# Petition for Writ of Certiorari — Harris v. City of Chattanooga, Tennessee (No. 05-863)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2005

## Text

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[magistrate judge] to hear and determine any pretrial
matter pending before the court, except 2 motion for
injunctive relief, for judgment on the pleadings, for
summary judgment, to dismiss or quash an indictment
or information made by the defendant, to suppress
evidence in a criminal case, to dismiss or to permit
maintenance of a class action, to dismiss for failure to
State a claim upon which relief can be granted, and to
involuntarily dismiss an action. A judge of the court
may reconsider any pretrial matter under this
subparagraph (A) where it has been shown that the
magistrate’s [magistrate judge's] order is clearly
erroneous Or contrary to law.

(B) a judge may also designate a magistrate
{magistrate judge] to conduct hearings, including
evidentiary hearings, and to submit to a judge of the
court proposed findings of fact and recommendations
for the disposition, by a judge of the court, of any
motion excepted in subparagraph (A), of applications
for posttrial relief made by individuals convicted of
criminal offenses and of prisoner petitions challenging
conditions of confinement.

(C) the magistrate [magistrate judge] shall file his
proposed findings and recommendations under
subparagraph (B) with the court and a copy shail
forthwith be mailed to all parties.

Within ten days after being served with a copy, any party
may serve and file written objections to such proposed
findings and recommendations as provided by rules of court.
A judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations to which objection is made. A judge of the

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court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate
{magistrate judge]. The judge may also receive further
evidence or recommit the matter to the magistrate [magistrate
judge] with instructions. 28 U.S.C. § 636.

STATEMENT OF THE CASE

This petition seeks review of a decision of the United
States Court of Appeals for the Sixth Circuit upholding a
decision of the district court dismissing the Petitioner’s civil
action brought under 42 U.S.C. § 1983.

(a) Petitioner believes the decision of the Court of
Appeals conflicts with prior decisions of this Court and other
circuits holding that a federal court may not exercise its
inherent power in a manner that conflicts with Constitutional
and statutory provisions. Here, the Court of Appeals denied
Due Process to the Petitioner in its arbitrary refusal to apply
an exception to its waiver rule. The issue of how appellate
courts must apply exceptions to their waiver rules is an issue
previously reserved by this Court.

(b) The district court below committed plain error in
finding the Petitioner’s former attorney had apparent authority
to enter into the settlement agreement where controlling
precedent in the state court of last resort holds that attorneys
do not have apparent authority to compromise 4 suit.

(c) The Court of Appeals acted in direct conflict with
prior holdings of this Court and with Federal Rule of Civil
Procedure 52(a) as it reviewed the record de novo and made
its own factual findings. This decision sets a dangerous
precedent for appellate courts in overreaching in the scope of
their authority to review factual findings under Rule 52.

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This case arose when Petitioner’s son, Torris Harris,
suffered death by suffocation at the hands of five City of
Chattanooga police officers and two private citizens during a
traffic stop.

Petitioner brought suit pursuant to 42 U.S.C. § 1983.
Sometime in or around December of 2003, Ms. Harris’
former counsel made a demand to the City of Chatianooga to
settle the case for one-hundred thousand dollars
($100,000.00). Counsel for the City of Chattanooga
responded with a counter-offer of twenty-eight thousand five-
hundred dollars ($28,500.00), and, in a December 18, 2003
letter, Petitioner’s former counsel accepted the offer. On or
about January 1, 2004, Ms. Harris advised her former
counsel that she would not accept the offer, and he wrote to
the Defendants advising them that she rejected their offer.

Afterward, the Defendants filed various motions to
enforce the purported settlement agreement. The motions
were referred to the magistrate judge for an evidentiary
hearing, and on February 11, 2004, the magistrate issued a
Report and Recommendation, recommending that the District
Court enforce the purported agreement. The magistrate found
Petitioner did not understand the terms of the settlement
agreement. (App. at 25a). The magistrate further found
Petitioner’s former counsel accepted the settlement on her
behalf, finding he had apparent authority to do so, and basing
this apparent authority solely on his status as counsel of
record for Petitioner. (App. 25a). This finding directly
contradicts applicable state law holding attorneys do not have
apparent authority to settle a suit, and cannot comprise a
matter without the express authority of the client.

