Petition for Writ of Certiorari — Barbara Johnson-Luster, Petitioner v. Christine E. Wormuth, Secretary of the Army
Supreme Court briefDec 18, 2023
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NO .
In the
Supreme Court of the United States
BARBARA JOHNSON-LUSTER,
Petitioner,
v.
CHRISTINE WORMUTH, Secretary of the Army,
Respondent.
On Petition for Writ of Certiorari
to the United States Court of
Appeals for the Fifth Circuit
PETITION FOR WRIT OF CERTIORARI
KISSINGER N. SIBANDA
Counsel of Record
The Law Offices of Kissinger N. Sibanda
P.O. Box 714
Livingston, N.J, 07039
(862)250-9684
ksibanda@temple.edu
Counsel for Petitioner
December 15th, 2023
i
QUESTION RAISED
I
Whether an appellant in the Circuit Courts, with an
invisible disability and previous court appointed attorneys
in the Lower District Courts should receive a court
appointed attorney for their Title VII appeal under the
equal protection clause, when exceptional circumstances
remain unchanged from the District Courts orders?
ii
LIST OF PROCEEDINGS
United States Court of appeals for the Fifth Circuit
Barbara Johnson-Luster v. Christine Wormuth, Secretary
of the Army
Date of Decision: September 18th, 2023
_________________________
U.S. District Court for the Eastern Louisiana
Barbara Johnson-Luster v. Christine Wormuth, Secretary
of the Army
Decision Date: March 14th, 2023
iii
PARTIES TO THE PROCEEDING
All parties to the proceedings are listed in the caption.
iv
TABLE OF CONTENTS
Page
QUESTIONS RAISED..........................................................i
LIST OF PROCEEDINGS……………………………..….…..ii
PARTIES TO THE PROCEEDINGS..................................iii
TABLE OF AUTHORITIES...............................................vii
PETITION FOR A WRIT OF CERTIORARI.......................1
OPINIONS BELOW.…………….…………………….……....1
JURISDICTION...................................................................1
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED …….……………………………..……...1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . 4
REASONS FOR GRANTING THE WRIT …………...…21
I. The Circuits Are Divided on Whether a Circuit Court
Should Follow Their District Court’s Court
Appointment
Findings
When
Exceptional
Circumstances Persist………………………………….23
A. Nature of Circuit Split………………………….…..23
B. What is the Current Circuit jurisprudence on right
to representation in civil matters?.......................28
v
i. Criteria To Appoint an Attorney for A Title VII
Appeal………………………………………...…..28
ii. Exceptional Circumstances Warranting Court
Appointed Attorney……………………………..30
TABLE OF CONTENTS - Continued
C. Role of Supreme Court in Giving Direction and
Leadership in Civil Rights Litigation, Including
Title VII………………………………………...…….31
II. Law of the Case Doctrine and Issue Estoppel Supports
Circuit Courts Following District Court’s Court
Appointment Decisions…………………………….…..32
III. This Case is a Vehicle to Clarify Both the Main Circuit
Split (When to Appoint Counsel on Appeal) and The
Limits of Issue Estoppel………………………………..34
CONCLUSION……………………………..…………………36
vi
TABLE OF CONTENTS - Continued
Page
APPENDIX TABLE OF CONTENTS
Judgment of the United States Court of Appeals for the
Fifth Circuit
(September 18, 2019) .....................................App. 1a
Order and Opinion of The Eastern District of Louisiana
(March 14th, 2023) .........................................App. 6a
Order of The Eastern District of Louisiana
(November 21, 2019)……………….…………App.36.a
Order of the Eastern District of Louisiana granting Ms.
Johnson-Luster pauper status for her appeal
(July 29th, 2022) ………………………….......App. 37a
Order of Fifth Circuit denying Ms. Johnson-Luster court
appointed attorney (reconsideration).
(February 28th, 2023) …………...................App. 39.a
Order of Fifth Circuit denying Ms. Johnson-Luster court
appointed attorney.
(February 3rd, 2023)………………………....App. 41.a
vii
TABLE OF AUTHORITIES
CASES
Page
Barbara Johnson-Luster v. Christine Wormuth,
Secretary of the Army, Case 2:19-cv-02235-MBN
(East Louisiana District Court)…………….…passim
Barbara Johnson-Luster v. Christine Wormuth,
23-30422. (Fifth Circuit) ………………passim
Broadway v.United States Dep't of Homeland Sec.,
Civ. A. No. 04-1902, 2006 WL 2460752,
*3 (E.D. La. Aug. 22, 2006)……….…………18
Brown v. Western R. Co. of Alabama,
338 U. S. 294, 296 (1949)……………….…...31
Burnett v. Grattan,
468 U. S. 42 (1984) ......................................31
Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986) ….……14, 15, 16
Cooper v. Sheriff, Lubbock Cnty.,
929 F.2d 1078, 1084 (5th Cir. 1991)....passim
Cotter v. Massachusetts Ass'n of Minority L. Enf't
Officers, 219 F.3d 31, 34
(1st Cir. 2000).……………………………26, 27
Delta & Pine Land Co. v. Nationwide Agribusiness
Ins. Co., 530 F.3d 395, 398- 99
(5th Cir. 2008)…………………………..........14
Duncan v. Univ. of Texas Health Sci. Ctr. at
Houston, 469 F. App'x 364, 368 & n.6
(5th Cir. 2012)………………………….…16, 18
Edwards v. City of Houston,
78 F.3d 983, 995 (5th Cir.1996)
(en banc) …………………………...…24, 26, 28
viii
EEOCv. Simbaki, Ltd.,
767 F.3d 475,481 (5th Cir. 2014) ……..….....14
Galindo v. Precision Am. Corp.,
754 F.2d 1212, 1216 (5th Cir. 1985)…….....14
Garrison v. Tregre,
No. CV 19-13008, 2021 WL 6050179, at *2
(E.D. La. Dec. 21, 2021)……………….……..17
Golden Rule Ins. Co. v. lease,
755 F. Supp. 948, 951 (D. Colo. 1991) ….…15
Gonzalez v. Carlin,
907 F.2d 573, 580
(5th Cir. 1990) ……………………….21, 24, 28
Int'/ Shortstop, Inc. v. Rally's, Inc.,
939 F.2d 1257, 1264-65 (5th Cir. 1991)..….15
Little v. Blue Goose Motor Coach Co.,
346 Ill. 266, 178 N.E. 496 (Ill. 1931)………33
Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)
(per curiam)………………...………………....14
McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973)…...............……16, 17, 20
