I | ALJ PERJURY (EDWARD GARY EARLY) | REPLY BRIEF (11TH CIRCUIT COURT OF APPEALS)
22-13613-H
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UNITED STATES COURT OF APPEALS
ELEVENTH CIRCUIT
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ELIAS MAKERE, FSA, MAAA
(Appellant/Plaintiff)
v.
HON. E. GARY EARLY, ALJ
(Appellee/Defendant)
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On Appeal From The
United States District Court, Florida, Northern District
4:21-cv-000096
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APPELLANT’S REPLY BRIEF
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Elias Makere, FSA, MAAA
Appellant/Plaintiff (“Civilian X”)
PO Box 324
Hobart, IN 46342
P: 904.294.0026
E: Justice.Actuarial@gmail.com
W: TextBookDiscrimination.com
Get Booked Up on Justice!
ORAL ARGUMENT REQUESTED
UNITED STATES COURT OF APPEALS
ELEVENTH CIRCUIT
Makere v Early, 22-13613
CERTIFICATE OF INTERESTED PERSONS
AND CORPORATE DISCLOSURE STATEMENT
Lower Tribunal:
Cannon, HopeMagistrate
Winsor, AllenDistrict Judge
Non-Parties:
Allstate Insurance Company(NYSE: ALL)
Division of Administrative Hearings (FL)
Florida Commission on Human Relations Gorsica, Stanley G. (FL)
Parties:
Early, Hon. E. Gary (ALJ)Defendant
Makere, Elias (FSA, MAAA)Plaintiff
Appellant is not a subsidiary/affiliate of a publicly owned corporation. Pursuant to Rule 26.1-2 11th Cir. R., Appellant does not know of any other entities that have interest in this case. Appellant hereby certifies that this CIP is complete.
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the lower court’s judicial circus has now entered this circuit/
and what is on the surface: the lying judge spinning in circles/
he told all of his tales, and told them all on purpose/
his tailspin was berserk – and – now it is bursting/
so, may this court pin him to... just what he first said/
and rip the order in two... to remand and reverse it//
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Appellant hereby repeats his request for oral argument (please see Rule 28-1(c) 11th Cir. R.). He does so for the same reasons as before [OBII], as well as to debunk a so-called issue from Appellee’s answer brief. A newly-crafted issue (ie, one that Appellee did not raise in the Court below) that is destined for defeat at the feet of: facts; logic; and judicial estoppel.
Lastly, Appellant asserts that none of the factors listed in Rule 34(a)(2) Fed. R. App. P. exist in this appeal.
Certificate of Interested PersonsC1
Prologuei
Statement Regarding Oral Argumentii
Table of Contentsiii
Table of Citationsiv
Arguments and Citations of Authorityiv
Introductionvi
Points on Reply1
Summary of Reply1
Point I (No New Arguments)3
Point II (No Res Judicata/Collateral Estoppel)6
Point III (No Immunity for 1st Non-Judicial Act)10
Point IV (No Immunity for 2nd Non-Judicial Act)13
Point V (Forfeited Issues-on-Appeal)16
Bonus Point (First Impression)19
Conclusion22
Certificate of Compliance-
Certificate of Service-
CASES
Access Now v Southwest,
385 F.3d 1324 (11th Cir. 2004)5
Atcherson v Siebenmann,
458 F. Supp. 526 (USIASD 1978)12
Doe v County of Lake,
399 F. Supp. 553 (USINND 1975)15
Ex Parte Virginia,
100 US 33911
Lerwill v Joslin,
712 F.2d 435, 438 (1th Cir. 1983)14
New Hampshire v. Maine,
532 U.S. 742 (2001)9
Parklane Hosiery v Shore,
439 US 322 (1979)8
RULES
Local Rule 3-1 11th Cir. R.4,5
Local Rule 28-1 11th Cir. R.ii
Local Rule 31-1 11th Cir. R.vi
Rule 28(d) Fed. R. App. P.vi
Rule 31(a) Fed. R. App. P.vi
Rule 34(a)(2) Fed. R. App. P.ii
REFERENCES
[A_]Appendix for Opening Brief1/
[AB_]Answer Brief1/
[OB_]Opening Brief1/
[R_]Appendix for Reply Brief1/
{#_}Docket Entry1/
ABBREVIATIONS
ALJAdministrative Law Judge
FCHRFlorida Commission on Human Relations
LTLower Tribunal
USIASDUS District Court, Iowa, Southern District
USINNDUS District Court, Indiana, Northern District
Appellant, Elias Makere, was the Plaintiff in the lower tribunal; and will be referred to in this brief as “Civilian X” (Rule 28(d) Fed. R. App. P.). Appellee, Hon. E. Gary Early, was the Defendant below; and will be referred to as “Judge Y”.
