08-16174-cc Petition For En Banc Rehearing

STATEMENT OF ISSUES TO MERIT EN BANC CONSIDERATION The panel decision conflicts with decision(s) of the United States Supreme Court, of this Court, and of sister Courts, and consideration by the full court is therefore necessary to secure and maintain uniformity of this court's decisions.1 The matter(s) requiring En Banc review are of great importance concerning Fed. R. App. P., fraud upon the court, both the State of Georgia Constitution and The United States Constitution and concern violations of due process of law, violations of Georgia and United States Laws and Rules and the doctrine of stare decisis. A clerk’s Dismissal for failure to prosecute while a party is waiting for a Ruling on a timely filed meritorious Motion to Recuse; when all other Motions had been Ruled upon within nine (9) days of the Reply being filed. Refusal to reinstate an Appeal causes a party to lose rights, improperly imposes sanctions or disadvantages for noncompliance with a requirement in violation of FRAP 47. These are important issues that warrant En Banc review. The Ruling violates Federal Rules of Appellate Procedure as well as this Court’s own Local Rules concerning Dismissal of Appeals, and violates Due Process of Law. Because the Rulings of the District Court and this Court were procured through fraud and fraud upon the Court. There are important questions that must be resolved through En Banc review. 1

Fed. R. App. P. 35 (b)(1)(A)

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The following shows, with particularity and specificity, that both this Court and District Court failed to follow precedent concerning: Motion to Recuse as well as Motion to Reinstate Appeals; Pro Se pleadings; Dismissal without proper notice, or without proper cause; and Civil Rights violations. I.

COURSE OF PROCEEDINGS AND DISPOSITION Appellant’s Motion to Appeal in Forma Pauperis was Granted by District

Court December 26, 2008 . Appellant filed Motion for Appointment of Counsel January 7, 2009, which was Denied January 16, 2009; Motion for Reconsideration was filed January 30, 2009, Denied February 11, 2009. Appellant filed Motion to Recuse Judges Hull, Wilson and Marcus February 18, 2009; Georgia Power Appellees filed Objection February 23, 2009 to which Appellant filed Reply on March 6, 2009. While awaiting this Court’s Ruling on Motion to Recuse, on April 1, 2009 Appellant received, a copy of the Clerk to Clerk communication stating Appeal had been Dismissed for failure to prosecute, Motion to Recuse was Moot. Appellant’s Brief and Record Excerpts delivered via Courier, delivered to the Court April 13, 2009

per April 6, 2009 conversation with clerk2. April 18,

2009 Appellant received letter from Clerk stating Appellant failed to Motion to Reinstate; Motion filed April 22, 2009. May 8, 2009 letter from Clerk that the Court did not receive Order/judgment

Doesnot show filed until April 16, 2009.

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appealed from, Certificate of Service for Record Excerpts.3 Letter dated May 22, 2009 stating “if the corrections for the record excerpts were not received within fourteen days, the motion to reinstate will be returned unfiled”. Appellant called the clerk, was told she was out of town for a week. Appellant again sent the documents, via Courier.4 July 09, 2009 received Order Denying Motion to Reinstate which cites no authority or caselaw. For all Appellant knows, the Clerk made the Ruling. STATEMENT OF FACTS

II.

To refuse to rule on a timely Motion to Recuse before dismissing an appeal results in the Order being vacated. A Ruling against Reinstatement results in denial to appellant to have the appeal decided on the merits, causing a denial of right to appeal. The Ruling violates Federal Rules of Appellate Procedure as well as this Court’s own Local Rules and Due Process of Law. Because the Rulings of the District Court and this Court were procured through fraud and fraud upon the Court, it is a proper case for Remand with direction. III.

ARGUMENT AND CITATION TO AUTHORITY

This Court held on August 26, 2008, in James B Stegeman v. State of Georgia, et., al., No. 07-13540 fn7: Although Appellant is positive the documents had been submitted, he re-submitted them, via USPS Overnight signed for by S. O’Neal on May 15, 2009. 3

The courier signed a document stating that he had visually seen the documents being delivered so that Appellant had proof of what was delivered. 4

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“Contrary to Stegeman’s assertions,…, as required by local rule, would not support a default judgment. See Fed. R. Civ. P. 83(a)(2) (prohibiting a local rule…from being enforced in a manner that causes a party to lose rights” Further, Judges Edmondson, Hell and Forrester in Nadler v. Harvey, No. 0612692 (11thCir. 2007) held that “disparate treatment occurs when a disabled individual is treated differently than a non-disabled or less disabled individual 42 U.S.C. §12112(b).” A.