On March 3, 2004, the District Court entered an Order
adopting the Report and Recommendation. Appellant’s former

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counsel moved to withdraw on March 14, 2004, and on
March 18, 2004, he delivered documents, including the
Report and Recommendation and Order, to Petitioner. On
March 23, 2004, Petitioner, pro se, filed her objections to the
Report and Recommendation and motion for reconsideration
of the Order adopting the Report and Recommendation.

The District Court considered the objections and motion
of the Plaintiff, and denied the same under a Fed. R. Civ. P.
60(b) standard in a Memorandum and Order, both dated May
14, 2004.

The issue of the lack of authority of Petitioner’s former
attorney to comprise the suit on her behalf was properly
raised below in Petitioner’s objections and motion for
reconsideration, and on appeal.

In its opinion, the Court of Appeals held that by failing to
timely object to the Magistrate’s Report and Recommendation
within ten days, the Petitioner waived her right to appeal. In
so holding, however, the Court of Appeals ignored a long-
standing exception to its waiver rule, which allows appeal
where the District Court entertains a late-filed objection. The
Court of Appeals premised its departure from this rule on the
fact that the District Court viewed the Petitioner’s objections
under a Fed.R. Civ. P. 60 standard, despite there having been
at least one prior Sixth Circuit opinion allowing appeal where
a late objection was viewed by the District Court under a Rule
60 standard.

The Court of Appeals then reviewed the record de novo
and held that the Petitioner accepted the settlement — a finding
not reached by the district court. By reviewing the record de
novo and making its own factual findings, the Court of

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Appeals overstepped the bounds of its authority under Federal
Rule of Civil Procedure 52(a).

The Sixth Circuit denied Petitioner’s request for rehearing
and for rehearing en banc without opinion.

REASONS FOR GRANTING THE WRIT

I. This Court Should Grant Certiorari Because The
Decision Below Conflicts With Decisions Of This Court
And Other Circuits Holding That A Federal Court
May Not Exercise Its Supervisory Power In A Way
That Conflicts With Constitutional And Statutory
Provisions.

A. The Waiver Rule at Issue.

At issue here is a rule, adopted by the Sixth Circuit in
United States v. Walters, 638 F.2d 947 (6" Cir. 1981),
conditioning appeal upon a party filing objections to a
magistrate’s report within ten days as provided for in 28
U.S.C. § 636 (b)(1).

In Thomas v. Ar, 474 U.S. 140 (1985), this Court
considered the Sixth Circuit’s waiver rule and held that “a
court of appeals may adopt a rule conditioning appeal, when
taken from a district court judgment that adopts a magistrate’s
recommendation, upon the filing of objections with the district
court identifying those issues on which further review is
desired. Such a rule, at least when it incorporates clear notice
to the litigants and an opportunity to seek an extension of time
for filing objections, is a valid exercise of the supervisory
power that does not violate either the Federal Magistrate’s
Act of the Constitution.” /d. at i5S5.

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This Court noted that because the waiver rule approved by
the Court was a nonjurisdictional waiver provision, default
could be excused “in the interests of justice,” referencing in
a footnote Fed. R. of Crim. Proc. 52(b), which states that a
court may correct plain error despite the failure of a party to
object. 474 U.S. at 155.

B. Certiorari is Warranted Where This Court
Expressly Reserved the Issue of How Appellate
Courts Must Apply Exceptions to the Waiver Rule
and Where There is a Split Among the Circuits in
Their Application of Exceptions.

In Thomas, the Court expressly reserved the issue of how
appellate courts must apply exceptions to their waiver rules,
stating, “[w]e need not decide at this time what standards the
courts of appeals must apply in considering exceptions to their
waiver rules.” 474 U.S. at 155.

A grant of certiorari by this Court is appropriate where a
decision of the court of appeals is predicated upon a point
expressly reserved or left undecided in prior decisions of this
Court. See, American Textile Mfrs. Institute v. Donovan, 452
U.S. 490, 495 (1981); United States v. Martinez-Fuerte, 428
U.S. 543, 545 (1976); El Al Israel Airlines, Ltd. v. Tseng,
525 U.S. 155, 161-62 (1999).

