Judicial powers running amok next door to The White House?
BY DONNA KLINE | August 7, 2012 | PITTSBURGH BUSINESS REPORT (PBR) — Updated Aug. 17, 2012 (New false statement identified—right sidebar)
A Donna Kline Now! Exclusive
Updates Aug. 17, 2012:
1. More disciplinary complaints filed at the Washington D.C. Bar today
(Aug. 16, 2012)—In addition to her U.S. Supreme Court complaint (linked above), Dr. Lakshmi Arunachalam today filed more disciplinary complaints at the Washington D.C. Bar against the Federal Circuit (linked below). She is providing copies of these complaints to the House and Senate Judiciary Committees in addition to the media (the "complaint form" is being made availble by request of individuals who wish to file their own complaints):
While preparing this update, we received the following news:
2. The Federal Circuit is in damage control; issues today a stunningly defensive 4-page denial to Dr. A.
Hallelujah! They found the motions that they never received! But wait, maybe not; still not sure. Court still has not posted the motions (but has posted the denials). Docket is still spewing junk.
In another stunning development yesterday, the court issued a 4-page denial of Dr. A’s renewed motion (here the court’s denial) posted on their website, but not yet provided to Dr. A. Here again, the court is denying a motion that Clerk staffer Valerie White said last week that they "had no record" of ever receiving (its linked in two places in this post). What is even more stunning is that this is four more pages than Leader received in the denial of their petition! (Leader received no explanation.)
CYA? You decide.
The court appears to be in damage control. As expected, they continue to play games with form over substance. Their arguments are defensive, incomplete and unconvincing. They are choosing to count words and pages rather than dispense justice. For example, they complain about word and page counts and filing times. Since an en banc hearing was not ordered, the court’s citing of Rule 35(g) is itself out of order—just proving that when a court wants to obfuscate, they will cite some rule… any rule, to throw the great unwashed off the track. However, their own Rule 29(d) permits longer briefs and later filings if they choose (for their friends?). So the bottom line is this court is attempting to avoid the substance of Dr. A’s arguments by citing petty, inconsequential procedures— procedures that they can waive any time they like.
Judicial Canons Misrepresented?
Judicial corruption experts tell me that the court’s citing of Canon 3 C (3)(c)(i) of the Code of Conduct for U.S. Judges (online version | pdf version) to justify their widely-publicized Facebook holdings in mutual funds is misleading. In other words, they cited a letter of the law, but missed its proper application in this set of circumstances. Instead, they’re acting like its no big deal. This isn’t just any "case brought before them" as the court states so dimissively. This case involves the largest tech IPO in history—an IPO that occured during this court’s watch! What the court carefully failed to point out is the law’s new rules instructing judges to disqualify themselves even if their conduct and objectivity in the case looks questionable. Some of our Commenters have started citing those cases (here and here), so I won’t repeat them here. Why would the second highest court in the land intentionally misconstrue the laws on conflicts of interest? Are we now not to rely upon our judges to keep guard over the public interest in justice?
These experts point out another canon that does not support the court’s intransigence, namely Canon 3 C (1)(a), which expressly states that "(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which: (a) the judge has a personal bias or prejudice concerning a party." This canon directs these judges to disqualify themselves because of their relationships and likely biases regarding their cozy relationships with Facebook’s attorneys and with Leader’s former director and patent attorney Professor James P. Chandler. If the newer "smell test" law regarding conflicts does not apply to Leader v. Facebook, during the largest tech IPO in history, then when would it apply? Is this another case of a "hyperactive" Federal Circuit making laws up on the fly? The court has so far avoided answering questions about their conflicts-checking procedure.
The law also says that civilian pro se filers like Dr. A. are to be granted procedural latitude. Not in this court apparently. In any event, they mis-cited their Rule 35(g) since they had not invoked that provision by ever inviting amicus briefs. Dr. A. was simply asking the court to consider their mistakes on her own initiative. Dr. A filed an accompanying motion to file the brief as it was presented, so this court’s choice to say "no, we’re not interested in what you have to say because we don’t like the number of words you used," is stunning in and of itself. This court evidently has no interest in being shown the error of its ways by laypeople like Dr. A.
