise E. O'Guin, A/lt

Phone #: (404) 335-6188

MOT-2 Notice of Court Action

Appendix C

Decision (Petitioners’ Re-filed Complaint—Amended Redress),

District Court for the Northern District of Georgia, 1 of 8pgs>‘

dated January 23, 2019.

Case l:18-cv-05750-LMM Document4 Filed 01/23/19 Page lot8

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

ARETHA TOWNSEND,

Plaintiff,

v.

CIVIL ACTION NO.

i:i8-CV-05750-LMM

NATIONAL LABOR RELATIONS

BOARD,

r

Defendant.

ORDER

This case comes before the Court on a frivolity determination pursuant to

28 U.S.C. § 1915(e)(2). On January 2, 2019, Magistrate Judge Catherine M.

Salinas granted Plaintiff in forma pauperis status for the purpose of allowing a

i

frivolity determination. The case was then transferred to the undersigned on

January 2, 2019. After due consideration, the Court enters the following Order:

I.

LEGAL STANDARD

1

28 U.S.C. § 1915(e)(2) requires a federal court to dismiss an action if it

(1) is frivolous or malicious, or (2) fails to state a claim upon which relief may be

granted. The purpose of Section 1915(e)(2) is “to discourage the filing of, and

waste of judicial and private resources upon, baseless lawsuits that paying

litigants generally do not initiate because of the costs of bringing suit and because

of the threat of sanctions for bringing vexatious suits under Federal Rule of Civil

Procedure 11.” Neitzke v. Williams. 490 U.S. 319, 327 (1989). A dismissal

Case l:18-cv-05750-LMM Document 4 Filed 01/23/19 Page 2 of 8

pursuant to Section 1915(e)(2) may be made sua sponte by the Court prior to the

issuance of process, so as to spare prospective defendants the inconvenience and

expense of answering frivolous complaints. Id. at 324.

A claim is fiivolous where it lacks an arguable basis either in law or in

fact.’ Id, at 325. In other words, a complaint is frivolous when it “has little or no

chance of success”—for example, when it appears “from the face of the complaint

that the factual allegations are clearly baseless [,] the legal theories are

indisputably meritless,” or “seeks to enforce a right that clearly does not exist.”

Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993) (internal quotations omitted);

see Neitzke, 490 U.S. at 327. Claims premised on allegations that are “fanciful” or

“fantastic” are subject to dismissal for frivolity. Denton v. Hernandez. ^04 U.S.

25, 32 (1992) (quoting Neitzke, 4Q0 U.S. at 325). In the context of a frivolity

determination, the Court’s authority to “‘pierce the veil of the complaint’s factual

allegations’ means that a court is not bound, as it usually is when making a

determination based solely on the pleadings, to accept without question the truth

of the plaintiffs allegations.” Denton. 504 U.S. at 32 (quoting Neitzke. 490 U.S.

at 325).

A complaint fails to state a claim when it does not include “enough factual

matter (taken as true)” to “give the defendant fair notice of what the . .. claim is

and the grounds upon which it rests.” Bell Atlantic Coro, v. Twomblv. 550 U.S.

544) 555_56 (2007) (noting that “[fjactual allegations must be enough to raise a

right to relief above the speculative level,” and the complaint “must contain

Case l:18-cv-05750-LMM Document 4 Filed 01/23/19 Page 3 of 8

something more ... than ... statement of facts that merely creates a suspicion

[of] a legally cognizable right of action”); see also Ashcroft v. Iqbal. 556 U.S. 662,

680-685 (2009); OxfordAsseLMgmt. v. Jaharis. 297F_3d 1182,1187-88 (11th

Cir. 2002) (stating that “conclusory allegations, unwarranted deductions of

facts[,] or legal conclusions masquerading as facts will not prevent dismissal”).

While the Federal Rules do not require specific facts to be pled for every element

of a claim or that claims be pled with precision, “it is still necessary that a

complaint contain either direct or inferential allegations respecting all the

material elements necessary to sustain a recovery under some viable legal

theory.’” Fin. Sec. Assurance, Inc, v. Stephens. Inc.. 500 F.3d 1276,1282-83 (11th

Cir. 2007). A plaintiff is required to present “more than an unadorned, thedefendant-unlawfully-harmed-me accusation” and “‘naked assertion^]’ devoid of

‘further factual enhancement’” do not suffice. Iqbal. 556 U.S. at 678 (quoting

Twomblv, 550 U.S. at 555).

The Court recognizes that Plaintiff is appearing pro se. Thus, the

Complaint is more leniently construed and “held to less stringent standards than

formal pleadings drafted by lawyers.” Erickson v. Pardus. 551 U.S. 89, 94 (2007)

(citations and internal quotation marks omitted): Tannenhaum v. United States.

