*1 law ter- clear mandate Oklahoma whistleblowing).
mination for
AFFIRMED. Joy SHAHAR, Plaintiff-Appellant,
Robin BOWERS, individually
Michael J. Baker, capac- E. in his
Thurbert official
ity General of the State of
Georgia, Defendants-Appellants.
No. 93-9345. Appeals,
United States Court of
Eleventh Circuit.
Aug.
212 HATCHETT, Judge,
Before Chief EDMONDSON, TJOFLAT, ANDERSON, DUBINA, BLACK, COX, BIRCH, CARNES BARKETT, Judges, and Circuit KRAVITCH, Senior Circuit GODBOLD Judges. THE
BY COURT: the court on Plaintiff- This case is before Appellant’s petition rehearing and on her for supplement the record or for a motion remand to do so.
MOTION TO SUPPLEMENT relies, rehearing Ms. for newspaper articles part, on two recent Mi- reporting that former having an chael J. Bowers has admitted to past affair in the with a woman adulterous Department employed in the of Law. She part requests that this information become Atlanta, GA, Schwartz, William Debra E. by judicial the record in this ease notice or Rubenstein, City, Ruth E. Har- B. York New discovery. for remand to the district court low, Plaintiff-Appellant. City, for New York Defendants-Appellees, stressing arguments finality, estoppel, argue irrelevance and Atlanta, GA, Hobbs, Dorothy Michael E. supplement that the motion to or to remand Jones, Day, Pogue, & Kirkley, Reavis Yates supplement The motion to should be denied. Castanias, Jones, Atlanta, GA, Gregory A. the record or to remand is DENIED. DC, Pogue, Washington, Lau- Day, Reavis & equitable Although we have inherent Pulliam, Paul, Lynn Hastings, Janofsky & ra power the record with infor Atlanta, GA, II, Walker, Holley, William J. court, mation not reviewed the district Dobbs, Atlanta, Parker, Hudson, Rainer & rarely authority is exercised.” Ross “[s]uch Hanthorn, GA, Pulley, Diane G. Gregory R. (11th Cir.1986). 1467, 1474 Kemp, 785 F.2d Atlanta, GA, Jones, Day, Pogue, Reavis & for The reason for this rule is that the district Defendant-Appellee. courts are the courts in which cases are to be Lord, Remar, Kay Kir- Georgia Robert B. initially. litigated and decided Parks, Atlanta, GA, wan, Goger, Chesin & authority sup we have While Georgia Psychological Associa- Amicus plement a record even after have ren tion. panel opinion dered both a and then an en case, opinion strong banc on a the law’s Sullivan, M. Stanford Law Kathleen finality supplementa interest dictates that California, School, Stanford, for Amicus stage tion of the record at such a late would AAUP, et al. especially extraordinary event and require showing just would clearest supplementation.1 A need to warrant judgment appeal of the final that was never before the district court—usual An review Therefore, (Final § law. that the district court. See 28 U.S.C. 1291 favored Court). us add Decision of District When the district information which Ms. Shahar wants case, judgment on a to the record now would have been allowed in court enters its final closed; (that earlier —before we had announced our en banc evidence is and the record certain; case) appeal opinion we need not is estab- no means factual basis of the —is appeal that issue that issue is not before lished. At no time when a case is on decide because adding to the record—information us. in this case But this is the decisive one: present record Given review of the Shahar, court, supple- that strong equities favor the district made that no shows compel at this time. no motions to menting the record department employees names of law who had present record reflects Review of adultery, engaged say we cannot that the court, Shahar, *3 in the had the Ms. district information about Mr. Bowers which she discovery ques- pursue on the opportunity to inject seeks to into the case now—almost six Depart- lawyers not in the of whether or tion years after she filed her lawsuit and more Attorney including the Gener- ment of Law— years than three after the court district ruled adultery. She did not al—had committed against her —was information which she Instead, matter, par- however. the press the have diligence could not discovered with due agreement2 in district ties into an entered years ago. Because Ms. Shahar did not dili- efforts of both sides court which limited the gently seek out this information when the information about the sexual his- to discover regularly information could have been con- in specific people involved this tories of the the court then sidered district and the litigation. appeals, strong equities court of no favor her Attorney agreement, to this the Pursuant request extraordinary step that we take the he, on the date that he stated General supplementing of the record at this late mo- employment, to her of had withdrew the offer ment. knowledge any of sexual conduct specific no lim agree to with- Parties to lawsuits often and that his decision of Ms. Shahar employment discovery was on it to avoid extra costs or embar the offer of based draw rassment, just or one side chooses to aban no act of sexual conduct on turn, discovery the don some line of as more trouble part. In Ms. Shahar —who has had throughout case— than it is worth. These kinds of decisions of counsel this advice strategic party’s routine. A strate forego having Attorney Gener- are and agreed to the are, litigation great interrogatories gic which decisions for to a respond to written al extent, conjectures fu any depart- based on about what requested the names of law had Attorney ture course will be most favorable to the employees believed the ment conjec party; hindsight, some of the engaged sodomy or with to have adul- General turn out to be