Incorporating Opening Brief
Civilian X files this Reply Brief in response to Judge Y’s Answer Brief (AB); hereby incorporating Civilian X’s Opening Brief in its entirety.
Timeliness
This Reply Brief is timely.
On December 14th, 2022, Civilian X submitted his Opening Brief. One hundred forty-six (146) days later – on May 9, 2023 - Judge Y submitted his Answer Brief (please see Rule 31 Fed. R. App. P.). Pursuant to Rule 31-1 11th Cir. R., Civilian X’s reply brief is due on May 31, 2023. Thus, by filing it today (ie, on May 26, 2023), Civilian X has met this Court’s time constraint.
POINTS ON REPLY
I. Judge Y cannot create a new argument for dismissal [of which he did not argue below].
II. Res Judicata is not available to Judge Y.
III. Judge Y failed to rebut the fact that his evidence destruction was committed while performing an administrative act.
IV. Judge Y also failed to rebut the fact that he committed his perjury while performing a ministerial, non-judicial act.
V. Plus, Judge Y failed to rebut Civilian X’s other five points-on-appeal [OB001].
SUMMARY OF REPLY
Metaphorically, Judge Y abandoned his ticket to the circus-of-rationale which the LT engulfed this matter in. The ticket itself, though, was for a seat that did not exist. And the actions which brought him to this tent’s footsteps will not let him don a cloak of immunity. A reality, importantly, that his answer brief failed to rebut. A brief that also retreated from addressing the reversible circus acts from below. A brief, notably, that overlooked the undermining soil of the appealed order.
In literal terms, Judge Y’s answer brief proffered a waived argument (‘abandoned ticket’). The argument itself was not available to him (‘non-existent seat’). Plus, he failed to directly rebut the reality that Judge Y’s evidence destruction was unworthy of judicial immunity (‘misstep #1 for cloak of immunity’). In fact, his answer brief conceded that his evidence destruction was committed during a ministerial act. Plus, his brief had an identical shortcoming when it tried to address Judge Y’s perjury (‘misstep #2 for cloak of immunity’). Yet-another shortcoming was his withdrawal from addressing the five other issues-on-appeal (‘retreat’). Lastly, Judge Y neglected to combat the reality that the appealed order was eroded by the fact that the case below was one of “first impression” (‘undermining soil’).
Due to these shortcomings, the propagated ‘circus’ that Judge Y has used (albeit wily) to cloud over these realities will not withstand their weight. Such shortcomings point to solid reasons for reversing the decision below. Now, without any further waiting, the first point-on-reply is as follows.
POINT I
Waived Argument
‘abandoned ticket’
OVERVIEW I
1. Judge Y cannot argue for dismissal on the basis of res judicata (or collateral estoppel), because he did not proffer that argument in the district court (below).
ARGUMENT I
2. In his Answer Brief, Judge Y asked this Court to [further] dismiss Civilian X’s complaint on the basis of res judicata: “THIS APPEAL AND THE CASE BELOW ARE BARRED BY RES JUDICATA AND COLLATERAL ESTOPPEL”
- [AB012]
3. However, Judge Y never made that argument in the LT.
4. Plus, the LT never entertained such a notion. Nor did it rule on that doctrine.
5. Moreover, Judge Y – despite having ample opportunity to do so – never proffered res judicata in any district court objection (or motion).