False statement #1; court fabricates a "defect"
The court spends a whole paragraph on an easily proven false statement. They say that Dr. A. did not include a "certification that the purported amicus has no financial ties to any party in the case" However, she did. It’s PAGE "ii" of the brief right after the title page!!! Here it is (Geesh, why can I find this stuff and the second highest court in the land cannot?)
False statement #2: Dr. A’s brief was "moot"
The court stated "An earlier such amicus curiae brief [filed July 11, 2012] was denied entry by the court as moot because the court had already denied Leader’s peition for rehearing." Here is the rub. Leader’s petition was not denied until July 16, 2012 (announced by this court on-air on Fox Business) Dr. A filed her brief on July 11. Therefore, the public record proves that the court is lying. Perhaps this explains all the typos in the hurriedly filed entry on July 11? Dr. A had preempted their scheme to deny Leader’s hearing and therefore, her July 11 filing was still in play. They couldn’t render her motion moot since their denial of Leader’s petition had not yet occured! Whoops.
What happened to Leader’s 5th and 14th Amendment Due Process Rights?
The court is silent on Dr. A’s emphasis that the court denied Leader their Fifth and Fourteenth Amendment rights to due process. When the court created and denied its own substantial evidence argument (and utterly ignored Leader’s clear and convincing evidence argument), it denied Leader the opportunity to confront its accuser, which was then the Federal Circuit itself. Such fundamental American rights are unimportant when the court is busy excusing its misconduct by misrepresenting the circumstances and the law?
This court defends the right to appear bias
They spend a half-page justifying why the well-publicized T.Rowe Price and Fidelity Contra-Fund holdings in Facebook enjoyed by Judges Moore and Lourie are not a conflict. They totally ignored Dr. A’s citing of law on "judges need to flee even the appearance of impropriety." They say the Facebook-friendly timing of their decisions were pure coincidence (yeh, right). Finally, they justify their cozy relationships with Facebook attorneys by citing general rules. Here again, they ignore Dr. A’s citing of the "average person" law. That law says that if something looks like a conflict to the average person on the streets, then that judge should disqualify himself or herself.
Does it pass the "smell test?"
Flip Wison said "The Devil made me do it." Tommy Flannagan said, "Yhhhhe, that’s the ticket." Bernie Madoff asked, "Is that wrong?" Mark Zuckerberg is attempting to make lying and cheating "the new normal." These judges quote general laws that they know all have exceptions when those rules don’t pass the "smell test." Ask yourself, "Does this denial pass the smell test?"
Truth is, Dr. A’s renewed motion is a much more thorough treatise on judicial conflicts of interest than this "don’t bother us, we’re above this" opinion. These judges are trying to dismiss the substance of Dr. A’s arguments and evidence with arrogance and petty procedural whitewash. Will the Washington D.C. attorney-judge club circle the wagons around the Federal Circuit, or around justice? Time will tell. OPERATION SPOTLIGHT continues.
Wow. Stay tuned.
|Table of Leader v. Facebook Appeal Posts & Filings|
Aug. 15, 2012 1:41 PM EDT Update—Readers should know that the Federal Circuit’s docket site for Leader v. Facebook has been going up and down like a yo-yo (working and not working) over the last month. Today it is displaying garbage data instead of the Leader docket. Do not be surprised when one of Clerk of Court Jan Horbaly’s excuses for not posting Dr. Lakshmi Arunachalam’s motions is their “website technical problems.” Such excuses can be classic bureaucrat excuses for hiding shenanigans. Remarkably, other PACER (federal court) sites are working fine. By the way, my techie friends tell me all it takes to cause a site to have “problems” is to misplace one comma on one line of program code. Whoops, did I delete that comma? Bwaaaahahahaha.
Breaking News! Shocking news from a Clerk of Court staff member – Valerie White – who has told a participant in OPERATION SPOTLIGHT that Dr. Lakshmi Arunachalam’s motions are not being logged as having ever been received! We’re digging in to this story now. A Comment has been posted (below) with information on how to telephone the Clerk’s office to make your own inquiry. Keep good records of your contacts with the Clerk’s office. Here’s a separate page with Steve’s comment so you can send it to others separately http://www.donnaklinenow.com/steve-williams-conversation-with-valeri-white.