incorrect. But to hold tery.3 stipulation protect worked to both tures strategic on how litigants trou- to their decisions litigation in this from additional sides they litigate ble, broadly narrowly wish to personal into their or including intrusions So, histories, not this case through the not unfair.4 we will remand as this case churned parties to start over now. for the district court. put plement So at Attorney seemingly the Record or For Remand Do 2. never his record, correspondence Particularly light the of the signature er, agreement; howev on the testimony parties they were in the dis- deposition between the when that Mr. Bowers’ reflects court, agree. Although we we think it is conformity agreement, Bowers trict is in with the see 67-69, Summary plain on Judg that Ms. Shahar did undertake Dep. Motion for at issue, at whether she did so or Attorney district the matters now not, ment filed General in the so; is the agreement, she could have done see Defendant's court referenced 15-16; Summary Judgment one. main Motion for Attorney General’s we are cited to no act of the agree with the office which seems inconsistent colleagues, who from the denial of 4.Our dissent ment, Attorney argue although the General did supplement, quote sentence one the motion appearances public perception of issues of Response to the motion. The sentence from the sodomy Response of and "married” homo accurately quoted. on the matter as a But the general. pages length. sexuals in Taken as a seven whole is about whole, Response and uncondi- is no definite stipulation by Appellees that the record interroga- her tional 3. Never has Ms. Shahar said that See, e.g., supplemented Re- enough now. should be in the district court were not broad tories ("Both Bowers sponse Mr. Baker and Mr. at 1 General’s own conduct. to include fact, Rehearing oppose Appellant’s and her Motion that the information that she In she tells us Supplement in this case precisely the Record the in- Motion advances about Bowers now is [contain- Michael Adams the Declaration of to discuss in discov- with formation that "he refused ” ("The articles].”); newspaper Id. at 2 Sup- ing ery. Rehearing the two and Motion to Petition bar, which is not official procedural notice of conduct In addition to (an judicial taking example notice of point out that the conduct of his official conduct law, highly might judicially as a matter evidence be facts which noticed would for this caution process. The reason particular opinion limited official on that he issued a judicial bypasses date). notice taking is that has shown us no case— a certain She are involved with the safeguards which and we have found none —where a federal by competent proving facts process usual appeals judicial took court of notice can take in district court. Courts evidence person upon unofficial conduct of one based proof facts without formal notice of certain (or newspaper person’s cam- accounts question is “one only where the fact but release) press paign committee’s about that dispute in that it is not to reasonable conduct.5 We are not inclined extend (1) generally known within the territo either judicial notice far as Plaintiff- doctrine of *4 (2) jurisdiction capa rial of the trial court or Appellant it.6 asks us to take ready ble of accurate and determination Apart from these other sufficient and inde- accuracy cannot resort to sources whose rea pendent declining supplement reasons for to 201(b). sonably questioned.” be Fed.R.Evid. record, we also decline because —if things example, For the kinds of proposed supplemental information were to ordinarily judicial take about which courts many be added to the other circumstances (1) instance, scientific facts: for notice are already readily say in the case —we cannot (2) set; sun or matters of when does the rise probably that the result of the case be would instance, geography: are for what the bound May from the 30 different result. (3) state; political or of aries of a matters instance, history: president who was for judicial asks us to take Shahar ON PETITION FOR REHEARING person, of conduct of one Michael
notice Bowers; judicial rehearing and she asks us to take The for is DENIED. J. finality principles regulate interests of alone would dictate that the the set of which will all cases. denied.”). supplement simple, high, today’s motion to should be These but concerns drive however, prohibit supplementation decision to important, is More this of law: —after long appeal has twice and parties our court ruled after the to an cannot bind the court to plainly supplement the record no matter how district court has ruled—of the record in this they stipulate supplementation that case. both is all appellate right with them. court has the duty supplement to make the decision to or not merely 5. We stress that we are not asked to take supplement. to judicial notice of the fact that the media has cases, parties may, In some for their own reported press says “X” or the fact that a release reasons, happy litigation to continue or We "X.” are asked to know "X." perhaps for reasons that have little to do feel— The dissent mentions a statement "made with the case or with the law—that some evi- only pertinent Mr. Bowers.” The statement be- objected dence should not be But to them. might fore us which be said to have been made business, the cases in this court are our too. An press Bowers is a written on Mr. release appellate duty court has the to consider wider “Bowers for Governor" letterhead. The state- parties’ preferences circumstances than the or unsworn, unsigned, speaks ment is and neither