Morris v. Town of Independent,
827 F.3d 396, 400 (5th Cir. 2016)………....17
Naranjo v. Thompson,
809 F. 3d 793 ( 5th Cir. 2015)…………..…….25
Parker v. Carpenter,
978 F. 2d 190, 193 (5th Cir.1992)…………....25
Price v. Fed. Express,
283 F.3d 715, 721 (5th Cir. 2002)……...18, 19
Public Utilities Comm'n of D.C. v. Pollak,
343 U.S. 451, 466-467 (1952)………….…….35
ix
Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 142 (2000)……………..…..18, 19
Regalado v. City of Edinburg,
No. 7:22-CV-228, 2023 WL 2394299,
at *10 (S.D. Tex. N Feb. 1, 2023)…....…25, 26
Septimus v. Univ. of Houston,
399 F.3d 601, 608 (5th Cir. 2005)……...16, 17
Smith v. Aaron's Inc.,
325 F. Supp. 2d 716, 724 (E.D. La. 2004)…….18, 19
Smith v. United States,
D.C. App., 406 A.2d 1262 (1979) ……….….29
St. Mary's Honor Ctr. v. Hicks
509 U.S. 502, 507 (1993) …….…………18, 19
Taylor v. Sturgell,
553 U.S. 880 (2008) …………………………..33
United States v. Estrada-Lucas,
651 F.2d 1261, 1263 (9th Cir.1980)………………..29
United States v. Owens,
167 F.3d 739, 743 (1st Cir.), cert. denied, 528 U.S.
894, 120 S.Ct. 224, 145 L.Ed.2d 188 (1999)……26, 27
Willis v. Cleco Corp.,
749 F.3d 314, 319-20 (5th Cir. 2014)……………….17
CONSTITUTIONAL PROVISIONS
U.S. Const. amend IV………………………………..……1, 21
x
STATUTES
18 U.S.C. § 3006A(a)(1) or (2)…………………………..……..2
28 U.S.C. § 1254(1)… … … … … … … … … … … … … … … 1
28 U.S.C. § 1651(a)..............................................................2
28 U.S. Code § 1915…………………………...…..……………2
29 U.S.C. § 701………………………………………………….3
42 U.S. Code § 12101…………….……………………………..3
42 U.S.C. § 12102(1)(A)…………………………..………….18
42 U.S. Code § 2000e-2…….…………………..……….……..3
42 U.S.C. § 2000e-5 (f)(1)………………………………..….…2
JUDICIAL RULES
Fed. R. Civ. P. 8………………………………..……..27
Fed. R. Civ. P. 56(a)…………………………..…14, 15
Fed. R. Civ. P. 59….………………………...…………9
Fed. R. Civ. P. 60(b)..............................................................9
U.S. Supreme Court Rule 10………………………………..23
OTHER AUTHORITIES
Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure (2d ed. 1983))…………….…14
1
PETITION FOR A WRIT OF CERTIORARI
Barbara Johnson-Luster respectfully petitions for a writ of
certiorari to review the judgment of the United States Court of
Appeals for the Fifth Circuit.
OPINIONS BELOW
The decision of the United States Court of appeals for the Fifth
Circuit is unreported and is reproduced in the Appendix at 1a–
5a. The decision of the U.S. District Court for the Eastern
Louisiana is unreported and is reproduced in the Appendix at 6a–
36a.
JURISDICTION
The United States Court of Appeals for the Fifth Circuit issued
its judgment on September 19th, 2023. App. 1a. This Court’s
jurisdiction is invoked under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
United States Constitution, Equal Protection Clause
No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
2
28 U.S.C. § 1651(a).
The All Writs Act of 1789, which provides in relevant
part as follows:
The Supreme Court and all courts established by Act of
Congress may issue all writs necessary and appropriate in
aid of their respective jurisdictions and agreeable to the
usages and principles of law.
42 U.S.C. § 2000e-5 (f)(1)
Equal Employment Right To Request Counsel (Z 0815).
Inference at: Doc. No. 2. At 10. Johnson-Luster v.
Wormuth, (2:19-cv-02335-MBN) (Eastern District of
Louisiana).
18 U.S.C. § 3006A(a)(1) or (2)
(a)Choice of Plan.—Each United States district court,
with the approval of the judicial council of the circuit, shall
place in operation throughout the district a plan for
furnishing representation for any person financially
unable to obtain adequate representation in accordance
with this section. Representation under each plan shall
include counsel and investigative, expert, and other
services necessary for adequate representation.
Herein, Criminal Justice Act.
28 U.S. Code § 1915
Proceedings in forma pauperis
Subject to subsection (b), any court of the United States
may authorize the commencement, prosecution or defense
of any suit, action or proceeding, civil or criminal, or appeal
therein, without prepayment of fees or security therefor, by
a person who submits an affidavit that includes a
statement of all assets such prisoner possesses that the
person is unable to pay such fees or give security therefor.
Such affidavit shall state the nature of the action, defense
3
or appeal and affiant’s belief that the person is entitled to
redress.
42 U.S. Code § 2000e–2, Civil Rights Act of 1964,
herein Title VII.
(a) Employer practices
It shall be an unlawful employment practice for an
employer—
(1) to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect
to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion,
sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants
for employment in any way which would deprive or tend to
deprive any individual of employment opportunities or
otherwise adversely affect his status as an employee, because
of such individual’s race, color, religion, sex, or national
origin.
42 U.S. Code § 12101 est seq
Americans With Disabilities Act of 1990
(1)
Physical or mental disabilities in no way diminish a
person’s right to fully participate in all aspects of society,
yet many people with physical or mental disabilities have
been precluded from doing so because of discrimination;
others who have a record of a disability or are regarded as
having a disability also have been subjected to
discrimination.
29 U.S.C. § 701 et seq
Rehabilitation Act of 1973, Section 504
No otherwise qualified individual with a disability in the
United States, as defined in section 705(20) of this title,
shall, solely by reason of her or his disability, be excluded
from the participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity
receiving federal financial assistance or under any
4
program or activity conducted by any Executive agency or
by the United States Postal Service.
