Petition for Writ of Certiorari — Ademola O. Adebayo, Petitioner v. United States

Supreme Court briefJul 22, 2021

Ask Donna

What actually matters in this document.

Text

No. __

Jn tbt ~uprtmt <!Court

of tbt ltntttb &,tatts

ADEMOLA ADEBAYO,

Petitioner,

Versus

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

RACHAEL E. REESE, ESQUIRE

Counsel of Record

Attorney at Law

O'BRIEN HATFIELD REESE, P.A.

511 West Bay Street, Suite 330

Tampa, Florida 33606

(813) 228-6989

rer@markjobrien.com

QUESTION PRESENTED

1. Whether the Eleventh Circuit entered a decision that strengthens

the

circuit split created by Federal Rule of Appellate Procedure 86, which

allows a minority of circuit courts to issue unexplained judgments, violates

the Due P1·ocess and Equal Protection clauses of the Fifth and Fourteenth

Amendments to the United States Constitution by denying meaningful

appellate review to a class of litigants based solely on the random accident

of geography?

PARTIES TO THE PROCEEDING

All the parties to this p1·oceedi.ngare named in the caption.

TABLE OF CONTENTS

QUESTION PRESENTED ..............................................................................

PARTIES TO THE PROCEEDING ...................................................................

TABLE OF CONTENTS ................................................................................

iii

INDEX TO APPENDICES .............................................................................

..v

TABLE OF AUTHORITIES ............................................................................

PETITION FOR WRIT OF CERTIORARI. ........................................................

OPINIONS BELOW .......................................................................................

JURISDICTION ............................................................................................

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS .................... 2

STATEMENT OF THE CASE ..........................................................................

A. Statement of jurisdiction in the lower courts, in accordance with

this Court's Rule 14(1)(g)(ii), and suggestion of justification for

consideration, as suggested under Rule 10................................................

B. Factual Background ..............................................................................

C. Procedural History in the District Court ...................................................

D. Eleventh Circuit's Consideration of the Matter ..........................................

REASONS FOR GRANTING THE PETITION .................................................

I. FRAP 36(a)(2) Has Created A Circuit Split Whereby

Five Circuits Permit Affirmances of District Court

Orders or Judgments With No Written Opinion or

Explanation, and Eight Circuits Prohibit Appellate

Panels from Rendering Decisions Without Guidance

to the Litigants ................................................................................

A. The 3rd, 5th, 8th, 10th and the Federal Circuit

Constitute the Minority of Circuit Courts that

Allow Affirmances Without an Opinion or

111

. 10

Explanation

for Their Ruling .......................................................

B. The Majority Circuits-1st,

2nd, 4th, 6th, 9th, 11th

and D.C. - Require the Appellate

Panels

Provide At Least Some Guidance Regarding the

Reasoning of Their Decisions ......................................................

II. The Circuit Split Regarding FRAP 36 Has Allowed

the Eleventh Circuit to Limit Mr. Adebayo's Chance

for Further Review Without Any Accountability ...............................

CONCLUSION ...........................................................................................

INDEX TO APPENDICES

APPENDIX A

APPENDIXB

APPENDIXC

OPINION AND JUDGMENT OF THE UNITED

STATESCOURTOFAPPEALSFORTHEELEVENTH

CIRCUIT (02/12/2021) .......................................................

ORDER DENYING MOTION FOR REHEARING OF

THE UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT (04/21/2021) .....................................

JUDGMENT OF THE UNITED STATES DISTRICT

COURT FOR THE SOUTHERN DISTRICT OF FLORIDA,

MIAMI DIVISION, (03/20/2019) ..........................................

TABLE OF AUTHORITIES

CASES

Anders v. California, 386 U.S. 738 (1967) .........................................................

Bounds v. Smith, 430 U.S. 817 (1977) .............................................................

Cty. of Los Angeles v. filing, 474 U.S. 936 (1985) ...............................................

Frazier v. Heebe, 482 U.S. 641 (1987) ..............................................................

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) ..............................