Fed. R. App. P and Local Rules

FRAP 47. Local Rules by Courts of Appeals clearly states: (2) A local rule imposing a requirement of form must not be enforced in a manner that causes a party to lose rights …; (b) No sanction or other disadvantage may be imposed for noncompliance with any requirement…unless alleged violator has been furnished in the particular case with actual notice of the requirement.

FRAP 42. Voluntary Dismissal There is no FRAP for dismissal for failure to prosecute. The Local Rules of the Court determine the procedures. FRAP 47 states any local rules “must not be enforced in a manner that causes a party to lose rights”; and “no sanction of other disadvantage may be imposed for noncompliance with any requirement” it becomes obviously apparent that Mr. Stegeman’s cause should not have been dismissed for failure to prosecute. The dismissal caused Mr. Stegeman to lose rights, he was disadvantaged causing injury to him. The clerk violated this Court’s Local Rules by not affording Mr. Stegeman the opportunity to 4

remedy before dismissing by the Clerk,5 resulting in disparate treatment. 11th Cir. R. 42-1 Dismissal of Appeals: (b) Dismissal for failure to prosecute “….when appellant fails to file a brief…within the time permitted, or otherwise fails to comply with the applicable rules”6; it goes on to state “the clerk shall issue a notice to counsel, or to pro se appellant that upon expiration of fourteen (14) days… shall be dismissed for want of prosecution”.

Further, the Appeal was Dismissed for Failure to Prosecute while Motion to Recuse remained pending, the Court refused to Rule, allowing the Clerk to dismiss declaring Motion to Recuse Moot. Georgia Power appellees responded that only certain Motions stay the time for filing a brief, but Motion to Recuse has a definite impact on the outcome of an Appeal, any Rulings made by the Recused Judge would be reviewed and possibly overturned by a different Judge. If Motion to Recuse does not stay briefing, surely it should be logged as time sensitive so that a pending Motion cannot be Moot without a ruling on the merits of the appeal. Dismissal for failure to prosecute is a “sanction”, or “other disadvantage imposed for noncompliance with a requirement”; and enforcement caused Mr. Stegeman injury and violated his rights. Thereby the dismissal is in direct conflict The only notice he got was a Clerk to Clerk communication stating that the appeal had been dismissed for failure to prosecute and the Motion to Recuse was MOOT. 5

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FRAP 47 states: “no sanction of other disadvantage may be imposed for noncompliance with any requirement” 5

with FRAP 47, the Appeal should have been reinstated. The clerk then violated Mr. Stegeman’s rights and the Rules by failing to notify Mr. Stegeman that he had 14 days to remedy the default.7 Refusing to Rule on Motion to Recuse before briefing period expired, was improper; any ruling made before the recusal should be overturned, and Mr. Stegeman shoud have been appointed legal counsel under different Judges, thereby altering an outcome. B.

Due Process of Law

Even those who accuse a President of various torts are held to be "constitutionally entitled to access to the courts and to equal protection of the laws. 'The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.' Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L. Ed. 60 (1803)." Jones v. Clinton, 72 F3d 1354 (8th Cir. 1996), rehearing en banc den., 81 F3d 78; cert. granted, 116 S.Ct. 2545. “The United States Supreme Court has made clear that ‘a fair trial in a fair tribunal is a basic requirement of due process’ in administrative adjudicatory proceedings as well as in courts” Michigan Dept. of Soc. Sercs. V. Shalala, 859 F. Supp. 1113, 1123 (W.D. Mich. 1999) (quoting Withorow v. Larkin, 421 U.S. 35, 36, 95 S.Ct. 1456, 1459, 43 L.E.d.2d 712 (1975)) Thus stated Justice Kennedy in his concurring opinion in the recent Supreme Court case construing the analogous federal statute on judicial disqualification, ‘[i]f through obduracy, honest mistake, or simple inability to attain self knowledge the judge fails to acknowledge a disqualifying predisposition or circumstance, an 7

11th Cir. R. 42-1

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appellate court must order recusal no matter what the source.’ Liteky v. U.S., 510 U.S. 540, 563, 114 S.Ct.1147, 1161, 127 L.Ed.2d 474 (1994) (Kennedy J. concurring) This is because, as our court of appeals has declared, ‘litigants ought not have to face a judge where there is a reasonable question of impartiality…’ Alexander v. Primerica Holdings, Inc., 10 F.3d 155, (3rd Cir. 1993). D.B. v. Ocean Tp. Bd. Of Educ., 985 F.Supp. 457 (D.N.J. 1997) (Bold emphasis added.)