Judges in a democracy need to be above reproach. A citizenry needs to be confident when they bring disputes to the court that fairness and equity will guide the proceedings. Our judges are vested with the power to make decisions as long as they are without bias and follow the law. When bias and disregard for the laws creep in, rulings are tainted, public trust is destroyed and justice is the victim. Judicial bias generates only bad results.
Leader v. Facebook a poster child for Federal Circuit hyperactivity?
- Judges Lourie and Moore failed to disclose Facebook investments; those investments include close associations to Russian government leaders and oligarchs;
- Russian oligarch Juri Milner has 20-year ties to Lawrence Summers, Obama bailout chief, former Treasury Secretary, former Harvard President (during Zuckerberg’s hacking) and former World Bank Chief Economist
- Russian oligarch has 20-year ties to Sheryl Sandberg, Facebook COO
- Clerk Horbaly and Judge Rader failed to disclose substantial extra-judicial associations with Facebook attorneys
- Judge Rader and other judges failed to disclose prior associations with Leader witness Professor James P. Chandler on the very subject matter of this case
- Court decisions were timed to media events favorable to Facebook
- The Court denied amicus curiae motions without time to consider the motions
- Jury Instruction 4.7 was confusing and fails to address basic law for on sale bar
- Interpretation of Interrogatory No. 9 violated The Dictionary Act on use of tense
- The Court ignored the legal basis of the appeal: clear and convincing evidence
- The Court ignored new evidence that Facebook withheld evidence
- The Court fabricated a new substantial evidence argument not argued or briefed by the parties
- The Court ruled against its own substantial evidence argument
- The Court created new evidence never put before the jury
- The Court even failed to apply its own precedents to test the evidence it selected for consideration
- Clerk failed to respond to FOIA requests to disclose conflict of interest checking procedures within the court
- Clerk of Court acting outside his job description and assuming a judicial role
- Clerk of Court disconnects overnight the phone extension of a staffer who candidly answered questions about Leader v. Facebook docketing anomalies; namely why Dr. Arunachalam’s original amicus curiae brief was received and denied on the same day, July 11, 2012, but the motion which was denied has never been made available on the docket for public review
The Clerk of Court staffer, Valerie White, said that it is impossible that Dr. A’s amicus brief was received and denied the same day. She said the judges would not have had time to get it much less consider it. She seemed concerned and puzzled by the revelations. She asked for this website to see the documents. Here’s the USPS delivery receipt, here is the Amicus Curiae Brief, here is the Order denying the motion . . . all on the same day, July 11, 2012. Ms. White said “that can’t be accurate . . . wouldn’t allow the judges time.”
|Do These Facts Pass The “Ordinary Person In The Streets” Test For Conflicts of Interest and Propriety?|
Court Has “No Record” Of These Motions as of Aug. 8, 2012
(Docket Snapshot as of Aug. 10, 2012 12:53AM) (Compare 7/11/2012 entry now to previous entry hurriedly entered on 7/11/2012; the same day the motion was received; names not capitalized and “Leave” spelled “Leaave”)
Here are Dr. Arunachalam’s three (3) motions and letter to Clerk of Court Jan Horbaly for which his staffer Valerie White told Steve Williams on Aug. 8, 2012 that they “have no record” of ever receiving any of them; despite delivery receipts and court orders denying them. Is the court itself trying to hide behind this unconscionable sloppiness to avoid addressing the material conflicts of interest proven in Dr. A’s motions, not the least of which are judicial investments in Facebook, undisclosed associations with a key witness, tight relationships to Facebook attorneys and questionable associations to Russian oligarchs? You decide.
But, The Court Does Have A Record Of DENYING Motions It Says That It Does Not Have. Huhhh???
