Petition for Writ of Certiorari — Stephens v. Georgia Department of Transportation

Pen Es cccudccécedvcdecueseets 6-7

DOUGEED REMI oc ov acevcccccececeeececs 7

Fourteenth Amendment, Section! ............... 7

Fourteenth Amendment, Section S............... 7-8

APPENDIX

No.

Order by District Court Granting Judgment

to the Respondent against Petitioner

dated July 20, 2004... Vol. I, App. I

Decision by Eleventh Circuit Court

of Appeals Affirming the Decision

by the lower court........ Vol. I, App. Hl

Decision by Eleventh Circuit Court

of Appeals Denying Motion for Rehearing

and Rehearing En Banc Vol. I, App. Ml

The United States District Court

for the Northern District of Georgia rendered

decision in favor of the Respondents

against Petitioners Title 42 U.S.C § 1983

claim against the Respondents

dated April 23,2004’... Vol. Il Decision

|. Pursuant to Supreme Court Rule 14, 1(h\(i) the Petitioner apologizes that she

should have included the Order by District Court Granting Judgment to the

Respondent against Petitioner dated April 23, 2004 as Vol |, App. IV verses Vol.

il.

of the Administrative

Hearing Officer Dated July 16, 2001 ....

xiii

Decision of the State of Georgia,

Department of Labor, Office of the

Board of Review

Federal

Title 18 U.S.C. § 241... ........ ..

Title 18 U.S.C. § 242.......

Title 28 U.S.C. § 1738...

Title 42 U.S.C § 1983......

State of Georgia

Ga. Code Ann. §

20-2-940(a)(1)-(8) . .

O.C.G.A. § 24-1-1(1) to (7)

O.C.G.A. § 34-8-157(b) . .

O.C.G.A. § 34-8-178 .....

O.C.G.A. § 34-8-192 .....

O.C.G.A. § 34-8-194(2)(A).

O.CG.A. § 34-8-195(aX3) . .

O.C.G.A. § 34-8-220(a) . .

O.C.G.A. § 34-8-220(b) .

“ev teenee

“ws * © ee © ©

*“* © @8

Vol. I, App. ['V

Vol. I, App. V

Vol.Ill, App. A

Voll. App. B

Voll, App.C

Vol.fi, App. D

Vol.Ill, App. E

VolL.Il, App. F

Volt, App. G

Voll, App. H

VolL.IIl, App. I

Vol. Ill, App. J

Vol. fl, App. K

Vol. Ill, App. L

Vol. Ill, App. M

XIV

O.C.G.A. § 34-8-221(a) to (e) .

O.C.G.A. § 34-8-223(a) ..........

O.C.G.A. § 34-8-223(b) ....... ;

~ -

Decision by Eleventh Circuit Court

of Appeals Affirming the Decision

by the lower court

dated September 10, 1999

Aubrey S. Whelchel v.

City of Covington, Georgia, et al,

Decision by Eleventh Circuit Court

of Appeals Denying Motion for Rehearing

and Rehearing En Banc

dated October 29, 1998

Aubrey S. Wheichel v.

City of Covington, Georgia, et al.,

Vol.I0, App. N

VolL.I0l, App. O

Vol Il, App.P

Vol. Ill, App. Q

Vol. Ill, App.R

l

To the Supreme Court of the United States:

Comes now Irene L. Stephens, the Petitioner in this case,

and files this Petition for Writ of Certiorari.

OPINION BELOW

The decision rendered by the Eleventh Circuit Court of

Appeals denying Petitioner's request for review and

reconsideration and en banc determination (App., Vol.i, App. 1)

The decision rendered by the Eleventh Circuit Court of

Appeals affirming the judgment of the district court (App. , Vol.l,

App. II)

The decision rendered by the Eleventh Circuit Court of

Appeals denying Petitioner's request for review and

reconsideration and en banc determination (App., Vol.1, App. I)

The United States District Court for the Northern District

of Georgia rendered a decision for the Respondents against

Petitioner (App., Vol.1, App. IL)

The United States District Court for the Northern District

of Georgia rendered a decision in favor of the Respondents against

Petitioners Title 42 U.S.C § 1983 claim against the Respondents

(App., Vol.)

Opinion of the Administrative Hearing Officer Dated July

16, 2001. Appendix , Vol.l, App. IV

Opinion of the State of Georgia, Department of Labor,

2

Office of the Board of Review, Suite 801, 148

International Boulevard N.E., Sussex Place, Atlanta, Georgia,

Dated September | 1, 2001. (Appendix , Vol.1, App. V)

STATEMENT OF JURISDICTION

The judgement of the Eleventh Circuit Court of Appeals

in Atlanta, Georgia was entered on May 31, 2005. Petitioner

sought a timely rehearing of the decision by the panel and sought

an en banc determination which was denied on August 17, 2005.

Jurisdiction of this Court is founded on 28 U.S.C. § 1257.

Under Rule | 0 of the Supreme Court Rules, this Court should grant

this Petition. It is the Petitioner’s position that there is precedent

for this Court to grant the Petitioner’s Petition for Writ of

Certiorari. The decision of the United States District Court and

the Decision of the United States Court of Appeals for the Eleventh

Circuit at Atlanta, Georgia in the instant case has now resulted is

a conflict of common law the United States Court of Appeals for

Third Circuit at Philadelphia, Pennsylvania and the United States

Court for Eleventh Circuit involving federal civil rights cases.

The United States Court of Appeals for the Third Circuit decided

the precedential case of United States of America v. Thomas

Smith, Brian Smith, Andrew Garth, Tyrone Payton, Paul

Carpenter, Jr., 294 F.3d 473 (3" Cir. 2002). Sometime during the

year 2005, the media reported that the former Orange County, New

Jersey police officer Mr. Andrew Garth lost a federal trial by jury

in the State of New Jersey and was sent to federal prison for

violations of Mr. Earl Faison’s civil right under and pursuant to

Title 18 U.S.C. § 241 and substantive crimes against Mr. Earl

Faison under and pursuant to Title 18 U.S.C. § 242. Mr. Garth

was relieved of his official duties as a police officer by the Orange

County police department, at some point later Mr. Garth appealed

the adverse employment action and subsequently was denied

unemployment insurance benefits, ic. Mr.Garth lost his

employment appeal case. It is the Petitioner’s contention that there

3

is a conflict of common law between the United States Court of

Appeals for Third Circuit and the United States Court for Eleventh

Circuit. In the Third Circuit, Mr. Garth lost his employment

appeal case and he was eventually found guilty of federal civil

rights violations and substantive crimes under the most stringent

evidence standard. While the Petitioner in the instant case

prevailed at her state administrative hearing i.e. she won her

employment appeal case and did not prevail in her federal civil

rights case in the lower federal courts located in the State of

Georgia.

Moreover, the Honorable Court has recently granted

certiorari in the case of Marshall v. Marshall from the United

States Court of Appeals for the Ninth Circuit in San Francisco,

California . The Marshall case was docket as Supreme Court

Case. No. 04-1544. The Marshall case involved conflicting

judgments that decided the claims of the surviving spouse between

three courts: the United States District Court, the United States

Bankruptcy Court an the Texas Probate Court. The United States

Court of Appeals for the Ninth Circuit reversed all judgments

awarded to the surviving spouse by the bankruptcy and district

courts located in the State of California. If the Honorable Court

should reverse the decision of the Ninth Circuit Court of Appeals

in Marshall , the Ninth Circuit opinion will be consistent with the

common law of the Third Circuit opinion in United States v.

Andrew Garth, et al. However, Petitioner respectfully advances

that the Eleventh Circuit Court of appeals is taking an inapposite

view common law than that of the United States Court of Appeals

for the the Third Circuit and possibly the Ninth Circuit. It is the

Petitioners position that the surviving spouse in Marshall cannot

lose trial by jury in the State of Texas and prevail in federal courts

in California. Likewise, while Mr. Garth lost a state

administrative proceeding and would later be found guilty in a

New Jersey federal district court of federal civil rights violations

and federal substantive crimes, while the petitioner in the instant

case prevailed at her state administrative hearing and did not

prevail in her federal civil rights case at the federal courts below.