United States v. Adebayo, 836 Fed. Appx. 852 (11th Cir. 2021) ..............................

United States v. Mekowulu, 556 Fed. Appx. 865 (11th Cir. 2014) .........................

United States v. Willner, 795 F.3d 1297 (11th Cir. 2015) ....................................

STATUTES

18 U.S.C. § 3231 ............................................................................................

18 U.S.C. § 3742 ... .............................................................................................

18 u.s.c. § 1347 .......................................................................................

9, 15

18 u.s.c. § 1349 .......................................................................................

9, 15

18 U.S.C. § 1956 .........................................................................................................

9, 15

28 u.s.c. § 1254 ...............

······ .......................................................................

U.S.S.G. Section 2Bl.l ...............................................................................

9, 15

U.S.S.G. Section 3Bl.3 ...............................................................................

9, 15

RULES

D.C. Circuit Rule 36(b).3 ...............................................................................

Eighth Circuit Rule 4 7 ..................................................................................

Eleventh Circuit Rule 35 ................................................................................

Eleventh Circuit Rule 36-1 (rescinded) .....................................................

.passim

Federal Circuit Rule 36 ............................................................................

10, 12

Federal Rule of Appellate Procedure 35 .............................................................

.............................

passim

Federal Rule of Appellate Procedure 47 ............................................................

Federal Rule of Appellate Procedure 36 ........................

Fifth Circuit Rule 47.6 ........................................................................

10, 11, 12

First Circuit Rule 36 ....................................................................................

Fourth Circuit Rule 36.3 ...............................................................................

Ninth Circuit Rule 4.3a ................................................................................

. 11

Sixth Circuit Rule 36 ....................................................................................

Supreme Court Rule 10 .................................................................................

Supreme Court Rule 14 ..................................................................................

Tenth Circuit Rule 36.1 .................................................................................

OTHER AUTHORITIES

Hon. Charles R. Wilson, How Opinions Are Developed in the

United States Court of Appeals for the Eleventh Circuit,

32 Stetson L. Rev. 247, 266 (2003) ...........................................................

Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals

26 (1996) .............................................................................................

Table of Proposed Revisions to the Eleventh Circuit Rules (Apr. 3, 2006) ............... 13

Vll

PETITION FOR WRIT OF CERTIORARI

Ademola Adebayo respectfully petitions for a writ of certiorari to review the

opinion of the United States Court of Appeals for the Eleventh Circuit entered in this

matter on February 12, 2021, affirming the judgment of the United States District

Court for Southern District of Florida, Miami Division.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the Eleventh Circuit is

unpublished and appears at United States v. Adebayo, 836 Fed. Appx. 852 (11th Cir.

2021). It is attached as Appendix A.

The judgment of the United States District Court for the Southern District of

Florida, Miami Division, is unpublished and is attached at Appendix C.

JURISDICTION

The court of appeals entered its order on February 12, 2021. Pursuant

Federal Rule of Appellate Procedure 35 and 11th Circuit Rule 35, a timely petition

for rehearing and rehearing en bane was filed on March 15, 2021. Ultimately, the

United States Court of Appeals for the Eleventh Circuit denied the petition on April

21, 2021. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS

This case involves Rule 36 of the Federal Rules of Appellate Procedure

(hereinafter "FRAP 36"). FED. R. APP. P. 36. FRAP 36(b) provides that a judgment

is entered even when it is "rendered without an opinion, as the oourt instructs." Id.

This case deals with this federal rule and the local circuit rules that allow coru'ts of

appeals to enter judgments without opinions.

STATEMENT OF THE CASE

A Statement ofjurisdiction in the lower courts, in accordance with this

Court's Rule 14(1)(g)(ii), and suggestion

of justification

for

consideration, as suggested under Rule 10.

The Petitioner, Ademola Adebayo, faced federal criminal charges in the district

court under 18 U.S.C. § 3231, which grants exclusive original jurisdiction to district

courts over offenses against the laws of the United States. The district court entered

judgment on March 20, 2019. Mr. Adebayo filed a timely notice of appeal thereafter.