6. According to Rule 3-1 11th Cir. R., Judge Y thereby waived his so-called argument of res judicata (highlights added): “A party failing to object to a magistrate judge’s findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. §636(b)(1) waives the right to challenge on appeal the district court’s order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object.”
- Rule 3-1 11th Cir. R.
7. This Court – on many occasions – has stressed this prohibition: “This Court has "repeatedly held that `an issue not raised in the district court and raised for the first time in an appeal will not be considered by this court.'... The reason for this prohibition is plain: as a court of appeals, we review claims of judicial error in the trial courts. If we were to regularly address questions — particularly fact-bound issues — that districts court never had a chance to examine, we would not only waste our resources, but also deviate from the essential nature, purpose, and competence of an appellate court.”
- Access Now v Southwest, 385 F.3d 1324 (11th Cir. 2004)
8. Additionally, Judge Y has never claimed to have been unaware of this consequence (ie, waiver upon failure to plea/object). In fact, the LT warned both parties of the appellate consequences of failing to raise a trial-court issue [R0003].
CONCLUSION I
9. So, by failing to proffer res judicata in the district court, Judge Y is precluded from proffering it in this appellate court.
10. Therefore, this Court is in prime position to reject his argument. Especially considering how res judicata was not [and is not] available to him (Point II, infra).
POINT II
Res Judicata Was/Is Not Available to Judge Y
‘non-existent seat’
OVERVIEW II
11. Even for the sake of argument, res judicata was/is not available to Judge Y, because the case below is the initial case.
ARGUMENT II
12. In his answer brief, Judge Y noted that this cause of action was the first cause of action that Civilian X filed against Judge Y.
13. Page 5 of that brief disclosed the filing date (2/16/21) of the case below (hereinafter “Initial Case”): “On or about February 16, 2021 [Civilian X] sued [Judge Y] in this case... in the United States District Court, Northern District of Florida, Case No.: 4:21-cv-96-MW-MAF”
- [AB005]
14. Page 8 of that same brief disclosed the filing date (5/14/21) of the vestigial state case (hereinafter “Second Case”): “Meanwhile, on May 14, 2021, [Civilian X] sued [Judge Y] in a state court case style Elias Makere, FSA, MAAA v Hon. E. Gary Early, ALJ. Duval County Circuit Court, Case No.: 2021-CA-2763”
- [AB008]
Obviously, 2/16/21 precedes 5/14/21. Put bluntly, the Initial Case came before the Second Case.
15. On pages 12 through 15 of his brief, Judge Y put forth his [newly-crafted] argument on res judicata. Yet - notwithstanding its waived character (ie, see Point I, supra) - the argument’s illegitimacy renders it unavailable to him.
16. In Parklane Hosiery v Shore, 439 US 322 (1979), the US Supreme Court established that res judicata (and collateral estoppel) precludes a second case (ie, not a first case). That Court wrote the following (highlights added): “Under the doctrine of res judicata, a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based on the same cause of action. Under the doctrine of collateral estoppel, on the other hand, the second action is upon a different cause of action, and the judgment in the prior suit precludes relitigation of issues actually litigated and necessary to the outcome of the first action.”
- Parklane Hosiery v Shore, 439 US 322 (1979)
17. In the instant matter, the Initial Case is the “prior suit”, but Judge Y contends it is the “second suit”. A contention that is contradicted by the record. A contention that is contradicted by his own concessions/admissions (¶12-13, supra). A contention that is just false.
18. A false contention, notably, that is further barred by the Doctrine of Judicial Estoppel.
a. In the Second Case, Judge Y argued for res judicata. He asked the State to dismiss the Second Case because the Initial Case precluded it. Civilian X acquiesced.
b. Now, he is doing-a-180; by asking this Court to block the Initial Case because [acrobatically] the Second Case precludes it.