How can the Court deny what it says it has “no record” of receiving? How can the Court deny the amicus curiae brief motion within hours of receiving it on July 11, 2012; especially since staffer Valerie White says such swiftness is just not possible? Also, the page count excuse on the July 24, 2012 Order is a red herring since the motion was only six (6) pages and the Rules permit 20 pages for motions—the Court is mis-citing its own rules. In any event, pro se filers are to be given latitude; no such grace in this court—only punishment for laypeople who dare to enter the inner sanctum? The “filed out of time” excuse is also a red herring since the Court’s denial of Leader’s petition on July 16, 2012 (timed a few hours ahead of Michael McKibben’s nationally televised interview on Fox Business where he was informed about the denial on-the-air by the Fox interviewer) had not permitted adequate time for the parties to respond to Dr. Arunachalam’s July 11, 2012 motion (we think this is why they rushed everything—they had not planned on Dr. A’s amicus curiae brief nuisance). So the Court itself jumped the gun. Finally, since the Court jumped the gun, Dr. A’s filing cannot be moot as the order states. Strangely, two weeks later, the Court has still not docketed this order. This is more clerk negligence in dramatic fashion.
Readers are reminded that the Court’s original decision not to overturn the jury was announced the same day Facebook began its public offering road show. Bottom line is that the Court’s announcements of their two key decisions against Leader were perfectly timed to accommodate Facebook media needs. Clerk of Court Jan Horbaly has cozy undisclosed relationships with Facebook’s attorneys, as does Chief Judge Randall Rader; not to mention undisclosed Facebook stock held by the various judges, and questionable associations with the Russian government facilitated by former Obama bail-out director Lawrence Summers and Facebook COO Sheryl Sandberg.
“Judicial hyperactivity erodes confidence in the courts”
Authors William Rooklidge and Matthew Weil use the term “judicial hyperactivity” to describe Federal Circuit misconduct, the same misconduct that we are seeing in living color in Leader v. Facebook (Fig. 2 below). Another empirical study by Ted Field, just published by the University of San Francisco Law Review on Jan. 12, 2012, also shows that the Federal Circuit is dramatically overstepping its bounds.
In conclusion, this study tends to confirm what practitioners, judges, and commentators have suspected for a long time—that the Federal Circuit is more judicially hyperactive than other circuits. As warned by William C. Rooklidge and Matthew F. Weil, judicial hyperactivity tends to “increase unpredictability and uncertainty, erode confidence in the courts, and ultimately encourage more unmeritorious appeals.” The purpose of this study was to use empirical data to either confirm or refute the widely held belief that the Federal Circuit is a judicially hyperactive court. This study succeeded in empirically demonstrating that this widely held belief is likely true. Therefore, this study replaces mere anecdotal evidence with actual empirical evidence that supports the notion that the Federal Circuit is a judicially hyperactive court.
A Dictatorship on Lafayette Square?
Fig. 1 – President George Washington signed the first U.S. patent on July 1, 1790. The Federal Circuit appears ready to abandoned these sacred property rights in a hyperactivity that is ignoring due process. (The right to confront one’s accuser.
When the Federal Circuit creates new arguments and evidence without being fully briefed, it violates fundamental Due Process rights guaranteed by the Fifth and Fourteenth Amendments). Such activity is tantamount to decisions by fiat that one would expect to see in a totalitarian regime.
In plain English, the Rooklidge-Weil essay describes, and Field’s study verifies, an almost dictatorial Federal Circuit with little accountability, located in chambers adjacent to The White House on Lafayette Square. America’s founding fathers knew that such unchecked power deteriorates into corruption and abuse like we are seeing in Leader v. Facebook.
* * *
Most of us have heard the phrase “judicial activism” — judges overstepping their bounds and attempting to make law from the bench. As a hypothetical example, sometimes courts use the excuse that a law that mentions overuse of buggy whips must be reinterpreted for the modern world. Strict constructionists would argue that the need for laws to control speeding haven’t changed, and that a horse-loving judge should not use a law that mentions the use of buggy whips as an opportunity to write new law about animal cruelty.
“Judicial Hyperactivity” is an extreme form of judicial activism where an appeals court gets bored with its corrective role, ignores existing law, and acts by pure fiat with no concern for precedent, injecting nothing but uncertainty into the legal process. Leader v. Facebook is a poster child for the Federal Circuit’s judicial hyperactivity.
Has the Federal Circuit become a House of Lords, accountable to no government body?