STATEMENT OF THE CASE
Ms. Barbara Johnson-Luster was hired by the “Army” in 2015
as a GS-0326-05 Office Automation Assistant. “Record of
Investigation,” herein “ROI” at 360. She obtained the job through
Louisiana Vocational Rehabilitation Services, which connects
disabled employees with employers. ROI at 362-63. To participate
in the program, plaintiff was required to demonstrate evidence of
severe disability. ROI at 374-75.
Plaintiff suffers from dysthymia, or chronic depression, and
her doctor says she has an "adjustment disorder" stemming from
depression. ROI at 46, 370. She manages her disability through
medication and by attempting to reduce aggravating factors like
stress and anxiety. ROI at 378-79. Living with her disability
requires her to make, and request others to make, efforts to
control her environment and stress level beyond what a nondisabled person may require. ROI at 371-72, 390-91. She needs a
clear and detailed understanding of her responsibilities,
additional time to learn and ask questions to understand her role,
instructions in writing, and flex time to mentally reset during the
day. Id.
5
Plaintiff was identified as a qualified candidate for the GS-05
position by the Army's Equal Employment Manager, Chris
Moore. Conravey Dep., pp. 15-16 (attached as Ex. A). Conravey
interviewed plaintiff and selected her for the job. Id.; ROI at 368.
Her hiring was approved by the Chief of the Construction
Division, Stuart Waits. Conravey Dep., p. 15; ROI at 535.
Conravey was aware that plaintiff was coming in as a "Schedule
A" appointment, referring to the federal concerning the hiring of
employees
with
intellectual
disabilities,
severe
physical
disabilities, or psychiatric disabilities. Conravey Dep., p. 15; cf. 5
CFR § 213.3102(u). He acknowledges that plaintiff was able to
perform the essential functions of her job. ROI at 653.
Moore told Conravey before the interview that plaintiff had a
mental and psychiatric disability. Conravey. Dep., p. 27. During
the interview, plaintiff and Conravey discussed her disability and
accommodations she would need to perform her job, including flex
time, additional time for training, and the need for detailed
instructions and an opportunity to ask questions to her
supervisors about her responsibilities. ROI at 369-72, 389-90,
393-94. Further, plaintiff asked Conravey, "there won't be
anybody yelling at me, will there?" ROI at 583. Conravey
6
understood from their discussion that she had anxiety issues
involving conflict. Id.
“And of course, I told her, no, nobody should be yelling at you.
Why would you ask that? She told me that with the VA there are
always people yelling. And that, you know, she had, I deduced
from that, that she didn't deal well with stress”. Conravey Dep.,
p. 26; see also ROI at 583 (testifying that he recognized plaintiff
had "an anxiety type situation"). Conravey also understood that
plaintiffs' accommodations were things he could provide as her
supervisor without any formalized procedure. Conravey Dep., pp.
26-27.
DEMONSTRATED INVISIBLE DISABILITY
Ms. Johnson-Luster suffers from Dysthymia, an invisible
disease associated with the inability to adjust in various social
settings, and which is a product of depression. This condition was
presented to the district court: Doc. No. 14, (Letter from Tara G.
Simpson) Johnson-Luster v. Wormuth, (2-19-cv-02235) (Eastern
District of Louisiana)
Furthermore, such evidence was docketed as follows:
Dysthymia is a clinical term for chronic depression. Record of
Investigation ("ROI") at 360 (attached as Ex. A to Defs. Mem.)
[ECF Doc. 45]. Id. Johnson-Luster's psychiatrist describes her as
7
having "adjustment disorder" related to depression. ROI at 46,
370. Id.
That Ms. Johnson-Luster suffers from dysthymia is a fact
undisputed in the lower District court or contested by the “Army.”
The question has always been whether such disability was the
subject of discrimination regarding the claim for disparate
treatment, and lack of accommodation, not the disability’s
medical diagnoses.
In the Army’s summary judgment motion, they never refuted
Ms. Johnson-Luster’s invisible disability or offered expert
testimony in their favour to rebut the need for accommodation
based on that disability’s veracity.
PROCEDURAL HISTORY OF CASE
Johnson-Luster filed suit pro se on March 8, 2019. “Record of
Appeal”
herein
“ROA”.12-57.
Id.
She
claimed
she
was
discriminated against for termination of employment, failure to
promote, failure to accommodate disability, unequal terms and
conditions of employment, retaliation, and harassment. ROA.18.
Id. She further claimed that she was discriminated against based
on her race, color, national origin, sex, disability, and prior EEO
activity. ROA.18-19. Id.
8
Shortly after filing suit, Johnson-Luster moved to have the
district court appoint her counsel. ROA.84. The order appointing
Luz Molina was on September 21, 2020. ROA.215.
The Army filed a motion for summary judgment on liability
for all Johnson- Luster’s claims on August 17, 2021. ROA.2531153. The day after the Army filed its motion, Johnson-Luster
moved to withdraw her pro bono attorneys and continue the case
until new counsel could be appointed. ROA.1161-1162. She was
appointed a second pro bono attorney on December 7, 2021.
ROA.1207.
Johnson-Luster, through her second court-appointed counsel,
filed an opposition to the Army’s motion for summary judgment
on February 15, 2022.
ROA.1214-1265. The district court granted the Army’s motion
on March 14, 2022, finding that Johnson-Luster failed to carry
her burden of proving the Army denied her reasonable
accommodation; failed to prove her disparate-impact claim that
the Army treated her less favorably than other employees without
a disability; failed to prove she suffered retaliation; failed to prove
a hostile work environment; and failed to prove she suffered
constructive discharge. ROA.1276-1305. The district court
9
entered a judgment dismissing her Complaint with prejudice on
March 15, 2022. ROA.1306.
Johnson-Luster filed a motion for reconsideration of the
district court’s dismissal of her Complaint on April 18, 2022.
ROA.1317-1478. This motion was filed 34 days after the entry of
judgment on the motion for summary judgment. Johnson-Luster
also filed a motion for leave to file additional exhibits on April 28,
2022, which the district court granted on May 4, 2022, noting its
untimeliness under FED. R. CIV. P. 59. ROA.1483-1640. The
Army filed an opposition to the motion for reconsideration on May
6, 2022. ROA.1642-1646. Johnson-Luster thereafter filed a
second memorandum in support of her motion for reconsideration
attaching additional exhibits on May 18, 2022. ROA.1647-2132.
