Final

No.

IN THE

Supreme Court of the United States

ASHTON R. O’DWYER, JR., MAUREEN O’DWYER, SHIRLEY D. O’DWYER, LISA MARIE O’DWYER, HAROLD JOSEPH GAGNET, GLORIA POHLMAN HECKER

AND JOSEPH W.P. HECKER, PETITIONERS

v.

THE STATE OF LOUISIANA, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

ASHTON R. O’DWYER, JR., MAUREEN O’DWYER, SHIRLEY D. O’DWYER, LISA MARIE O’DWYER, HAROLD JOSEPH GAGNET, GLORIA POHLMAN HECKER

JOSEPH W.P. HECKER pro se

c/o Ashton R. O’Dwyer, Jr. 821 Baronne Street New Orleans, LA 70113 (504) 679-6166

CURRY & TAYLOR (202) 393-4141

i

QUESTIONS PRESENTED

(1) Whether Petitioners have been denied the

fundamental constitutional right to due process of law, because the integrity of the litigation in the courts below was CORRUPTED and POLLUTED by virtue of an extra-judicial source of bias and prejudice revolving around the relationship between the District Judge and counsel for some of the litigants, namely Calvin Clifford Fayard, Jr., who the District Judge has admitted is a “close personal friend of long-standing”, but whose professional ethics and integrity have been placed at issue as a result of his serving on Committees and Sub-Committees in the litigation, while simultaneously representing the State of Louisiana, and failing to disclose that representation to other counsel prior to 8/29/07?”


fundamental constitutional right to due process of law, because the ability of Petitioners to obtain “justice” in the Courts below was THWARTED and TAINTED by judicial misconduct in the Courts below, all as is meticulously set forth in separate Complaint(s) of Judicial Misconduct filed in the United States Court of Appeals for the Fifth Circuit on April 14 and 16, 2009, attached as Exhibit Nos. 1 and 2, respectively

3) Whether Petitioner’s civil rights claims against

State and Local government entities and individuals were erroneously dismissed, “on the papers”, without the opportunity for any

ii

discovery or for one word to be uttered on cross-examination, under oath, by public officials?

4) Whether the State of Louisiana, its branches of

government, agencies and instrumentalities, political subdivisions and individual department heads have waived immunity from being required to litigate claims brought against them in Federal Court pursuant to the 11th Amendment to the U.S. Constitution, including particularly, but without limitation, waiver “by litigating conduct” in the Federal forum by voluntarily invoking the jurisdiction of the United States District Court for the Eastern District of Louisiana on multiple occasions since August 29, 2005. See Gil Seinfeld, “Waiver-in-Litigation: Eleventh Amendment Immunity and the Voluntariness Question”, 63 Ohio State Law Journal 871 (2002).

5) Whether Petitioner’s tort-based claims against

State and Local government entities and individuals were erroneously dismissed “on the papers”, without the opportunity for any discovery or for one word to be uttered on cross-examination, under oath, by public officials?

6) Whether the Federal Court has jurisdiction over

Petitioner’s claims by virtue of Federal pollution statutes, and by virtue of the claims against the Government in the nature of set-off against future tax liability?

7) Whether the Learned District Judge abused his

discretion by failing to exercise supplemental

iii

jurisdiction over Petitioner’s tort claims against the non-federal defendants?

iv

PARTIES TO THE PROCEEDING

PETITIONERS:

Ashton R. O’Dwyer, Jr., Maureen O’Dwyer, Shirley D. O’Dwyer, Lisa Marie O’Dwyer, Harold Joseph Gagnet, Gloria Pohlman Hecker and Joseph W.P. Hecker RESPONDENTS:

DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, STATE OF LOUISIANA; JOHNNY D BRADBERRY, Individually and in His Official Capacity as Secretary of the Department of Transportation and Development, State of Louisiana; DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, STATE OF LOUISIANA; JOHNNY D BRADBERRY; LOUISIANA STATE; KATHLEEN BLANCO, Governor, Both Individually and in Her Official Capacity as Governor of the State of Louisiana; LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS; RICHARD L STALDER, Both Individually and in His Official Capacity as Secretary, Department of Public Safety and Corrections LOUISIANA STATE; DEPARTMENT OF TRANSPORTATION And DEVELOPMENT, STATE OF LOUISIANA; JOHNNY D BRADBERRY; GOVERNOR'S OFFICE OF HOMELAND SECURITY AND EMERGENCY PREPAREDNESS; COL. JEFF SMITH; DEPARTMENT OF SOCIAL SERVICES, STATE OF LOUISIANA; ANN S WILLIAMS; LOUISIANA DEPARTMENT OF PUBLIC SAFETY

v

AND CORRECTIONS; RICHARD L STALDER

vi

TABLE OF CONTENTS

Page QUESTIONS PRESENTED.............................................................. i PARTIES TO THE PROCEEDINGS ............................................... iv TABLE OF AUTHORITIES...........................................................xv OPINIONS BELOW......................................................................... 1 JURISDICTION............................................................................... 1 RELEVANT PROVISIONS INVOLVED ......................................... 1 STATEMENT .................................................................................. 3 REASONS FOR GRANTING THE PETITION................................. 6 CONCLUSION............................................................................... 28 APPENDIX

Circuit Court Opinion............................................................ 1a Rehearing Exhibits................................................................. 8a District Court Decision ........................................................ 27a

vii

TABLE OF AUTHORITIES

Page

CASES ADAMS V. UNITED STATES, 615 F.2D 284 (5TH CIR.

1980) ........................................................................................... 9 AVERY V. UNITED STATES, 680 F.2D 608 (9TH CIR.

1982) ......................................................................................... 10 CHITIMACHA, TRIBE OF LOUISIANA V. HARRY L.

LAWS CO., 690 F.2D 1157, 1163 (5TH CIR. 1982).................. 16 CLARK V. BARNARD, 108 U.S. 436, 2 S.CT. 878 (1883) ........... 25 COLLEGE SAVINGS BANK V. FLORIDA PREPAID POST

SECONDARY EDUCATION EXPENSE BOOK, 527 U.S. 666 (1999) ........................................................................ 25

DUSSOUY V. GULF COAST INVESTMENT CORP., 660 F.2D 594, 597 (5TH CIR. 1981)................................................ 16

ERXLEBEN V. UNITED STATES, 668 F.2D 268 (7TH CIR. 1981) .................................................................................. 9

EXECUTIVE JET AVIATION, INC. V. UNITED STATES, 507 F.2D 508, 515 (6TH CIR. 1974)............................................ 9

FERNANDEZ V. PNL ASSET MANAGEMENT COMPANY LLC, 123 F.3D 241 (5TH CIR. 1997) ................... 25

FOMAN V. DAVIS, 371 U.S. 178 (1962) ................................. 14-16 FORD MOTOR COMPANY V. DEPARTMENT OF

TREASURY OF INDIANA, 323 U.S. 459 (1945) ..................... 25 GOMEZ V. TOLEDO, 446 U.S. 635 (1980) ................................... 17 JAMIESON V. SHAW, 772 F.2D 1205, 1208 (FIFTH CIR.