Moreover, Petitioner respectfully advance her contention

that the Georgia federal court’s in this case have completely

ignored the ultimate power and authority of this courts decisions

as the law of the land as directly relating and rendered in the

decision of University of Tennessee vy. Elliot when the Court

held:

“However, when a state agency acting in a judicial

capacity resolves disputed issues of fact properly before it which

the parties have had an adequate opportunity to litigate, federal

courts in actions under the Reconstruction civil rights statutes

must give the agency's factfinding the same preclusive effect to

which it would be entitled in the State's courts (a matter for

resolution on remand here). In enacting those statutes, Congress

did not intend to create an exception to general rules of preclusion,

or to foreclose the adaptation of those rules to such subsequent

developments as the use of administrative adjudication. Giving

preclusive effect in federal courts to the factfindings of state

administrative bodies acting in a judicial capacity serves both the

value of enforcing repose, which underlies general principles of

collateral estoppel, and the value of federalism. Quoting

University of Tennessee y. Elliot, 478 U.S. 788, 789 (1986).

Unfortunately, Petitioner respectfully adva ce the Georgia

federal court decisions as render in the instant case has now

resulted in a direct split in law of this land between the United

States Court of Appeals for the Sixth Circuit of Cincinnati, Ohio

and Eleventh Circuits. Moreover, the federal courts in Georgia

have negated the ultimate authority and power of the Honorable

Court.

The petitioner respectfully advances the District Court and

Eleventh Circuit Court of Appeals in Atlanta, Georgia cannot, in

the instant case, fashion their own remedies but instead must apply

the common law of State of Georgia under the principles of stare

5

decisis and precedent, as wel! as its statutory and constitutional

law. Petitioner's respectfully advances that there is precedent for

this Honorable Court to grant the Petitioner's Petition for Writ of

Certiorari when the Supreme Court presumes that Court of Appeals

decide questions of state law correctly, but that presumption is

inapplicable if the Court of Appeal was “plainly wrong.” Leavitt

vy. Jane L., 520 U.S. 164 (1994)

Moreover, the Honorable Court may retain jurisdiction to

determine if the Honorable Court has jurisdiction. See United

States v. United Mine Workers, 330 U.S. 258, 291 (1947),

Mansfield Coldwater & Lake Michigan Ry. Co. v. Swan, | 1!

U.S. 379, 387 (1884). The instant case involves interpretation of

the constitution, so it can only be altered by an amendment to the

Constitution or change in the Honorable Courts position. See

Seminole Tribe v. Florida., 517 U.S. 44 (1996).

CONSTITUTIONAL PROVISIONS INVOLVED

Article I Section 10, United States Constitution —

No State shall enter into any Treaty,

Alliance, or Confederation; grant Letters of

Marque and Reprisal; coin Money; emit Bills of

Credit; make any Thing but gold and silver Coin a

Tender in Payment of Debts; pass any Bill of

Attainder, expost facto Law, or Law impairing the

Obligation of Contracts, or grant any Title of

Nobility.

No State shall without the Consent of the

Congress, lay any Imposts or Duties on Imports or

Exports, except what may be absolutely necessary

for executing it’s inspection Laws: and the net

Produce of all Duties and Imposts, laid by any

State on Imports or Exports, shall be for the Use of

6

the Treasury of the United States; and all such

Laws shall be subject to the Revision and Controul

of the Congress.

No State shall, without the Consent of

Congress, lay and Duty of Tonnage, keep Troops,

or ships of War in time of Peace, enter into any

Agreement or Compact with another State, or with

a foreign Power, or engage in War, unless actually

invaded, or in such imminent Danger as will not

admit of delay.

Article 4 Section 1, United States Constitution

Full Faith and Credit shall be given in

each State to the public Acts, Records, and judicial

Proceedings of every other State. And the

Congress may by general Laws prescribe the

Manner in which such Acts, Records an.

Proceedings shall be proved, and the Effect

thereof.

Amendment IV, United States Canstitution —

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation,

and particularly describing the place to be

searched, and the persons or things to be seized.

Amendment V, United States Constitution —

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury, except

7

in cases arising in the land or naval forces, or in

the Militia, when in actual service in time of War

or public danger; nor shall any person be subject

for the same offense to be twice put in jeopardy of

life or limb; nor shall he be compelled in any

criminal case to be a witness against himself, nor

be deprived of life, liberty, or property, without due

process of law; nor shall private property be taken

for public use, without just compensation.

Amendment VII, United States ¢ »astitution —

In suits at common law, where the value in

controversy Shall exceed twenty dollars, the right

of trial by jury shall be preserved, and no fact tried

by a jury, shall be otherwise reexamined in any

court of the United States, than according to the

rules of the common law.

Amendment XIV, Section I,

United States Constitution —

All persons born or naturalized in the United

States and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. 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.

Amendment XIV, Section §,

United States Constitution —

The Congress shall have power to enforce this

8

article by appropriate legislation.

STATEMENT OF THE CASE

A. Course of Proceedings & Disposition of the Case Below

On July 6, 2001 , pursuant toO.C.G.A.§ 34-8-220(b) Judge

Smith held a formal hearing for Petitioners appeal from the earlier

decision as a Georgia Department of Labor field office.

On June 15, 2001, the Petitioner pursuant the First, Fifth

and Fourteenth to the United States Constitution and Title 42

U.S.C. § 1983 requested relief from the Equal Employment

Opportunity Commission and the Georgia Division of the

E.E.O.C,

On July 16,2001 the Honorable Mary A. Smith, ruled that

the Respondent’s termination of the Petitioner was in wilful

violation of Petitioner's rights and protections pursuant to Rule !5

of the Rules and Regulations of the State Personnel Board for the

State of Georgia. Petitioner was terminated without just cause and

in violation of Rule 15 of the Rules and Regulations of the State

Personnel Board for the State of Georgia.

On September 11, 2001, Pursuant to 0.C.G.A.§ 34-8-221

et seq., the State of Georgia, Department of Labor, Office of the

Board of Review adopts the administrative hearing officers

finding.

On June 11, 2002, the Petitioner pursuant to Title 42

U.S.C. § 1983 and requested relief from United States District

Court for the Northern District of Georgia, Atlanta Division

against the Respondent.

On April 23, 2004, Order by district court granting

Judgment to the Respondent against Petitioners Title 42 U.S.C §

1983 claim.

On July 20, 2004, Order by district court granting

Judgment to the Respondent against the Petitioners Title VII

9

claims. ;

On August 19, 2004, Petitioner tendered a timely Notice

of Appeal to the United States Court of Appeals for the Eleventh

Circuit.

On May 31, 2005, the Eleventh Circuit Court of Appeal

ruled in favor of the Respondent.

On August | 7, 2005 Respondent tendered a timely motion

for review and reconsideration which was denied.

B. Statement of Facts

While Petitioner resided in Virginia Beach, Virginia,

Petitioner came across an employment ad relating to the Georgia

Department of Transportation (hereinafter referred to as

“Respondent” ).

The ad offered permanent employment as a transportation

engineer, with a beginning salary of $29,238.00, plus benefits. The

Petitioner's job title was designated as a transportation engineer

associate. At the time of the instant ad, Petitioner had graduated

Old Dominion University with Bachelor of Science Degree in Civil

Engineering.

Petitioner contacted the Respondent, by and through the

Respondent’s authorized agent, Ms. Kim Cameron, a GDOT

employment recruiter, in Atlanta, Georgia. An employment

interview was scheduled and Petitioner traveled to Atlanta,

Georgia. After meeting with Ms. Cameron, in Atlanta, Petitioner

tendered an employment application for employment as an

transportation engineer associate with the Respondent. The

Respondent, upon reviewing Petitioner's qualifications, requested

that the Petitioner return to Atlanta for a second interview by Irene

Belinfante, P.E., John Tiernan, and Paul Liles, Jr., which resulted

in a letter of notification that the Respondent had chosen to deny

Petitioner the employment position as advertised.

Notwithstanding the fact that the Respondent had denied

the Petitioner's employment application, Petitioner received a

telephonic communication to come back to Atlanta for another

10

interview for the same position which Petitioner had been

previously turned down for. On the morning of the date of the

second interview, as Petitioner was preparing to leave to take an

airline flight to Atlanta, Petitioner received another telephonic

communication that the interview had been canceled.

Petitioner thereinafter telephonically contacted Ms.