objections. example, lack For it vital of that conduct; "adultery” nor of other sexual it litigation (including discovery we see to it that does use words like "involved with” and "rela- disputes compromises) and in the district courts tionship.” people may general Whatever wish seriously by parties be taken and that the release, to infer for themselves from this litigation orderly way be conducted in an lays for a statement no foundation federal court’s regular procedures practices. accord with and taking judicial notice that Mr. Bowers has com- duty finality We have a also to see to it that adultery mitted or fornication. something means real in the federal courts. (even require great, Our duties in cases with accept proposition part 6. We do not to be public) only immediate attention from the not us, law of evidence: that information—a "fact” that we must the case consider before but improper subject judicial keep eyes prece- which is an notice— that we must our fixed on the automatically judi- might proper dent we and becomes a make on the conduct of the party objects present gen- to and future —of the courts cial notice if no the "fact" and
business— therefore, time, that, erally. appellate While we decide court is bound to one case a law, background judicial do so a that take notice of the "fact.” BARKETT, public. timing, say This Judges, to Circuit BIRCH GODBOLD, Judge, least, suspicious; especially Circuit considering Senior dissenting: that, discovery despite agreement his with Shahar, argue Bowers was able to in this Record or Supplement Motion to public perception ap- court “issues of and of Do Remand to So: pearances sodomy on the matter of denial of Sha- from the court’s We dissent in general.” homosexuals Ma- []married[] the record. har’s motion only jority Order at 3 n.l. Not was Bowers is relevant public statement Bowers’ argue point, able to that but he also was able public asserted fear of adverse whether his argue that Shahar could not function as a misconduct of perceived sexual reaction to trustworthy member of his staff because she Department of Law Georgia persons likely respect had a conflict of interest with terminating Sha- reason for was a bona fide a non-dis- Georgia’s sodomy Considering whether he acted as har and to laws. in the Shahar eriminatory decisionmaker that, perhaps very at the time Bowers admits matter. Shahar, breaking was he fired he also Geor- laws, gia’s adultery justifi- and fornication trial level seek at the Failure to weight. very is entitled to no At the cation supplementing the record. The is no bar least, justification Bowers’ evinces discrimi- stage concerned inquiry at the trial court *5 Depart- employees solely of the policy relating nation Shahar on the basis of ment, Bowers himself as not the conduct of homosexual, her status as a since Bowers did capacity Department or his as of the head assumption not make the same about conflict concerning More- Shahar. decisionmaker respect to or other of interest with himself over, discovery “agreement”1 below is department. in v. lawyers See Shahar supplement. to this motion irrelevant Bowers, 1097, 114 1128-29 & nn.6-7 F.3d that she somehow be does not ask Shahar (11th Cir.1997) (Birch, J., dissenting). discovery in pursue contravention allowed to publicly Bowers admitted agreement. obviously appropriate. notice is Judicial less than one week after certain facts report- not a “newspaper account” was published. en banc court was decision of the by a third er’s conclusion or a statement open in view of the fact that The ease is still by Bowers admit- party; it was a statement rehearing. See petition it to a for it. ting asking forgiveness his conduct and asks that R.App. P. 40. Shahar Fed. through was made Bowers’ The statement with Bowers’ the record court headquarters and was political campaign between We see no difference admission. radio, newspapers, published nationwide one in which Bowers would this situation and television, magazines national circula- before the en banc have made his admission content Surely, this court can know the tion. Surely, stage, at that Sha- decision issued. relevant, that is accurate be- of a statement pursue failure to the new har’s himself, and known to cause made Bowers supple- would have worked no bar below Moreover, light of the fact that millions. menting the record. have “Attorney Baker and Bowers equities majority contends including objection no to the Court’s against granting request weigh in the record of proffered information stage at this late be- supplement the record case,” Thur- Response Attorney General the district cause she failed discover Attorney General E. Baker and Former bert information about Bowers’ affair. court the Appellant’s Motion to Bowers to Michael J. majority, balancing submit that We for a Remand to Supplement the Record or equities, also should have considered why the court we fail to see Do So days until a few fact that Bowers waited refuses to do so. he made the after its issued before decision agreement to limit alleged agreement that there was 1. The record shows that purpose motion. parties. for the of this We assume was never executed Rehearing: Petition for from the court’s denial of Sha-
We dissent rehearing.
har’s GE MOBILE COMMUNI
ERICSSON
CATIONS, INC., a Delaware Cor
poration, Plaintiff-Appellee, &
MOTOROLA COMMUNICATIONS
ELECTRONICS, INC., corpo an Illinois City
ration, Birmingham, of, a munici
pal corporation, Arrington, Jr., Richard Mayor capacity his official
City Birmingham, Defendants-Appel
lants.
No. 95-6766. Appeals,
United States Court of
Eleventh Circuit.
Aug.