The Eleventh Circuit exercised jurisdiction over Mr. Adebayo's appeal under 28

U.S.C. § 1291, which authorizes review of final judgments of the district courts, and

18 U.S.C. § 3742(a), which authorizes review of sentences.

This case concerns a serious circuit split that allows some circuits to enter

judgments with or without opinions, as the courts deem appropriate. While eight of

the thirteen circuits provide an explanation for their decisions, five circuits allow

entry of judgments without opinions. procedural choice has caused a functional split

among the circuits such that litigants' access to the judicial system in general, and

capacity to seek meaningful review to this Court in particular differs widely based on

the random accident of geography.

Ironically, the Eleventh Circuit is supposed to fall within the thirteen circuits

that require an explanation for their decisions. However, in affirming the judgment

entered by the district court in Mr. Adebayo's case, the Eleventh Circuit strengthened

the circuit split by failing to provide any written explanation for its decision.

Mr. Adebayo is not the first to petition this Court to resolve the functional split

among the circuits. However, he is among the few who falls within a circuit that has

categorically

requi.J:ed a w1·itten opinion and now, has been provided with the

opposite. This Court's previous decisions to decline review of this issue has now

allowed the Eleventh Circuit to change lanes and provides the precedent that other

circuits can act similal'ly moving fo1-ward. We respectfully submit that th.e time has

come for the Court to resolve the question of whether the hidden law practice of FRAP

36 cuts against the goals of judicial t1·ansparency, accountability, and accuracy, and

deprives litigants

right of full access to the courts and

of their fundamental

undermines public confidence in the federal judicia1y.

B. Factual Background.

l.'\IIr,Adebayo was a pharmacist who had been licensed in Flo1·ida since 1994

without sanction. In August of 2016, the !I.fiddle District of Florida issued an

Indictment fo1·several individuals who were involved in a $160,000,000 health care

fraud conspiracy. The Indictment named Nicholas A. Borgesano, Jr., Bradley Sir kin,

Scott D. Piccininni, Edwin Patrick Young, Wayne M. Kreisberg, l\ilatthew N.

Sterner, Peter D. Williams, and Joseph DeGregorio as members of the conspiracy

and other related charges.

It was not until June 21, 2018, afte1· all of the

afo1·ementioned individuals had been sentenced, that Mr. Adebayo was eepa:rntely

indicted by a G1·and Jury in the Southen1 · District. l\1r. Adebayo had been

responsible for 1--un.ningthe front-of-the-house, retail operation of A to Z Pharmacy,

when he was caught up in the scheme pe1-petl·ated by these individuals.

At trial, the government presented testimony from various individuals who

worked in the pharmacy.

responsibilities,

These witnesses

testified

about their

duties and

as well as their interactions with Mr. Adebayo. It was undisputed

by Nicholas Borgesano, Jr. was the head of the entire conspiracy. Matthew Sterner

started off selling pain creams for Borgesano, but ultimately became involved with

"finding the customers."

Dr. Peter Williams was responsible

for signing the

prescriptions, even though he had not seen the patients whom he was prescribing

for. (Doc. 42 at 48). Nicholas Londono was the person responsible for monitoring the

billers. (Doc. 42 at 79). Edwin Patrick Young was responsible for actually making

the pain creams at A to Z Pharmacy. (Doc. 45 at 76-77). Joseph DeGregoria was in

charge of reviewing the paperwork and making sure that Borgesano could pass an

inspection, since DeGregoria's prior employment was with the Florida Department

of Health as an investigator

of pharmacies.

(Doc. 45 at 201). Each of the co-

conspirators described the layout of the pharmacy, and explained that Mr. Adebayo

was responsible for maintaining the front retail portion of the pharmacy. Meaning,

Mr. Adebayo remained up front and actually worked as a pharmacist,

serving

customers and selling retail. None of the witnesses called who were actually part of

the conspiracy could say that Mr. Adebayo was an active member and did acts that

furthered the purpose of the conspiracy.