19. Of course, the US Supreme Court – in New Hampshire v Maine, 532 US 742 (2002) – held that judicial estoppel bars such a roundabout perversion:
“The purpose of the doctrine is to protect the integrity of the judicial process by prohibiting parties from deliberately changing positions according to the exigencies of the moment.”
- New Hampshire v Maine, 532 US 742 (2002)
20. Put together, Judge Y’s so-called argument is circular; contradicted; false; and subject to estoppel.
CONCLUSION II
21. Therefore, this Court has supreme reason to not even entertain any notion of res judicata (nor collateral estoppel). Not only did Judge Y lack a ticket for that seat (Point I, supra), but that seat did not even exist (Point II).
22. What did make it into this Circuit’s framework, though, was Judge Y’s argument for judicial immunity regarding his evidence destruction (Point III, infra).
POINT III
Judge Y Lacks Immunity for his Clerical Misconduct
(Evidence Destruction)
‘misstep #1 regarding cloak of immunity’
OVERVIEW III
23. Civilian X’s Third Issue-on-Appeal [OB003] detailed how judicial immunity was not applicable to Judge Y’s evidence destruction. Civilian X’s argument was centered around the fact that Judge Y committed that infraction while performing an administrative task (ie, a non-judicial act).
24. Judge Y’s answer brief, however, failed to rebut this fact.
25. In other words, Judge Y never claimed that photocopying transcripts was/is a judicial act.
ARGUMENT III
26. In fact, Judge Y admitted the opposite. On Page 25 of his brief, he conceded that he was performing a “ministerial act” when he destroyed crucial evidence (highlights added): “Judicial immunity covers [Judge Y]’s ministerial acts when he “photocop[ied]” the trial transcript and left out a “crucial” page...”
- [AB025]
27. As mentioned before [OB041], ministerial acts are non-judicial. The US Supreme Court even said so (highlights added): “In such cases, it surely is not a judicial act, in any such sense as is contended for here. It is merely a ministerial act”
- Ex Parte Virginia, 100 US 339
28. Of course, judicial immunity does not attach to non-judicial acts (highlights added) “Judge Siebenmann would be immune from an action such as the instant case had the matter in question been a judicial act. However, the actions taken herein were the actions of an administrator, not a judge. The parties did not deal with the Judge in a judicial capacity. He was, instead, their ultimate superior in the operation of the Probation Office. This is not a function performed by a judge, but is a function of a departmental supervisor, and as such is a ministerial duty.
...The termination of the Plaintiff was an administrative action, not judicial, and therefore the doctrine of absolute immunity is not available to the Defendant, Judge John Siebenmann."
- Atcherson v Siebenmann, 458 F. Supp. 526 (USIASD 1978)
29. Moreover, Judge Y’s answer brief failed to cite any case in which any court immunized: the destruction of a transcript page upon photocopying it (a charge levied against Judge Y).
CONCLUSION III
30. Therefore, by his own admission, the evidence destruction that Judge Y executed was/is not worthy of judicial immunity. He executed it while performing an administrative task. One that was ministerial in nature.
31. What was also ministerial-in-nature was the act that Judge Y performed when he perjured himself. Another issue-on-appeal that his answer brief failed to rebut (Point IV, infra).
POINT IV
Judge Y Lacks Immunity for his Non-Judicial Transgressions
(perjury)
‘‘misstep #2 regarding cloak of immunity’’
OVERVIEW IV
32. Like before, Judge Y’s answer brief failed to rebut another reversible issue-on-appeal. Namely, Civilian X’s fourth argument (which detailed the lack of immunity available for Judge Y’s perjury).
ARGUMENT IV
33. As detailed in the complaint, Judge Y perjured himself in order to hamper Civilian X’s employment discrimination case (against Allstate Insurance Company). Judge Y did that, importantly, while performing a non-judicial act. One that required zero discretion (nor statutory power) [OB040]; and, thus, one that was a ministerial act.