Cameron and still expressed interest in an engineering position

with the Respondent when and if one opened up. Ms. Cameron

thereinafter contacted Petitioner about another engineering opening

which had open and another interview was scheduled and

P_titioner, once again traveled to Atlanta, Georgia for a second

interview for an engineering position with the Respondent. This

third interview took place with Kevin Vinson and Tim Rader

relating to an employment position as an enginecring technician.

Petitioner accepted the employment position and when Petitioner

traveled to Atlanta to commence Petitioner’s employment with the

Respondent, Petitioner was placed in a management position as a

transportation engineer versus an engineering technician.

At all times, Respondent’s employment offers to the

Petitioner was that of a permanent employee and when Petitioner

commenced working for the Respondent, the Respondent's

authorized agent provided Petitioner with a copy of the 1994

Employee Handbook and told that said document contained all

employment rights and benefits which the Respondent was

retaining the Petitioner under and pursuant to the Petitioner’s

employment with the Respondent. Under and pursuant to the 1994

Employee Handbook, Petitioner was considered and employed by

the Respondent as a permanent employee under and pursuant to

Rule !5 of the Rules and Regulations of the State Personnel Board

for the State of Georgia.

On April 1, 1999, Petitioner began employment, with the

Respondent. Respondent also laterally assigned the Petitioner to

a two-year training program Petitioner while employed with the

Respondent had no routine work assignment.

Petitioner requested a job transfer to work in the Office of

Bridge Design, however, Petitioner was illegally and

1]

discriminatory terminated by the Respondent. As a permanent

employee, Petitioner sought relief before the Georgia Department

of Labor.

During November 2000, Stephens requested a job transfer

to work in the office of Bridge Design, On or about November 30,

2000, Respondent’s employee Ms. Velvia Caldwell makes false

accusation against Petitioner , that Petitioner called Caldwell and

Petitioners supervisors “those coon bastards”.

On December 7, 2000, the Respondent’s employee Mr.

Darrell Williams provides petitioner with an absolute implicit

waiver from the Respondent for any and all alleged faults of

Petitioner by ordering Petitioner to drive Respondents vehicle to a

highway construction project and work for approximately four (4)

hours, with the Respondents employees Ms. Velvia Caldwell, Mr.

Stephen Henry, Ms Rachel Brown, Ms. Cheryl Davis, and Mr.

Donald LaFrenier. Mr. Darrell Williams thereby reinstating

Petitioners employment. At approx. 1:30 P.M., Mr. Henry, orders

Petitioner to leave the job site and go home, thereby rescinding

Petitioners employment. Mr. Henry, inexplicably reinstates

Petitioners employment for December 8, 2000 asking Petitioner to

attend a meeting with Mr. Williams on December 8, 2000 and

after the conclusion of the meeting with Mr.Williams, Mr.

Williams would drive Petitioner for an appointment with Stephen

J. Sampson, CSI psychologist for an alleged “stress test”. Mr.

Henry all the while knowing that Mr. Williams had just provided

Stephens with a implied waiver for all alleged acts, actions and

behavior of Petitioner which was the alleged basis for the “stress

test”. Moreover, on December 7, 2000, Ms. Rachel Brown rescind

Petitioners employment by issuing “Recommendation for

disciplinary action” all the while knowing that Mr. Williams had

just provided Petitioner with a absolute implied waiver and Mr.

Henry allegedly had reinstated Petitioners employment for

December 8, 2000.

On December || and December 12, 2000 Stephens was

illegally and indiscriminately terminated by Stephen Henry via two

(2) letters delivered to Stephens from Stephen Henry by United

12

States Mail. Respondent illegally terminated the petitioners

employment. As a permanent employee, Petitioner sought relief

before the Georgia Department of Labor.

On or about February | 1, 2001, Petitioner telephonically

applied for unemployment benefits with the Georgia Department

of Labor against the Respondent .and was denied the same.

On July 6, 2001, pursuant to O.C.G.A.§ 34-8-220(b) Judge

Smith held a formal hearing for Petitioners appeal from the earlier

decision as a Georgia Department of Labor field office.

On June 15, 2001, the Petitioner pursuant to Title 42

U.S.C. § 1983 and the First, Fifth and Fourteenth to the United

States Constitution and Title 42 U..S.C. § 1983 requested relief

from the Equal Employment Opportunity Commission and the

Georgia Division of the E..E.0.C.

On July 16, 2001 Honorable Mary A. Smith, of the

Georgia Department of Labor ruled that the Respondent's

termination of the Petitioner was in wilful violation of Petitioner’s

rights and protections pursuant to Rule 15 of the Rules and

Regulations of the State Personnel Board for the State of Georgia.

Petitioner was terminated without just cause and in violation of

Rule 15 of the Rules and Regulations of the State Personnel Board

for the State of Georgia.

On September 11, 2001, Pursuant to O.C.G.A.§ 34-8-221

et seq., the State of Georgia, Department of Labor, Office of the

Board of Review adopts the administrative hearing officers

finding. The Respondent never appealed that decision.

On June 11, 2002, the Petitioner Pursuant to Title 42

U.S.C.§ 1983 et seq. filed a timely civil rights complaint within the

time allotted in the United States District Court for the Northern

District of Georgia, Atlanta Division

On April 23, 2004, Order by district court granting

Judgment to the Respondent against Petitioners Title 42 U.S.C §

1983 claim notwithstanding un-refutable evidence of judicial

determination, as rendered by the Georgia Department of Labor

that Petitioner’s employment? termination was not proper and/or

valid.

13

On July 20, 2004, Order by district court granting

Judgment to the Respondent against the Petitioners Title VII

claims.

On August 19, 2004, Petitioner tendered a timely Notice

of Appeal to the United States Court of Appeals for the Eleventh

Circuit.

On May 31, 2005, the Eleventh Circuit Court of Appeal

ruled in favor of the Respondent.

On August 17, 2005, the Eleventh Circuit Court denied

Petitioner’s Motion for Rehearing.

ARGUMENT AND AUTHORITIES

The totality of the Respondent’s defensive claims were

legally destroyed prior to the filing of the Petitioner’s

reconstruction civil rights complaint, by and through the formal

decision, as rendered by the Georgia Department of Labor.’

The issue of the Rooker-Feldman Doctrine was never

raised by the Respondents in the district court. Nor did the district

court render any judgment based upon the Rooker-Feldman

Doctrine.

Petitioner respectfully avers that the decision by the

Eleventh Circuit Court of Appeals not to apply the Rooker-

Feldman Doctrine to the instant case as controlling is wrong.

Petitioner would respectfully aver that the decision by the

Eleven Circuit Court of Appeals in the instant case is in conflict

with its previous decisions in the case of Aubrey S. Whelchel v.

City of Covington, Georgia, et al., See Appendix Vol. Ill, App.

XII and App. XIII

It should be noted that the Respondent City of Covington, -

2. District of Cotumbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct.

1303, 1317 (1983); Rooker y. Fidelity Trust Co., 263 U.S. 413, 414, 44S Ct.

149, 150 (1923); Harris vy. Zion’s Say. Bank or Trust Co., 317 U.S. 447, 450-53

(1943), University of ~ ennessee v. Elliot, 478 U.S. 788, 789 (1986).

14

nor the district court raised or held that the Petitioner’s civil rights

case was foreclosed by application of the Rooker-Feldman

Doctrine. The Rooker-Feldman Doctrine appeared sua sponte by

the Eleventh Circuit Court of Appeals panel in Whelchel

advancing the Rooker-Feldman Doctrine was applicable And the

district court in the Petitioners case did not address the Rooker-

Feldman Doctrine.

The Rooker-Feldman doctrine provides that the lower

federal courts lack subject matter jurisdiction over a case if the

exercise of jurisdiction over that case would result in the reversal

or modification of a state court judgment. Such jurisdiction is

lacking because within the federal system, only the Supreme Court

may review a state court judgment.

The first case to identify this principle was Rooker v.

Fidelity Trust Co., 263 U.S. 413,44 S$ Ct. 149 (1923). There, the

plaintiff sought a declaration from the federal district court that a

judgment of the Indiana state court was null and void because it

violated the Contracts Clause. Id. at 414-15, 44 S. Ct. at 150.