In addition to the co-conspirators, the government presented testimony from

several witnesses who offered circumstantial

evidence of Mr. Adebayo's involvement

in the conspiracy. For example, Kathyrn Chapin, a pharmacy auditor, testified

about her experience with auditing A to Z Pharmacy.

Ms. Chapin spoke with

somebody who called himself "Ade" about her concerns. All of her communications

with this individual were exclusively via telephone; Ms. Chapin never met the

individual in person. (Doc. 42 at 146). During the phone calls, "Ade" and Ms. Chapin

discussed the various concerns that Ms. Chapin found with the audit, and

ultimately, "Ade" thanked her for the opportunity to provide education to make sure

that they could process claims appropriately in the future. (Doc. 42 at 164). Special

Agent Michael Donovan with the FBI was another witness, who went through

numerous government exhibits that highlighted exactly how much money was billed

in insurance claims. (Doc. 45 at 274-289). However, Agent Donovan testified that he

could not say who signed the documents purportedly signed by Mr. Adebayo. (Doc.

47 at 63). Agent Donovan admitted that his investigation revealed that Mr. Adebayo

was the only person who worked in the front retail part of the pharmacy, without

the assistance of a technician. (Doc. 47 at 66).

C. Procedural History in the District Court.

On June 21, 2018, a grand jury in the Southern District of Florida returned a

five count Indictment, charging Mr. Adebayo with one count of Conspiracy to Commit

Health Care Fraud and Wire Fraud (Count One) (Doc. 3 at 7), three counts of Health

Care Fraud (Counts Two, Three and Four) (Doc. 3 at 12-14), and one count of

Conspiracy to Commit Money Laundering (Count Five) (Doc. 3 at 14).

On January

7, 2019, Mr. Adebayo proceeded to a jury trial before the

Honorable Judge Federico A. Moreno. (Doc. 44). Following the government's case,

trial counsel moved for a judgment of acquittal. Counsel argued that the evidence

was insufficient to establish a knowing and willful participation in any conspiracy

by Mr. Adebayo, and that

there was insufficient

evidence to establish

the

substantive money laundering counts. (Doc. 47 at 85). The district court denied the

motion. (Doc. 47 at 86). On the fourth day of trial, after all evidence and testimony

was presented, the jury returned a verdict of guilty as charged as to all counts. (Doc.

53).

Thereafter, but prior to his sentencing hearing, Mr. Adebayo filed a Renewed

Motion for Judgment of Acquittal and Motion for New Trial. (Doc. 59). Therein, Mr.

Adebayo argued that the evidence presented by the government was insufficient to

establish the existence of a conspiracy, which included Mr. Adebayo. Specifically, Mr.

Adebayo argued that the evidence was insufficient to establish that Mr. Adebayo (1)

billed health benefit programs for prescriptions not issued; (2) billed health benefit

programs for illegitimate prescriptions; (3) paid kickbacks or bribes for prescriptions

or patient information that would be used to submit fraudulent

claims; (4) dispensed or sought reimbursement

contents of which were misrepresented;

recipients

of compounded

for compounded medications, the

(5) failed

medications;

reimbursement

to collect co-payments

from

(6) signed any documents, including

incorporation documents, central fill agreements or provider agreements for Havana

Pharmacy;

or (7) dispensed,

billed or received reimbursement

for compound

medication prescriptions issued to G.M., L.C. or J.O. (Doc. 59 at 2). Mr. Adebayo also

argued that the evidence was insufficient to establish the substantive

offenses in

Counts 2, 3 or 4, as there was insufficient evidence to establish the specified unlawful

activity, and that the evidence was insufficient to establish Count 6 because the

gove1·nment failed to prove that

Mr. Adebayo knowingly

and

intentionally

participated in the specified unlawful activity. (Doc. 59 at 2).