1985) ......................................................................................... 16 LAPIDES V. BOARD OF REGENTS OF THE

UNIVERSITY SYSTEM OF GEORGIA, 535 U.S. 613, 122 S.CT. 1640 (2002) .............................................................. 25

LILJEBERG V. HEALTH SERVICES ACQUISITION CORP., 486 U.S. 847 (1988) ..................................................6, 11

MARTINEZ V. UNITED STATES, 728 F.2D 694 (5TH CIR. 1984) ................................................................................ 11

YOUNGBLOOD V. FEDERAL DEPOSIT INSURANCE CORPORATION, 29 F.3D 225 (5TH CR. 1994) ........................ 11

viii

STATUTES 28 U.S.C. 42 ....................................................................... 3, 17, 21 28 U.S.C. §144 ............................................................................... 2 28 U.S.C. §455(a)........................................................................... 2 28 U.S.C. §1346(c)....................................................................... 28 28 U.S.C. §1367 ..................................................................... 2, 4, 5 28 U.S.C. §1653 ..................................................................... 14, 17 46 U.S.C. §740 ............................................................................. 13 46 U.S.C. §742 ............................................................................... 5 Louisiana Civil Code Article 1893 ............................................ 28 RULES Fed.R.Civ.P. 15(a) ...................................................................... 16 OTHER AUTHORITIES Federal Tort Claims Act: Notice of Claim

Requirement, 67 Minnesota Law Review 513 (1982) .......... 8 Zillman, Presenting a Claim Under the Federal Tort

Claims Act, 43 Louisiana Law Review 961 (1983) ............... 8

1 OPINIONS BELOW

The opinion of the United States Court of Appeals for the Fifth Circuit is unreported. The opinion of the United States District Court for the Eastern District of Louisiana is unreported.

JURISDICTION

The decision of the Court of Appeals was issued on 2/5/09. This Petition is filed within 90 days thereafter. This Court has jurisdiction pursuant to 28 U.S.C. 28 U.S.C. §1254(a).

RELEVANT PROVISIONS INVOLVED

United States Constitution, Amendment XIV, Section I

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

United States Constitution, Amendment XI

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State.

2 28 U.S.C. §144

Whenever a party to any proceeding in a district court makes and files a sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

28 U.S.C. §455(a) and (b)

(a) Any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party . . .

28 U.S.C. §1367, Supplemental Jurisdiction Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction

3 shall include claims that involve the joinder or intervention of additional parties.

42 U.S.C. §1983, Civil Rights Act

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or territory or the District of Columbia, subject, or causes to be subjected, any citizen of the United States or any person within the jurisdiction thereof to other deprivation of any rights, privileges, or immunities secured by the constitution and laws, shall be libel to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

STATEMENT

The issues in this case are identical to or ‘over-lap’

with the issues in Case No. 08-883 on the docket of This Honorable Court, which is the subject of a Petition for Rehearing pending before this Court.

This is essentially a tort case (although also involving constitutional torts under 42 U.S.C. §1983) brought by totally innocent “Victims of KATRINA” as a result of what has been called “the greatest civil engineering disaster in history”. Petitioner has alleged to be a representative of the following classes of people:

A. Survivors of human beings who died as a result of government’s intentional and negligent malfeasance, misfeasance and non-feasance prior to and after Hurricane KATRINA.

4 B. Citizens and/or residents of the Parish of

Orleans,1 State of Louisiana, who suffered bodily injury, mental suffering and emotional distress as a result of government’s intentional and negligent malfeasance, misfeasance and non-feasance prior to and after Hurricane KATRINA.

C. Citizens and/or residents of the Parish of Orleans, State of Louisiana, who suffered loss of or damage to property as a result of government’s intentional and negligent malfeasance, misfeasance and non-feasance, whether by flood, fire or governmental sanctioning of urban terrorism. See infra.

D. Citizens and/or residents of the Parish of Orleans, State of Louisiana, who suffered environmental damages akin to contamination of natural resources under the federal and state legislation which make provision for Natural Resource Damage Assessments and damages recoverable under the Oil Pollution Act of 1990, the Louisiana Oil Spill Prevention and Recovery Act, and CERCLA, among others.

Petitioner’s claims for damages included claims for the following:

Wrongful death; Bodily injury; Property loss and/or damage; Emotional distress and mental anguish;

1 Petitioner’s original Complaint was later amended to include residents of the Greater New Orleans Metropolitan Area, including the Parishes of Jefferson and St. Bernard.

5 Economic losses; and Pollution

all incurred by virtue of the retaining wall and levee failures, and government’s incompetence, malfeasance and negligence in preparing for and responding to the manmade disaster called Hurricane KATRINA. Predictably, and consistent with the defense posture of all bodies, entities and individuals joined as defendants in “Victims of KATRINA” litigation, namely that “no one is legally responsible to anyone for anything”, all defendants responded to Petitioner’s claims by filing Rule 12(b) motions to dismiss on the pleadings. All non-Federal defendants also challenged the jurisdiction of the Federal Court to exercise supplemental jurisdiction over the claims against them pursuant to 28 U.S.C. §1367. On July 19, 2006, with briefing on Rule 12 Motions to Dismiss complete, but without entertaining oral argument, the District Court entered its Order and Reasons (Record Document No. 788), essentially dismissing all of plaintiffs’ claims against virtually every named defendant, simultaneously entering Judgment pursuant to the provisions of Rule 54(b).

The issues for which petitioner seeks review in this Court fall into the following categories:

1. Petitioner’s constitutional-based claims against non-Federal defendants; and

2. Petitioner’s tort-based claims against non-Federal defendants.

6 REASONS FOR GRANTING THE PETITION

(a) The integrity of the underlying

litigation has been irreparably

corrupted, both in the District Court

and in the Court of Appeals, by

judicial misconduct on the part

Federal Judges and other Federal

Court Officials.

This Honorable Court has stated that “the protection of the integrity and dignity of the judicial process from any hint or appearance of bias” is “the palladium of our judicial system”. Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988). As the Court will note from the Questions Presented in this case and from the issues raised in the Petition for rehearing in case No. 08-883 on the docket of this Court, the underlying litigation has been hopelessly CORRUPTED at both the District Court and Court of Appeals levels, primarily stemming from one individual, Calvin Clifford Fayard, Jr., and his “close personal relationship of long-standing” with the District Judge and his representation of the State of Louisiana while simultaneously serving on Committees and Sub-Committees in the litigation, appointed by the District Judge. This disgraceful “dual representation” has been ignored by the District Judge and by the Judges of the Court of Appeals, in violation of Code of Conduct for United States Judges and mores of propriety involving legal and judicial ethics. This Honorable Court should exercise supervisory jurisdiction over this case in order that the confidence of the public in the integrity of the judicial system may

7 be preserved, rather than shaken to its very foundations

There are a number of reasons for granting the Petition, each (addressed infra), involving departures from the accepted and usual course of judicial proceedings in District Courts and in Courts of Appeal, as to call for an exercise of this Court’s supervisory power:

b) The integrity of the underlying

litigation is at issue.