Interestingly, the plaintiff had petitioned the Supreme Court for

direct review and been denied, so that the suit represented an end

run around direct review. Id. at 414, 44 S. Ct. at 150. In holding

that the district court lacked jurisdiction over the case, the Supreme

Court stated that“funder the legislation of Congress, no court of

the United States other than this court could entertain a proceeding

to reverse or modify the judgment for errors of that character." Id.

at 416, 44 S.Ct. at 150.

In 1938 this Court proclaimed, “there is no general federal

common law.” Erie Railroad Co.v Tompkins, 304 U.C 64

(1939).

Sixty years passed before the Supreme Court revisited

Rooker, and when it did, it was concerned with the deference

owed to the local courts of the District of Columbia rather than a

state. In District of Col rt of Appeals y. man, 460

U.S. 462, 103 SCt. 1303 (1983), plaintiffs brought separate actions

challenging the validity of a rule of the District of Columbia that

prevented them from sitting for the District's bar exam. Feldman

15

decided that whether a federal challenge is foreclosed depends in

part on whether the state proceedings were "judicial in nature." Id.

at 476, 103 S Ct. at 1311. The Supreme Court drew a distinction —

potentially critical in the present case — between a challenge to the

rule governing bar admission and a challenge to a judgment of a

state court applying that rule. Because promulgation of a rule is a

non-judicial act, a federal court would have jurisdiction over a

general challenge to state bar rules. Id. at 485-86, 103 S Ct. at

1316-17. By the same token, a federal court would lack jurisdiction

over challenges to state court decisions in particular cases arising

out of judicial proceedings, even if those challenges allege that the

state court's action is unconstitutional. Id. at 486, 103 S. Ct. at

1317. The Feldman Court further noted that a federal court lacks

jurisdiction over any claims that are “inextricably intertwined"

with a state court's determinations in a judicial proceeding. Id. at

482 n. 16, 103 SCt. at 1315 n. 16.

Moreover, The Eleventh Circuit in Powell v. Powell, 80

F.3d 464 (11th Cir. 1996), ruled that granting Mr. Powell relief

would “effectively nullify" the state court's judgment and

therefore holding that because district court holding would

"effectively reverse the state court judgment," the federal

claim was "inextricably intertwined" with the state court

judgment and the result would be that the state court's

judgment would be collaterally reviewed and reversed in

federal court, which is precisely what the Rooker-Feldman

doctrine exists to prevent. See Liedel vy. Juyenile Court of

Madison County, 891 F.2d 1542, 1545 (11th Cir. 1990); see

also Stern v. Nix, 840 F.2d 208, 211-12 (3rd Cir.), cert.

denied, 488 U.S. 826, 109 S Ct. 77, 102 L Ed.2d 53 (1988).

This Court has said in the case of Harris v. Zion’s Sav.

Bank & Trust Co., 317 U.S. 447, 450-53 (1943)(“The probate

court, not the bankruptcy court, is the appropriate forum for

weighing the respective benefits or detriments to those who share

in the equity of the decedent’s estate.”). The court’s statement in

Harris that “the federal courts have no probate jurisdiction and

16

have sedulously refrained , even in diversity cases, from interfering

with the operations of state tribunals invested with that

jurisdiction” suggest that the probate exception also encompasses

federal question cases. 317 U.S. at 447, 450 (emphasis added.).

Quoting In re Marshall, 392 F.3d 1118, C.A.9 (Cal.), 2004, Sec.

V,92.

Consistent with Harris, the court has said that, in applying

the probate exception, “[t]he evil to be avoided is federal

interference with state probate proceedings.” Hilton v. Mumaw,

522 F.2d 588. 593 (9" Cir. 1975).. This rationale is as relevant to

federal question cases as it is to diversity ones. Quoting In re

Marshall, 392 F.3d 1118, C.A.9 (Cal.), 2004, Sec. V, ¥ 3.

Again, the respondent never appealed the decision of the

Georgia Department of Labor to any Georgia State Court. When

the district court entered a judgment in favor of the Respondent

and the Eleventh Circuit Affirmed the same, the power of the

Georgia Department of Labor tribunal was negated.

The United States Court of Appeals for the Ninth Circuit

has said in the case of In re Marshall:

“Where a state has regulated jurisdiction over probate

matters to a special court and if that state’s trial courts of general

jurisdiction do not have jurisdiction to hear probate matters, then

the federal courts also lacks jurisdiction over matters. McCan v.

First Nat’! Bank of Portland, 139 F. Supp. 224, 227(D.Or. 1954),

aff'd, 229 F.2d 859 (9 Cir. 1956). A state court’s holding

regarding its jurisdiction over probate matters is binding on federal

courts and is immune from collateral attack under the doctrine of

res judicata. Underwriters Nat’! Assurance Co. V. N.C. Life &

Accident & Health Ins. Guar. Ass’n, 455 U.S. 691, 706-07 (1982);

Dufree v. Duke, 375 U.S. 106, 111, 115-16 (1963). Quoting In re

Marshall, 392 F.3d 1118, C.A.9 (Cal.), 2004, Sec. V, ¥ 10.

In Utah, “the Court declared that res judicata might apply

to administrative agency decisions ‘|w]hen [the] administrative

agency is acting in a judicial capacity and resolves disputed issues

of fact properly before it which the parties have had an adequate

opportunity to litigate.’” Citing Gjellum vy. City of Birmingham,

17

Ala., 829 F.2d 1056 (11° Cir. 1987) .

This Court has said in the case of United States y. Utah

Construction Company:

“When an administrative agency is acting in a judicial

capacity and resolves disputed issues of fact properly before it

which the parties have had an adequate opportunity to litigate, the

courts have not hesitated to apply res judicata to enforce repose.

Sunshine Coal Co. v. Adkins, 3:0 U.S. 381; Hanover Bank vy.

United States, 152 Ct. Cl 391, 285 F.2d 455; Fairmont

Aluminum Co. v. Commissioner, 222 F.2d 622; Seatrain Lines,

_v. Pe van €o., 207 F.2d 255.[fn 21] See also

Goldstein v. Doft, 224 F.Supp. 730, aff'd 353 F.2d 484, cert .

denied, 383 U.S. 960, where collateral estoppel was applied to

prevent re-litigation of factual disputes

resolved by an arbitrator.” °

This Court has said in the case of University of Tennessee

y. Elliot:

Held: 1. Title 28 U.S.C. § 1738 is not applicable to the

unreviewed state administrative factfinding at issue here.

_However, federal common-law rules of preclusion have been

frequently fashioned in the absence of a governing statute.

Because § 1738 antedates the development of administrative

agencies it does not represent a congressional determination that

state administrative agency decisions should not be given

preclusive effect. Pp. 794-795...

3. However, when a state agency acting in a judicial

capacity resolves disputed issues of fact properly before it which

the parties have had an adequate opportunity to litigate, federal

courts in actions under the Reconstruction civil! rights statutes

must give the agency's factfinding the same preclusive effect to

which it would be entitled in the State's courts (a matter for

resolution on remand here). In enacting those statutes, Congress

3. Citing United States v. Utah Construction Company, 384 U.S. 394, 422

(86 S.Ct. 1545, 1560) 16 L.Ed.2d 642)(1966). Quoting Sunshine Coal Co.v

Adkins, 310 U.S. 381 (60 S.Ct. 907, 909)(1940).

18

did not intend to create an exception to general rules of preclusion,

or to foreclose the adaptation of those rules to such subsequent

developments as the use of administrative adjudication. Giving

preclusive effect in federal courts to the factfindings of state

administrative bodies acting in a judicial capacity serves both the

value of enforcing repose, which underlies general principles of

collateral estoppel, and the value of federalism. Quoting

University of Tennessee v. Elliot, 478 U.S. 788, 789 (1986)

This Court has said in the case of Marrese v. American

Academy of Ortho. Surgeons:

“The issue whether there is an exception to § 1738 arises

only if state law indicated that litigation of a particular claim or

issue should be barred in the subsequent federal proceeding.”

