Monday, March 12, 2012

Don't insult the 2d Circuit judges (or any other judges)

Gallop v. Cheney will go down in the annals of Second Circuit case law as the mother of all appellate sanctions. The Court of Appeals has issued a fourth published opinion further outlining why plaintiff's counsel should be punished for trying to litigate a 9/11 conspiracy theory and then attacking the Second Circuit judges over their decision to throw out the case and sanction the attorneys.

The latest decision is here, decided on February 2. In summary, the plaintiff alleges that the government caused the 9/11 attacks "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." The district court threw out the case, and the Court of Appeals affirmed and also sua sponte ordered plaintiffs' counsel to show cause why sanctions were not in order for this frivolous case. Counsel then submitted papers attacking the judges on the case (Cabranes, Winter and Walker) and asking that they be disqualified because of their "evident severe bias, based in active personal emotions from the 9/11 attack ... leading to a categorical pre-judgment totally rejecting [Gallop's] Complaint, out of hand and with palpable animus in [its] decision." Counsel also asked that any other judges on the court who shared that bias should recuse themselves as well. The Court responded not with recusals but with sanctions for counsel's suggestion that the judges are not emotionally capable of deciding this case.

This most recent decision sanctions a second lawyer who also worked on the case. His role was apparently not known to the Court any earlier. This guy says he was substantially involved in drafting the motion to disqualify the judges. He says that he sincerely believed that the motion had merit and he had a duty as Gallop's lawyer to file it. He also said he engaged in "righteous if overheated advocacy, and not in bad faith." He also apologized to the Court for using inflammatory language, stating that he felt "demeaned, and disrespected by the nature of tenor of the Court's judgments." This mea culpa will not fly. Like his colleague, this second lawyer gets sanctioned. The punishment is that for the next year, he must provide notice of this sanction to any federal court in this Circuit where he appears in a case.

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