The first question presented for review was framed in the District Court as follows:

“The integrity of this litigation which has been called into question by virtue of an extra-judicial source of bias and prejudice, arising out of the Court’s long-time friendship with Mr. Fayard, whose professional ethics and professional integrity have been placed at issue in this litigation as a result of his Membership on Committees while simultaneously representing the interests of the State of Louisiana, and failing to disclose his relationship with the State to the Court or to other counsel prior to August 29, 2007.” Record Document No. 11317 and related Record Documents.

Amplification on this most serious issue can be found in Record Document No. 10910 and in the pleadings filed in Civil Action No. 08-1127 in the United States District Court for the Eastern District of

8 Louisiana, and in the Record Documents specifically identified in that civil action. With “the protection of the integrity and dignity of the judicial process from any hint or appearance of bias” being “the palladium of our judicial system”, Petitioner respectfully submit that that protection requires the exercise of this Court’s supervisory power in this case. “The guiding consideration is that the administration of justice should reasonably appear to be disinterested as well as be so in fact.” Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988) and cases cited therein.

c) The Doctrine of Futility has rendered

“moot” any administrative claim

requirement as a prerequisite to filing

suit against the Federal Government.

Petitioner respectfully submit that the Court should be guided in addressing the second, third and fifth “questions presented” by the contents of two (2) Law Review Articles:

1) Federal Tort Claims Act: Notice of Claim Requirement, 67 Minnesota Law Review 513 (1982); and

2) Zillman, Presenting a Claim Under the Federal Tort Claims Act, 43 Louisiana Law Review 961 (1983).

The axioms developed in the cited Law Review Articles are summarized as:

1) The FTCA was intended to provide for “more fair and equitable treatment of

9 private individuals and claimants when they deal with the Government.”2

2) The statute was “intended to provide a framework conducive to the administrative settlement of claims, not to provide a basis for a regulatory checklist which, when not fully observed, permits the termination of claims regardless of their merits.”3

3) “The purpose of the [mandatory administrative claims procedure] was not to make recovery from the Government technically more difficult.”4

4) “An individual with a claim against the United States, therefore, satisfies section 2675’s requirement that `the claimant shall have first presented the claim to the appropriate Federal agency’ if the claimant (1) gives the agency written notice of his or her claim sufficient to enable the agency to investigate and (2) places a value on his or her claims.”5

5) An agency’s demand for anything more than a written and signed statement setting out the manner in which the injury was received, enough details to enable the agency to begin its own investigation and

2 Erxleben v. United States, 668 F.2d 268 (7th Cir. 1981). 3 Ibid. 4 Adams v. United States, 615 F.2d 284 (5th Cir. 1980), quoting from Executive Jet Aviation, Inc. v. United States, 507 F.2d 508, 515 (6th cir. 1974). 5 Ibid.

10 a claim for money damages is unwarranted and unauthorized.6

6) Section 2675(a) was not intended to allow an agency to insist on proof of a claim to its satisfaction before the claimant becomes entitled to a day in court. To so hold would permit federal defendants to be judge in their own cause by the initial determination of a claim’s insufficiency. The result would not be consistent with the congressional purpose of “providing for more fair and equitable treatment of private individuals and claimants when they deal with the Government.”7

7) Agencies were not intended to bar cases involving difficult issues from federal court by turning their difficulty against the claimants.8

8) Federal court power does not depend on whether a claimant has successfully navigated his or way through the gauntlet of the administrative settlement process, which, according to the vagaries of the claims agent, may touch picayune details, imponderable matters, or both.9

9) The Fifth Circuit has not required plaintiffs to specifically enumerate legal

6 Ibid. 7 Avery v. United States, 680 F.2d 608 (9th Cir. 1982) and authorities cited therein. 8 Ibid. 9 Ibid.

11 theories of recovery in their administrative claims.10

10) The exaltation into a jurisdictional basis of the non-statutory administrative requirement of a sum certain in the administrative claim has been criticized as beyond the statutory intent and unnecessarily harsh and unnecessary in instances, especially where no administrative purpose is served by requiring an obviously inflated “sum certain” where there is honest uncertainty as to the amount of the claim.11

With these axioms in mind, Petitioner respectfully direct the attention of the Court to the following facts:

1) The “official” litigation position of the United States of America in “Victims of KATRINA” litigation is that the Federal Government is absolutely immune from any and all liability and damages by virtue of Section 702(c) of the Flood Control Act of 1928. Alternatively, the “official” position of the Federal Government is that the “due care” and “discretionary function” exceptions to the waiver of sovereign immunity contained in the

10 Youngblood v. Federal Deposit Insurance Corporation, 29 F.3d 225 (5th Cr. 1994). 11 Martinez v. United States, 728 F.2d 694 (5th Cir. 1984) and authorities cited therein.

12 Federal Tort Claims Act immunizes the Government from liability and damages.

2) Notwithstanding the fact that almost 3 years have elapsed since Hurricane KATRINA, and notwithstanding the submission of over 350,000 administrative claims for sums certain, in writing, to the U.S. Army Corps of Engineers and to the Federal Emergency Management Agency, not one case has been settled or compromised by the Federal Government, and not one penny has been paid to claimants.

3) One of the reasons for the fact that not one case has been settled or compromised is the fact that no agency or instrumentality of the Federal Government is equipped to deal with the sheer volume of claims which have been asserted.

Petitioner respectfully submit that when a federal agency has done absolutely nothing in a 3-year period to competently process, adjust and settle not even one claim in over 350,000 calls for the exercise of supervisory power by this Court to except Petitioner from any administrative claim procedures by virtue of the Doctrine of Futility.

13 d) The failure to grant leave for

Petitioner to amend her pleadings

violated the clear provision of Rule

15(a) and constituted an abuse of

discretion.

The fourth question presented involves the failure to grant leave for Petitioner to amend her Complaint in order to invoke admiralty and maritime jurisdiction, and the application of substantive maritime law, so that the Suits in Admiralty Act would be applicable to this case. The Suits in Admiralty Act contains no administrative claim requirement. Petitioner avers that the failure to permit amendment of the Complaint violated the clear provisions of Rule 15(a) and jurisprudence from this Court interpreting Rule 15(a). The Petitioner was trying to accomplish by way of her 12th Amended Complaint was to expand her jurisdictional allegations to include the allegation that admiralty and maritime jurisdiction existed in the hope that, eventually, they would be given the opportunity to attempt to persuade the Learned District Judge that the Suits in Admiralty Act was applicable to Petitioner’s claims against the United States of America, so that the administrative claims procedures of the Federal Tort Claims Act (28 U.S.C. §2671, et seq.), and the Admiralty Extension Act (46 U.S.C. §740), were not required as a prerequisite to Petitioner suing the Government.