Alternatively,

Mr. Ad.ebayo a1·gued that he was entitled to a new trial for

several 1·easona. First, Mr. Adebayo argued that the intel'es~ of justice required a

new trial because the dist1'ict court, over the objections of counsel permitted the

government to introduce records and documents related to pharmacies

without

connection of the l'ecords to lVIr.Adebayo, or any conspiracy involving Mr. Adebayo.

(Doc. 59 at 4). Mr.Adebayo further argued that he was entitled to a new t1'ial because

the government failed to introduce substantial,

conclude

that

Mr. Adebayo knowingly

competent evidence sufficient to

and intentionally

participated

in the

production, marketing, distribution, billing, or collection for compound medications

at either A to Z Pharmacy 01·Havana Pharmacy. (Doc. 69 at 4). Lastly, Mr. Adebayo

al'gued he was entitled to a new trial because the evidence was insufficient to

conchtde that Appellant knowingly and intentionally participated in the conspiracy

cha1·ged. (Doc. 69 at 4). On February 8, 2019, the distt'ict COUl'tdenied M1·.Adebayo's

Motion. (Doc. 64).

On March 19, 2019, Mr. Adebayo proceeded to his sentencing hearing before

the Honorable Judge Federico A. Moreno. Mr. Adebayo was ultimately sentenced to

120 months imprisonment as to Counts One, Two, Thl'ee, Four and Five, all ordered

to run concurrently,

and all to be followed by a concurrent term of three years

supervised release. (Doc. 76).

D. Eleventh Circuit~s Consideration of the Matter.

On appeal, Mr. Adebayo argued, amongst other things, that the district court

erred in denying his motion for judgment of acquittal and motion for new trial when

the evidence presented was insufficient to sustain a conviction. A three-judge panel

of the Eleventh Circuit entertained the matter at an oral argument on February 11,

2021. Less than twenty-four hours later, the three-judge panel issued its opinion,

affirming the district court's judgment and sentence. The entire opinion rendered by

the panel was as follows:

Appellant-Defendant Ademola Adebayo appeals his convictions for one

count of conspiracy to commit health care fraud and wire fraud in

violation of 18 U.S.C. § 1349, three counts of health care fraud in

violation of 18 U.S.C. § 1347, and one count of conspiracy to commit

money laundering in violation of 18 U.S.C. § 1956(h). He argues that the

district court erred in denying his motion for a judgment of acquittal

and/or a motion for a new trial. He also appeals the district court's

decision to admit certain government exhibits during trial; the district

court's application of the special skill and sophisticated means

enhancements under sections 3Bl.3 and 2Bl.l(b)(10) of the Sentencing

Guidelines; and the district court's order of restitution. After reviewing

the briefs and the record, and with the benefit of oral argument, we

conclude that Adebayo's arguments are without merit. We find the

district court's rulings to be well-reasoned and affirm as to each issue.

AFFIRMED.

Pet App. A2.

Mr. Adebayo moved for a Petition for Rehearing and Rehearing En Banc after

the Eleventh Circuit rendered its decision. Mr. Adebayo argued that the panel's

decision was contrary to Eleventh Circuit Rule 36-1 [rescinded] because it failed to

state an explanation for its decision, and further contrary to the decisions in United

States v. Willner, 795 F.3d 1297 (11th Cir. 2015) and United States v. Mekowulu, 556

Fed. Appx. 865 (11th Cir. 2014). However, Mr. Adebayo's petitions were ultimately

denied. No judge in regular active service on the Eleventh Circuit panel requested

that the Court be polled on rehearing en bane. Pet. App. A4.

REASONS FOR GRANTING THE PETITION

I. FRAP 36(a)(2) Has Created A Circuit Split Whereby Five Circuits

Permit Affirmances of District Court Orders or Judgments With No

Written Opinion or Explanation,

and Eight Circuits Prohibit

Appellate Panels from Rendering Decisions Without Guidance to the

Litigants.

Federal courts of appeals can affirm a district court's

without a written

opinion explaining

the reasoning

order

or judgment

of their decision. FRAP 36

provides that a clerk must enter a judgment "after receiving the court's opinion"

or "if a judgment

is rendered without an opinion, as the court instructs." FED. R.