148 F.3d 1262, 1263 (11th Cir. 1998). However, nothing in that leniency excuses a

plaintiff from compliance with threshold requirements of the Federal Rules of

Civil Procedure. See Moon v. Newsome. 863 F.2d 835, 837 (11th Cir. 1998), cert.

( denied, 493 U.S. 863 (1989). Neither does this leniency require or allow courts

3

Case l:18-cv-05750-LMM Document 4 Filed 01/23/19 Page 4 of 8

“to rewrite an otherwise deficient pleading [by a pro se litigant] in order to

sustain an action.” Campbell v. Air Jamaica Ltd.. 760 F.3d 1165,1169 (11th Cir.

2014) (quoting ,GJR invs., Inc, v. Ctv. of Escambia. 132 F.3d 1359,1369 (11th Cir.

1998)).

II.

DISCUSSION

On August 29, 2016, Plaintiff filed an action in this district seeking review

of the decision by the General Counsel of the National Labor Relations Board

(“General Counsel”) not to issue a complaint on her behalf. See Townsend v.

NLRB, No. i:i6-cv-3i69-WSD (N.D. Ga.) (“Townsend I”). On April 26, 2017, the

Court dismissed Plaintiffs action pursuant to 28 U.S.C. § 1915(e)(2)(B) because

the General Counsel’s decision to decline to file a complaint is unreviewable by

federal courts. .Townsend I, Dkt. No. [5] at 3. Plaintiff filed a notice of appeal on

May 5, 2017 and filed an application to appeal in forma pauperis (Plaintiffs

“application”) on May 19, 2017. Townsend L Dkt. Nos. [11,12]. The Court denied

Plaintiffs application because Plaintiffs appeal was “not taken in good faith” as it

lacked an affidavit reciting the issues to be reviewed upon appeal and was not

“capable of being convincingly argued.” Townsend I. Dkt. No. [12] at 3-4.

A. Motion for Reconsideration

Plaintiff seeks review of the order in Townsend I dismissing her application

to appeal in forma pauperis. Dkt. No. [3] at 1. After thoroughly reviewing the

Complaint, the Court construes Plaintiffs self-styled “Wrongful Dismissal” and

Amended Redress . . . and Reply Brief’ as a Motion for Reconsideration

4

Case l:18-cv-05750-LMM Document 4 Filed 01/23/19 Page 5 of 8

pursuant to Fed. R. Civ. P. 6o(b). See Dkt. No. [3] at 1,18, 25. However, a

“motion for relief from final judgment [under Fed. R. Civ. P. 60(b)] must be filed

in the district court and in the action in which the original judgment was

entered.” Bank.er^Mortg. Co. v. United States. 423 F.2d 73, 78 (5th Cir. 1970).

Plaintiffs Motion fails because she filed her Motion in a different action than the

one for which she seeks review. Id.

Plaintiffs Complaint can also be construed liberally as an independent

action for relief pursuant to the “savings clause” in Fed. R. Civ. P. 60(d)(1).

However, relief under this provision is “reserved for those cases of‘injustices

which, in certain instances, are deemed sufficiently gross to demand a departure’

from rigid adherence to the doctrine of res judicata.” United States v. Beggerlv.

524 U.S. 38, 46 (1998) (quoting Hazel-Atlas Glass Co. v. Hartford-Empire Co..

322 U.S. 238, 244 (1944)). Further, “[an] independent action can not be made a

vehicle for the relitigation of issues.” Bankers Morfg. Co.. 423 F.2d at 79. A party

may not use an independent action to argue “issues that were open to litigation in

the former action where he had a fair opportunity to make his claim or defense in

that action.” Ich; see also Gonzalez v. Sec’v for Dep’t of Con-.. 366 F.3d 1253, 129192 (11th Cir. 2004) (explaining that Rule bo’s savings clause “was never intended

to permit parties to relitigate the merits of claims or defenses, or to raise new

claims or defenses that could have been asserted during the litigation of the

case.”). In Plaintiffs notice of appeal of the Townsend I Court’s dismissal of her

original complaint, Plaintiff alleged that the General Counsel’s “unreviewable

5

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Case l:18-cv-05750-LMM Document 4 Filed 01/23/19 Page 6 of 8

discretion” was unconstitutional. Townsend I. Dkt. No. [7] at 5. Plaintiff

reiterates the very same argument as her basis for requesting the Court to

reconsider the denial of her previous application. Dkt. No. [3] at 11. Plaintiff

cannot use Fed. R. Civ. P. 60(d) as a vehicle for relitigating claims that failed in a

previous matter. Bankers Mortc. Co., a 22 F.2d. at 79.

B. Filing Restriction

Pursuant to the All Writs Act, district courts may enjoin litigants with a

documented history of abusive litigation practices from pursuing further actions.

See 28 U.S.C. § 1651(a); Vendo Co. v. Lekto-Vend Corp.. 433 U.S. 623, 639 n.9

(1977) (“Federal courts are able to enjoin future repetitive litigation.”). The

Eleventh Circuit has explained:

The [All Writs] Act allows courts to safeguard not only ongoing

proceedings, but potential future proceedings, as well as alreadyissued orders and judgments. This includes the power to enjoin

litigants who are abusing the court system by harassing their

opponents. A court has a responsibility to prevent single litigants from

unnecessarily encroaching on the judicial machinery needed by

others, and a litigant can be severely restricted as to what he may file

and how he must behave in his applications for judicial relief.

Maid of the Mist Corn, v, Alcatraz Media. LLC. 338 F. App’x 940, 942 (11th Cir.

2010) (internal quotations and citations omitted). Nonetheless, a litigant may not

be “completely foreclosed from any access to the court.” Id

The Court has reviewed Plaintiffs filing activity in this district. Since

August 2015, Plaintiff has filed suit against various Defendants in eight separate

6

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Case l:18-cv-05750-LMM Document 4 Filed 01/23/19 Page 7 of 8

cases, including the instant case.1 All of these cases have been dismissed as

frivolous. Further, as she did in the present case, Plaintiff filed one of these suits

in an attempt to relitigate the same claims already raised and rejected in a prior

suit ^^QSmdjcSapiesJnc,, No. i:i5-cv-2835-WSD (N.D. Ga.); Townsend

vjjtaplesjbic., No. IH8-CV-2635-LMM (N.D. Ga.).

Because of Plaintiffs long history of filing frivolous complaints against

numerous defendants, the Court finds it appropriate to restrict Plaintiff from

submitting further pro se filings in this or any other matter in the Northern

District of Georgia without first obtaining leave of the Court. See Dinardo v. Palm

Beach cty. Circuit.Court Judge,, 199 F. App’x 731, 735-37 (nth Cir. 2006)

(upholding a similar filing restriction where the plaintiffs in the action “had filed

seven different pro se lawsuits in the District Court for the Southern District of

Florida against various public officials and judicial officers over the preceding

year”); see also Martin-Trigoha v. Shaw, q86 F.2d 1384,1387-88 (11th Cir. 1993)

(“This Court has upheld pre-filing screening restrictions on litigious plaintiffs.”)

(citing Copeland v. Green, 949 F.2d 390, 391 (11th Cir. 1991) (per curiam) and

1 These cases include Townsend v. Staples. Inc.. No. i:15-cv-2835-WSD (N.D.

Ga.) (filed Aug. 11, 2015); Townsend v. NLRB. No. i:i6-cv-3i69-WSD (N.D. Ga.)

(filed Aug. 29, 2016); Townsend v. Waterford Point, et ah. No. i:i6-cv-46ioLMM (N.D. Ga.) (filed Dec. 15, 2016); Townsend v. Ga. State Revenue DeP’t. No.

i:i7-cv-oi52-LMM (N.D. Ga.) (filed Jan. 13, 2017); Townsend v. Educ. Mgmt.

Corpse/ al, No. i:i7-cv-o639-LMM (N.D. Ga.) (filed Feb. 21, 2017); Townsend

Staplesjnc,, No. i:i8-cv-2635-LMM (N.D. Ga.) (filed May 29, 2018); and

Townsend v. Capital One Auto’s, et al.. No. i:i8-cv-3952-LMM (N.D. Ga.) (filed

Aug. 20, 2018).

‘

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Case l:18-cv-05750-LMM Document 4 Filed 01/23/19 Page 8 of 8

Cofield v. Ala. Pub^Serv. Comim, 936 F.2d 512, 517-1B (11th Cir. 1991)). The

Court finds that this restriction appropriately balances Plaintiffs right of access

to the courts with the Court’s need to manage its docket and limit abusive filings.

See Cofieid, 936 F.2d at 517 (citing In re McDonald. 489 U.S. 180 (1989) (per

curiam)).

Accordingly, the Clerk is DIRECTED to DISMISS this action

WITHOUT PREJUDICE as frivolous. The Clerk is DIRECTED to CLOSE

this case.

In light of Plaintiffs documented history of frequent and frivolous

litigation, IT IS FURTHER ORDERED that Plaintiff must either be

represented by counsel or obtain leave of court before filing any documents in

this matter or in any other matter before the Northern District of Georgia. The

Clerk’s Office is DIRECTED to submit any document that Plaintiff wishes to file

to the Court for preliminary review.

IT IS SO ORDERED this ^ day of January, 2019.

.hks/1

Leigh Martin May $

United States District Judge

8

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