Georgia Power Appellees complainedthat Motion to Recuse, is appealable causing yet another delay to finality. So rather than Rule and chance an appeal, this Court denied the motion, sub silentio, instructed the Clerk to declare it Moot. Florida’s Fourth District Court of Appeal, Wishoff v. Polen In and For Broward County, 468 So.2d 1035 (Fla. App. 4 Dist. 1985) held “Since the final judgment was entered after petitioner filed her motion for disqualification, it must be vacated.” Southern Coatings Inc v. City of Tamarac, 840 So.2d 1109 (Fla App. 4 Dist. 2003); Fifth District Court of Appeal Dura-Stress Inc v. Law, 634 So.2d 769 (Fla.App.5 Dist. 1994). In 1994, the U.S. Supreme Court held: "Disqualification is required if an objective observer would entertain reasonable questions about the judge's impartiality. If a judge's attitude or state of mind leads a detached observer to conclude that a fair and impartial hearing is unlikely, the judge must be disqualified." [Emphasis added]. Liteky v. U.S., 114 S.Ct. 1147, 1162 (1994).

Courts have repeatedly held that positive proof of the partiality of a judge is 7

not a requirement, only the appearance of partiality. Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194 (1988) (what matters is not the reality of bias or prejudice but its appearance); United States v. Balistrieri, 779 F.2d 1191 (7th Cir. 1985) (Section 455(a) "is directed against the appearance of partiality, whether or not the judge is actually biased.") ("Section 455(a) of the Judicial Code, 28 U.S.C. §455(a), is not intended to protect litigants from actual bias in their judge but rather to promote public confidence in the impartiality of the judicial process."). That Court also stated that Section 455(a) "requires a judge to recuse himself in any proceeding in which her impartiality might reasonably be questioned." Taylor v. O'Grady, 888 F.2d 1189 (7th Cir. 1989). In Pfizer Inc. v. Lord, 456 F.2d 532 (8th Cir. 1972), the Court stated that "It is important that the litigant not only actually receive justice, but that he believes that he has received justice." The Supreme Court has ruled and reaffirmed the principle that "justice must satisfy the appearance of justice", Levine v. United States, 362 U.S. 610, 80 S.Ct. 1038 (1960), citing Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13 (1954). A judge receiving a bribe from an interested party over which he is presiding, does not give the appearance of justice. "Recusal under Section 455 is self-executing; a party need not file affidavits in support of recusal and the judge is obligated to recuse herself sua sponte under the stated circumstances." Taylor v. O'Grady, 888 F.2d 1189 (7th Cir. 1989). 8

Further, the judge has a legal duty to disqualify himself even if there is no motion asking for his disqualification. The Seventh Circuit Court of Appeals further stated that "We think that this language [455(a)] imposes a duty on the judge to act sua sponte, even if no motion or affidavit is filed." Balistrieri, at 1202. C. Fraud Upon the Court Mr. Stegeman has shown that Georgia Power committed perjury and fraud when claiming that they didn’t know the easement document did not pertain to the Stegeman/McDonald property in Magistrate Court, Superior Court, District Court and this Court; then claiming that as soon as they discovered a problem with the document, they filed to amend their verified answers. Mr. Stegeman has shown that, according an Affidavit (by an attorney)8 in support of Georgia Power’s Motion for Summary Judgment, prior to the incident that led to the Superior Court case against Georgia Power, there had been a professional title examination done, and all easement documents examined. The same party’s (attorney)Affidavit clearly stated that there was another contact from Georgia Power to do further study into Land Lots, and the property in November well before they filed their Verified Answer and Counterclaim in Superior Court. This information was secreted from Mr. Stegeman in Superior Court and District Court, and shows that the Verified Answers were fraud upon the Court to obtain a "Since attorneys are officers of the court, their conduct, if dishonest, would constitute fraud on the court." H.K. Porter Co., Inc. v. Goodyear Tire & Rubber Co., 536 F.2d at 1119” 8

