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Monday, August 3, 2015

Even as Mark Fuller steps down, William Acker Jr. proves federal bench in Alabama is a corrupt sewer

William M. Acker Jr.
(From al.com)
The resignation of U.S. Judge Mark Fuller took effect on Saturday (August 1), in the wake of a wife-beating scandal that erupted last summer. Fuller's exit might cause some citizens to think that the federal bench in Alabama suddenly has become pristine, filled with enlightenment and integrity.

Nothing could be further from the truth. In fact, it's debatable whether Fuller is the worst federal judge in Alabama. There is a lot of competition for that "honor," but it might have to go to William M. Acker Jr., an 87-year-old Reagan appointee who has the charming habit of telling parties to their faces, in open court, that he is going to cheat them--and then he does it.

During my employment case against the University of Alabama Board of Trustees and a number of individuals at UAB--where I was fired after almost 20 years on the job for reporting accurately on this blog about Judge Fuller's unlawful actions in the Don Siegelman case (see here and here)--Acker cheated me in a variety of ways.

But No. 1 on the list was his denial of discovery--and failure to set a discovery schedule--even after he had converted the university's motions to dismiss to a motion for summary judgment. Black-letter law shows that Acker corruptly denied discovery, but his actions in other cases prove that he knows his obligations under the law, but intentionally failed to abide by them in the UAB case.

Why is that? For one, discovery probably would have unearthed a treasure trove of e-mails, text messages, and other communications that would have proven I was the victim of discrimination--and I was fired in violation of my First Amendment rights. Two, my termination clearly was driven by someone connected to the administration of then Governor Bob Riley--probably former "first son" Rob Riley--and we've seen evidence that Acker has a history of protecting Rob Riley against allegations of fraud and other malfeasance. (See here and here.)

It's not as if Acker was dealing with complicated law in my UAB case. Rule 56 of the Federal Rules of Civil Procedure (FRCP) requires that discovery be conducted before summary judgment is considered. Controlling case law in the Eleventh Circuit--via a case styled Snook v. Trust Company of Georgia, 859 F. 2d 865 (11th Cir., 1988)--makes the same holding. Snook nicely sums up the law as follows:

This court has often noted that summary judgment should not be granted until the party opposing the motion has had an adequate opportunity for discovery. . . . The party opposing a motion for summary judgment has a right to challenge the affidavits and other factual materials submitted in support of the motion by conducting sufficient discovery so as to enable him to determine whether he can furnish opposing affidavits. . . . Generally summary judgment is inappropriate when the party opposing the motion has been unable to obtain responses to his discovery requests.

How blatant were Acker's actions in granting the university summary judgment without allowing discovery? Rule 26(f) FRCP requires the parties to conduct a discovery-scheduling conference, submitting a written report to the court. Under Rule 16(b) FRCP, the trial judge must issue a scheduling order, setting dates when discovery is to begin and end.

Acker admitted in open court that the case was at summary-judgment stage, and there had been no discovery schedule and no discovery. (Anyone can call up PACER or check the file on public computers at the Hugo Black Courthouse in Birmingham and see that no discovery took place.) This is straight from a court transcript, which can be viewed at the end of this post, as Acker addresses university lawyer Lisa Huggins, on pages 15 and 16:

THE COURT: In your case, I'm going to convert it to a motion for summary judgment and put a submission order out, which would require him to controvert anything that you say in your motion for summary judgment that is dispositive in the way of present condition. He is right that there has been no scheduling order, there has been no discovery.

In the same transcript, Acker admits that I had a right to conduct discovery--in fact, the law says the court is required to grant discovery:

I think he has a point, that the alternative motion to dismiss should be converted to a motion for summary judgment, which might occasion some right by him to invoke Rule 56(f)--I don't know whether he is familiar with that or not; I think maybe he is--which would allow him to poke around into your people to some degree before we get to that.