34. In fact – and as before – Judge Y conceded the ministerial nature of his perjury (highlights added): “Judicial immunity covers [Judge Y]’s ministerial acts when he... “reduc[ed] the FCHR’s determination to writing.” And when [Judge Y] merely reduced the FCHR’s determination to writing.”
- [AB025]
35. As the courts have reiterated many times, ministerial acts are non-judicial (¶25-26 supra). And, of course, non-judicial acts do not receive judicial immunity (highlights added): “A judge is absolutely immune from a section 1983 suit for damages only for (a) judicial acts...”
- Lerwill v Joslin, 712 F.2d 435 (10th Cir. 1983)
“there is no official immunity from criminal liability. ...In addition, federal courts have held that application of the doctrine is restricted to the following areas:
1. immunity applies only when judges are faced with suits involving their judicial as opposed to ministerial or administrative duties, and
2. immunity applies only when officials are sued for damages.”
Since the present suit is directed solely at the defendant judges' administrative and ministerial duties and only requests equitable relief necessary to safeguard plaintiffs' constitutional rights, application of the doctrine would be inapropos"
- Doe v County of Lake, 399 F. Supp. 553 (USINND 1975)
36. Moreover, Judge Y’s answer brief failed to cite any case in which any court immunized: perjury upon reciting a “preliminary statement” (a charge levied against Judge Y).
CONCLUSION IV
37. Once again - and aided by Judge Y’s own admissions – this Court is well-positioned to disregard Judge Y’s argument regarding his perjury.
38. To his credit, though, he did offer that concession (albeit circuitous) (¶34, supra). A concession, unfortunately, that he did not trumpet for any of the remaining issues-on-appeal. Issues which he thereby forfeited (Point V, infra).
POINT V
Forfeited Arguments
‘retreat’
OVERVIEW V
40. In addition to his two arguments on Judicial Immunity, Civilian X put forth five arguments regarding the illegitimacy of the proceeding below. Judge Y – in his answer brief – forfeited all resistance to those remaining five issues-on-appeal, though.
ARGUMENT V
41. For starters, Civilian X asked this Court to reverse the LT’s order, because the LT erred by refusing to allow complaint amendment [OB016]-[OB020]. Judge Y’s answer brief failed to rebut Civilian X’s argument, though. Thus, Judge Y forfeited the point.
42. Civilian X also asked this Court for reversal because the LT’s order operated on a false basis. Judge Y’s answer brief also failed to rebut this argument [OB021]-[OB024]; thereby forfeiting the point.
43. Civilian X’s fifth issue-on-appeal detailed how the LT failed to comport with the essential requirements of law [OB043]-[0B046]. Once again, Judge Y stayed mum on the point; thereby forfeiting it.
44. The same can be said about the sixth issue-on-appeal [OB047]-[0B050]. Civilian X sought reversal from the LT’s due process violation (ie, records mutilation); and Judge Y remained silent on the issue. Another forfeited point in favor of Civilian X.
45. The seventh issue-on-appeal received the same retreat [OB051]-[0B054]. Civilian X argued for reversal on account of the LT erring in dismissing his declaratory relief claim. An argument that Judge Y forfeited.
CONCLUSION V
46. Therefore, the answer brief’s short-circuited avoidance of the issues-on-appeal electrifies this Court’s power to reverse the current decision from below. And Civilian X hereby asks this Court to have zero resistance when it does so.
BONUS POINT
Case of First Impression
‘the undermining soil’
[BONUS]
47. Lastly – and as a bonus point – Judge Y failed to combat the fact that this Honorable Court already deemed the case below to be one of “first impression”. A determination that is fatal to any notion of dismissal, because this Circuit has never seen a judge who: (a) committed perjury; and/or (b) destroyed evidence.