Since the decision in Thomas, there has been a definitive
split among the circuits in considering exceptions to their
waiver rules.

A grant of certiorari is also appropriate where there is a
conflict between decisions of courts of appeals on the same
matter. Supreme Court Rule 10(a); see also, Thompson v.
Keohane, 516 U.S. 99, 106 (1995) (certiorari granted where

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Circuits disagreed “because uniformity among federal courts
is important on questions of this order”); Firestone Tire &
Rubber Co. v. Risjord, 449 U.S. 368, 373 (1981) (certiorari
granted “to resolve a conflict among the Circuits on the
appealability question” as to certain district court decisions);
Marks v. United States, 430 U.S. 188, 189 (1977) (certiorari
granted “to resolve a conflict in the Circuits”).

C. An Appellate Court’s Supervisory Power is Invalid
Where It Conflicts With Constitutional and
Statutory Provisions.

In Bank of Nova Scotia v. United States, 487 U.S. 250,
254 (1988), this Court held that a federal court may not
invoke its inherent power to circumvent the harmless error
inquiry of Fed. R. Crim. P. 52, and observed, “[i]t follows
that Rule 52 is, in every pertinent respect, as binding as any
Statute enacted by Congress, and federal courts have no more
discretion to disregard the Rule’s mandate than they do to
disregard constitutional or statutory provisions.”

In United States v. Paynor, 447 U.S. 727 (1980), this
Court ruled that the district court erred when it invoked its
inherent power to suppress evidence even though an illegal
search did not violate the accused’s Fourth Amendment
rights, finding that, “[w]Jere we to accept this use of the
supervisory power, we would confer on the judiciary
discretionary power to disregard the considered limitations of
the law it is charged with enforcing. We hold that the
supervisory power does not extend so far.” /d. at 737; see
also, Societe Internationale pour Participations Industrielles
et Commerciales, S.A. v. Rogers, 357 U.S. 197, 209 (1958)
(rejecting the appellate court’s reliance on inherent power to
uphold a dismissal of a complaint for failure to comply with
a production order, holding, “there are constitutional

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limitations upon the power of courts, even in the aid of their
own valid purposes, to dismiss an action without affording a
party the opportunity for a hearing on the merits of his
cause.”).

Indeed, in Thomas, 474 U.S. 140, where this Court
allowed the waiver rule at issue here, this Court observed,
“[ejven a sensible and efficient use of the supervisory power,
however, is invalid if it conflicts with constitutional or
statutory provisions. A contrary result ‘would confer on the
judiciary discretionary power to disregard the considered
limitations of the law it is charged with enforcing. ”” Id. at
148 (citing Payner, 447 U.S. at 737).

The discord among the circuits in considering exceptions
to their waiver rules, and as applied by the Sixth Circuit in
the manner in which it considers exceptions to its waiver rule,
has had the practical effect of denying Due Process to the
Petitioner in the instant case.

D. The Sixth Circuit’s Waiver Exceptions.

The Sixth Circuit excuses the waiver provision “in the
interest of justice”. Kelly v. Withrow, 25 F.3d 363, 366 (6
Cir. 1994 ), cert. denied, 513 U.S. 1061 (1994): see also,
Kent v. Johnson, 821 F.2d 1220, 1223 (6" Cir. 1987).

Compliance is also excused in the Sixth Circuit when a
district court considers untimely objections. Patterson v.
Mintzes, 717 F.2d 284 (6" Cir. 1983). In Patterson, the
Court concluded that, “when written objections to a
magistrate’s report are tendered beyond the 10 day period of
28 U.S.C. § 636(b)(1), but are nevertheless filed and
considered by the district court, the criteria identified in
Walters in justification of the waiver rule promulgated therein

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dissipate and the rule will not apply to bar appellate review.”
Id. at 286; see also, Kent, 821 F.2d at 1223.