She filed a motion for leave to file revised exhibits on May 23,
2022, which was granted on May 25, 2022. ROA.2133-2140.
The district court treated Johnson-Luster’s motion for
reconsideration as a Rule 60(b) motion because it was filed more
than 28 days after the entry of judgment. ROA.2142. The district
court denied that motion on June 13, 2022. ROA.2141-2144.
Johnson-Luster filed a notice of appeal from the order denying
her motion for reconsideration on July 12, 2022. ROA.2145-2146.
10
This notice was filed 120 days after the March 15, 2022, final
judgment.
Prior to the court filing: Ms. Johnson-Luster filed an informal
Equal Employment compliant on July 6, 2015. Subsequently she
was constructively let go on August 21, 2015. On August 17th,
2015, filed a formal EEO complaint of discrimination alleging
that she was subjected to discrimination based on race, sex and
disability and reprisal. Later adding constructive discharge. Ms.
Johnson-Luster submitted a formal claim in District court on
March 8, 2019.
Appellant was granted in Forma Pauperis status by the Trial
Court Magistrate on July 29, 2022. She was also granted an
Order for a Court appointed Attorney, and Andrea Agee was first
pro bono counsel. Docket. No. 28, Johnson-Luster v. Christine
Wormuth, Secretary of the Army, Case 2:19-cv-02235-MBN (East
Louisiana District Court). App. 36a.
Defendants never filed a motion to dismiss for failure to state
a claim but filed for summary judgment on August 17, 2021; Doc.
No. 45. Id. Ms. Johnson-Luster’s claims were dismissed with
prejudice under summary judgement. App. 6a. She timely
appealed in the Fifth Circuit, after her motion for reconsideration
was denied. Doc Nos. 80 and 90. Id.
11
In the District Court Ms. Johnson-Luster was represented by
firstly by Loyola clinic’s Ms. Luz Molina and Ms. Agee and then
by Stephen Klaffky, both sets of court appointed attorneys, under
that court’s pro bono office. The Loyola clinic was dismissed by
Ms. Johnson-Luster for their failures to adequately represent her
during discovery1; a disappointment she pointedly pointed to the
Ms. Molina’s supervisors. While Mr. Klaffky’s representation was
limited to Ms. Johnson-Luster’s District matter’s summary
judgment submission.
Consequently, Ms. Johnson-Luster filed a timely appeal in the
Fifth Circuit, pro se. She moved to seek representation, General
Docket No. 25. The Fifth Circuit denied this request. App 41a. In
the same order, the Fifth Circuit denied Ms. Johnson-Luster,
request for more time to file her brief. Id. Ms. Johnson-Luster
then filed for reconsideration, and this was also denied. App. 39a.
That the Fifth Circuit did not seek to accommodate Ms.
Luster’s earlier court appointment of attorneys is a deviation
from the judicial discretion of the earlier court requiring the Fifth
Circuit to state its facts and reasons, not merely the summation:
1
Ms. Johnson-Luster has commenced legal malpractice against the Loyola Clinic on this issue.
12
“Nor
has
she
demonstrated
exceptional
circumstances
warranting appointment of counsel.” Id. A conclusory statement.
Evidently, pauper status, invisible disability, and underlying
appeal merit (civil ineffective legal assistance) should have been
discussed in the Fifth Circuit’s Order denying Ms. JohnsonLuster court appointed attorney. App. 41a. This omission of legal
standards was an error under the prevailing legal standard. And
in turn factures the course taken by other Circuits who follow
their District court’s fact findings under accepted doctrines of
issue estoppel and law of the case.
A. INADEQUATE DISCOVERY ON MS. JOHNSONLUSTER’S BEHALF
In the District Court after Ms. Johnson-Luster was granted
court appointed attorney she elected, Ms. Luz M. Molina and Ms.
Andrea M. Agee from Loyola Law School: Stuart H. Smith Law
Clinic and Center For Justice, Workforce Justice Project,
primarily responsible for discovery.
Attorneys failed to adduce expert witness information on
behalf of Ms. Barbara Johnson-Luster and to reschedule her
deposition, which never happened.
After the deposition happened without Ms. Barbara JohnsonLuster being present, she told her two attorneys (Molina and
13
Agee) of her intension to let them go and they filed a motion to
withdraw.
Lack of proper discovery was fatal to her case from a factbased perspective, which would have allowed her to oppose
defendant summary judgment. However, this argument would
have been a meritorious argument to overturn the summary
judgment against her if properly argued and if the Fifth Circuit
was convinced that a civil equivalent of “ineffective legal
assistance,” required the courts judicial intervention. Thus, Ms.
Johnson-Luster’s appeal to the Fifth Circuit was meritorious, but
insufficiently articulated as a pro se appeal: remand to the Fifth
Circuit with instructions to appoint counsel on her behalf is
proper from a merit-based view; it was not harmless error.
B. INADEQUATE
RESPONSE
JUDGMENT MOTION
TO
SUMMARY
Summary judgment is essentially defeated by presenting facts
by the nonmovant, here Ms. Johnson-Luster. The District Court
was correct in articulating this factual burden of proof needed;
and in correct in its application of the standard – thus, error was
not harmless.
I.
District Court Correctly Stated the Law:
14
“Summary judgment is warranted when "the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." Fed. R. Civ.
P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994) (en bane) (per curiam).
When assessing whether a dispute to any material fact exists,
[the Court] consider[s] all of the evidence in the record but
refrain[s] from making credibility determinations or weighing the
evidence." Delta & Pine Land Co. v. Nationwide Agribusiness Ins.
Co., 530 F.3d 395, 398- 99 (5th Cir. 2008). All reasonable
inferences are drawn in favor of the nonmoving party, but
"unsupported allegations or affidavits setting forth 'ultimate or
conclusory facts and conclusions of law' are insufficient to either
support or defeat a motion for summary judgment." Galindo v.
Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting
l0A Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 2738 (2d ed. 1983)); see also Little, 37 F.3d at
1075. "No genuine dispute of fact exists if the record taken as a
whole could not lead a rational trier of fact to find for the
nonmoving party." EEOCv. Simbaki, Ltd., 767 F.3d 475,481 (5th
Cir. 2014).