The Federal Circuit was established in 1982 by Congress to foster uniformity in the enforcement of patent law and is accountable only to the Supreme Court. Its jurisdiction is defined by 28 U.S.C. 1295 (1994). However, since the Supreme Court hears so few cases, practically speaking, the Federal Circuit appears to be an unaccountable House of Lords adjacent to The White House. History tells us that such regal bodies are susceptible to influence peddling. The Federal Circuit has few checks and balances and it is managed by a sort of “Executive” Clerk of Court who operates more like a monarch. This unelected and unappointed monarch is now even signing opinions and orders—even though by law his duties are restricted to “nonjudicial activities,” according to the Federal Judicial Center.
The Federal Circuit is currently conducting itself like a totalitarian judicial fortress within a stone’s throw of The White House.
Totalitarianism uses the court system to perpetuate power. A totalitarian court ignores the written law and makes up rules capriciously, generally at the direction of a strong central figure. Such capriciousness leaves the populace guessing and allows the legal process to degenerate to one of influence peddling and bribery.
Will the Supreme Court use the Leader appeal in Leader v. Facebook to discipline the misconduct overflowing from the Federal Circuit? Is the Federal Circuit an American court run amok?
– End –
Click bottom right corner box to ENLARGE / REDUCE document view
Fig. 2 – "Judicial Hyperactivity: The Federal Circuit’s Discomfort with Its Appellate Role; Rooklidge, William C.; Weil, Matthew F.” Univ. of California, Berkley, 15 Berk. Tech. L.J. 725 (2000). Accessed Aug. 4, 2012.
OPERATION SPOTLIGHT continues.
Here is a new FAIR Media Contact List for your OPERATION SPOTLIGHT activity (networks, cable television, national radio programs, national newspapers, magazines, newsservices and wires). It’s a very good list. Here’s the previously compiled OPERATION SPOTLIGHT CONTACT LIST.
See a NEW OPERATION SPOTLIGHT LETTER being proposed to be sent to President Obama, Mitt Romney, Ohio Senate candidates in Leader Technologies’ district, and key media regarding Leader v. Facebook and American property rights.
Here is Dr. Arunachalam’s motion sent today via U.S. Express Mail. You can track the delivery yourself (EI 081 023 653 US) online at USPS Track & Confirm.
Here is Dr. A’s Motion For Reconsideration that was just denied on July 24, 2012 . . . in record time. Who can believe the judges are even reading these motions? It would appear that Clerk of Court Jan Horbaly rules the roost.
Federal Circuit Advisory Council: http://www.cafc.uscourts.gov/the-court/advisory-council.html
Here is an updated House Committee on Small Business Contact List (where some web forms are updated and regular email addresses also included. In some cases, staffer emails are made available.
Here’s a verified Senate Committee on the Judiciary Contact List.
Here’s a verified House Committee on the Judiciary Contact List.
Here’s a list of American Bar Association Points of Contact.
Here’s a list of U.S. Chamber of Commerce Points of Contact.
2 “Judicial Hyperactivity: The Federal Circuit’s Discomfort with Its Appellate Role; Rooklidge, William C.; Weil, Matthew F.” Univ. of California, Berkley, 15 Berk. Tech. L.J. 725 (2000). Accessed Aug. 4, 2012 <http://www.law.berkeley.edu/journals/btlj/articles/vol15/rooklidge.pdf>.
3 Field, Ted L., ‘Judicial Hyperactivity’ in the Federal Circuit: An Empirical Study (January 22, 2012). Univ. of San Francisco Law Review, Vol. 46, 2012. Available at SSRN: <http://ssrn.com/abstract=1990014>. Note: Mr. Field’s document has been published by the Social Science Research Network (SSRN), presumably preempting the request to author’s request to seek permission for citations and quotes; a request that was presumably contained on the pre-release versions and not intended to be included on the published version. This site will reach out to Mr. Field nonetheless.
4 Circuit Executives. History of the Federal Judiciary, Judicial Administration and Organization. Federal Judicial Center. Accessed Aug. 4, 2012 <http://www.fjc.gov/history/home.nsf/page/admin_03_10.html>.