The underlying rationale, as explained by the Court in
Patterson is that, “[t}he district court, rather than the
magistrate, is charged with the ultimate responsibility of
properly adjudicating the Article III controversy before it.
Accordingly, the district court may place upon the
magistrate’s recommendation such reliance as is warranted
through the ‘exercise of sound judicial discretion.’” Jd. at
287. (citation omitted).

In Kent, 821 F.2d 1220, the court decided to entertain the
appeal “in the interests of justice” because the appellant did
not receive the report and recommendation until ihe eleventh
day, holding that, “[t}he interests of justice must be weighed
on a case by case basis.” Jd.

E. The Split Among the Circuits in Applying
Exceptions to Their Waiver Rules.’

Like the Sixth Circuit, many other courts hz held that
where a district court considers a late-filed objection, the
court’s waiver rule does not apply. See, United States v.
Robinson, 30 F.3d 774, 777 (7" Cir. 1994) (holding that its
appellate waiver rule would not apply when untimely
objections are not “egregiously late” and the opposing party

' The Third and Ninth Circuits do not apply an appellate waiver
rule t6 accepted unobjected-tc proposed legal conclusions °a a
magistrate judge’s report. See, Henderson v. Carlson, 812 . 2d
874, 878-79 (3d Cir.), cert. denied, 484 U.S. 837 (1987); Flaten
v. Secretary of Health & Human Servs., 44 F.3d 1453, 1458 (9%
Cir. 1995). The First Circuit has not applied any exceptions to its
waiver rule. See, Davet v. Maccarone, 973 F.2d 22, 31 (1* Cir.
1992).

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has not been prejudiced); see also, Nabors v. United States,
929 F.2d 354, 355 (8" Cir. 1990) (holding time was
“implicitly enlarged where district court considered untimely
objections.”); Grandison v. Moore, 786 F.2d 146 (3" Cir.
1986) (remanding trial court’s order adopting a magistrate’s
findings and conclusions in order for district court to consider
whether plaintiff adequately justified delay in filing
objections).

The Second Circuit has created an excstion for pro se
litigants unless the magistrate’s report “explicitly states” that
failure to object to the report within ten days will preclude
appellate review and specifically cites 28 U.S.C. § 636(b)(1),
Fed. R. Civ. P. 72, 6(a) and 6(e). F.D.1.C. v. Hillcrest
Associates, 66 F.3d 566, 569 (2™ Cir. 1995).

Like the Second Circuit, in the Tenth and Fourth Circuits,
the rule does not apply to a pro se litigant’s failure to object
when the magistrate’s order does not apprise the pro se
litigant of the consequences of a failure to object. Moore v.
United States, 950 F.2d 656, 659 (10" Cir. 1991); Wright v.
Collins, 766 F.2d 841, 846-47 (4" Cir. 1985). The Tenth
Circuit also holds the waiver rule “need not be applied when
the interests of justice so dictate.” Moore, 950 F.2d at 659.

The Fifth Circuit and Eighth Circuits have a “plain error”
exception. Douglass v. United Servs. Auto. Ass'n, 79 F.3d
1415, 1428-1429 (5" Cir. 1996); Thompson v. Nix, 897 F.2d
356, 357 (8" Cir. 1990). The Eleventh Circuit reviews
accepted unobjected-to proposed factual findings for “plain
error or manifest injustice.” See, Resolution Trust Corp. v.
Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11" Cir.
1993).

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F. In this Case, the Arbitrary Application of the
Waiver Rule and Exceptions by the Court of
Appeals Denied Petitioner Due Process.

In Thomas, 474 U.S. at 146, this Court stated that, “[t]he
Sixth Circuit has also shown that its [waiver] rule is not
jurisdictional by excusing the procedural default in a recent
case. See Patterson v. Minizes, supra (considering appeal on
merits despite pro se litigant’s late filing of objections). We
therefore conclude that neither the intent nor the practical
effect of the Sixth Circuit’s waiver rule is to restrict the
court’s own jurisdiction.”

In the instant case, the Court of Appeals refused
Petitioner’s appeal, disregarding the court’s own exception to
its waiver rule, as explained in Patterson v. Mintzes, where
appeal is allowed if the district court entertains late-filed
objections. While recognizing the district court did, in fact,
entertain the Petitioner’s late-filed objections, the court
distinguished Patterson, stating, “[t]here the district court
considered the untimely objections on the merits. Id. By
contrast, in this case, the district court considered this matter
under Rule 60(b) only, not on the merits.” (App. at 9a-10a).