15
If the dispositive issue is one on which the moving party will
bear the burden of proof at trial, the moving party "must come
forward with evidence which would 'entitle it to a directed verdict
if the evidence went uncontroverted at trial."' Int'/ Shortstop, Inc.
v. Rally's, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991) (quoting
Golden Rule Ins. Co. v. lease, 755 F. Supp. 948, 951 (D. Colo.
1991)). "[T]he nonmoving party can defeat the motion" by either
countering with evidence sufficient to demonstrate the "existence
of a genuine dispute of material fact," or by "showing that the
moving party's evidence is so sheer that it may not persuade the
reasonable factfinder to return a verdict in favor of the moving
party." ld. at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may satisfy
its burden by pointing out that the evidence in the record is
insufficient with respect to an essential element of the nonmoving
party's claim. See Celotex, 477 U.S. at 325. The burden then shifts
to the nonmoving party, who must, by submitting or referring to
evidence, set out specific facts showing that a genuine issue
exists. See id. at 324. The nonmovant may not rest upon the
pleadings but must identify specific facts that establish a genuine
issue for resolution. See, e.g., id.; Little, 37 F.3d at 1075 ("Rule 56
16
'mandates the entry of summary judgment, after adequate time
for discovery and upon motion, against a party who fails to make
a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear
the burden of proof at trial."' (quoting Celotex, 477 U.S. at 322
(emphasis added)).”
App. 7a.
This is a fact determination seduced by proper discovery. Ms.
Johnson-Luster never adduced proper facts in her favor because
of ineffective civil counsel. She was aware of this ineffectual
representation. Docket. No. 80 (Motion for reconsideration Filed
by Ms. Barbara Johnson-Luster, pro se). Accordingly, her appeal
had merit.
III.
The McDonnell Douglas Standard
“The burden shifting framework of McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973), and its progeny establish the
respective burdens and standards for plaintiffs and defendants on
a motion for summary judgment for causes of action under Title
VII and the Rehabilitation Act. Duncan v. Univ. of Texas Health
Sci. Ctr. at Houston, 469 F. App'x 364, 368 & n.6 (5th Cir. 2012);
Septimus v. Univ. of Houston, 399 F.3d 601, 608 (5th Cir. 2005).
Under this framework, Plaintiff bears the initial burden of
17
proving a prima facie case of retaliation or discrimination by a
preponderance of the evidence. McDonnell Douglas, 411 U.S. at
802. To establish a prima facie case of discrimination under the
McDonnell Douglas burden-shifting framework, "an employee
must demonstrate that she '(1) is a member of a protected group;
(2) was qualified for the position at issue; (3) was discharged or
suffered some adverse employment action by the employer; and
(4) was replaced by someone outside his protected group or was
treated less favorably than other similarly situated employees
outside the protected group."' Garrison v. Tregre, No. CV 1913008, 2021 WL 6050179, at *2 (E.D. La. Dec. 21, 2021) (quoting
Morris v. Town of Independent, 827 F.3d 396, 400 (5th Cir. 2016)
(quoting Willis v. Cleco Corp., 749 F.3d 314, 319-20 (5th Cir.
2014)). An individual who alleges a retaliation claim under Title
VII establishes a prima facie case by demonstrating that: (1) she
engaged in a protected activity; (2) an adverse employment action
occurred; and (3) a causal link existed between the protected
activity and the adverse action. Septimus, 399 F.3d at 609.
To establish a prima facie case of discrimination under the
Rehabilitation Act, a plaintiff must show that she was: (1)
disabled within the meaning of the Act; (2) subjected to an
adverse action solely by reason of her disability; and (3) otherwise
18
qualified for the program. Duncan, 469 F. App'x at 368. To be
covered by the Rehabilitation Act, a person must have a "physical
or mental impairment that substantially limits one or more life
activities." 42 U.S.C. § 12102(1)(A).
If
a
prima
facie
case
is
made,
a
presumption
of
retaliation/discrimination arises, and the burden then shifts to
the employer to produce a legitimate, nondiscriminatory reason
for the alleged adverse employment action. Broadway v. United
States Dep't of Homeland Sec., Civ. A. No. 04-1902, 2006 WL
2460752, *3 (E.D. La. Aug. 22, 2006). "Defendant's burden is one
of production, not persuasion...." Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 142 (2000). A defendant must merely
set forth, through admissible evidence, reasons for its actions
which, if believed by the trier of fact, would support a finding that
unlawful discrimination was not the cause of the employment
action. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993).
This causes the presumption of discrimination to dissipate. Smith
v. Aaron's Inc., 325 F. Supp. 2d 716, 724 (E.D. La. 2004).
At the third stage of the burden-shifting framework, the
plaintiff is given a "full and fair opportunity to demonstrate" that
the defendant's proffered reason is a pretext for intentional
discrimination. Price v. Fed. Express, 283 F.3d 715, 721 (5th Cir.
19
2002) (citing Hicks, 509 U.S. at 507-08). On summary judgment
at the third step, the plaintiff must substantiate her claim of
pretext through evidence demonstrating that discrimination lay
at the heart of the employer's decision. Price, 283 F.3d at 721.
Even when such a showing is made, however, it will not always
be enough to prevent summary judgment if no rational factfinder
could conclude that the action was discriminatory. Id. (citing
Reeves, 530 U.S. at 148). As the Reeves court explained,
The ultimate question is whether the employer intentionally
discriminated, and proof that the employer's proffered reason is
unpersuasive, or even obviously contrived, does not necessarily
establish that the plaintiffs proffered reason ... is correct. In other
words, it is not enough ... to dis believe [sic] the employer; the
factfinder must believe the plaintiffs explanation of intentional
discrimination.
. . . Certainly there will be instances where, although the
plaintiff has established a prima facie case and set forth sufficient
evidence to reject the defendant's explanation, no rational
factfinder could conclude that the action was discriminatory. For
instance, an employer would be entitled to judgment as a matter
of law if the record conclusively revealed some other,
nondiscriminatory reason for the employer's decision, or if the
20
plaintiff created only a weak issue of fact as to whether the
employer's reason was untrue and there was abundant and
uncontroverted independent evidence that no discrimination had
occurred.... 530 U.S. 146-48 (internal citations omitted). "Whether
summary judgment is appropriate depends on numerous factors,
including the strength of the plaintiff’s prima facie case, the
probative value of the proof that the employer's explanation is
false, and any other evidence that supports the employer's case
and that properly may be considered."