These two exchanges show that Huggins is as corrupt as Acker. She's acting like it's a debatable point that the law requires discovery, when it isn't. Even Acker, at that point in the proceedings, more or less tells her that she's full of feces. But this gives you a sense of how desperate Huggins and university officials were to make sure I was not allowed "to poke around into (their) people."

Acker made statements in open court that indicate he had communications with individuals connected to UAB. Someone must have convinced him, at some point, it was best to violate the law and deny me discovery--probably because depositions and requests for production of documents would have shown that Rob Riley, or someone connected to him, was responsible for my termination.

How serious is this? The evidence points to obstruction of justice, conspiracy, and perhaps enough criminality to justify an investigation under the Racketeer Influenced and Corrupt Organizations (RICO) statute. In other words, this gives off a strong whiff of organized crime.

Acker ultimately granted summary judgment to the university, without discovery, and tried to justify it with an order that is shameless and absurd to the point that it would be comical--if it weren't so corrupt. I replied with a Motion to Alter, Amend or Vacate Judgment, citing the exact law that Acker had butchered. (Both documents can be viewed at the end of this post, along with the hearing transcript.) Acker, of course, ignored my efforts to get him to follow the law.

But here is something fascinating: We've examined documents related to other cases Acker has handled, even employment cases similar to mine, and he has consistently ordered and allowed discovery. This provides clear evidence that he knowingly violated the law in my case, and we will spell it out in an upcoming post.

(To be continued)


Anonymous said...

Don't hold back. Tell us how you really feel about Judge Acker.

Anonymous said...

What's an 87-year-old guy doing on the federal bench. You can read a few paragraphs of his opinions and see he doesn't have the temperament to be a judge.

legalschnauzer said...

Acker will be on the bench when he's 107, if he lives that long, @8:58. The notion of lifetime appointments for federal judges needs to be reviewed.

Joan said...

I'm new to this legal stuff, but are you saying that the judge did not allow you to gather facts that would support your case? And the law requires him to do that?

legalschnauzer said...

Yes, Joan, that is exactly what I'm saying, and this is an incredibly important issue for anyone who ever brings a lawsuit in either federal or state court. A judge, in rare instances, can grant a motion to dismiss if the "four corners" of the complaint are somehow defective and fails to state a claim that can be granted. That shuts off discovery, but we were past that point in this case. Acker acknowledged that I had cleared the motion to dismiss hurdle, so the next hurdle was summary judgment. And the law, as cited in the Snook case, says that cannot even be considered without not just discovery, but full discovery.

I hope readers keep this mind: It costs quite a bit of money to get a federal lawsuit to the summary judgment stage. There are filing fees of about $500 or more, you have research and writing, and copying costs, and if you have a lawyer, he likely will charge you $5,000 to $10,000 just to prepare and file motions leading to summary judgment. So the litigant has invested a lot of time and money to get to this stage, only to have a corrupt jackal like Acker deny discovery, which he simply cannot do under the law. Imagine how infuriating that is.

Acker's actions almost certainly are criminal, and he probably was not the only one involved in this. This is organized crime, in black and white.

Anonymous said...

As a lawyer, I tend to react defensively (angrily?) to quite a few of your posts. But there is no defending Acker's actions on this. He, and every lawyer involved in this case, knows you were entitled to discovery--and that means more than just "poking around" in "your people" at UAB. And I hate to say it, but his statements to you about a writ of mandamus can mean only one thing--UAB intended to stonewall you on discovery, and he was going to back them all along the way, forcing you to seek relief from the 11th Circuit.

This is disturbing because I don't have to rely on your word for what happened. All I have to do is read the Acker documents. He intentionally violated the law here, and those of us in the legal profession wonder why the public does not trust us. I don't always agree with your stances, but there is no question about this--Acker's behavior here was shameful, and it's a pox on any notion of justice under the federal system.

legalschnauzer said...

Thanks for an insightful comment, @10:06. I'm going to follow up with 1-2 posts that show Acker granting discovery in numerous cases, including a university employment case very similar to mine. These coming posts will show that he knows the law; he just chose not to follow it in my case.