This Court has said in the case of Johnson v. Drew:

"It has undoubtedly been affirmed over and over again that

in the administration of the public land system of the United States

questions of fact are for the consideration and judgment of the land

department, and that its judgment thereon is final. Whether, for

instance, a certain tract is swamp land or not, saline land or not,

mineral land or not, presents a question of fact not resting on

record, dependent on oral testimony; and it cannot be doubted that

the decision of the land department, one way or the other, in

reference to these questions is conclusive and not open to

relitigation in the courts, except in those cases of fraud, etc., which

permit any determination to be reexamined. Johnson v. Towsley,

13 Wall. 72; Smelting Company v. Kemp, !04 U.S. 636; Steel v.

Smelting Company, 106 U.S. 447; Wright v. Roseberry, 121

U.S. 488; Heath v. Wallace, 138 U.S.573; McCormick vy. Hayes,

159 U.S. 332.”

4. Citing Marrese v. American Academy of Ortho, Surgeons, 470 U.S.

373, 383 (105 S.Ct. 1327, 1333) (1985).

5. Citing Johnson v. Drew, 171 U.S. 93, 99-100 (18 S.Ct. 800, 802) (1898).

Quoting Steel vy. Smelting Company, 106 U.S. 447 (1 S.Ct. 389, 396)

(1882), Wright v. Roseberry, 121 U.S. 488, 509( 7 S.Ct. 985, 999) 1887),

19

In Georgia for example, “In any judicial proceeding under

this Code section, the findings of the board of review as to the

facts, if supported by evidence and in the absence of fraud, shall be

conclusive, and the jurisdiction of the court shall be confined to

questions of law.” 0.C.G.A.§ 34-8-223(b).” Citing McGahee v.

Yamaha Motor Mfg. Corp., 2!4 Ga. App. 473, 338 S.E.2d 249

(1994) and Georgia Employment Security Law, Georgia

Department of Labor, Michael L. Thurmond, Commissioner, 1999

Ed., p. 148.

Statue; O.C.G.A. § 34-8-223 states:

“ (a) Any decision of the board of review,

in the absence of a reconsideration as provided in

subsection (d) of Code Section 34-8-192, shall

become final 15 days after the date of notification

or mailing. Judicial review shall be permitted only

after any party claiming to be aggrieved thereby has

exhausted his or her administrative remedies as

provided by this chapter. The Commissioner shall

be deemed to be a party to any judicial action

involving any such decision and shall be

represented in any such judicial action by the

Attorney General.

(b} Within 15 days after the decision of the board

of review has become final, any party aggrieved

thereby may secure judicial review by filing a

petition against the Commissioner in the superior

court of the county where the employee was last

employed. In the event the individual was last

employed in another state, such appeal shall be

filed in Fulton County, Georgia. Any other party to

Heath v. Wallace, 138 1).S. 573 (11 S.Ct. 380, 384)(1891), McCormick v.

Hayes, 159 U.S. 332 (16 S.Ct. 37, 43)(1895).

20

the proceeding before the board of review shall be

made a respondent. The petition, which need not be

verified but which shall state specifically the

grounds upon which a review is sought, shall be

served upon the Commissioner or upon such person

as the Commissioner may designate, and such

service shall be deemed completed service on all

parties, but there shall be left with the party so

served as many copies of the petition as there are

respondents. The Commissioner shall mail one

such copy to each such respondent.

Within 30 days after the service of the petition, the

Commissioner shall certify and file with the

superior court all documents and papers and a

transcript of all testimony taken in the matter,

together with the board of review's findings of fact

and decision therein. The Commissioner shall not

be required to furnish any person with a copy of the

aforementioned documents, papers, or transcripts or

the original of these items prior to the

Commissioner's filing these items with the court.

The Commissioner may also, in his or her

discretion, certify to such court questions of law

involved in any decision. As a guide for future

interpretation of the law, when the Commissioner is

aggrieved by any decision of the board of review or

deems such decision contrary to the law and no

other party enters an appeal therefrom, the

Commissioner may, within 20 days after such

decision has become final, appeal and certify to the

superior court questions of law therein involved.

The court shall consider and determine the same

and enter a decree accordingly, which shall be

subject to further appeal by the Commissioner. In

any judicial proceeding under this Code section, the

21

findings of the board of review as to the facts, if

supported by evidence and in the absence of fraud,

shall be conclusive, and the jurisdiction of the court

shall be confined to questions of law. Such actions

and the questions so certified shall be heard in a

summary manner and shall be given precedence

over all other civil cases except cases to which the

State is a material party and cases arising under

Chapter 9 of this title.

An appeal may be taken from the decision of the

superior court to the Court of Appeals in the same

manner as is provided in civil cases but not

inconsistent with this chapter. No bond shall be

required for entering an appeal.”

The Georgia Department of Labor is bound by its own

judicial decisions, conduct and legal positions that are and have

been rendered by Georgia court’s in the cases of:

“If there is any evidence to support a finding of the

Board of Review, it will be approved. Caldwell v. Charlton

County Bd. Of Educ., 157 Ga. App. 395, 277 S.E.2d 764

(1981); Brown vy. Caldwell, 165 Ga. App. 743, 302 S.E.2d 359

(1983); Green v. Tanner, 186, Ga. App. 715, 368 S.E.2d 162

(1988)(decided under Ga.L. 1937, p.806 and former § 34-8-176).

The Superior Court is not authorized to weigh the evidence and

substitute its fact findings for those of the administrative tier of

fact. McGahee vy. Yamaha Motor Mfg. Corp., 214 Ga. App.

473, 338 S.E.2d 249 (1994).”*

It is Petitioners position her unemployment insurance

case was decided under the any evidence standard since the

judicial decision rendered in the same did not mention any

6. Citing Georgia Employment Security Law, Georgia Department of Labor,

Michael L. Thurmond, Commissioner, 1999 Ed., p. 149

22

section of O.C.G.A. § 24-1-1(1) to (7). Likewise, the “any

evidence” standard as stated in Gorin y. Osborne, 756 F.2d 834

(11" Cir. 1985) applies to the instant case.

The Supreme Court of Georgia has said in the case of

McNeal y, Paine, Webber, Jackson & Curtis, Inc.:

“This Court has held in Pope v. City of Atlanta, 240

Ga. 177 (240 S.E. 2d 2411977), and, more recently, in Hill v.

Wooten, 247 Ga. 737 (279 S.E. 2d 227) 1981), that “. . . where

a party fails to present a state law claim in federal court, a later

suit will be barred if the state claim could have been litigated in

the federal court under its pendent jurisdiction.” Hill v.

Wooten, supra. at 73"

The Georgia Court of Appeals has said in the case of

Dickerson v, Dickerson:

“*{C]ollateral estoppel applies where an issue of fact or

law is actually litigated and determined by a valid judgment, and

the determination is essential to the judgment. That determination

in then conclusive in a subsequent action between the same

parties.” See Kent v. Kent, 265 Ga. 211 (1,452 S.E.2d

764)(1995). This concept, sometimes known as estoppel by

judgment or issue preclusion, precludes the re-adjudication of

issues already litigated to a conclusion in a previous action

between the parties. See Allen v. King Plow Co., 227 Ga. App.

795, 798 (1) (490 S.E.2d 457) (1997) (whole court); Sorrelis

Constr. Co. v. Chandler Armentrout & Roebuck, P. C., 214 Ga.

App. 193, 193-194 (447 S.B.2d 101) (1994).”*

Additionally, the Georgia Appeals Court has said in the

case of Smith v. Maytag Corp. :

“{Ujnder the doctrine of collateral estoppel, on the other

hand, the second action is upon a different cause of action and the

7. Citing McNeal v, Paine, Webber, Jackson & Curtis, Inc., 249 Ga. 662,

663 (1982).

8. Citing Dickerson vy. Dickerson, 247 Ga. App. 812, 813-815 (2001) 545

$.E.2d 378.

23

judgment in the prior suit precludes re-litigation of issues actually

litigated and necessary to the outcome of the first action. (Cits.)’

Parklane Hosiery Co. v. Shore,’ 439 U.S. 322, 326, n. 5(99 S.Ct.

645, 58 L.Ed.2d 552) (1979); see also Block v. Woodbury, 21!

Ga. App. 184 (1) (438 S.E.2d 413) (1993)." Sorretis Constr. Co.

y. Chandler Armentrout &c., 2'4 Ga. App. 193, 194 (447 S.E.2d

101) (1994).”""

“MeNeal v. Paine, Webber &c., 249 Ga. 662(2)(293S.E.