App. 8a.
The McDonnell Douglas shifting burden of proof required Ms.
Johnson-Luster to adduce facts in her favor, as correctly stated
by the District court. But again, she was unable to do so because
of ineffective legal counsel.
As a result of a lack of adequate representation in the District
Court’s discovery phase, Ms. Johnson-Luster did not have her
own deposition taken, comparative evidence adduced – this
hindered her ability to rebut defendants’ summary judgment
under McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973).
Evidently, summary judgment is defeated by adducing facts. Id.
21
How then was Ms. Johnson-Luster supposed to rebut
defendants’ summary judgment when her counsel neglected a
thorough and comprehensive factual discovery on her behalf?
This is a question for the Fifth Circuit – but the question posed in
this writ is whether that denial violated the guidelines under the
caselaw for the circuit courts to appoint her legal assistance so
that her appeal could be robust and effective, not formalistic?
The question of extraordinary importance is whether Ms.
Johnson-Luster, with a demonstrable invisible disability, having
received court appointed attorneys, in the lower court, should
have received a court appointed attorney to handle her Fifth
Circuit Appeal?
REASONS FOR GRANTING THE WRIT
This writ of certiorari should be granted because this issue
goes to this matter - equal protection and equal justice in the
courts for those before the circuit courts with a combination of
invisible disability and pauper status. A disabled litigant, with a
meritorious claim, should be afforded the assistance of a court
appointed attorney, as much as possible under Gonzalez v. Carlin,
907 F.2d 573, 580 (5th Cir. 1990).
As stated supra, Ms. Johnson-Luster was given a Court
appointed attorney (twice for her Title VII District matter). When
22
she moved by motion for a Court appointed attorney in her
appeal, the fifth Circuit refused. General Docket No. 45. It erred,
in this regard. A proper reading of Ms. Johnson-Luster’s motion
for court appointed attorney, should have resulted in the Fifth
circuit court of appeals addressing the facts which warranted that
finding in the lower court – the Eastern District of Louisiana,
because the exceptional circumstances of invisible disability and
lack of finance remained unchanged. Id. The Fifth Circuit did not
do this: instead, it offered its own “trial,” assessment, ignoring the
District Court’s, Pauper Order, App. 37a.
Other Circuits lean towards follow the posture and decision of
the lower court’s treatment of litigant’s request for appointment
of counsel because this is essentially a fact finding, an exercise of
judicial discretion. It is a history of the case record in the lower
court which cannot be relitigated or summarily brushed away;
especially when the facts of the lower Court triggering Court
appointment of an attorney remain unchanged.
For the Circuit court to refuse to uphold the Lower court’s
appointment of an attorney for Respondent’s Circuit appeal,
amounts to an appeal of the District court’s order granting such
a right in the first place. It ignores the doctrine of issue estoppel
and the history of the case in general. It is a reversal of a fact
23
finding in place by the lower court; a very high bar for the Circuit
court to overcome as it introduces new facts at the appellate
stage.
I. The Circuits Are Divided On Whether a Circuit Court
Should
Follow
Their
District
Court’s
Court
Appointment
Findings
When
Exceptional
Circumstances Persist2.
A. Nature of Circuit Split
The Circuit split arises from competing principles of finality
and accuracy underlying the jurisprudence for electing to give
an appellant, such as a Ms. Johnson-Luster, a court appointed
attorney during appeal. Do Circuit courts operate within the
law when they refuse to certify a previously court appointment
precedent for an appellant allowing her appeal to have more
gravitas?
The Fifth circuit cited three cases for its reasons in denying
Ms. Johnson-Luster court-appointed attorney in its two
pages, those cases are the subject of this writ of certiorari
because they were wrongly applied and conflict with other
2
U.S. Supreme Court Rule 10.
Considerations Governing Review on Writ of Certiorari
Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will
be granted only for compelling reasons. The following, although neither controlling nor fully measuring the Court's
discretion, indicate the character of the reasons the Court considers:
(a) a United States court of appeals has entered a decision in conflict with the decision of another United States court
of appeals on the same important matter.
24
circuits on the issue of court appointed attorney for a Title
VII appeal:
“Johnson-Luster
has
not
shown
that
the
appointment of counsel is warranted for her Title VII
claims. See Gonzalez v. Carlin, 907 F.2d 573, 580 (5th Cir.
1990); see also Edwards v. City of Houston, 78 F.3d 983,
995 (5th Cir. 1996) (en banc).
The Gonzalez case is unavailing. In fact it supports Ms.
Johnson Luster’s plea for an appointed court attorney
stating
-
“exceptional
circumstances”
standard
for
appointing counsel in in forma pauperis cases was not
applicable to analyze need for appointing counsel in Title
VII case.” Gonzalez v. Carlin, 907 F.2d 573 (5th Cir. 1990)
The fifth Circuit then erroneously stated, “Nor has
she demonstrated exceptional circumstances warranting
appointment of counsel.” See Cooper v. Sheriff, Lubbock
Cnty., 929 F.2d 1078, 1084 (5th Cir. 1991).
As the Gonzalez court clearly sated – no exceptional
circumstances are needed in Title VII cases, in forma
pauperi applications for a court appointed attorney.
Gonzales at 573.
25
As for the Cooper case itself, it has eleven instances
wherein it was not followed and distinguished. Outrightly
it was refused as good jurisprudence in Regalado v. City of
Edinburg, No. 7:22-CV-228, 2023 WL 2394299, at *10 (S.D.
Tex. Feb. 1, 2023).
“An indigent plaintiff is ineligible for appointment of
counsel unless the court finds his claims meet a level of
plausibility. Naranjo v. Thompson, 809 F.3d 793, 799 (5th
Cir. 2015). If the plaintiff's claim meets the required
threshold of plausibility, counsel will only be appointed
where
plaintiff
shows
exceptional
circumstances
necessitating counsel. Dallas Police Dept., 811 F.2d at 261.