Anonymous said...

Roger, your comment above, "And the law, as cited in the Snook case, says that cannot even be considered without not just discovery, but full discovery.", is misleading. According to Snook, "Generally summary judgment is inappropriate when the party opposing the motion has been unable to obtain responses to his discovery requests." The word generally implies there are cases where this wouldn't apply. Given the fact that it is not always required and UAB's qualified impunity, it seems proper that discovery would not have taken place.

You made a claim that UAB's actions were part of a conspiracy about your blog and then said it was age and gender discrimination. Well which one was it. You seem to grasp at every straw and hope that one turns into gold. You didn't attempt to get your job back, which, if you had been able to, you would have been untouchable as long as you did your job. If you had attempted to get your job back, the judge probably would have done so. The qualified immunity wouldn't apply and you could have gotten back pay.

I am anxious to see the case with the university employment, but you can keep the other ones to yourself, unless they involve someone who has qualified immunity.

legalschnauzer said...

You are so off target, @10:23, that it's hard to know where to begin. But I will make an effort to show just how wildly wrong you are:

(1) You apparently know a thing or two about being misleading. You cite from Snook: "Generally summary judgment is inappropriate when the party opposing the motion has been unable to obtain responses to his discovery requests." That doesn't apply to my case; I wasn't even allowed to make discovery requests. The sentence you cite applies to cases where a discovery schedule has been set, discovery has commenced, and the opposing party is stonewalling. I wasn't allowed to get to any of those points, and a full/clear reading of Snook shows that is unlawful.

(2) You take the word "generally" and use it to claim discovery is not always required prior to consideration of summary judgment. But a full reading of Snook shows you are wrong. You conveniently ignore this from Snook: "This court has often noted that summary judgment should not be granted until the party opposing the motion has had an adequate opportunity for discovery." There is nothing "general" about that statement. It's clear in black and white, at least to anyone whose reading comprehension isn't blocked by some agenda that has nothing to do with the rule of law.

(3) You apparently don't understand conspiracy law. Conspiracy is what I call a "supplemental" claim that cannot stand on its own. It must attach to some other claim, such as age discrimination, gender discrimination, First Amendment violations, etc. There is nothing under the law that forces a plaintiff in an employment case to cite only one form of discrimination. The available facts might point to multiple wrongful actions by defendants. That's one reason discovery is important and essential. It allows the plaintiff to gather facts to center in specifically on the claims that were most in play.

(4) Where did you get the notion that I didn't attempt to get my job back? I went through the UAB grievance process in an effort to get my job back, and the committee found that I should not have been terminated. Also, if you read item (D) under the Prayer for Relief in my complaint, I specifically ask to be reinstated to my job. You can read the complaint here: https://www.scribd.com/doc/40040042/UAB-Shuler-Complaint

(5) You also are clueless about qualified immunity. To determine if qualified immunity is appropriate, the court must turn to the complaint to determine if it "alleges violation of a clearly established constitutional right." Mine alleged First Amendment violations, and that is a clearly established constitutional right. Courts are not allowed to grant qualified immunity like fairy dust, just because defendants claim it. It must look to the complaint to make that determination. This is explained in item 10 in the Motion to Alter or Amend Judgment, which is embedded in this post.

Do yourself a favor and read it. It might be helpful to educate yourself, at least a little, before making yourself look like a fool in the comment section.

Anonymous said...

I love it when some knucklehead tries to challenge the Schnauzer's knowledge of the law and receives a spanking for his troubles. Very entertaining.

legalschnauzer said...

Glad I could be of service, @12:52. Perhaps I should point out that I don't claim to be all knowing on all matters of the law. But on issues related to my own case--or related to cases I've reported on (Siegelman, Minor, Rollins, Cahalane, many others) a lot of research is involved before I ever sit down to write a post. I don't just sit down and wildly pull facts and law out of my fanny. This is not the kind of blog where you knock out a post in 10 minutes. On most posts, a lot of legwork has to be done before you even can think about putting together a post. I think most readers can tell I put in my homework. That doesn't mean I'm perfect, of course, but my track record is solid, and I think that's a major reason this blog has been ranked among the top 50 law blogs in North America.