However, the Sixth Circuit previously held in Dunn vy.
State of Ohio, 42 F.3d 1388 (6” Cir. 1994), that it would
consider an appeal and not apply the waiver rule based upon
the Patterson exception where, as in this case, the district
. court considered a late-filed objection under a Fed. R. Civ. P.
60(b) standard.

The Court of Appeals’ refusal to apply the Patterson
exception to its waiver rule had the effect of denying the
Petitioner her statutory right of appeal. Furthermore, where
the court applied its late-filed objection exception in Dunn but

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not in the instant case, where both cases involved objections
reviewed under a Rule 60 standard, the refusal to hear the
Petitioner’s appeal was an arbitrary denial of Due Process.

The Due Process Clause of the Fifth Amendment asserts
that no person shall “be deprived of life, liberty, or property
without due process of law.” The Constitution does not
create property interests but instead extends various
procedural safeguards to certain interests “that stem from an
independent source such as a [federal] law.” Board of Regents
v. Roth, 408 U.S. 564, 577 (1972). A claim of entitlement
under federal law, to be enforceable, must be derived from
statute or legal rule or through a mutual understanding. Perry
v. Sinderman, 408 U.S. 493, 601-602 (1972).

When presented with a Due Process challenge, a court
must determine, first, whether there has been a deprivation of
a property interest, and, if so, what process is due. Morrissey
v. Brewer, 408 U.S. 471, 481 (1972).

Petitioner’s entitlement here is clear because Petitioner’s
right to appeal is vested in 28 U.S.C. § 1291. Accordingly,
because Petitioner possessed a cognizable property interest
within the terms of the Fifth Amendment, the Constitution
obligated the district court to afford her procedural due
process before depriving her of her property in denying her
the opportunity to have her appeal heard.

In Logan v. Zimmerman Brush Co., 455 U.S. 422, 437
(U.S. 1982), this Court held that a party’s Due Process rights
were violated where state arbitrarily failed to convene a
hearing within limitations period, thus extinguishing the
claim.

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By applying an exception to the waiver rule in Dunn v.
State of Ohio, where the late-objection was considered under
a Rule 60 standard, but refusing to do so in the case at bar,
without ¢istinction, the Sixth Circuit is arbitrarily applying its
waiver rule and exceptions, and thus denying the Petitioner
her statutory right to appeal.’

Where there is discord among the decisions of the circuit
courts of appeal, and within the Sixth Circuit, in how the
courts apply exceptions to their waiver rules, such that the
Due Process rights of litigants is being eviscerated by the
arbitrary and dissonant application by the appellate courts,
this Court should review the issue it previously reserved, of
“what standards the courts of appeals must apply in
considering exceptions to their waiver rules.” 474 U.S. at
155 n.15 (emphasis added).

II. This Court Should Grant Certiorari Where The
District Court Committed Plain Error.

A grant of certiorari is appropriate here, pursuant to
Supreme Court Rule 10(a), because the district court decision
below directly conflicts with the controlling authority from the
State court of last resort.

? Additionally, as noted above, the Second, Fourth and Tenth
Circuits all provide an exception to their waiver rule for pro se
litigants who do not receive adequate notice of waiver. Here,
Petitioner’s former attorney withdrew his representation on March
14, 2004, and Petitioner filed her objections, pro se, on March 23,
2004, just one day outside the ten days provided under Fed. R. Civ.
P. 59 for review on the merits of the court’s March 3, 2004 Order
(when considered with Fed. R. Civ. P. 6 time computation), and
certainly within ten days of Petitioner’s receipt of the decisions
from her former attorney on March 18, 2004.

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Additionally, the refusal by the Court of Appeals to
address the issue of whether the district court committed plain
error, and instead reviewing the case de novo (as discussed in
section III, infra.) is a clear departure from the accepted and
usual course of judicial proceedings, and a sanctioning of the
district court’s own such departure.