Such circumstances depend on the type and complexity of
the case, petitioner's ability to adequately represent
himself,
presence
of
evidence
requiring
skill
and
presentation, and the likelihood that petitioner would
benefit from appointment of counsel. Parker v. Carpenter,
978 F.2d 190, 193 (5th Cir. 1992). *32 Plaintiff has
requested appointment of counsel based on his pro
se status, inability to afford legal representation, and lack
of
resources
because
of
his
financial
status
and
incarceration. (Dkt. No. 26.) Plaintiff argues that his case
26
presents an “exceptional circumstance” for which counsel
should be appointed. (Id. at 2-3, ¶¶5, 6.) As explained
above, Plaintiff's case lacks merit, and thus, his claim does
not meet the threshold plausibility requirement to be
eligible for court appointed counsel.”
The Cooper court did find deprivation of food to be an
exceptional circumstance3 then proceeded to dismiss the
matter for failure to state a claim – it was not summary
judgment. In comparison, Ms. Johnson-Luster’s claims
proceeded to discovery: they were plausibly plead and
dismissed through summary judgment.
The Fifth Circuit then cited Edwards v. City of Houston, 78
F.3d 983, 995 (5th Cir. 1996), for refusing to appoint an
attorney for her. This decision was refused by the Cotter
court who stated:
“This court has not followed this approach, International
Paper, 887 F.2d at 343–44, because in many situations, the
district court's findings or reasons can be reasonably
inferred. See United States v. Owens, 167 F.3d 739, 743
3 Cooper v. Sheriff, Lubbock Cty., Texas, 929 F.2d 1078, 1084 (5th Cir. 1991) (continuous denial of all
food for twelve consecutive days is enough to give rise to the possibility of relief as “[t]his circuit has long
held that state prisoners are entitled to reasonably adequate food.” (citations omitted)) Regalado v. City of
Edinburg, No. 7:22-CV-228, 2023 WL 2394299, at *10 (S.D. Tex. Feb. 1, 2023), report and recommendation
adopted, No. 7:22-CV-228, 2023 WL 2391014 (S.D. Tex. Mar. 7, 2023). Ms. Johnson-Luster is not a prisoner
denied food, and any comparisons to the Cooper case were unavailing or anecdotal, insufficient to be the
basis of a precedential jurisprudence by the Fifth Circuit.
27
(1st Cir.), cert. denied, 528 U.S. 894, 120 S.Ct. 224, 145
L.Ed.2d 188 (1999). If they cannot be inferred, then there
is
nothing
to
which
to
give
deference
Cotter
v.
Massachusetts Ass'n of Minority L. Enf't Officers, 219 F.3d
31, 34 (1st Cir. 2000).”
Thus, a closer look at the three cases cited in the Fifth
Circuits denial for court appointed attorney produces a
result in Ms. Johnson-Luster’s favor because the cases are
not conclusive – in fact, they are fractured in their
decisions on very different facts dissimilar to Mr. JohnsonLuster’s Title VII facts. Ms. Johnson-Luster has in her
favor - prior court appointed history; her continued pauper
status, App. 37a, and her deteriorating invisible disability.
As well as the underlying merits of her claims pursuant to
Federal Rule of Civil Procedure Rule 84. The Fifth Circuit
court erred in its application of the following three cases;
and they equally erred in failing to consider other Circuit
court precedents at variance with what they tried to do.
Such a consideration would have resulted in Ms. JohnsonLuster receiving a court appointed attorney and potentially
4 If Respondent did not believe Ms. Johnson-Luster have meritorious claims, they were entitled to file a
motion to dismiss addressing the lack of plausibility of claims and to state their conclusory nature.
28
reversing the summary judgment against her based on
underlying mistakes by former counsel during discovery.
In the alternative, the Fifth Circuit could have remanded
the matter back for completion of discovery; to take Ms.
Johnson-Luster’s deposition. It is a rare occurrence that
the appellant’s deposition has not been taken in her
lawsuit and her testimony is not a part of the lower District
court’s proceedings 5.
B. What is the current Circuit jurisprudence on right
to representation in civil matters?
i. Criteria To Appoint An Attorney for A Title
VII Appeal:
Title VII litigation offers no unified direction on what
District courts should consider, when deciding to accord a
litigant court appointed status:
The Fifth Circuit argued that Ms. Johnson-Luster had not
shown any court appointed attorney is warranted and cited
two cases. See Gonzalez v. Carlin, 907 F.2d 573, 580 (5th
Cir. 1990); see also Edwards v. City of Houston, 78 F.3d
983, 995 (5th Cir.1996) (en banc).
5 Ms. Johnson-Luster’s deposition proceeded without her. The resulting transcript is a few pages and
amounts to a restatement of her absence. Her then attorneys (from Loyola Clinic) failed to reschedule her
deposition or request more time on her behalf, despite Ms. Johnson-Luster’s request to her attorneys. This
was the reason Ms. Johnson-Luster changed them.
29
Those cases have however a very different application and
lack uniformity with other Circuits. In comparison the
Ninth Circuit has stated: "Unless the trial court's rulings
were clearly in error or there has been an important change
in circumstances, the court's prior rulings must stand."
See, United States v. Estrada-Lucas, 651 F.2d 1261, 1263
(9th Cir.1980); Smith v. United States, D.C.App., 406 A.2d
1262 (1979).
Thus, the first concern of any Circuit court is always
whether Ms. Johnson-Luster was granted court appointed
attorney in the District Court, as part of the lower court
record. Was the issue of Ms. Johnson-Luster’s courtappointed attorneys’ sufficient history-of-the case creating
a vested right, under a history of the case, for her Circuit
Court appeal?
In the same way that the District court’s findings on
summary judgment are a history of the case, the Fifth
Circuit erred and contradicts the Ninth Circuit and DC
circuit’s own approach in viewing fact findings as “history
of the case.” See United States v. Estrada-Lucas, 651 F.2d
1261, 1263 (9th Cir.1980); Smith v. United States,
D.C.App., 406 A.2d 1262 (1979).
30
Finally, any Circuit Court must seriously question its own
judicial discretion in opposing the fact findings of a lower
district court appointed attorney which were found in the
District court and offer pointed reasons for doing so. It
should offer a basis for its variance. The Fifth Circuit failed
to do so here: to state why its legal mind appropriately
substituted the Lower Court’s mind nullifying Ms.
