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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2006
- **Citation:** 546 U.S. 1095

## Text

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

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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.

10

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0479%3A1. Public record. Not legal advice.