This Court has, on many occasions, granted certiorari
where there is a question of whether a doubtful determination
or plain error was committed below. See, Kyles v. Whitley,
514 U.S. 419, 422 (1995); Arizona v. Maricopa County
Medical Society, 457 U.S. 332, 336 (1982); New York Transit
Authority v. Beazer, 440 U.S. 568, 571 (1979); Perma Life
Mufflers v. International Parts Corp., 392 U.S. 134, 136
(1968); Williams v. Lee, 358 U.S. 217, 218 (1959).

In this case, there was plain error committed by the
District Court in its finding that the Petitioner’s former
attorney had apparent authority to settle the lawsuit on her
behalf. In determining the enforceability of a settlement
agreement, the state law of the state where the purported
agreement was entered into is applicable. See, Zink v. GE
Capital Assurance Co., 73 Fed. Appx. 858, 861 (6" Cir.
2003). In the case at bar, the alleged Settlement Agreement
was entered into in Tennessee, and as such, Tennessee law
must apply.

The District Court found the Petitioner’s former attorney
was clothed with apparent authority. However, Tennessee law
leaves attorneys naked as to such authority. It is the client
who holds the authority as to whether to settle a matter, and
it is the client who must expressly give such authority.

In Absar v. Jones, 833 S.W.2d 86, 89-90 (Tenn. Ct. App.
1992), the court held that, “{t}he general rule in Tenness 6 od be a oe ee ee en ill
PE RID dW a cs a be dd eee iV
NE tN 84-5 CN pe Oe eee ewe ees l
Statement of the Basis for Jurisdiction. ............ l

Constitutional Provisions, Treaties, Statutes,

Ordinances, and Regulations Involved ............ l
IN OGG 6 5 8 56-s FKS oh e boo eS 2
Argument - Reasons to Deny the Writ ............ 5
SNE: 5 civ’ wA ob 048 + CH FieL boc eae 16
Appendix

Appendix |

United States District Court for the Eastern

Division of Tennessee at Chattanooga
WG BU NE ih Wes hoes ew cee oR Ib

Appendix 2

United States District Court for the Eastern

Division of Tennessee at Chattanooga

Memorandum; May 14, 2004 ............... 3b

iv
TABLE OF AUTHORITIES
Cases

Armstrong v. Manzo,
Sr is ee REE 8 ain he VA Oe Re Re 10

Century Marine, Inc. v. United States,
aa Pe i Cs i Sai eww te ea we 13

Kelley v. Withrow,
25 F.3d 363 (6" Cir. 1994), cert. denied,
EEE I; ME RO EE 4 hicigarw Yas a ee oe la lek 15

Kent v. Johnson,
eT ae Ev ews ek ieee 15

Patterson v. Mintizes,
Fit P.2R TOOe Cir T98) so. eb aren. 15, 16

Performance Unlimited, Inc. v. Questar Publishers, Inc.,
RE Bate Gl MMOD a aia eis ea ee es 13

S. Ry. v. Pickle,
183 Tenn. 238, 197 S.W. 675 (Tenn. 1917) ...... 11

Thomas v. Arn,
Gear es SD 6 a ee Sie ws i, 6-11, 14-16

United States v. Campbell,
eS Fe Ce te) io ea bk wee 11

United States v. Walters,
636 F.2d O47 (6° Cir. 1981)... ...5....%. 6,7, 11

Zack v. Commissioner,

ee ee CD og ov oc koe cv eke 13
Statutes
Rules of the Supreme Court, Rule 10... .... 5, 6, 14-16
Rules of the Supreme Court, Rule 10(a) .... 2.2... 13
Rules of the Supreme Court, Rule 29.6 ........... ii
Federal Rules of Civil Procedure, Rule 6(b) ........ 16
Federal Rules of Civil Procedure, Rule 52(a) ....... 13
Federal Rules of Civil Procedure, Rule 60 ......... 10
Federal Rules of Civil Procedure, Rule 60(b) ....... 12
Federal Rules of Civil Procedure, Rule 72(b) ...... 8,9
Federal Rules of Criminal Procedure, Rule 52(b) .. . . . 10
Sy on fe i Bs 7, 9, 16
i 2g Oa a 6

Co A en one wee ee ee 2

l

OPINIONS BELOW

The opinion of the United States Court of Appeals for the
Sixth Circuit was not recommended for full-text publication.
The full opinion of the Sixth Circuit is attached as Appendix
B to the Petition for Writ of Certiorari.

STATEMENT OF JURISDICTION

Respondent, City of Chattanooga, adopts and incorporates the
Statements of Jurisdiction set forth in the Petition for Writ of
Certiorari filed by Petitioner, TONYA HARRIS, as
Administratrix of the Estate of Decedent Torris Harris.

CONSTITUTIONAL PROVISIONS, TREATIES,
STATUTES, ORDINANCES AND
REGULATIONS INVOLVED

Respondent City of Chattanooga adopts and incorporates
the Constitutional provisions, treaties, statutes, ordinances and
regulations involved set forth in the Petition for Writ of
Certiorari filed by Petitioner, TONYA HARRIS, as
Administratrix of the Estate of Decedent Torris Harris.

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STATEMENT OF THE CASE

On December 26, 2002, plaintiff filed a Complaint against
the City of Chattanooga, five City of Chattanooga police
officers, and two private citizens pursuant to 42 U.S.C. §
1983. On November 14, 2003, Appellant’s former counsel,
Attorney Robin Ruben Flores, made a demand to the City of
Chattanooga to settle the case for $100,000.00.

On December 17, 2003, Attorney Phillip A. Nobiett,
attorney for the City of Chattanooga and Martin Penny, and
Attorney Flores engaged in settlement negotiations and
reached the settlement agreement to release all claims for
$28,500.00. On December 18, 2003, Flores sent by facsimile
a letter to Phil Noblett. The letter is entitled “Acceptance of
Offer to Settle” and states as follows:

Thank you for your attention to this case. As we
discussed yesterday, December 17, via telephone, my
client has accepted your offer on behalf of your
client, the City of Chattanooga, to settle this matter
for a sum of twenty-eight thousand five hundred
dotlars ($28,500.00). I assume that your client will
also pay all court costs. I further assume that this
amount shall constitute a setthkement of all claims
associated with this matter, state and federal, present
and future. (Emphasis supplied).

This letter was copied to Ms. Tonya Harris, and to other
attorneys of record: Lee Davis, Esq., Johnny Houston, Esq.,
W. Jeffrey Hollingsworth, Esq., John T. Rice, Esq.

On December 18, 2003, Noblett sent the following letter
to Flores:

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Pursuant to our telephone conversation yesterday
afternoon, this letter will confirm that your client has
agreed to settle her claims against the City of
Chattanooga and all other parties regarding the death
of Torris Harris in the amount of $28,500.00. It is my
understanding that this settlement will resolve all
outstanding claims that your client has filed in federal
court and in state court concerning this matter.
Attached with this letter you will find, pursuant to our
discussion, an Order of Dismissal for both lawsuits
which will be filed in federal court and in Circuit
Court and a Release of All Claims which I have
prepared reflecting this settlement.

Thereafter, the Petitioner sought to revoke her acceptance
of the settlement offer. On or about January 1, 2004,
Petitioner’s counsel sent a letter which stated: “My client has
reversed her position on her acceptance of your client’s offer
to settle this matter for $28,500. She now rejects the offer
and does not wish to sign the documents you forwarded to my
office on December 18, 2003. . . . | am aware that you are
free to file a Motion to Enforce the Settlement Ms. Harris has
accepted.”

The Respondent and other defendants to the action then
filed various motions to enforce the settlement. The District
Judge referred the motions for an Order to Enforce the
Contract of Settlement to the Magistrate Judge on January 26,
2004. The hearing regarding the motions to enforce
settlement agreement was held on February 3, 2004 before the
Magistrate Judge. On February 11, 2004, the Magistrate
Judge entered his Report and Recommendation in which he
recommended that the defendants’ motions to enforce
settlement agreement be granted. On March 3, 2004, the

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District Judge adopted the Report and Recommendation of the
Magistrate Judge and terminated the case.

