Shahar v. Bowers

Decision Date01 August 1997
Docket NumberNo. 93-9345,93-9345
Parties71 Empl. Prac. Dec. P 44,924, 13 IER Cases 147, 13 IER Cases 539, 47 Fed. R. Evid. Serv. 832, 11 Fla. L. Weekly Fed. C 271 Robin Joy SHAHAR, Plaintiff-Appellant, v. Michael J. BOWERS, individually and Thurbert E. Baker, in his official capacity as Attorney General of the State of Georgia, Defendants-Appellants.
CourtU.S. Court of Appeals — Eleventh Circuit

Debra E. Schwartz, Atlanta, GA, William B. Rubenstein, New York City, Ruth E. Harlow, New York City, for Plaintiff-Appellant.

Michael E. Hobbs, Atlanta, GA, Dorothy Yates Kirkley, Jones, Day, Reavis & Pogue, Atlanta, GA, Gregory A. Castanias, Jones, Day, Reavis & Pogue, Washington, DC, Laura Lynn Pulliam, Paul, Hastings, Janofsky & Walker, Atlanta, GA, William J. Holley, II, Parker, Hudson, Rainer & Dobbs, Atlanta, GA, Gregory R. Hanthorn, Diane G. Pulley, Jones, Day, Reavis & Pogue, Atlanta, GA, for Defendant-Appellee.

Robert B. Remar, Georgia Kay Lord, Kirwan, Goger, Chesin & Parks, Atlanta, GA, for Amicus Georgia Psychological Association.

Kathleen M. Sullivan, Stanford Law School, Stanford, California, for Amicus AAUP, et al.

Appeal from the United States District Court for the Northern District of Georgia.

Before HATCHETT, Chief Judge, TJOFLAT, ANDERSON, EDMONDSON, COX, BIRCH, DUBINA, BLACK, CARNES and BARKETT, Circuit Judges, and GODBOLD and KRAVITCH, Senior Circuit Judges.

BY THE COURT:

This case is before the court on Plaintiff-Appellant's petition for rehearing and on her motion to supplement the record or for a remand to do so.

MOTION TO SUPPLEMENT

Ms. Shahar's petition for rehearing relies, in part, on two recent newspaper articles reporting that former Attorney General Michael J. Bowers has admitted to having an adulterous affair in the past with a woman employed in the Department of Law. She requests that this information become part of the record in this case by judicial notice or by remand to the district court for discovery. Defendants-Appellees, stressing arguments of finality, irrelevance and estoppel, argue that the motion to supplement or to remand should be denied. The motion to supplement the record or to remand is DENIED.

Although we have inherent equitable power to supplement the record with information not reviewed by the district court, "[s]uch authority is rarely exercised." Ross v. Kemp, 785 F.2d 1467, 1474 (11th Cir.1986). The reason for this rule is that the district courts are the courts in which cases are to be litigated and decided initially.

While we have the authority to supplement a record even after we have rendered both a panel opinion and then an en banc opinion on a case, the law's strong interest in finality dictates that supplementation of the record at such a late stage would be an especially extraordinary event and would require the clearest showing of just need to warrant the supplementation. 1 A Review of the present record reflects that Ms. Shahar, in the district court, had the opportunity to pursue discovery on the question of whether or not lawyers in the Department of Law--including the Attorney General--had committed adultery. She did not press the matter, however. Instead, the parties entered into an agreement 2 in district court which limited the efforts of both sides to discover information about the sexual histories of the specific people involved in this litigation.

review of the present record in this case shows that no strong equities favor supplementing the record at this time.

Pursuant to this agreement, the Attorney General stated that he, on the date that he withdrew the offer to her of employment, had no specific knowledge of any sexual conduct of Ms. Shahar and that his decision to withdraw the offer of employment was based on no act of sexual conduct on Ms. Shahar's part. In turn, Ms. Shahar--who has had the advice of counsel throughout this case--agreed to forego having the Attorney General respond to written interrogatories which had requested the names of any law department employees believed by the Attorney General to have engaged in sodomy or adultery. 3 The stipulation worked to protect both sides in this litigation from additional trouble, including intrusions into their personal histories, as this case churned through the district court.

But this point is the decisive one: Given that Ms. Shahar, in the district court, made no motions to compel the discovery of the names of law department employees who had engaged in adultery, we cannot say that the information about Mr. Bowers which she seeks to inject into the case now--almost six years after she filed her lawsuit and more than three years after the district court ruled against her--was information which she could not have discovered with due diligence years ago. Because Ms. Shahar did not diligently seek out this information when the information could have been regularly considered by the district court and then by the court of appeals, no strong equities favor her request that we take the extraordinary step of supplementing the record at this late moment.

Parties to lawsuits often agree to limit discovery to avoid extra costs or embarrassment, or one side just chooses to abandon some line of discovery as more trouble than it is worth. These kinds of decisions are strategic and routine. A party's strategic decisions for litigation are, to a great extent, based on conjectures about what future course will be most favorable to the party; with hindsight, some of the conjectures turn out to be incorrect. But to hold litigants to their strategic decisions on how broadly or narrowly they wish to litigate is not unfair. 4 So, we will not remand this case for the parties to start over now.

In addition to the procedural bar, we point out that the taking of judicial notice of facts is, as a matter of evidence law, a highly limited process. The reason for this caution is that the taking of judicial notice bypasses the safeguards which are involved with the usual process of proving facts by competent evidence in district court. Courts can take notice of certain facts without formal proof but only where the fact in question is "one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b).

For example, the kinds of things about which courts ordinarily take judicial notice are (1) scientific facts: for instance, when does the sun rise or set; (2) matters of geography: for instance, what are the boundaries of a state; or (3) matters of political history: for instance, who was president in 1958. Ms. Shahar asks us to take judicial notice of the conduct of one person, Michael J. Bowers; and she asks us to take judicial notice of conduct which is not his official conduct (an example of his official conduct which might be judicially noticed would be that he issued a particular official opinion on a certain date). She has shown us no case--and we have found none--where a federal court of appeals took judicial notice of the unofficial conduct of one person based upon newspaper accounts (or the person's campaign committee's press release) about that conduct. 5 We are not inclined to extend the doctrine of judicial notice as far as Plaintiff-Appellant asks us to take it. 6

Apart from these other sufficient and independent reasons for declining to supplement the record, we also decline because--if the proposed supplemental information were to be added to the many other circumstances already in the case--we cannot readily say that the result of the case probably would be different from the 30 May result.

ON PETITION FOR REHEARING

The petition for rehearing is DENIED.

BIRCH and BARKETT, Circuit Judges, and GODBOLD, Senior Circuit Judge, dissenting:

Motion to Supplement the Record or for a Remand to Do So:

We dissent from the court's denial of Shahar's motion to supplement the record. Bowers' public statement is relevant to whether his asserted fear of adverse public reaction to perceived sexual misconduct of persons in the Georgia Department of Law was a bona fide reason for terminating Shahar and to whether he acted as a non-discriminatory decisionmaker in the Shahar matter.

Failure to seek discovery at the trial level is no bar to supplementing the record. The inquiry at the trial court stage concerned policy relating to employees of the Department, not the conduct of Bowers himself as head of the Department or his capacity as a decisionmaker concerning Shahar. Moreover, the discovery "agreement" 1 below is irrelevant to this motion to supplement. Shahar does not ask that she somehow be allowed to pursue discovery in contravention of the agreement. Bowers admitted publicly certain facts less than one week after the decision of the en banc court was published. The case is still open in view of the fact that it is subject to a petition for rehearing. See Fed. R.App. P. 40. Shahar asks that the court supplement the record with Bowers' admission. We see no difference between this situation and one in which Bowers would have made his admission before the en banc decision issued. Surely, at that stage, Shahar's failure to pursue the new information below would have worked no bar to supplementing the record.

The majority contends that the equities weigh against granting Shahar's request to supplement the record at this late stage because she failed to discover in the district court the information...

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