Three lawyers and their client who claim that Vice President Dick Cheney, Secretary of Defense Donald Rumsfeld and other Bush administration officials orchestrated the Sept. 11, 2001, terror attacks piled one mistake on top of another on their way to being sanctioned by the U.S. Court of Appeals for the Second Circuit.
Attorneys William W. Veale, Mustapha Ndanusa and Dennis Cunningham were hit Friday by the circuit with $15,000 in sanctions for filing a frivolous appeal and then doubling down by claiming the three circuit judges should recuse themselves from a motion to rehear because they were guilty of “rank, dishonest wielding of power.”
The sanctions fight began in April, when Judges Ralph K. Winter, John M. Walker Jr. and Jose Cabranes issued an order to show cause why army specialist April Gallop and her counsel of record should not be sanctioned for filing a frivolous appeal following the 2010 dismissal of her case against Mr. Cheney and others by Judge Denny Chin (NYLJ, April 28).
Before Ms. Gallop responded to the order to show cause, she moved on June 16 to disqualify the panel from considering her petition for rehearing in banc. The motion, signed by Mr. Veale, of Walnut Creek, Calif., accused the judges of “evident severe bias, based in active personal emotions arising 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.”
He also sought the recusal of “any other members of the bench of this circuit who share their feelings” from considering Ms. Gallop’s petition.
That did not sit well with the judges.
On July 7, the panel issued a second opinion denying the motion to disqualify, denying panel rehearing and ordering Mr. Veale to show why he should not face additional sanctions for drafting the motion to disqualify and an accompanying affidavit the court said “was peppered with disdainful and unsubstantiated conclusions about the panel members’ emotional stability and competence to serve objectively.”
On Friday, the judges said that Mr. Veale, Mr. Ndanusa, of Brooklyn, and Mr. Cunningham, of San Francisco, would be held jointly and severally liable for the $15,000 in sanctions and ordered them to pay double the government’s costs for both the frivolous appeal and for the “frivolous and vexatious” motion to disqualify the panel.
The court spared Ms. Gallop from sanctions as she was unfamiliar with the law, but she was admonished that future frivolous filings could result in sanctions.
Ms. Gallop claims she was at the Pentagon when it was attacked and saw no plane hit the building.
The complaint before Judge Chin alleged that the Pentagon was not hit by an aircraft, that it was bombed from within and that Mr. Cheney, Mr. Rumsfeld and others assisted in the planning of the 9/11 attacks.
Judge Chin said the complaint, which included the idea that young Muslim men who crashed the airplanes were used as “dupes or patsies” by the defendants was “the product of cynical delusion and fantasy” and the circuit agreed in April.
In its per curiam opinion Friday in Gallop v. Cheney, 10-1241-cv, the circuit panel said that, in April, it had “found the District Court’s dismissal of the complaint appropriate because it consisted of speculation and conjecture and ‘fail[ed] to set forth a consistent, much less plausible, theory for what actually happened’ on September 11, and further failed to present anything beyond vague and conclusory allegations of conspiracy among the defendants.”
The response to the April order to show cause, the panel said, “presents only irrelevant information in a jarringly disorganized manner, united solely by its consistently patronizing tone” and “comprehensive compilation of every rumor, report, statement, and anecdote that may reveal an inconsistency or omission of an ‘official version’ of the 9/11 attacks, such as the 9/11 Commission.”
The response also accused the court of “angry pre-judgment” and said the judges had participated or acquiesced in the “ongoing” government “conspiracy.”
Addressing Mr. Veale’s response to the July 7 order to show cause, the court said the attorney “sincerely believed” his motion had merit while conceding that the motion and accompanying affidavit had a “regrettably…intemperate” tone that he credited to feeling “demeaned” by the court’s initial order to show cause.
The judges showed no inclination to let the matter drop, not after they had been accused in the Veale affidavit of having their “normal intellectual functions” deactivated. Mr. Veale had said the rejection of Ms. Gallop’s appeal showed that perhaps as a “psycho-emotional matter,” the judges could not be impartial.
“Conveniently, the apparent litmus test for whether a judge’s normal intellectual functions have been compromised such that he or she must be disqualified from hearing Gallop’s case is identical to the question of whether a judge agrees with the original panel’s determination that Gallop’s action is frivolous,” the panel said. “But as Veale is surely aware, no party to litigation is entitled to a pre-screened panel of sympathetic judges, and we have no patience for Veale’s homegrown psychosocial theories contrived to achieve that end.”
The panel said that Veale, “enraged and embarrassed” by the court’s decisions, used the June 16 affidavit “to air personal grievances against the court, rather than tailor his response to Gallop’s best interests.”
Southern District Assistant U.S. Attorney Alicia M. Simmons argued for Mr. Cheney and the other former government officials.
Mr. Ndanusa said Friday he was “shocked” by the court’s ruling because he believed the initial complaint should have been allowed to go forward because it met the standards for pleading.
“We don’t have in our possession all the facts that point to a conspiracy,” Mr. Ndanusa said. “We should be able to substantiate the conspiracy by having discovery. I understand you have to lay out some sort of facts to make the judge see why you believe the defendants are behind this, but, in our opinion, the official story is unsubstantiated. We felt the trier of fact should have decided the issue.”
@|Mark Hamblett can be contacted at firstname.lastname@example.org.