Appellant filed a letter dated March 23, 2004, more than
ten (10) days after the Order entered by the District Court
Judge which also was treated as a pro se Motion for
Reconsideration. This letter states that on March 12, 2004,
Appellant terminated the employment of Attorney Flores.
Attorney Flores was eventually allowed to withdraw on April
8, 2004 by Order of the Magistrate Judge. The
Plaintiff/Appellant’s Motion for Reconsideration also
requested that the District Court Judge set aside his March 3,
2004 Order adopting the Magistrate’s Report and
Recommendation. On April 2, 2004, Plaintiff/Appellant
Tonya Harris filed her Notice of Appeal to the Sixth Circuit
Court of Appeals. On the same day, the Plaintiff/Appellant
filed her Application to Proceed in Forma Pauperis.

On May 14, 2004, the District Court Judge entered an
Order granting Attorney Flores’ Motion to Declare Attorney
Lien, denying the Defendants’ Motion for Reconsideration,
rejecting the Defendants’ objections to the Magistrate’s Order
of April 8, 2004, granting the defendants leave to deposit
funds in the Court, and granting the plaintiff application to
proceed in forma pauperis. The District Court Judge also
entered a Memorandum detailing his reasoning behind such
decisions. ‘This Memorandum and Opinion of the District
Judge was not attached to the Petition. A copy of the
Memorandum and Opinion and Order of the District Court
Judge is attached to this Brief in Opposition as Appendix |
and 2.

The Sixth Circuit Court of Appeals affirmed the ruling of
the District Court on June 15, 2005, and clearly found that the
plaintiff's failure to timely object to any matters in the

5

Magistrate Judge’s Report and Recommendation constituted
a waiver of these issues on appeal. On September 29, 2005,
the Sixth Circuit entered an Order concluding that no
rehearing en banc should issue anc denying a petition for
rehearing en banc.

REASONS WHY THE PETITION
SHOULD BE DENIED

None of the criteria set forth in Supreme Court Rule 10
that could establish a “compelling reason” to grant the petition
is present here. Petitioner has failed to identify any way in
which the Sixth Circuit’s decision either:

1. conflicts with the decision of another United States
Court of Appeals,

2. decides an important federal question in a way that
conflicts with the decision by a state court of last
resort,

3. so far departs from the accepted and usual course of
judicial proceedings to justify an exercise of this
Court’s supervisory power,

4. decides an important question of federal law
previously undecided by the Court, or,

5. conflicts with relevant decisions of this Court.

Supreme Court Rule 10 specifically provides that a
petition for writ of certiorari “is rarely granted when the
asserted error consists of erroneous factual findings or the
misapplication of a properly stated rule of law.” The petition
for writ of certiorari to this Court in this case is nothing more

6

than a claim by Petitioner that the Sixth Circuit failed to
follow its own procedural rule on waiver of appeal pursuant
to 28 U.S.C. § 636(b)(1)(B) adopted in United States v.
Walters, 638 F.2d 947, 949-950 (6" Cir. 1981) and affirmed
by the decision of this Court in Thomas v. Arn, 474 U.S. 140
(1985).

This case involves an alleged failure of the District Judge
and the Court of Appeals to consider an untimely objection to
the report and recommendation of a magistrate that enforced
a settlement agreement between the parties. This case is not
suitable for review because the Sixth Circuit did not misapply
any rule of law which is otherwise appropriate for review
based on Supreme Court Rule 10.

This Petition for Certiorari is premised upon an alleged
arbitrary application by the Sixth Circuit of this Court’s
opinion in Jhomas v. Am. Pursuant to the doctrine of
Thomas v. Arn, a Court of Appeals may adopt a rule
conditioning an appeal when taken from a district court
judgment that adopts a magistrate’s recommendation. The
rule adopted by the Sixth Circuit requires a timely filing of
objections to the magistrate’s recommendation with the district
court. The Sixth Circuit did not under the facts of this case
waive the timely filing of objections to the magistrate’s
recommendation and consider other legal arguments raised for
the first time on appeal.

Petitioner also claims that the Sixth Circuit should have
waived the application of this rule “in the interest of justice”
- a matter involving the exercise of judicial discretion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0689%3A1. Public record. Not legal advice.