14 Rule 15. Amended and Supplemental

Pleadings.

a.a.a.a. Amendments. A party may amend the party’s pleading once as a matter of course at any time before responsive pleading is served . . . Otherwise a party may amend the party’s pleading only by leave of Court or by written consent of the adverse party; and leave shall be freely given when justice so requires. (emphasis added).

The District Court and the Court of Appeals also failed to apply the provisions of 28 U.S.C. §1653 to Petitioner’s benefit. That statute provides as follows:

§1653. Amendment of pleadings to show

jurisdiction.

Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.

In Foman v. Davis, 371 U.S. 178 (1962), this Court enunciated the following general standard, which is to be employed under Rule 15 (a) by District Courts:

If the underlying facts or circumstances relied upon by a plaintiffs may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason – such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue

15 prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. – the leave sought should, as the rules require, be “freely given”. 371 U.S. @ 182.

Both the case law and the Learned Commentators make clear that “prejudice” to the opposing party, not the mover’s lack of diligence, is the crucial factor in determining whether or not to grant leave to amend a complaint. Wright, Miller & Kane, Federal Practice and Procedure: Civil Second §1487, p. 613, et seq., and cases cited therein. In the case at bar, no one ever claimed, much less proved, how Petitioner’s Motion for Leave to Supplement and Amend would cause any defendant prejudice. The Learned Commentators report many circumstances much more egregious than in the case at bar where amendments have been allowed:

Quite appropriately, the Courts have not imposed any arbitrary timing restrictions on a party’s request for leave to amend and permission has been granted under Rule 15(a) at various stages of the litigation: following discovery; after a pre-trial conference; at a hearing on a motion to dismiss or for summary judgment; after a motion to dismiss has been granted but before the order of dismissal has been entered; when the cases on the trial calendar and has been set for a hearing by the district court; at the beginning, during, and at the close of trial; after a judgment has been entered; and even on remand following appeal.”

16 Wright, Miller & Kane, §1488, p. 652, et seq., and cases cited therein.

It is respectfully submitted that the facts and circumstances of this case do not even come “close” to duplicating the foregoing “egregious” circumstances in which amendments were allowed. The law as enunciated in the Fifth Circuit is as follows: Fed.R.Civ.P. 15(a) permits amendment of a pleading after a responsive pleading has been served with leave of court. However, the court should freely give leave to amend “when justice so requires.” It is often said that this determination rests in the sound discretion of the district court. See, e.g., Chitimacha, Tribe of Louisiana v. Harry L. Laws Co., 690 F.2d 1157, 1163 (5th Cir. 1982), cert. denied, (1983). However, the Rule “evinces a bias in favor of granting leave.” Id. (quoting Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594, 597 (5th Cir. 1981)). The policy of the federal rules is to permit liberal pleading and amendment, thus facilitating adjudication on the merits while avoiding an excessive formalism. Dussouy, 660 F.2d at 598, (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230 9 L.Ed. 2d 48, 78 S.Ct. 99, 103, 2 L.Ed. 2d 80 (1957)). Thus, if the district court lacks a “substantial reason” to deny leave, its discretion “is not broad enough to permit denial.” Id. Jamieson by and through Jamieson v. Shaw, 772 F.2d 1205, 1208 (Fifth Cir. 1985).

It is respectfully submitted that, at the very early stage of the litigation when Petitioner sought leave to amend, there was no “substantial reason” why either the District Court or the Court of Appeals should have denied leave to amend. Petitioner further submits that this error can be remedied in this Court pursuant

17 to 28 U.S.C. §1653, which allows Petitioner to cure “defective allegations of jurisdiction” even in an appellate court. No party will suffer “prejudice” by virtue of the proposed amendment. Rather, it was Petitioner’s case which was prejudiced by denial of leave to amend.

e) Petitioner adequately stated a cause

of action under 42 U.S.C. §1983.

In the celebrated case of Gomez v. Toledo, 446 U.S. 635 (1980), Justice Marshall, writing for a unanimous Supreme Court, announced:

“By the plain terms of §1983, two – and only two –allegations are required to state a cause of action under the statute. First, the plaintiff must allege that some person has deprived him of a “federal right”. Second, he must allege that the person who has deprived him of that right acted under color of State or territorial law.”

Petitioner respectfully submit that her constitutional based allegations against the Governor, individually, and against the municipal defendants, both officially and individually, satisfied the requirements set forth by Justice Marshall in Gomez v. Toledo. The original handwritten Complaint filed on behalf of Petitioner on September 19, 2005, specifically alleged the following facts:

EVIDENCE OF GOVERNOR BLANCO’S AND

MAYOR NAGIN’S INCOMPETENCE AND

VIOLATION, BY MALFEASANCE AND

MISFEASANCE, NEGLIGENCE, GROSS

18 NEGLIGENCE AND INTENTIONAL

INFLICTION OF EMOTIONAL DISTRESS.

1) The real story is not that the City of New

Orleans was ransacked and its citizens raped and murdered by illegally armed urban terrorists, commencing even before Hurricane KATRINA had moved North of the City, but the fact that the urban terrorists had been allowed to live amongst hard-working, law-abiding, taxpayers and citizens at all before the storm. If Mayor Nagin and his appointed Chief of Police had been doing their jobs these urban terrorists would have been disarmed, arrested, tried, convicted and incarcerated long before the approach or Hurricane KATRINA to the City of New Orleans.

* * * 5) A competent Governor of a State within

the United States, with full knowledge of the total breakdown of law and order in the City of New Orleans, even before Hurricane KATRINA had moved out of the City, should have immediately invoked martial law or invited the United States Military Forces to do so. Upon information and belief, Governor Blanco did not do so, because to have done so would have required that both she and Mayor Nagin would have had to (sic) relinquish all power to the United States Army Provost Marshall – in other words the Governor made a political decision

19 rather than one motivated by government’s primary obligation to its citizenry, i.e., the protection of the citizenry’s lives, property and quality of life.

6) Mayor Nagin, in a now-celebrated radio interview with local news celebrity Garland Robinette, demonstrated his utter ignorance of the term “martial law”, which he was powerless to invoke. Further, Mayor Nagin utterly failed in his duties to his citizenry by failing to order Chief of Police Compass to invoke posse comitatus, and to deputize law-abiding citizens to do whatever was necessary to keep the peace, pursue and arrest and/or kill felons, and to restore order to the City, which was, in effect, turned over to illegally armed gangs of urban terrorists for more than one (1) week after the storm. By the failure of Governor Blanco to declare martial law, and by the failure of Mayor Nagin to order his Chief of Police to invoke posse comitatus, Governor Blanco and Mayor Nagin in effect “organized” State and local “government sponsored urban terrorism” on the City and its law-abiding citizens. For this they should pay a heavy price. (emphasis in original).