APP. P. 36(a)(l), (2). Furthermore,

Rule 47 of the Federal Rules of Appellate

Procedure authorizes the federal circuits to adopt local rules for the courts of appeals

within

their jurisdiction.

with-but

The rule states that "[a] local rule must be consistent

not duplicative of.-Acts of Congress and rules adopted under 28 U.S.C.

§2072 [The Rules Enabling Act]." FED. R. APP. P. 47(a)(l).

Based on these two provisions, five circuits have adopted local rules that

allow the courts of appeals to affirm a district court's order or judgment without a

written opinion and no explanation for the rationale of their affirmance. See Fed. Cir.

R. 36; 5th Cir. R. 47.6; 8th Cir. R. 47; 10th Cir. R. 36.1. On the other hand,

seven

circuits have established

rules which prevent an appellate panel from rendering a

decision without providing at least some guidance as to the reasoning for the decision.

See 1st Cir. R. 36; 4th Cir. R. 36.3; 6th Cir. R. 36; 9th Cir. R. 4.3a; 11th Cir. R. 36-1

(rescinded Aug. 1, 2006); D.C. Cir. R. 36(b).3. The result is a lack of uniformity among

the circuits; some promulgate decisions whose suitability for review by this Court can

be ascertained, while others, including the Eleventh Circuit in this case, find their

grounding in FRAP 36 and effectively make themselves courts of last resort.

A. The 3rd, 5th, 8th, 10th and the Federal Circuit Constitute the

Minority of Circuit Courts that Allow Affirmances Without an

Opinion or Explanation for Their Ruling.

The Third Circuit encourages its appellate panels to provide explanations for

their decisions, but the rule is not mandatory. The local rules of the circuit do not

provide guidance on the required substance of a judgment. However, the Internal

Operating Procedure states that "[a] judgment order may state that the case is

affirmed by reference to the opinion of the district

administrative

court or decision of the

agency and may contain one or more references to cases or other

authorities." 3d Cir. 1.O.P. 6.3.2.

The Fifth, Eighth and Federal Circuits rules are all similarly outlined and

ultimately mirror the same language. Fifth Circuit Rule 47.6 provides:

The judgment or order appealed may be affll'med or enforced without

opinion when the court determines that an opinion would have no

precedential value and that any one or more of the following

circumstances exists and is dispositive of a matter submitted for

decision: (1) that a judgment of the district court is based on findings of

fact that are not clearly erroneous; (2) that the evidence in support of a

jury verdict is not insufficient; (3) that the order of an administrative

agency is supported by substantial evidence on the record as a whole; (4)

in the case of a summary judgment, that no genuine issue of material

fact has been properly raised by the appellant; and (5) no reversible

error of law appears. In such case, the court may, in its discretion enter

either of the following orders: "AFFIRMED" or "ENFORCED".

See, 5th Cir. R. 47.6. The Eighth Circuit uses all the same factors except for (4)

regarding summary judgments.

Similarly, Federal Circuit's Rule 36 allows the appellate panel to summarily

affirm any trial court opinion in any case, no matter how meritorious, for any reason,

without providing any guidance as to its rationale or citation to any authority beyond

the rule itself. See Fed. Cir. R. 36.

B. The Majority Circuits - 1st, 2nd, 4th, 6th, 9th, 11th and D.C. Require the Appellate Panels To Provide At Least Some Guidance

Regarding the Reasoning of Their Decisions.

In the vast majority of circuits, the rule is opposite. The Ninth Circuit, the

largest and the one with the heaviest caseload, allows its panels to enter judgment

in only one of three ways: opinion, memoranda or orders. See 9th Cir. R. 36-1.

Similarly, in the Fourth Circuit, local Rule 36(b) allows the court to enter summary

decisions. See 4th Cir. R. 36(b). However, the court requires the summary decisions

to "identif[y] the decision appealed from, set□ forth the Court's decision and the

reason or reasons therefor, and resolve Oany outstanding motions in the case."