48. Civilian X hereby states that the reason Judge Y failed to directly combat this reality was because there is no case precedent of a judge getting ‘acquitted’ for these sins. And - although an explicit concession would have saved significant time - Civilian X still gives Judge Y [minor] credit for not tripping over himself (see Points III-IV, supra) on this issue.
49. So, in short - and given this certified fact - the cloak of immunity/validity does not fit Judge Y’s frame. Thereby giving this Court grand reason to collapse the circus tent that the LT ballooned into these halls.
now, all that is left/
from Judge Y’s circus event/
is for his so-wished magical cloak/
to receive this Court’s classic reproach//
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WHEREFORE, Appellant (Civilian X) asks this Court to reverse the Lower Tribunal’s judgment; because - in addition to being falsified, incorrect, constitutionally violative, harmful, and erroneous – neither the record nor Appellee (Judge Y) can support it.
Dated this 26th day of May 2023.
Respectfully submitted,
/s/ Elias Makere
Elias Makere, FSA, MAAA
Appellant/Plaintiff (“Civilian X”)
PO Box 324
Hobart, IN 46342
P: 904.294.0026
E: Justice.Actuarial@gmail.com
W: TextBookDiscrimination.com
Get Booked Up on Justice!
1. Type-Volume
| ☒ | This document complies with the word limit of Rule 32(a)(7)(B)(i) Fed. R. App. P., because - excluding the parts of the document exempted by Rule 32(f) - this document contains 2,802 words. |
| ☐ |
2. Typeface and Type-Style
| ☒ | This document uses Courier New (12-Pt) Font; thereby complying with the typeface requirements of Rule 32(a)(5)(B) Fed. R. App. P.. This document also satisfies the type-style requirements of Rule 32(a)(6). |
Date Elias Makere, FSA, MAAA
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 26th day of May 2023, I electronically filed the foregoing with the Clerk of Courts by using PACER; which will send a notice of electronic filing to the attached service list.
/s/ Elias Makere
1/ [A0210] means page 210 from the appendix.
{#55} means docket entry 44 from the lower tribunal
[OBII] means page ii from the Opening Brief
[AB012] means page 12 from the Answer Brief
[R0210] means page 210 from the appendix (Appellant’s Reply Brief)
{#44} means docket entry 44 from the lower tribunal
Electronic Copy (text-searchable, hyperlinked):
TextBookDiscrimination.com/Files/CA11/22013613_ADD_20230526_184208.pdf
TextBookDiscrimination.com/Files/CA11/22013613_RB_20230526_000509.pdf
TextBookDiscrimination.com/Info/Misc/ALJPerjury/ReplyBrief.html
TextBookDiscrimination.com/Resources/media/22013613_RB_20230525_161133.wav
TextBookDiscrimination.com/Resources/media/22013613_RB_20230525_164828.wav
Link to Underlying Complaint (HTML, PDF, Video)
| HTML | TextBookDiscrimination.com/Info/Misc/ALJPerjury/Complaint-Amended.html |
| TextBookDiscrimination.com/Files/USFLND/21000096_AAC_20211231_123954.pdf | |
| VIDEO | https://youtu.be/_RaJXFfXOCE |
Link to Originating Case (HTML, PDF, Video) | Makere v Allstate
| HTML | TextBookDiscrimination.com/Allstate/Complaint-Full.html |
| TextBookDiscrimination.com/Files/USFLMD/20000905_AAC_20211104_230439.pdf | |
| VIDEO | https://youtu.be/e3mgBPHesXg |
Charles Schreiber, Jr., Esquire (0843075)
John Bennett
E: Charles.Schreiber@MyFloridaLegal.com
E: John.Bennett@MyFloridaLegal.com
P: 850.414.3300
F: 850.488.4872
Office of the Attorney General
The Capitol PL-01
Tallahassee, FL 32399-1050
(appearing on behalf of Appellee/Defendant/”Judge Y”)
Please get the justice you deserve.
Sincerely,
www.TextBookDiscrimination.com