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ruling in their favor. Judge Duffey allowed all of the defendants to ignore the mandatory Initial Disclosures, Preliminary Report and Discovery Plan and Certificate of Interested Persons. In a prior, unrelated case, Judge Duffey gave Mr. Stegeman 15 days to file the necessary documents, or the case would be dismissed; Judge Duffey proved his impartiality when he allowed the defendants to forego the same. "Disparate treatment exists when similarly situated workers are treated differently even though they have committed similar acts." (emphasis added)); Jones v. Gerwens, 874 F.2d 1534, 1540 (11th Cir.1989) (holding that in order to show discriminatory discipline, plaintiff must show either that he did not violate the work rule or …that the disciplinary measures enforced against him were more severe than those enforced against other persons who engaged in similar misconduct" (emphasis added). Only after Mr. Stegeman filed against the defendants for failing to file the mandatory documents, which were at that time more than fourteen days overdue, did any of the defendants file for a Stay of Discovery. A stay of discovery does not prevent the filing of the mandatory documents. Had Georgia Power been forced to file the Initial Disclosures, they would have had to file the documents showing that they knew, prior to trespassing and damaging Mr. Stegeman’s property, that they had no legal easement documents. District Court participated in fraud upon the court to obtain a judgment in favor of the defendants. The Georgia Power entity that Verified the Answers to the Complaint is 10

Georgia Power’s in-house attorney. "Since attorneys are officers of the court, their conduct, if dishonest, would constitute fraud on the court." H.K. Porter Co., Inc. v. Goodyear Tire & Rubber Co., 536 F.2d at 1119” In Bulloch v. United States, 763 F.2d 1115 (10thCir. 1985) held the following: “Fraud on the court (other than fraud as to jurisdiction) is fraud which is directed to the judicial machinery itself…. H.K. Porter Co., Inc. v. Goodyear Tire & Rubber Co., 536 F.2d 1115 (6th Cir.). It is thus fraud where the court or a member is corrupted or influenced or influence is attempted or where the judge has not performed his judicial function--thus where the impartial functions of the court have been directly corrupted.” Although Mr. Stegeman had repeatedly shownthe Courts that Georgia Power was using a fraudulent document, not one Court addressed the issue. Georgia Power knowingly, willingly, and wantonly committed fraud and fraud upon the court; was allowed to “tamper with the administration of justice” which is “a wrong against the institutions set up to protect and safeguard the public” and “cannot complacently be tolerated”. As the Supreme Court noted in Hazel-Atlas Co. v. Hartford Co., 322 U.S. 238, 246, 64 S.Ct. 997, 1001, 88 L.Ed. 1250, reh'g denied, 322 U.S. 772, 64 S.Ct. 1281, 88 L.Ed. 1596 (1944), a case that also involved an allegedly fraudulent document @61: “even if Hazel did not exercise the highest degree of diligence, Hartford's fraud cannot be condoned for that reason alone.... [T]ampering with the administration of justice in the manner 11

indisputably shown here involves far more than an injury to a single litigant. It is a wrong against the institutions set up to protect and safeguard the public, institutions in which fraud cannot complacently be tolerated consistently with the good order of society. Surely it cannot be that preservation of the integrity of the judicial process must always wait upon the diligence of litigants. The public welfare demands that the agencies of public justice be not so impotent that they must always be mute and helpless victims of deception and fraud.” D.

Denial of Motion to Reinstate

The Court’s Dismissal of Appeal and Denial of Motion to Reinstate results in manifest injustice, as does the declaring MOOT the Motion to Recuse. “Manifest injustice can result when the denial of motion to reinstate bars an otherwise meritorious claim.” See Calloway v. Marvel Entm’t. Group, 854 F.2d 1452, 1475 (2d Cir. 1988), rev’d in part on other grounds sub norm Pavelic & LeFlore v. Marvel Entm’t Group, 493 U.S. 120 (1989). This Court, rather than address District Court’s vicious verbal assault on Mr. Stegeman; and address District Court’s refusal to Rule on Recusal until the Order dismissing the case, stayed the course; this Court refused to rule on recusal at all resulting in violation Mr. Stegeman’s Rights, violations of due process of law and resulted in extreme manifest injustice. Judge Duffey’s Order Granting Appeal in Forma Pauperis clearly stated that the Appeal was not frivolous, therefore the Appeal was meritorious. Denying Motion to Reinstate a meritorious appeal for something that is not jurisdictional, gives credibility and merit to the Motion to 12

Recuse. The Judges obviously wanted assurance the Appeal would not be heard on the merits; causing injury to Mr. Stegeman. Mr. Stegeman’s Appeal was dismissed by the Clerk for Failure to Prosecute without affording to him what this Court’s own Rules show he was entitled to. Mr. Stegeman was never notified and given fourteen (14) days to file his Brief.9 Further, Mr. Stegeman’s Motion to Recuse, was opposed by Georgia Power Appellees,10was denied as Moot when the Clerk dismissed. The Motion to Recuse and Reply to Georgia Power Appellees Objection showa long history between Judge Hull, her husband Mr. Aeck, Georgia Power Company and Troutman Sanders law firm. There is indeed an appearance of partiality that is a proper instance of where a Judge should disqualify themselves; but refused to do so resulting in injury to Mr. Stegeman in the form of denial of rights, and denial of his right to appeal final order. E.