See 4th Cir. I.O.P. 36.3.

The First, Second, Sixth and D.C. Circuits also have similar requirements

for

opinions. Prior to 2006, the Eleventh Circuit permitted affi.rmances without opinion

under Eleventh Circuit Rule 36-1. Prior to 2006, Eleventh Circuit Rule 36-1 read as

follows:

Rule 36-1 Mfirmance Without Opinion

When the court determines that any of the following circumstances

exist:

(a) judgment of the district court is based on findings of fact that are

not clearly erroneous;

(b) the evidence in support of a jury verdict is sufficient;

agency is supported by

substantial evidence on the record as a whole;

(d) summary judgment,

directed verdict, or judgment on the

pleadings is supported by the record;

(e) judgment has been entered without an error of law; and an

opinion would have no precedential value, the judgment or order

may be affirmed or enforced without opinion.

(11th Cir. R. 36-1 (2002)). However, in 2006, the Court rescinded its own rule and no

longer permits its panels to do what the panel in the instant case has done to the

Appellant. When the Court was proposing the elimination of the rule, the Court

stated: "The rule is proposed to be rescinded, since only a miniscule portion of appeals

are currently

terminated

in this manner."

Table of Proposed Revisions to the

Eleventh Circuit Rules (Apr. 3, 2006) at 139.

The circuits therefore are split. This lack of uniformity results from the Federal

Rules of Appellate Procedure allowing the courts to enter a judgment without an

opinion but does not provide any guidance regarding the minimum requirement that

is consistent with "the principles of right and justice." Frazier v. Heebe, 482 U.S. 641,

645 (1987) (holding that the discretion to adopt local rules is not without limits and

must be consistent with the "principles of right and justice").

One of the reasons that judgments

without opinion were such a minuscule

portion of appeals, was because those types of opinions constitute an extreme form of

hidden law. In the context of unpublished opinions, Justice Stevens refers to this

phenomenon as "secret law", describing the problem as "decision-making without the

discipline and accountability that the preparation

of opinions requires." Cty. of Los

Angeles v. filing, 474 U.S. 936, 940 (1985) (Stevens, J., dissenting). An opinion is

evidence of the court fulfilling its obligation to guide litigants and develop law. As

Karl Llewellyn notes, an opinion "serves as a steadying factor," to "show how like

cases are properly to be decided in the future." Id. Karl N. Llewellyn, The Common

Law Tradition: Deciding Appeals 26 (1996).

Hidden judgments not only raise concerns of judicial transparency and risks of

judicial error, but also violate litigants' Due Process and Equal Protection rights

under the Fifth and Fourteenth Amendments. Access to the courts is a fundamental

right, Bounds v. Smith, 430 U.S. 817 (1977) among the key guarantees implicit in

the text of the Constitution. See Richmond Newspapers, Inc. v. Virginia, 448 U.S.

555, 579-80 (1980).

This obvious division in the federal circuits presents

the Court with an

important reason to grant certiorari. See SUP. CT. R. l0(a).

II. The Circuit

Split Regarding FRAP 36 Has Allowed the Eleventh

Circuit to Limit ~r. Adebayo's Chance for Further Review Without

Any Accountability

This Court should review the validity of FRAP 36 because the opinion rendered

by the Eleventh Circuit in Mr. Adebayo's case clearly identifies the future risks

associated

with the circuit split, including

the risk of judicial error, lack of

transparency, zero accountability for the various courts and ultimately decisions that

violate Due Process and Equal Protection.

Since the Eleventh

Circuit rescinded its rule that previously allowed for

opinions to be rendered without any explanation, it fell within the majority of circuits

as identified above. However, the opinion in the instant case, or lack thereof, reveals

that this Court's refusal to entertain

the issue of the circuit split has allowed the

Eleventh Circuit to further muddy the waters. The opinion made in the instant case

is the equivalent of a summary affirmance. The panel's opinion was one paragraph

in length, spread over two pages, and simply stated: