Tuesday, July 12, 2011

How to get sanctioned by the Court of Appeals, part 2

A few weeks ago, the Second Circuit sanctioned a lawyer for bringing a lawsuit claiming that the Bush administration orchestrated the 9/11 attacks. Not in a million years would the Court of Appeals, or any other court, rule in this guy's favor. But the Court of Appeals took things a step further: it sanctioned the lawyer for bringing frivolous litigation. A summary of that case is here. It gets worse for this lawyer.

The case is Gallop v. Cheney, decided on July 7. Summarizing the opinion in Gallop I, the Second Circuit writes:

In our opinion, we determined, as the District Court had, that Gallop’s complaint — which alleged that former senior government officials caused the September 11, 2001 attacks against the United States in order to (1) create a political atmosphere in which they could pursue domestic and international policy objectives and (2) conceal the misallocation of $2.3 trillion in congressional appropriations to the Department of Defense—was frivolous. We also ordered Gallop and her counsel to show cause why they should not be sanctioned for filing a frivolous appeal under Federal Rule of Appellate Procedure 38, 28 U.S.C. § 1927, and the inherent power of this Court.

Now the lawyer wants the Court of Appeals to either re-hear the appeal or hear it en banc. En banc involves having all the judges on the Court hear the case, beyond the three judges who actually heard the appeal the first time around. Those three judges are known as "the panel." The Second Circuit rarely hears cases en banc, but there's no harm in trying. What hurts the lawyer this time around is his request "to disqualify the panel from consideration of that petition and any other aspect of her appeal, including the imposition of sanctions. Gallop argues that this Court’s opinion demonstrates an 'evident severe bias' arising from the panel’s 'active personal emotions' associated with the attacks of September 11, 2001, which merits disqualification."

In particular, the Court says, "In his affidavit in support of Gallop’s motion for disqualification, William Veale — one of Gallop’s counsel of record — 'demand[s]' not only that the panel, but 'any other members of the bench of this Circuit who share their feelings[,] be recused.'" Why kick an angry dog? The Second Circuit was angry enough about this case. Why insult the court even further with this recusal request? The Court of Appeals (Cabranes, Winter and Walker) has had enough, ruling that this request is as frivolous as the lawsuit itself, stating, "rather than pursuing his client’s interests, Veale’s actions appear to be malicious — intended, in bad faith, to use his position as an attorney of record to harass and disparage the court." The lawyer is again sanctioned for making this request.

Here's a flavor of the attorney's affidavit which offended the Second Circuit:

Plaintiff-Appellants thus assert, respectfully, that the panel members, living and working in the vortex of still-fresh emotions and patriotic fervor arising from the attack, appear to be altogether prejudiced and full of hard feelings against any accusation of complicity among U.S. officials, let alone a claim of outright, murderous conspiracy by commanders of the highest rank; and thus they were unable to be objective and impartial in judging the merits of such a charge, and the facts put forth in support. This animus led them to ignore even so striking and sensational an item of proof as the testimony of Secretary Mineta — a perennial Democrat member of the House of Representatives, and winner of the Medal of Freedom, then serving in the Republican Cabinet, a man so eminent that a major international airport is named after him — about Cheney‘s standdown orders, for example.

They even go so far as to eschew completely any reference whatsoever to the evidence — including defendants‘ own fishy and contradictory statements — concerning where the defendants were and what they were doing at the time of the crime. It is as if, in reviewing the case of a liquor store robbery, you ignored a report that the suspect was seen entering the store with a mask on and a gun in his hand.

And Judge Walker, as we urged, clearly was separately disqualified under 28 U.S.C. 455(b)(5)(iii) by virtue of his family connection to then-President Bush, and to his cousin Wirt Walker, then a principal in the firm providing security at the Twin Towers, each of whom surely has ― an interest that could be substantially affected by the outcome‖ of this case, as the statute provides.

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