Johnson-Luster’s pauper status and invisible disability.
Thus, this investigative inquiry and standard was not
seriously considered by the Fifth Circuit in this matter. But
instead, conclusory case notes were offered. Case notes
which are largely irrelevant.
ii.
Exceptional Circumstances Warranting
Court Appointed Attorney
The Fifth Circuit in its Order, App. 41a, does not
even discuss the legal standard of what constitutes
exceptional circumstances under the Cooper case.
The Court should have referenced the standard for
exceptional circumstances and rendered its decision
by manner of comparison, but instead engaged in
conclusory conclusions, with no factual support.
31
That was an error; separate from the Circuit split
argument.
C. Role of Supreme Court In Giving Direction and
Leadership in Civil Rights Litigation, Including
Title VII.
The Supreme Court has held that under Brown v. Western
R. Co. of Alabama, 338 U. S. 294, 296 (1949), "federal right
cannot be defeated by the forms of local practice."
“First, it ignores our prior assessment of "the dominant
characteristic of civil rights actions: they belong in court."
Burnett, 468 U. S., at 50 (emphasis added.)
"The central objective of the Reconstruction-Era civil rights
statutes...is to ensure that individuals whose federal
constitutional or statutory rights are abridged may recover
damages or secure injunctive relief.” Burnett, 468 U.S., at
55.
The Supreme Court has been at the heart and soul of civil
rights litigation from its onset. Title VII claims are
essentially civil rights within the context of employment.
Those civil rights require serious direction and uniformity
from the Supreme Court to create one “federal” law6. Court
appointment of an attorney where vesture of rights,
6
Not a disparate federal Law for Lousiana.
32
previously given to the appellant, in the District Court,
later withdrawn by the Circuit court is a question of
national importance because it goes to the root of what
federal law is – one legal system, with no avenues for forum
shopping.
When an appellant litigates in one circuit, they should
expect the same treatment offered in the Ninth Circuit or
the Second circuit, on the issue that they were previously
granted Court Appointed Attorney. It should not boil down
to an unlucky hand at the Fifth Circuit. Barbara JohnsonLuster v. Wormuth, 22-30422. (Fifth Circuit). But instead,
a uniform directive from the Supreme Court that the law
of the case, is applicable even on the issue of court
appointed attorneys for a circuit appeal.
II. Law of the Case Doctrine and Issue Estoppel Supports
Circuit Courts Following District Court’s Court
Appointment Decisions:
“Issue preclusion, also called collateral estoppel, means
that a valid and final judgment binds the plaintiff,
defendant, and their privies in subsequent actions on
different causes of action between them (or their privies)
as to same issues litigated and essential to the judgment in
the first action. The four essential elements to decide if
33
issue preclusion applies are: 1) the former judgment must
be valid and final; 2) the same issue is being brought; 3)
the issue is essential to the judgement; 4) the issue was
actually litigated”7. Little v. Blue Goose Motor Coach Co.,
346 Ill. 266, 178 N.E. 496 (Ill. 1931)
The exceptions noted by Judge Ginsburg, to mutuality of
parties are irrelevant here because the parties in the
District matter and in the fifth Circuit were the same when
Ms. Johnson-Luster’s request for a court appointed
attorney was presented to the court. See, Taylor v. Sturgell,
553 U.S. 880 (2008)
Did the District court intend the issue of Ms. JohnsonLuster’s request for court appointed attorney in the
District matter to be final based on her pauper and
extraordinary status?
Unequivocally, the answer is Yes. Could the defendant,
the Army, have appealed that Order. The answer is, is also
Yes. But the defendant never appealed when afforded such
an opportunity.
Finally, should the Circuit court have respected these
Lower court adjudicative and procedural observations as
7
Issue preclusion, https://www.law.cornell.edu/wex/issue_preclusion. Retrieved December 8th, 2023.
34
meeting the elements of issue preclusion; the answer, is
also Yes.
But the Fifth Circuit, in its Order App. 41.a, denying Ms.
Johnson-Luster court appointed attorney, never did this
nor make mention of Ms. Johnson-Luster’s previous
success at getting a court appointed attorney from the
lower court; her invisible disability and the merits of her
case in general. The issue was litigated anew on first
impression. This was an error, squarely on issue estoppel
and law of the case basis: the case’s own precedent.
It was categorically a misapplication of the issue
preclusion black letter law. Instead, the Fifth Circuit spoke
in conclusory and short sentences: no more than a
paragraph. This was not a serious discussion but a mere
citation of what those three cited cases concluded,
regardless of issue preclusion as a legal doctrine.
Consequently, the resulting order was not legal but clerical
in nature.
III. This Case is a Vehicle to Clarify Both the Main Circuit
Split (When To Appoint Counsel on Appeal) and The
Limits of Issue Estoppel.
The Supreme Court has held that:
35
"The guiding consideration is that the administration of
justice should reasonably appear to be disinterested as well as
be so in fact." Public Utilities Comm'n of D.C. v. Pollak, 343
U.S. 451, 466-467 (1952).
With Ms. Johnson-Luster’s case, this Court can resolve the
Circuit split regarding the application of issue estoppel regarding
a court appointed attorney and bringing its direction to the circuit
courts to be more in line with its criminal comparative, the
Criminal Justice Act, which is more conclusive and unambiguous
regarding criminal defendants. The lack of a civil statute dealing
squarely with the issue means each District court and circuit
court has its own jurisprudence on the issue. The Supreme court
should however state the “core and unified,” process necessary for
Circuit court to remain unified on the issue (appointment of a
court appointed attorney for an appellant at the circuit level when
the District court has appointed such an attorney), in the absence
of a statute like the CJA in terms of jurisprudence. This is not
legislation of the bench but resolution of disparate and potentially
unconstitutional
circuit
court
decisions
on
the
issue.
Furthermore, such a decision by the Supreme Court will give
notice to Congress to play its role in resolving this circuit conflict
under the doctrine of separation of powers.
36
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted,
Dr. Kissinger N. Sibanda Esq
Counsel of Record
P.O. Box 714
Livingston, N.J, 07039
(973) 689-5952
ksibanda@temple.edu
Counsel for Petitioner
December 15, 2023
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.