* * * Plaintiffs reaver and reiterate that the above and foregoing examples of the total incompetence, etc. of certain defendants is a non-exclusive list, and

20 plaintiffs specifically reserve the right to enumerate other examples of incompetence, etc. once the facts become better known.

Petitioner expanded her allegations of constitutional deprivations commencing on page 37 of the original Complaint with the following:

XI. COUNT 5

Plaintiffs reaver and reiterate their allegations as aforesaid, and in addition aver that certain defendants intentionally, negligently and with malfeasance, misfeasance and non-feasance failed to protect the public from marauding bands of convicted felons, and persons who were “already in the criminal justice system”, illegally armed and terrorizing law-abiding citizens, including killing them and destroying property.

XII. COUNT 6

Plaintiffs reaver and reiterate their allegations as aforesaid, and in addition aver that certain defendants intentionally, negligently, and with malfeasance, misfeasance and non-feasance failed to safeguard the identification records and criminal records of convicted sex offenders, including rapists and pedophiles, and “injected” these individuals into the refugees at the Louisiana Superdome and Convention Center, which refugees included large numbers of young women and children, with entirely predictable results.”

21 Commentators have noted that “In evaluating the sufficiency of a complaint in a civil rights action, the crucial questions are whether sufficient facts are pleaded to determine that the complaint is not frivolous and to provide the defendants with adequate notice to frame an answer.” Federal Procedure, Lawyers Edition §11:256 (1989). Petitioner respectfully submits that the above-quoted allegations from the original Complaint satisfy any jurisprudential “requirement” that a §1983 plaintiff must allege with “a certain level of specificity” the particular facts of a defendant’s conduct in the complaint, and that the facts they have pleaded go far beyond mere “conclusory’ allegations. Petitioner also respectfully submit that her allegations were more than sufficient to state causes of action pursuant to 42 U.S.C. §1983, for as the Commentators have also noted:

“. . . a court cannot expect a complaint to provide proof of the plaintiffs’ claims, nor a proffer of all available evidence. In civil rights cases, especially class actions, much of the evidence can be developed only through discovery, and while plaintiffs may be expected to know the injuries they allegedly have suffered, it is not reasonable to expect them to be familiar at the complaint stage with the full range of the defendants’ practices under challenge. So although a civil rights complaint which relies on vague conclusory allegations does not provide fair notice and will not survive a motion to dismiss, where sufficient facts are alleged in the complaint, so that the court is satisfied that the complaint is not frivolous and that the defendants have been provided with adequate notice so that they can answer the complaint,

22 then the complaint will be deemed sufficient and will be sustained.” Federal Practice, Lawyers Edition §11:256 (1989).

Petitioner respectfully submit that her Complaint is such a complaint. In terms of the so-called defense of “qualified immunity”, Federal Procedure, Lawyers Edition (1989) provides guidance. Section 11:281 of that Treatise reflects:

Once the plaintiff has made out a prima

facie case, the burden of going forward with the evidence shifts to the defendant. For example, the burden is on the defendant to establish a qualified immunity defense by showing that its conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known, that is, that the defendant was acting within the scope of its discretionary authority when the allegedly wrongful acts occurred. Once the defendant establishes the existence of such “objective” good faith, the burden shifts to the plaintiff to show a lack of good faith. Federal Procedure, Lawyers Edition (1989) §11:281 and authorities cited therein.

Petitioner respectfully submit that it was wrong for the Court of Appeals to say that “Plaintiffs have not made a sufficiently clear allegations that the defendant governmental entities and officials violated the Plaintiffs’ constitutional rights”, and that this Court should exercise its supervisory power to set the District Court and the Court of Appeals “right”.

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f) The State has waived 11th Amendment

immunity by virtue of its litigating

conduct.

The seventh question presented is:

7) Whether the State of Louisiana, its

branches of government, agencies and instrumentalities, political subdivisions and individual department heads have waived immunity from being required to litigate claims brought against them in Federal Court pursuant to the 11th Amendment to the U.S. Constitution, including particularly, but without limitation, waiver “by litigating conduct” in the Federal forum by voluntarily invoking the jurisdiction of the United States District Court for the Eastern District of Louisiana on multiple occasions since August 29, 2005.

This Court is respectfully directed to the following completely voluntary invocations of Federal jurisdiction by the State of Louisiana since Hurricane KATRINA:

Civil Action No. 05-4182

Record Document No. 1061

Civil Action No. 06-8676 Record Document Nos. 10, 11, 12,

13, 14, 15, 16, 17, 18, 19, 41,

24 100, 101. 102, 112, 124, 135, 142, 151, 177 and 180

Civil Action No. 07-5023 Record Document No. 1 Civil Action No. 07-5036

Record Document No. 1

Civil Action No. 07-5040 Record Document No. 1 Civil Action No. 07-5226 Record Document No. 1

Petitioner particularly refer this Court to the claims asserted by the State of Louisiana against the United States of America in Civil Action No. 07-5040, which was filed in the United States District Court for the Eastern District of Louisiana on August 29, 2007, in order to assert an affirmative claim on behalf of the State against the Federal Government in the amount of $200 billion dollars in property damages allegedly sustained by the State in connection with the levee and retaining wall failures during Hurricane KATRINA. Petitioner respectfully submit that if waiver by litigating conduct and voluntary invocation of the jurisdiction of the Federal Court system has not occurred with respect to the State of Louisiana in this case, then the Doctrine of Waiver no longer means anything in American jurisprudence.

25 Petitioner further respectfully refer this Court to the following legal authorities:

Clark v. Barnard, 108 U.S. 436, 2 S.Ct. 878 (1883) Ford Motor Company v. Department of Treasury of Indiana, 323 U.S. 459 (1945) College Savings Bank v. Florida Prepaid Post Secondary Education Expense Book, 527 U.S. 666 (1999) Lapides v. Board of Regents of the University System of Georgia, 535 U.S. 613, 122 S.Ct. 1640 (2002) Fernandez v. PNL Asset Management Company LLC, 123 F.3d 241 (5th Cir. 1997) Gil Seinfeld, “Waiver-in-Litigation: Eleventh Amendment Immunity and the Voluntariness Question”, 63 Ohio State Law Journal 871 (2002). Nowak and Rotunda, “Treatise on Constitutional Law – Substance & Procedure”, §2.12 (4th Ed.)