2d 331)(1982), distinguished Gilmer, supra , holding that an

employee was in privity with his employer for purposes of

determining whether issue preclusion was applicable. Sorrells

Constr. Co., supra.”"'

The Georgia Court of Appeals has said in the case of

Clark v. State:

“The Supreme Court held in Ashe that the Fifth

Amendment guarantee against double jeopardy embodies collateral

estoppel as a constitutional requirement. And the protections

afforded by the double jeopardy clause are binding upon the states

through the Fourteenth Amendment. Benton v. Maryland, 395

U.S. 784 (89 SC 2056, 23 L.Ed.2d 707).” ”

It is Petitioners contention district court erred when it

conducted a de novo inquiry into Petitioners not for good cause

employment dismissal after Judge Smith’s finding that

9. Parklane Hosiery Co. v. Shore, 439 U.S. 322,326 (99 S.Ct. 645, 645-

646, 58 L.Ed.2d 552 1979)

10. Citing Smith v. Maytag Corp., 216 Ga App. 676, 679 (1995) 455

S.E.2d 379.

11. Citing Smith v. Maytag Corp., 216 Ga. App. 676, 680 _— 455

S.E.2d 379.

12. Citing Clark v, State, 194 Ga. App. 280, 281 (1990) 390 S.E.2¢ 425.

Quoting Ashe v. Swenson, 397 U.S. 436 (90 S.Ct. 1189, 1190, 25 L.Ed.2d

469 (1970) and Benton v. Maryland, 395 U.S. 784 (89 S.Ct. 2056, 2057,

23 LEd.2d 707).

24

Petitioners did not intentionally fail to obey orders, rules, or

instructions, or intentionally fail to discharge the duties for which

employed and ruling otherwise.

This Court has described the consequences of the

procedural posture the Respondent has taken involving prior

proceedings and the proceedings of this case in Smelting Co. v.

Kemp:

“In the course of their duty the officers of that department

are constantly called upon to hear testimony as to matters

presented for their consideration, and to pass upon. competency,

credibility, and weight. In that respect they exercise a judicial

function, and, therefore, it has been held in various instances by

this court that their judgment as to matters of fact, properly

determinable by them, is conclusive when brought to notice in a

collateral proceeding. Their judgment is such cases is, like that of

other special tribunals upon matters within their exclusive

jurisdiction, unassailable except by a direct proceeding for its

correction or annulment.”"

“The presumptions thus attending it are not open to

rebuttal in an action at law.”"*

“(T]he statute then proceeds to declare that if an adverse

claim is filed during the period of publication, it must be upon oath

of the party making it, and must show the nature, boundaries, and

extent of such adverse claim; and all proceedings, except the

publication of the notice and the making and filing of the affidavit,

shall be thereupon stayed until the controversy shall have been

settled by a decision of a court of competent jurisdiction, or the

adverse claim waived.”"”

Since, the Respondent did not file a direct appeal of the

decision of the Administrative Law Judge as rendered, the

13. Citing Smelting Co. v. Kemp, 104 U.S. 636, 640 (1881)

14. Citing Smelting Co. v. Kemp, 104 U.S. 636, 641 (1881)

15. Citing Smelting Co. v. Kemp, 104 U.S. 636, 656 (1881)

25

Respondent has conceded the fact findings of the Administrative

Law Judge in Petitioners employment appeal case.

This Court has said in the case of in Johnson y, Towsley:

“The general proposition is recognize that when a special

tribunal is authorized to hear and determine’ -rtain matters arising

in the course of its duties, its decisions '/ithin the scope of its

authority are conclusive.”"®

This Court has said in the case of United States y.

California &c. Land Co. :

“Now, it is familiar law that when jurisdiction is delegated

to any officer or tribunal, his or its determination is conclusive.

Thus in the case of United States y. Arredondo, 6 Pet. 691, 729,

this court said: "It is a universal principle, that, where power or

jurisdiction is delegated to any public officer or tribunal over a

subject-matter, and its exercise is confided to his or their

discretion, the acts so done are binding and valid as to the

subject-matter; and individual rights will not be disturbed

collaterally for anything done in the exercise of that discretion

within the authority and power conferred. The only questions

which can arise between an individual claiming a right under the

acts done, and the public, or any person denying its validity, are,

power in the officer, and fraud in the party. All other questions are

settled by the decision made or the act done by the tribunal or

officer; whether executive, (1 Cranch, 170, 171,) legislative, (4

Wheat. 423; 2 Pet. 412; 4 Pet. 563,) judicial, (11 Mass. 227; 11 S.

& R. 429; adopted in 2 Pet. 167, 168,) or special, (20 Johns. 739,

740, 2 Dow P.C. 521, etc.,) unless an appeal is provided for, or

other revision, by some appellate or supervisory tribunal, is

prescribed by law." See also the following cases: Foley y.

Harrison, | 5 How. 433, 448; Johnson y. Towsley, 13 Wall. 72,

83; Smelting Company v. Kemp, 104 U.S. 636, 640; Shepley v,

Cowan, 91 U.S. 330, 340; Moore vy. Robbins, 96 U.S. 530, 535;

Quinby v. Conlan, 104 U.S. 420, 426; Steel vy. Smelting Co., 106

U.S. 447, 450; Lee v. Johnson, 116 U.S. 48, 51; Wright v.

16. Citing Johnson v. Towsley, 80 U.S. 72, 72 (1871)

26

Roseberry, 121 U.S. 488, 509.”"”

This Court has said in the case of

“It is this unassailable character [of the patent] which

gives to it its chief, indeed its only, value, as a means of quieting

its possessor in the enjoyment of the lands it embraces. If intruders

upon them could compel him, in every suit for possession, to

establish the validity of the action of the Land Department and the

correctness of its ruling upon matters submitted to it, the patent,

instead of being a means of peace and security, would subject his

rights to constent and ruinous litigation. He would recover one

portion of his land if the jury were satisfied that the evidence

produced justified the action of that department, and lose another

portion, the title whereto rests upon the same facts, because

another jury came to a different conclusion. So his rights in

different suits upon the same patent would be determined, not by

its efficacy as a conveyance of the government, but according to

the fluctuating prejudices of different jurymen, or their varying

capacities to weigh evidence.” 104 U.S. 636, 641.""

in the Eleventh Circuit there is controlling case law and

this Circuit has said in the case of Holley v. Seminole County

School District: °

“We reiterate that whether there was “good cause” not to

renew Holley's contract is not a de novo inquiry. However, such

an inquiry is fundamentally different from the one which is

designed to protect First Amendment freedoms, primarily because

the former is @ question of state law. See Ga. Code Ann. § 20-2-

940(a)\1)-(8\ enumerating ‘good cause’ criteria). The property

interest that Holley has in his employment exists by virtue of the

state requiring ‘good cause’ not to renew his contract, see Part Il,

17. Citing United States v, California &c, Land Co., 148 U.S. 31, 43-44

(13 S.Ct. 458, 463) (1893). Quoting Lee y. Johnson, 116 U.S. 48, 51 (6

S.Ct. 249, 250% 1885), Wright v. Roseberry, 121 U.S. 488, 509 (7 S.Ct.

985, 999) 1887).

18. Citing Steet vy. Smelting Co, 106 US. 447, 454-455 (1 S.Ct. 389,

396) 1882).

27

supra; state-created procedures, if in keeping with due process, are

generally adequate to safeguard such interests. Cf. Parratt v.

Taylor,"* 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981).”

(Emphasis added).”

In Georgia, as a general rule, “[w}hen an employment

contract requires that termination be ‘for cause’ only, and the

employer fires the employee without cause, a substantive breach

occurs, and the employee would be entitled to seek full

compensatory damages..” Savannah College of Art & Design v.

Nelph, 256 Ga. 662-663(1) (460 S.E.2d 792) (1955). . . “such

conduct discredit{ing] Employer or [was] detrimental to the

reputation, character and standing of Employer” are disputed

questions of material fact and matters of credibility that a jury must

resolve. See Cherokee County Hops. Auth. v. Beaver, | 79 Ga.

App. 200, 205(2) 345 S.E.2d 904 (1986)(summary judgment

precluded where question of credibility arises as to material issue).

Citing Salhab y. Tift Heart Ctr., P.C., 260 Ga. App. 799, 581

S.E.2d 363 (2003).

REASONS FOR GRANTING THE WRIT

AND CONCLUSION

T6 determine Whether when a State of Georgia agency

acting in a judicial capacity resolves disputed issues of fact

properly before it which the parties have had an adequate

opportunity to litigate, will Georgia federal courts in actions under

the Reconstruction civil rights statutes must give the agency's

factfinding the same preclusive effect to which it would be entitled

19. Parratt v. Taylor, 451 U.S. $27 (101 S.Ct. 1908, 1914-1915, 68

L.£4.2d 420 (1981).

20. Citing Holley v, Semiaole County School District, 755 F.2d 1492 (11th

Cir. 1985).

28

in the State's courts as in the United States Court of Appeals for the

Sixth Circuit.

Petitioner’s respectfully request the Honorable Court to

grant the Petitioners for Writ of Certiorari in order to prevent a

collisions of authority across this country. And reverse and

remand the Judgments of the federal courts in Georgia in favor of

the Respondent and Against the Petitioner with respect to

Petitioners reconstruction civil rights claim

Respectfully submitted,

PerneLstoaphenr

Irene L. Stephens

Petitioner, In Propria Persona

1409 Back Cove Road

Virginia Beach, VA 23454

L

Supreme ( US.

05-637NOV14 2005

OFFICE OF THE CLERK

In The

Supreme Court of the United States

No.

IRENE L. STEPHENS,

Petitioner,

vs.

GEORGIA DEPARTMENT OF TRANSPORTATION,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE ELEVENTH CIRCUIT COURT OF APPEALS

APPENDIX

VOLUME I

Irene L. Stephens

Petitioner, In Propria Persona

1409 Back Cove Road

Virginia Beach, VA 23454

(757) 332-0636

APPENDIX Vol. I, App. I- OPINION OF THE ELEVENTH

CIRCUIT COURT OF APPEALS DATED AUGUST 17, 2005

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 04-14222

Non-Argument Calendar

IRENE L. STEPHENS,

Plaintiff-Appellant,

versus

GEORGIA DEPARTMENT OF TRANSPORTATION,

Defendants-Appellees.

7“ ee ee ee ee ee ee er eer rh er errr re ee

On Appeal from the United States District Court for the

Northern District of Georgia

ON PETITION(S) FOR REHEARING AND PETITION(S)

FOR REHEARING EN BANC

Before TJOFLAT, ANDERSON and DUBINA, Circuit

Judges.

PER CURIAM:

the Petition(s) for Rehearing are DENIED and no member of

l

APPENDIX Vol. |, App. I

this panel nor other Judge in regular active service on the Court

having requested that the Court be polled on rehearing en banc

(Rule 35, Federal Rules of Appellate Procedure, eleventh

Circuit Rule 35-5), the Petition(s) for Rehearing En Banc are

DENIED.

ENTERED FOR THE COURT:

Si unknown si ure]

UNITED STATES CIRCUIT JUDGE

APPENDIX Vol. I, App.II - OPINION OF THE ELEVENTH

CIRCUIT COURT OF APPEALS DATED MAY 31, 2005

(DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 04-14222

Non-Argument Calendar

IRENE L. STEPHENS,

Plaintiff-Appellant,

versus

GEORGIA DEPARTMENT OF TRANSPORTATION,

Defendants-Appellees.

~“~-—---e ee #- e eee eee eee en ewer wr error

Appeal from the United States District Court for the

Northern District of Georgia

Before TJOFLAT, ANDERSON and DUBINA, Circuit

Judges.

3

APPENDIX Vol. I, App.

PER CURIAM:

Irene L. Stephens, proceeding pro se, appeals several

decisions by the district court in her civil action filed against

the Georgia Department of Transportation (“DOT”). She

claimed, inter alia, the the DOT denied her a transfer and

terminated her based on illegal, discriminatory motives.

Stephens appeals the following procedural decisions: (1) the

denial of her motion for sanctions; (2) the denial of her motion

to amend her complaint; (3) the grant of the DOT’s motion to

strike portions of the record; and (4) the denial of her motion to

dismiss her complaint without prejudice. Stephens also appeals

the district court’s grant of summary judgment in favor of the

DOT. We affirm the district court in all respects. Stephens’

arguments are addressed in turn.

I. STEPHENS’ PROCEDURAL ARGUMENTS

A. Denial of Stephens’ Motion for Sanctions

Stephens argues thath her due process rights were

violated by virtue of the DOT’s alleged destruction of a 1994

employee handbook and its alleged obstruction of justice.

Applying a liberal reading of Stephen’s appellate bried, it

appears that she is asserting that the district court erred by

denying her motion for sanctions under Fed.R.Civ.P.11 because

the DOT was acting in bad faith throughout the litigation. See

Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596

(1972)(holding that pro se pleadings are held to less stringent

standards than counseled pleadings).

We review the district court’s determinations regarding

sanctions for abuse of discretion. Souran v. Travelers Ins. Co.,

982 F.2d 1497, 1506 (11% Cir 1993). Federal Rule of Criminal

Procedure 1 1(c) provides for sanctions when parties make

certain representation to the court. District courts may impose

4

APPENDIX Vol. I, App.

sanctions pursuant to Fed.R.Civ.P. | 1(c) “(1) when a party files

a pleading that has no reasonable factual basis; (2) when the

party files a pleading that is based on a legal theory that has no

reasonable chance of success and that cannot be advanced as a

reasonable argument to change existing law; and (3) when the

party files a pleading in bad faith for and improper purpose.”

Souran, 982 F.2d at 1506 (internal quotations omitted).

Stephens’ claim that the DOT acted in bad faith by concealing

the 1994 employee handbook is without merit. Stephens

admittedly possessed a copy of the handbook. Stephens did not

produce any evidence of bad faith on the part of the DOT.

Accordingly, the district court did not abuse its discretion by

denying Stephens’s motion for sanctions.

(B) Denial of Stephens’s Motion to Amend her

Complaint

Stephens argues that the district court “erred and/or

abused [its] discretion by denying her motion for leave to

amend her already amended complaint. Although leave to

amend should be liberally granted when necessary in the

interest of justice, the decision is committed to the district

court's discretion and grant or denial of leave to amend is

reviewed for abuse of discretion. Jennings vy. BIC CORP., 181

F.3d 1250, 1258 (11 Cir. 1999); Fed R. Civ.P.15(a).

Stephens filed the motion to amend over six months

after the deadline set by the Scheduling Order. Stephens’

motion was thus untimely, and Federal Rule of Civil Procedure

16(b) requires her to show good cause in order for the court to

grant her motion. Fed.R.Civ.Pro. 16(b). The only reason

Stephen offered for the delay is that she discovered a new legal

theory through additional research. We do not find that the

district court abused its discretion in holding that this proffered

5

APPENDIX Vol. I, App.

reason was insufficient to show good cause. See Jennings. 181

F.3d at 1268 (11* Cir. 1999)(stating that undue delay is an

adequate basis for denying leave to amend).'

(C) Grant of the DOT’s Motion to Strike

We review the district court’s evidentiary rulings for an

abuse of discretion, reversing only when there is substantial

prejudice. Brochu v, City of Riviera Beach. 304 F.3d 1144,

1155 (ith Cir. 2002). The Federal Rules of Civil procedure

provide that “the court may order stricken from any pleading

any insufficient defense or and redundant, immaterial,

impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). We

conclude that the district court did not abuse its discretion in

striking portions of Stephens’s motion for summary judgment

because it contained “immaterial,impertinent, or scandalous

matter.” See Fed. R.Civ.P. 12(f).

(D) Denial of Stephens’s Voluntary dismissal of her

Complaint Without Prejudice

Stephens argues that the district court erred by denying

her motion to dismiss her complaint voluntarily without

prejudice, asserting that the DOT would not lose any

substantial rights as a result of the dismissal.

We review for abuse of discretion the district court's

decisions regarding the dismissal of a complaint without

prejudice. Pontenberg v. Boston Scientific Corp., 252 F.3d

1. Having found that the district court did not abuse its discretion in denying

Stephens’ motion to amend, we do not reach the question of whether the

employee handbook constituted a unilateral contract because that issue was

only raised in the motion to amend.

