Gallop v. Cheney

667 F.3d 226, 2012 WL 310841, 2012 U.S. App. LEXIS 2154
Court of Appeals for the Second Circuit·Decided February 2, 2012·No. Docket No. 10-1241-cv·Published·Cited by 15 cases

Opinion

PER CURIAM:

In our fourth opinion in this case, we consider whether Dennis Cunningham, counsel to plaintiff-appellant April Gallop and the purported “decider” in the development of Gallop’s action alleging that defendants, former senior government officials, caused the September 11, 2001 attacks against the United States, should be subjected to additional sanctions for his primary role in drafting a frivolous and vexatious motion to disqualify the panel “and any like-minded colleagues” from considering Gallop’s petition for panel rehearing and rehearing in banc of this Court’s decision in Gallop v. Cheney, 642 F.3d 364 (2d Cir.2011) (“Gallop I”), a motion for which his co-counsel, William W. Veale, was separately sanctioned in our order dated October 14, 2011, see Gallop v. Cheney, 660 F.3d 580 (2d Cir. 2011) (“Gallop III”).

Although Veale alone signed the motion to disqualify and submitted the affidavit in support thereof, Cunningham claimed in a later filing to have been the primary author of those pleadings. See Appellants’ Mem. in Response to the Court’s April 27, 2011 Order Imposing Sanctions (Cunningham Aff. ¶ 28). In response to this claim, we ordered Cunningham to show cause why he should not be separately sanctioned for his self-proclaimed lead role in drafting the motion to disqualify the panel. See Gallop III, 660 F.3d at 586.

Following our review of the November 15, 2011 memorandum Cunningham filed in response to our order to show cause in Gallop III, we conclude that Cunningham has failed to show cause why we should not impose additional sanctions on him. Accordingly, we impose sanctions on Cunningham pursuant to 28 U.S.C. § 1927, Federal Rule of Appellate Procedure 38, and the inherent power of this Court.

In addition, we vacate the sanctions imposed on local counsel Mustapha Ndanusa in Gallop III based on Cunningham’s insistence that Ndanusa served a peripheral and subordinate role in Gallop’s appeal.

BACKGROUND

The facts of this case are convoluted, and have been thoroughly summarized in the initial opinion of the United States District Court for the Southern District of New York (Denny Chin, Judge)1 and our three previous opinions. The abbreviated account below includes only those facts necessary to explain the disposition of the issues currently before us.

[228] Gallop, represented by counsel in the District Court and on appeal, filed a complaint asserting violations of her constitutional rights pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), a common law tort of conspiracy to cause death and great bodily harm, and a violation of the Antiterrorism Act, 18 U.S.C. § 2333(a), against defendants, former senior government officials, for allegedly causing 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. The District Court concluded that Gallop’s claims were frivolous, and dismissed her complaint for failure to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6). See Gallop v. Cheney, No. 08 Civ. 10881, 2010 WL 909203 (S.D.N.Y. Mar. 15, 2010).

In an April 27, 2011 opinion, we (1) affirmed the order of the District Court dismissing Gallop’s complaint as frivolous, and (2) ordered Gallop and her counsel of record — Cunningham, Ndanusa, and Veale — to show cause in writing within 30 days why we should not impose sanctions in the form of double costs and a monetary penalty of $15,000 for filing a frivolous appeal, for which they would be jointly and severally liable. Gallop I, 642 F.3d at 370-71.

On June 16, 2011, before responding to the outstanding order to show cause, Gallop moved under 28 U.S.C. §§ 144 and 455(a) to disqualify the three members of the panel from considering her petition for rehearing and rehearing in banc. See Mot. to Disqualify (Veale Aff. ¶2). The motion stated that the panel should be disqualified due to “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.” Mot. to Disqualify at 2.

Veale signed the motion to disqualify and provided a supporting affidavit, in which he further demanded not only that “the three panel members” who heard Gallop’s appeal recuse themselves from future participation in the case, but also that “any other members of the bench of this Circuit who share their feelings” do the same. Id. (Veale Aff. ¶2); see also id. (Veale Aff. ¶ 27) (reiterating that the panel members “and any like-minded colleagues” must be recused).2

On July 7, 2011, in a second published opinion, Gallop v. Cheney, 645 F.3d 519 (2d Cir.2011) (“Gallop II ”), we (1) denied Gallop’s motion to disqualify the panel, (2) denied her petition for panel rehearing, and (3) ordered Veale to show cause why the Court should not impose additional sanctions against him for his role in drafting the motion to disqualify and accompanying affidavit. Gallop II, 645 F.3d at 521-22.

On July 12, 2011 and August 8, 2011, respectively, Gallop and her team of attorneys submitted their responses to our orders to show cause of April 27, 2011 (Gallop I) and July 7, 2011 (Gallop II). In his response to the second order to show [229] cause (July 7, 2011), Veale insisted that he filed the motion to disqualify and the accompanying affidavit in good faith. See Veale Mem. in Response to Court’s July 7, 2011 Order to Show Cause (“Veale Mem. Response”).

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Gallop v. Cheney, 667 F.3d 226, 2012 WL 310841, 2012 U.S. App. LEXIS 2154 (2d Cir. 2012).

667 F.3d 226 (Gallop v. Cheney) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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