Petitioner respectfully submit that even the possibility of waiver of 11th Amendment immunity by a State by virtue of its litigating conduct is an issue which warrants the exercise of this Court’s supervisory jurisdiction. Alternatively, Petitioner respectfully submit that she should have been permitted to conduct discovery into whether the State of Louisiana may have waived 11th Amendment immunity from being required

26 to litigate claims brought against it in Federal Court by virtue of its having accepted untold billions from the Federal Government both before and since Hurricanes KATRINA and RITA. Similarly, Petitioner respectfully submit that she should have been allowed to conduct discovery into whether agencies of the Federal Government, with Congressional authority, may have abrogated the State’s 11th Amendment immunity by bestowing untold billions on the State.

g) Even if 11th Amendment immunity was

not waived by the State, failure to

exercise supplemental jurisdiction

over tort claims against the State

constituted an abuse of discretion.

With respect to the 8th and 10th questions presented, Petitioner respectfully submit that, if the State has waived 11th Amendment immunity by virtue of its litigating conduct, then Petitioner’s tort claims against the State, et al., were properly brought in Federal Court. In the alternative, however, Petitioner avers that the District Court’s the failure to exercise supplemental jurisdiction over Petitioner’s tort claims against the State constituted an abuse of discretion.

h) Petitioner’s causes of action for

pollution damages and damages in the

nature of off-set or set-off should not

have been dismissed.

What happened to the City of New Orleans and Greater Metropolitan Area, in terms of damage to the environment, rivals the M/T EXXON VALDEZ casualty. However, in many ways, the environmental

27 disaster visited on Louisiana is much more serious, because a much greater land area was affected than in Prince William Sound. Also, the M/T EXXON VALEZ case did not result in death or personal injury to human beings. Nor did it result in the destruction and damage to homes and businesses of thousands, perhaps hundreds of thousands, of people. The water which inundated the City, in some places for months, served as a medium for the transport of oil and other petroleum products, human and animal waste, decaying bodies, toxic chemicals and other hazardous materials to migrate from their points of origin. Whatever was in several Superfund sites within the City limits also became “waterborne”, allowing the contents of those sites to contaminate other parts of the City remote from the original sites. Count 9 of Petitioner’s Complaint alleged that defendant the Governor, individually, the defendant City and defendant Nagin “negligently, intentionally, and with malfeasance, misfeasance and non-feasance caused pollution of the environment of the territory and atmosphere of the Parish of Orleans, State of Louisiana, which not only caused damage to plaintiffs and other persons, firms and corporations similarly situated to plaintiffs, but which pollution must be contained, cleaned up, remediated and disposed of – a Herculean and expensive task.” Complaint, Article XV(9), pp. 43-44. It is respectfully submitted that Petitioner’s claim for damages for pollution should not have been dismissed on a summary basis. Additionally, in their Eleventh Supplemental and Amending Complaint filed with leave of Court, Petitioner specifically pleaded “set-off” against the United States of America, claiming recoupment of amounts which Petitioner have paid, owe, or might in

28 the future owe, the United States in taxes. More particularly, Petitioner alleged, by way of the Eleventh Amendment to their Complaint, the following against the United States, which claims were perfected with leave of Court:

XIXXII. In the alternative, Plaintiffs plead “compensation” (as that term is used in Louisiana Civil Code Article 1893, et seq.) and the “right of recoupment”, as well as “offset” and “set-off”, against the United States of America, through its agencies and instrumentalities, the Department of the Treasury, the Internal Revenue Service and the Social Security Administration.

28 U.S.C. §1346(c) specifically provides that “[t]he jurisdiction conferred by this section includes jurisdiction of any set-off . . . or other claim or demand whatever on the part of the United States against any plaintiff commencing an action under this section”. Petitioner read that provision as conferring jurisdiction over her claims for “compensation”, the “right of recoupment”, “offset” and “set-off” against the United States for sums already paid, or to be paid, in Federal taxes, and respectfully submit that proper judicial interpretation of the cited federal statute warrants the exercise of this Court’s supervisory power.

CONCLUSION

For the above and foregoing reasons, Petitioners respectfully request the issuance of a Writ of Certiorari

29 to the United States Court of Appeals for the Fifth Circuit. Respectfully submitted, Ashton R. O’Dwyer, Jr., Maureen O’Dwyer, Shirley D. O’Dwyer, Lisa Marie O’Dwyer, Harold Joseph Gagnet, Gloria Pohlman Hecker and Joseph W.P. Hecker Pro se c/o Ashton R. O’Dwyer, Jr. 821 Baronne Street New Orleans, LA 70113 (504) 679-6166

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N RE: KATRINA CANAL BEACHES LITIGATION MAUREEN O'DWYER; HAROLD JOSEPH GAGNET; SALLY EGERTON RICHARDS; SHANE E PORTER; STEPHANIE PORTER; ET AL, Plaintiffs-Appellants v. DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, STATE OF LOUISIANA; JOHNNY D. BRADBERRY, Individually and in His Official Capacity as Secretary of the Department of Transportation and Development, State of Louisiana; ET AL, Defendants-Appellees.

No. 07-30349

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

2009 U.S. App. LEXIS 2237

February 5, 2009, Filed

NOTICE: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

PRIOR HISTORY: [*1] Appeal from the United States District Court for the Eastern District of Louisiana. USDC No. 2:05-CV-4182.

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COUNSEL: For MAUREEN O'DWYER, HAROLD JOSEPH GAGNET, SALLY EGERTON RICHARDS, SHANE E PORTER, STEPHANIE PORTER, ET AL, Plaintiffs - Appellants: Ashton R O'Dwyer, Jr, New Orleans, LA. For DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, State of Louisiana, STATE OF LOUISIANA, KATHLEEN BLANCO, Governor, Both Individually and in Her Official Capacity as Governor of the State of Louisiana, LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, RICHARD L STALDER, Both Individually and in His Official Capacity as Secretary, Department of Public Safety and Corrections, JOHNNY D BRADBERRY, Individually and in His Official Capacity as Secretary of the Department of Transportation and Development, State of Louisiana, GOVERNOR'S OFFICE OF HOMELAND SECURITY AND EMERGENCY PREPAREDNESS, JEFF SMITH, DEPARTMENT OF SOCIAL SERVICES, State of Louisiana, ANN S WILLIAMS, Defendants - Appellees: Michael C Keller, Phyllis Esther Glazer, Office of the Attorney General for the State of Louisiana, New Orleans, LA.

JUDGES: Before KING, DENNIS, and ELROD, Circuit Judges.