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APPENDIX Vol. I, App.tI

1253, 1256 (11 Cir. 2001). The Federal Rules of Civil

Procedure permit 2 plaintiff to dismiss an action voluntarily

only “upon order of the court and upon such terms and

conditions as the court deems proper” after the defendant has

filed an answer to the complaint, unless there is a stipulation

signed by all parties to the action. Fed.R.Civ.P.41(a). We have

held that “[a] voluntary dismissal without prejudice is not a

matter of right.” Fisher v. P.R. Marine Mgmt., Inc., 940 F.2d

1502 (11" Cir. 1991).

[[}n most cases, a voluntary dismissal should be granted

unless the defendant will suffer clear legal prejudice,

other than the mere prospect of a subsequent lawsuit, as

a result. The crucial question to be determined is,

Would the defendant lose any substantial right by the

dismissal. In exercising its broad equitable discretion

under Rule 41(a)(2), the district court must weigh the

relevant equities and fo justice between the parties in

each case, imposing such costs and attaching such

conditions to the dismissal as are deemed appropriate.

Pontenberg, 252 F.3d at 1255-56 (citations, quotations, and

emphasis omitted).

In Stephens’s case, the DOT objected to a dismissa!

without prejudice, arguing that such a dismissal would be

prejudicial due to its pending motion for summary judgment.

Stephens filed her complaint in June 2002. She filed her

motion to voluntarily dismiss without prejudice in May 2004.

During that two year period, numerous motions had been filed,

extensive discovery had been produced, and motions for

summary judgment were pending. The district court agreed

with the DOT’s assertion that only a dismissal with prejudice

would be appropriate. Stephens was not entitled to a voluntary

dismissai without prejudice as a matter of right, and the DOT

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APPENDIX Vol. I, App.ll

demonstrated that it would be prejudiced by such a dismissal.

Accordingly, the district cour did not abuse its discretion by

denying Stephens’s motion to dismiss her complaint voluntarily

without prejudice.

Il. STEPHENS’ SUBSTANTIVE ARGUMENTS

In her complaint, Stephens alleged: (1) violations of her

due process and equal protection right; (2) employment

discrimination; and (3) retaliation for exercising a legal right.

The district court read the complaint broadly in deference to

Stephens’ pro se status, and considered her to have alleged:(|)

a violation of due process and equal protection rights pursuant

to 42 U.S.C. § 1983; (2) a violation of Title VU of the Civil

Rights Act; (3) a violation of the Americans with Disabilities

Act (“ADA”), and (4) a violation of the Age Discrimination

Employment Act (“ADEA”). The district court granted

summary judgment to the DOT on all claims.’

We review the district court's grant of a motion for

summary judgment de novo, “ applying the same legal

standards that bound the district court.” Jackson v. BellSouth

Telecomm., 372 F.3d 1250, 1279 (11" Cir. 2004). Summary

judgment is appropriate when “the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

2. On appeal, Stephens also argues that a psychologist who was supposed to

examine her on December 8, 2000, improperly released her medical records

to the DOT. Stephens did not raise this issue in the district. We generally

will not consider issues raised for the first time on appeal, with several

exceptions, including the issue “involved a pure question of law. and if

refusal to consider it would result in a miscarriage of justice.” Narey vy. Dean,

32 F. 3d 1521, 1526-27 (11* Cir. 1994). Since Stephens raised her claim

regarding “patienV/client confidentiality” for the first time on appeal, and our

refusal to consider it will not result in a miscarriage of justice, we conclude

that Stephens waived this claim.

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APPENDIX Vol. I, App.t!

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law.” Fed.R.Civ.P.56( c). A material

fact is genuine only “if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.”

Anderson, 477 U.S. at 258, 106 S.Ct. At 2510.

A. Sovereign Immunity

The district court granted summary judgment to the

DOT on Stephens’ § 1983, ADA, and ADEA claims after

finding that the DOT had immunity pursuant to the Eleventh

Amendment. Stephens brought her claim solely against the

Georgia department of transportation. As an arm of the state,

the DOT is entitled to the same sovereign immunity of the state

itself. Robinson v. Ga. Dep’t of Transp., 966 F.2d 637, 640

(1 1" Cir. 1992). Congress has not abrogated immunity for

claims brought pursuant to § 1983, the ADEA, or the ADA.

See id. (holding that the Eleventh Amendment barred plaintiff s

§ 1983 against georgia DOT); Kimel v. Fla.Bd. of Regents, 528

U.S. 62, 120 S.Ct. 631 (2000\(holding that the ADEA did not

validly abrogate eleventh Amendment immunity), Bd. Of Trs.

of Ala. V. Garrett, 531 U.S. 356, 121 S.Ct. 955 (2001 Kholding

that state agencies were entitled to Eleventh Amendment

immun ty from employes’ claims brought pursuant to the

ADA). Therefore, the district court’s grant of summary

judgment on these claims was proper.

itle V

The district court, reading Stephens’ claim liberally,

stated that she alleged several cognizable theories under a Title

VII claim: (1) that Stephens was denied a transfer and

ultimately terminated because of her sex; (2) that she was a

victim of disparate treatment, and (3) that she was retaliated

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APPENDIX Vol. I, App.ll

against because of he sex. The district court found that

Stephens failed to establish a prima facie case under Title VII

and that even is she had established a prima facie case, the

DOT came forward with a legitimate, non-discriminatory

reason for terminating her that Stephens could not show was

pretextual.’

A plaintiff may establish a prima facie case of

discrimination by virtue of the denial of a job transfer or

termination by showing that (1) she is a member of a protected

class; (2) she is qualified for the position; (3) she was subjected

to adverse employment action; and (4) she was replaced by a

person outside the protected class. Kelliher v. Veneman, 313

F.3d 1270, 1275 911" Cir. 2002). The plaintiff generally has

the burden of establishing a prima facie case of discrimination.

McDonnell Dougias Corp. V. Green, 411 U.S. 792, 802, 93

S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973) Establishing a prima

facie case of discrimination creates a presumption of unlawful

discrimination, and the employer must come forward with

evidence of a legitimate non-discriminatory reason for its

decision. Id. At 802, 93 S.Ct. At 1824. This burden is

“exceedingly light,” and the employer must merely proffer non-

discriminatory reasons, not prove them. Perryman v. Johnson

3. Stephens argues that the district court erred by conducting a de novo

inquiry of her claims because, during her action to obtain state

unemployment benefits, a state administrative hearing officer allegedly had

already ruled on the merits of her claims by determining that the DOT had

failed to meet its burden of proof to establish Stephens’s ineligibility ofr

benefits. By finding that the DOT had failed to meet its burden of proof to

establish Stephens's disqualification unemployment benefits, the state

administrative hearing officer did not address the merits of any potential

ADEA, ADA, or Title VII claims. Furthermore, the state administrative

ruling does not have a preciusive effect over Stephens's Title VII claims.

See Bishop, 361 F.3d 607, 610 (11% Cir. 2004). Accordingly, the district

court did not err by conducting a de novo review of the case before granting

summary judgment in favor of the DOT.

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APPENDIX Vol. |, App.II

Prods. Co., 698 F.2d 1138, 1142 (11" Cir. 1983). When the

employer expresses one or more legitimate reasons for its

actions, the preseumption of discrimination evaporate, and the

plaintiff must raise a genuine issue of material fact as to

whether the reasons offered by the defendant are pretextual.

McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825.

Assuming arguendo that Stephens established a prima

facie case with respect to one or more of her claims, summary

judgment for the DOT was nevertheless appropriate because it

offered legitimate, non-discriminatory reasons for her

termination, and Stephens did not produce evidence creating a

genuine issue of material fact that the proffered reasons were

pretextual. Stephens refused to follow her supervisors’

direction on several occasions, took frequent sick leave, and

took a state vehicle and drove dangerously on public roads.

Even after this, this DOT attempted to meet with her and work

with her, but she refused to cooperate. Any of these reasons are

sufficient legitimate reasons for termination, and nothing in the

record indicated they are pretextual.

Ill. Conclusion

Upon careful review of the record and the parties’

briefs, we find no reversible error.‘

AFFIRMED.

ENTERED FOR THE COURT:

Signed [unknown signature}

UNITED STATES CIRCUIT JUDGE

4 Other arguments asserted on appeal are rejected without need for

further discussion.