Thursday, February 2, 2012

Appellate Courts and the nature of reality

It appears that the curious case of Gallop v. Cheney is over. The case is one filed by "Truthers," people who believe that the events surrounding the 9-11 attacks are not what most people believe.

April Gallop, a soldier working in the Pentagon on 9-11, filed a complaint in the United States District Court for the Southern District of New York, alleging that a plane did not crash into the Pentagon on 9-11. Instead, Vice-President Cheney and other senior civilian and military leaders arranged for explosive charges to be detonated in the Pentagon to give the false impression that a plane had crashed into the building. As an aside, Ms. Gallop apparently agrees that planes actually did hit the World Trade Center. However, Ms. Gallop believes that the government officials she sued knew about the attacks in advance and did not stop them because they wished to "enact and implement radical changes in the policy and practice of constitutional government." The attack at the Pentagon was designed to conceal the revelation that $2.3 trillion in congressional appropriations could not be accounted for by the Department of Defense.

Unsurprisingly, the district court dismissed Ms. Gallop's complaint as frivolous. Then, to borrow a phrase from the late Hunter S. Thompson, the going got weird. Ms. Gallop filed an appeal. The Second Circuit Court of Appeals affirmed the district court's dismissal of the case. However, the appellate court also sanctioned Ms. Gallop and her attorneys because the appeal was "brought without the slightest chance of success." You can read that opinion here. In making the sanctions decision, the court told Ms. Gallop and her attorneys to figure out who of them was responsible for the appeal.

It evidently did not take too much time to figure out who was responsible for the appeal because during the period that was supposed to being taking place Ms. Gallop requested that the Second Circuit here the case en banc. She also asked that the judges who initially ruled on her appeal recuse themselves and that any members of the Second Circuit who "shared the feelings" of the initial judges also recuse themselves. That led to this order, where the Second Circuit sanctioned one of Ms. Gallop's attorneys again.

In October, the Second Circuit issued it's sanctions order. It is here. In it, the Second Circuit declined to sanction Ms. Gallop but found that her attorneys should jointly be sanctioned $15,0000. The sanction didn't go over too well with her attorneys and they asked the sanction order also be considered en banc. Today, the Court issued its decision slightly modifying the sanctions order. It is here.

In one sense, the decision is a win for at least one of Ms. Gallop's attorneys. The local counsel, Mustapha Ndanusa was not sanctioned. However, that didn't mean that the sanction amount was lowered. Instead, the remaining two attorneys, Dennis Cunningham and William Veale, were on the hook for the entire $15,000.

The Second Circuit rejected the use by Mr. Cunningham and Mr. Veale of what Mr. Torvik might label the "Isaiah Lewis Defense." Put another way, Mr. Cunnigham and Mr. Veale argued they shouldn't be sanctioned because they truly believe that the government planned the attack on the Pentagon. That belief turned out to be irrelevant for the sanctions motion because the Second Circuit sort of moved the goalposts. The sanctions were not being imposed for the original appeal. They were being imposed because of the recusal motion. Essentially, the court said since there was no authority for the proposition that an entire circuit should recuse themselves for sharing the beliefs of the orignal panel, then the recusal motion was therefore sanctionable.

I suppose that Mr. Cunningham and Mr. Veale might feel vindicated that their views on 9-11 were not the source of the sanction. As a general rule it is probably a good thing if courts don't sanction folks simply for being reality-challenged. On the other hand, this sanction sort of feels like cheating. A review of the orders suggests that Mr. Cunningham and Mr. Veale didn't think (or perhaps didn't understand) that the requested result of their recusal motion was the thing they were supposed to being defending to the court. This sort of makes the sanctions order feel like the result of a hyper-technical argument or trick. What do you think Mr. Torvik, did the court use a "gotcha!" approach in order to impose sanctions?

1 comment:

  1. Regarding the "Isaiah Lewis Defense" -- or perhaps it is actually the Costanza Defense?


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