OPINION PER CURIAM: * - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -*

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Pursuant to 5th Cir. R. 47.5, the court has determined [*2] that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - Plaintiffs-Appellants are approximately 1000 "Victims of [Hurricane] Katrina," whom Attorney Ashton R. O'Dwyer, Jr. purports to represent in a suit against various government and private actors. Through this and similar suits, O'Dwyer has been responsible for a large volume of Hurricane Katrina-related litigation in the district court, and for a corresponding bevy of appeals. n1 We have repeatedly rejected O'Dwyer's arguments, but he persists in re-arguing the same issues in subsequent appeals. The present appeal challenges an order issued April 3, 2007, in which the district court dismissed claims that, for the most part, it had previously dismissed (and whose previous dismissal we affirmed), n2 but which O'Dwyer re-filed in a new complaint. We AFFIRM the ruling of the district court, and DENY the parties' cross-motions for sanctions. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1 O'Dwyer's conduct in litigation below led to escalating sanctions, culminating in his suspension from practice before the Eastern District of Louisiana. O'Dwyer has appealed that suspension. Issues related to sanctions imposed [*3] against O'Dwyer below are not before the court in the present appeal.2 See O'Dwyer v. United States ex rel. U.S. Army Corps of Eng'rs, No. 06-30840, 277 Fed. App'x 512 (5th Cir. 2008).

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- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - The district court dismissed O'Dwyer's claims against Louisiana agencies and officers, in their official capacities, on sovereign immunity grounds under Federal Rule of Civil Procedure 12(b)(1). We review a 12(b)(1) dismissal de novo. Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008). O'Dwyer argues that Louisiana waived sovereign immunity by bringing other lawsuits as a plaintiff in federal court, and constructively waived sovereign immunity by accepting various forms of federal assistance after Hurricane Katrina. This court considered and rejected similar arguments in a prior appeal of this case, and in another argued by O'Dwyer. See O'Dwyer v. United States ex rel. U.S. Army Corps of Eng'rs, No. 06-30840, 277 Fed. App'x 512 (5th Cir. 2008); Fairley v. Stalder, 294 Fed. Appx. 805 (5th Cir. 2008). Again in this appeal, we hold that O'Dwyer fails to demonstrate that Louisiana's litigation conduct created "inconsistency, anomaly, and unfairness" to a degree that requires waiver of sovereign [*4] immunity, or that Congress, by unmistakable statutory language, conditioned post-Katrina aid on Louisiana waiving sovereign immunity. See Fairley, 294 Fed. Appx. at 810 (citing Lapides v. Bd. of Regents, 535 U.S. 613, 620, 122 S. Ct. 1640, 152 L. Ed. 2d 806 (2002), and Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 243, 105 S. Ct. 3142, 87 L. Ed. 2d 171 (1985)). O'Dwyer presents two additional arguments regarding claims against Louisiana. First, he argues the district court should have granted him discovery regarding purported "strings attached" to federal Katrina aid, to help him demonstrate constructive waiver. He made

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the same argument in Fairley, where we determined that "discovery [was] unnecessary and dismissal [was] appropriate," because O'Dwyer failed to identify any statutory requirement of sovereign immunity waiver. Id. at 810. Here as well, he fails to argue that any such discovery would have helped him satisfy the elements of an otherwise viable claim. Second, O'Dwyer suggests he should be allowed to sue Louisiana actors in their official capacities under 42 U.S.C. § 1983. Will v. Michigan Department of State Police, 491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989), held that a state is not a "person" subject to suit under § 1983. O'Dwyer argues that Will should not apply [*5] when sovereign immunity is waived. Having affirmed the district court's ruling that sovereign immunity was not waived, we need not reach this argument. The district court dismissed O'Dwyer's § 1983 claims against individual state officers, on qualified immunity grounds, under Federal Rule of Civil Procedure 12(b)(6). We review a dismissal for failure to state a claim de novo. Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008). This court rejected O'Dwyer's § 1983 arguments, in connection with the present case, in Appeal No. 06-30840. See O'Dwyer, 277 Fed. App'x at 513. We do so again. See generally Hare v. City of Corinth, 135 F.3d 320, 325 (5th Cir. 1998). After dismissing O'Dwyer's claims against Louisiana agencies and officials in their public and individual capacities, the district court declined to retain supplemental jurisdiction over related state law claims. We review that decision for abuse of discretion. See Guzzino v. Felterman, 191 F.3d 588, 596 (5th Cir. 1999). We previously determined the district court was within

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its discretion to decline to exercise supplemental jurisdiction in this case, see O'Dwyer, 277 Fed. App'x at 513, and reach the same conclusion [*6] now. See Guzzino, 191 F.3d at 594 (explaining that a district court may decline to exercise supplemental jurisdiction when, inter alia, it has dismissed all claims with original jurisdiction or there are other compelling reasons). In addition, the district court dismissed certain claims removed from state court for failure to effect timely service of process pursuant to Federal Rule of Civil Procedure 12(b)(5). We review that decision for abuse of discretion. Lindsey v. U.S. R.R. Ret. Bd., 101 F.3d 444, 445 (5th Cir. 1996). Once the validity of service has been contested, the plaintiff bears the burden of establishing its validity. Carimi v. Royal Carribean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir. 1992). The parties dispute the source of law for determining the service period, but that dispute is immaterial. O'Dwyer admits his tardiness under any standard. The district court did not abuse its discretion when it dismissed O'Dwyer's claims under Rule 12(b)(5). O'Dwyer next complains about alleged misconduct in the proceedings before the district court, while conceding that these issues are "not yet 'squarely' before This Honorable Court." We agree, and do not consider them. Finally, [*7] O'Dwyer argues that the state's lawyers deserve sanctions for allegedly failing, in the proceedings below, to disclose the existence of lawsuits that he argues waived sovereign immunity. It is not clear if this is a request for sanctions from this court or an appeal of the district court's denial of O'Dwyer's

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motion to disqualify the Louisiana Department of Justice. We reject his argument in either event. Sanctions are not appropriate, and the district court was within its discretion to deny the motion. In addition to the merits of the appeal, Defendants-Appellees have filed a motion for sanctions against O'Dwyer, to which he responded with a motion for sanctions against them. We DENY both motions for sanctions, and AFFIRM the decision of the district court in all regards.

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Exhibit 1 US Court of Appeals for the FifthExhibit 1 US Court of Appeals for the FifthExhibit 1 US Court of Appeals for the FifthExhibit 1 US Court of Appeals for the Fifth Circuit, Complaint(s) of Judicial Misconduct filedCircuit, Complaint(s) of Judicial Misconduct filedCircuit, Complaint(s) of Judicial Misconduct filedCircuit, Complaint(s) of Judicial Misconduct filed 4/14/20094/14/20094/14/20094/14/2009

COMPLAINT(S) OFCOMPLAINT(S) OFCOMPLAINT(S) OFCOMPLAINT(S) OF JUDICIAL MISCONDUCTJUDICIAL MISCONDUCTJUDICIAL MISCONDUCTJUDICIAL MISCONDUCT

COMES NOW Ashton R. O’Dwyer, Jr., appearing in propria persona pursuant to the provisions of the “Rules Governing Complaints of Judicial Misconduct,” who does declare under penalty of perjury, pursuant to the provisions of 28U.S.C. §1746, the truth and correctness of the following: 1. That the following Judges of the United States Court of Appeals for the Fifth Circuit1 are guilty of judicial misconduct by virtue of the violation of their oath of office, violation of the Canons contained in the “Code of Conduct for United States Judges,” as well as conspiracy to commit same: James L. Dennis in Case Nos. 08-30052, 07-30349, and 08-30362; Rhesa H. Barksdale in Case No. 08-30052; Emilio M. Garza in Case No. 08-30052; Thomas M. Reavely in Case No. 08-30052; Carolyn Dineen King in Case Nos. 07-30349 and 08-30362; and Jennifer Walker Elrod in Case Nos. 07-30349 and 08-30362.