Motion to Recuse

Surely, refusal to rule on motion to recuse can be no less significant than refusal to recuse, which causes “a risk of undermining the public’s confidence in 11th Cir. R. 42-1(b) Dismissal for Failure to Prosecute. “Except as otherwise provided…when appellant fails to file a brief or other required papers within the time permitted,…the clerk shall issue a notice to counsel, or to pro se appellant, that upon expiration of 14 days from the date thereof the appeal shall be dismissed….if the default has not been remedied…” 9

The only opposed Motions that can be Ruled on by the Clerk are stated in 11th Cir. R. 27-1(c)(20) “to grant moderate extensions of time for filing…not yet assigned …” and 11th Cir. R. 27(c)(21) “to expedite briefing in a direct appeal of a criminal conviction…” 10

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the judicial process” See Liljeberg, v. Health Servs. Acquisition Corp., 486 U.S. at 864, 108 S. Ct. 2194 (public confidence in the judicial process a factor in review of failure to recuse). “[T]he goal of the judicial disqualification statute is to foster the appearance of impartiality.” Potashnick v. Port City Construction Co., 609 F,2d 1101, 1111 (5th Cir.), cert. denied, 449 U.S. 820, 101 S.Ct. 78, L.Ed.2d 22 (1980); (“any doubts must be resolved in favor of recusal): United States v. Kelly, 888F.2d 732, 744 (11th Cir. 1989). Refusing to Rule on the Motion until dismissing the case, causes the issue not to be reviewable while a matter is still pending. The appellate Courts have repeatedly frowned upon waiting until a final Order to Rule on timely filed recusals, see Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988): “by his silence, Judge Collins deprived respondent of a basis for making a timely motion for a new trial and also deprived it of an issue on direct appeal” “Court of Appeals correctly noted, Judge Collins' failure to disqualify himself on March 24, 1982, also constituted a violation of 455(b)(4)” District Court did much the same by waiting to address Motion to Recuse when Dismissing the complaint, preventing review of the Ruling while the case was still before that Court.

Further District Court “viciously attacked” Mr.

Stegeman not only for actions in the case at bar, but in every case Stegeman has been a party in before the court, in both Order dismissing the case and in Order Denying Reconsideration. 14

“Further, when that same judge has unjustifiably refused to recuse himself, while viciously attacking a party for virtually every action he took in the case, a reasonable person could conclude that the judge had denied the motion, sub silentio. This court, like all other courts, recognizes the concept of judicial action taken sub silentio”. E.g., Cohen v. Flushing Hospital and Medical Center, 68 F3d 64, 67, n. 1 (2nd Cir. 1995).

CONCLUSION Mr. Stegeman has properly shown that his issues reflect the requirement for En Banc review and Moves this Honorable Court to Grant En Banc Rehearing.

Respectfully Submitted this 9th day of September, 2009

By: __________________________ JAMES B. STEGEMAN, Pro Se 821 Sheppard Rd Stone Mountain, GA 30083 (404) 300-9782 U. S. COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

CERTIFICATE OF SERVICE

James B. Stegeman vs. Superior Court, et., al.,

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Appeal No. 08-16174-C

I Certify that I have this 9th day of September, 2009 served a true and correct copy of the foregoing Petition for En Banc Rehearing upon Defendants/Appellees, through their attorneys on record by causing to be deposited with the U.S.P.S., First Class Mail, proper postage affixed thereto, addressed as follows:

Daniel S. Reinhardt

Devon Orland

Troutman Sanders, LLP

State of Georgia Dept. of Law

Bank of America Plaza – Suite 5200

40 Capitol Square, S.W.

600 Peachtree Street, NE

Atlanta, GA 30334-1300

Atlanta, GA 30308-2216

_______________________________

JAMES B. STEGEMAN, Pro Se 821 Sheppard Rd Stone Mountain, GA 30083 (404) 300-9782

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