By Lance J. Rogers
The U.S. Court of Appeals for the Second Circuit Oct. 14 fined three attorneys $15,000 for pursuing a frivolous appeal claiming that top White House and military officials conspired to cover up government involvement in the 9/11 terrorist attacks (Gallop v. Cheney, 2d Cir., No. 10-1241-cv, 10/14/11).
In a per curiam opinion, the court concluded that the misconduct was compounded when one of the plaintiff's attorneys filed an intemperate motion to recuse the entire panel that was “peppered with disdainful and unsubstantiated conclusions about the panel members' emotional stability and competence to serve objectively.”
The court cited three separate sources of sanctioning authority that allowed it to penalize the attorneys.
The lawsuit was brought on behalf of April Gallop, a specialist in the U.S. Army who was injured in the 9/11 attack on the Pentagon. She claimed that the building was not hit by a passenger jet but instead was bombed from within, and that high ranking officials orchestrated a cover-up. Included as defendants were former Vice President Richard Cheney, former Secretary of Defense Donald Rumsfeld, and the former head of the joint chiefs of staff.
According to the complaint, top government officials concocted the terrorist attack story in order to generate a hysterical political atmosphere that would allow the government to further its secret domestic and international policy objectives.
The U.S. District Court for the Southern District of New York ruled that the lawsuit was frivolous and dismissed it with prejudice, finding that the conspiracy claims were spun from “cynical delusion and fantasy.”
In a previous decision, the Second Circuit affirmed, agreeing that the complaint consisted of little more than “a series of unsubstantiated and inconsistent allegations” that “utterly fails to set forth a consistent, much less plausible, theory for what actually happened that morning in Arlington, Virginia.”
It noted as well that Gallop's complaint was inconsistent with factual allegations she made in lawsuits against American Airlines and others, which asserted that an airplane did indeed crash into the Pentagon on 9/11. See Gallop v. Cheney, 642 F.3d 364 (2d Cir. 2011).
Although the government did not ask for sanctions, the court sua sponte directed Gallop's lawyers, William W. Veale, Mustapha Ndanusa, and Dennis Cunningham, to show cause why they should not be sanctioned under Fed. R. App. P. 38, 28 U.S.C. §1927, and the court's inherent power for pursuing an appeal of a lawsuit that was “brought without the slightest chance of success.”
Gallop's lawyers filed a response that was preceded by a motion to disqualify the panel. The recusal motion, signed by Veale, accused the judges of harboring “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 [their] decision.”
Veale also sought to disqualify “any other members of the bench of this circuit who share their feelings” from reviewing the matter.
The court denied the motion to recuse and found the lawyers' subsequent response to the show cause order woefully inadequate. The response, the panel said, “presents only irrelevant information in a jarringly disorganized manner, united solely by its consistently patronizing tone.”
The court characterized Gallop's argument as a “comprehensive compilation of every rumor, report, statement, and anecdote that may reveal an inconsistency or omission” in official versions of the 9/11 attacks, accompanied by “a robust collection of unsupported accusations” that the judges themselves had acquiesced in the ongoing conspiracy.
The court took exception to Veale's assertion that the panel had engaged in “rank, dishonest wielding of ordained power” that “would or should provoke a congressional investigation.” It characterized this as an “unusually aggressive” assault on the integrity of the court.
Veale, the court continued, resorted to the circular logic that the judges must have been so personally scarred by their own 9/11-related emotions that they could not come to grips with the truth as revealed in Gallop's complaint. The court stated:
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. But as Veale is surely aware, no party to litigation is entitled to a prescreened panel of sympathetic judges, and we have no patience for Veale's homegrown psychosocial theories contrived to achieve that end.
According to the court, Veale acted out of his own rage and embarrassment and used the filing “to air personal grievances against the court, rather than tailor his response to Gallop's best interests.”
The court found Veale, Ndanusa, and Cunningham jointly and severally liable for $15,000 in fines and ordered them to pay double the government's costs for both the frivolous appeal and the recusal motion.
Gallop herself will not be sanctioned at this juncture, the court added, because she relied heavily on her lawyers and does not labor under the same legal and ethical obligations to the court as her attorneys. However, the panel admonished Gallop to avoid future frivolous filings.
The court also ruled that whenever he appears before any tribunal in the Second Circuit within the next year, Veale must alert the court to the sanctions.
Mustapha Ndanusa, Brooklyn, N.Y., and William W. Veale, Walnut Creek, Cal., argued their position. Assistant U.S. Attorney Alicia M. Simmons, New York, argued for the government.
Full text at http://op.bna.com/mopc.nsf/r?Open=kswn-8mmp27.
Fed. R. App. P. 38:
“If a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.”
28 U.S.C. §1927:
“Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.”
The ABA/BNA Lawyers’ Manual on Professional Conduct is a joint publication of the American Bar Association Center for Professional Responsibility and BNA.
Copyright 2011, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.