My guess is that quite a few of the people who pretend to challenge my findings are merely posing. They don't really have information that would allow a genuine challenge, but they have an agenda, and seek to muddy the waters in order to further said agenda. It's usually pretty weak stuff, and it's not too difficult to take their softballs and knock them out of the park.

Anonymous said...

So basically, you made up an age and gender discrimination claim to attach to the conspiracy claim. How did they factor in to the conspiracy? Were there other people in the same groups who received discrimination? No, just a man who was using company time to research for his blog.

@ 12:52 If you consider that a spanking, you must lead a comfortable life.

legalschnauzer said...

Oh, goody, I knew you would be back for more. Responding to you is like catching fish in a barrel. But here are a couple of responses:

(1) Re: Your first sentence--I encouraged you to read embedded documents to educate yourself, but apparently you persist on remaining ignorant about conspiracy law. If you are that lazy, I can't help you, and neither can anyone else.

(2) Re: Your second sentence--Read my complaint, to which I provided a link above. Again, if you are too lazy to do that, I can't help you.

(3) Re: Your third sentence--I have no idea what you are trying to say.

(4) Re: Your fourth sentence-- The actions of UAB officials regarding the University's Acceptable Use Policy (AUP) shows they knew I wasn't researching my blog at work. This is addressed in No. 67 of my complaint.

If you are too stupid or lazy to educate yourself, don't bother sending more comments because they won't be published.

Anonymous said...

This knucklehead keeps coming back for more spankings, like he enjoys them. Must be a masochist.

Anonymous said...

10:06 AM 08/03

Alabama judicial inequalities, i.e. re. "writ of mandamus"; although not limited to same are well established far beyond Acker's court, how sad this state's legal professionals do not have a more take charge attitude, pride in state's legal system; but apparently hasn't for sometime since law offices from out of state respectfully decline to accept cases from Alabama, even though up front monies not being problems; many have said they believe this state's legal system is, rather than saying corrupt, compromisingly contaminated; after all not in the clique, being one of the good ole boys; as way thought of out of state. Former Mississippi attorney pretty much spoke it like it [is] was.

Anonymous said...

Attorney advice: "You should clearly win this case and have the documents and information to justify it and prove everything. I don't see how you can lose. But you have to understand a judge can rule any way he wishes."

legalschnauzer said...

Some attorneys might give that advice, but it's not grounded in the law. Judges take an oath to uphold the law, not to rule any way they wish. Our democracy is based largely on the notion that "we are a nation of laws, not of men."

The advice you cite, while I don't doubt it is given (maybe a lot), turns one of our founding principles on its head. It, in fact, turns us into a "nation of men," of corrupt men.

Here's what a client should say to any attorney who gives such advice: "Don't you have an obligation under bar rules to report misconduct you witness by fellow members of the bar? If a judge intentionally "rules any way he wishes" and fails to uphold the law, is that not misconduct? The answer clearly is yes, so do you intend to report the judge if he engages in such misconduct? Why am I supposed to suffer because your profession can't police itself, even though you are the only 100 percent self-regulating field in the country?"

I'm guessing many attorneys would stumble and fumble for an answer to that one.

Anonymous said...

I lost. It cost me about $15,000 and several years of ongoing stress.

Naive, everyday people who get pulled into court systems and before lawyers and judges most often have no idea what they're getting into. The trickery, the games, the statutes of limitations, the withholding info to cause a missed court date and contempt charges. The ineffective or non-existent legal contract.... the list goes on and on and on.

"For every law there's a loophole." I guess it just depends on how much money you can pay a lawyer or judge to find it.

My personal advice is avoid it if you can. It's going to take an Act of Congress to make the court/legal systems honest for everyone, particularly people who can't PAY.