1 Complainant acknowledges the probability that other Federal officials, such as members of the Court’s or the Judges’ Staff, are also guilty of misconduct; however, no complaint against those officials is being made at this time.

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2. The misconduct complained of herein took place during the pendency of the referenced cases at New Orleans, Louisiana, and where the Judges maintain their offices, if elsewhere than New Orleans. 3. The misconduct complained of herein consisted of prohibited ex parte communications between and among the Judges identified herein and all or some of the following, which communications were known by the Judges to be prohibited, because they involved the merits of the cases identified herein and how the outcome(s) in those cases could be improvidently influenced by others: a) One or more members of the Louisiana Supreme Court, including particularly, but without limitation, now Chief Justice Catherine D. Kimball, and/or her surrogates, and/or the surrogates of other members of the Louisiana Supreme Court; b) One or more employees of the Office of Disciplinary Counsel for the Louisiana Supreme Court, including particularly, but without limitation, Chief Disciplinary Counsel Charles B. Plattsmier, Jr., and/or his surrogates, and/or the surrogates of other employees of the Office of Disciplinary Counsel; c) Employees of the State of Louisiana, including particularly, but without limitation, employees of the Louisiana Department of Justice and/or State employees within the Executive, Judicial and/or Legislative Branches of Louisiana State Government, and/or their surrogates;

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d) Members of the Plaintiffs’ Bar of the State of Louisiana, including particularly, but without limitation, those Members of the Plaintiffs’ Bar who represent the interests of plaintiffs, claimants and potential class members in the “Victims of KATRINA” litigation pending in the United States District Court for the Eastern District of Louisiana, but who simultaneously represented the interests of the State of Louisiana between August 29, 2007 and October 9, 2008, and/or Members of the Louisiana Bar who signed fee-sharing agreements with such Plaintiffs’ Bar members, and/or any of their surrogates; e) Members of the United States District Court for the Eastern District of Louisiana and/or Members of the Staff of that Court, including particularly, but without limitation, Stanwood R. Duval, Jr. and his spouse and law clerk, Janet Daley Duval, and/or their surrogates; and f) Other members of the United States Court of Appeals for the Fifth Circuit and/or their surrogates. 4. In support of these complaints of misconduct, and to specifically avoid running afoul of Rules 2(D) and 3(D) of the Rules Governing Complaints of Judicial Misconduct, Complainant incorporates herein by reference thereto the following Exhibits, copies of which will be submitted if requested by the Chief Judge: Exhibit No. 1 – Transcript of Statement given under Penalty of Perjury by Ashton R. O’Dwyer, Jr., to the Louisiana Department of Justice on October 14, 2005;

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Exhibit No. 2 – Record Document No. 114 in Civil Action 06-7280, in the Eastern District of Louisiana, being the Complaint in that action; Exhibit No. 3 – Sworn Affidavit of Complainant’s Law Enforcement Expert, David R. Kent, dated August 20, 2007; Exhibit No. 4 – Sworn Affidavit of Complainant’s Law Enforcement Expert, David R. Kent, directed to the issue of discovery dated, December 19, 2007; Exhibit No. 5 – Unsworn Declaration Under Penalty of Perjury made pursuant to 28 U.S.C. §1746 by Complainant’s Law Enforcement Expert, David R. Kent, on March 4, 2009; Exhibit No. 6 – Complainant’s Un-refuted Motion to Strike False and Defamatory Allegations in Case No. 08-30052; Exhibit No. 7 – Judge Dennis’ Order of September 22, 2008, summarily denying Exhibit No. 6; Exhibit No. 8 – Complainant’s Motion for Disclosure in Case No. 08-30052; Exhibit No. 9 – Complainant’s E-mail to Deputy Clerk Michael Brown, in Case No. 08-30052, referencing Complainant’s Motion for Disclosure by Judge Dennis; Exhibit No. 10 – The Court’s Order of December 18, 2008, summarily denying Exhibit No. 8; Exhibit No. 11 – Complainant’s correspondence in Case

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No. 08-30052 to the Clerk of the 5th Circuit dated September 24, 2008; Exhibit No. 12 – Complainant’s November 10, 2008 correspondence in Case No. 08-30052 to the Clerk of 5th Circuit; and Exhibit No. 13 – Complainant’s Petition for Panel Rehearing and/or for Rehearing En Banc in Case No. 08-30052, together with attached Exhibits. Complainant avers that the Chief Judge should not act on the complaints alleged herein without review of the Exhibits identified supra, which Complainant is prepared to submit to the Chief Judge, if requested, but which are not attached hereto in order to avoid running afoul of the provisions of Rules 2(D) and 3(D) of the Rules Governing Complaints of Judicial Misconduct. 5. Complainant further avers that the Court’s decisions in Case Nos. 08-20052, 07-30349 and 08-30362 were the result of judicial misconduct, and at least peripherally related to the following issues in Civil Action No. 06-7280 and 05-4182 (and consolidated cases) pending in the United States District Court for the Eastern District of Louisiana: 1) A criminal gangland-style “hit” which was executed by the Louisiana State Police against Complainant at five minutes past midnight on September 20, 2005, on orders from persons employed by the Louisiana Department of Justice, by the Louisiana Supreme Court and by the Office of Disciplinary Counsel for the Louisiana Supreme Court;

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2) A patently obvious non-consentable, concurrent conflict of interests on the part of certain so-called prominent Members of the Plaintiffs’ Bar who simultaneously represented plaintiffs, claimants and potential class members in the “Victims of KATRINA” litigation bearing Civil Action No. 05-4182 (and consolidated cases) in the U.S. District Court for the Eastern District of Louisiana, as well as the interests of the State of Louisiana, between August 29, 2007 and October 9, 20082;

3) Bias, prejudice and partiality, and other judicial misconduct, warranting the recusal of Stanwood R. Duval, Jr., in the “Victims of KATRINA” litigation3; and

4) Claims asserted by Complainant and his clients against the State of Louisiana, its agencies and instrumentalities, political subdivisions, and individual department heads, in the “Victims of KATRINA” litigation.

6. By virtue of their having participated in prohibited ex parte communications as described, supra, and allowing those communications to influence their decision-making on the merits in the referenced cases, the Judges identified herein each violated the following Canons contained in the Code of Conduct for United States Judges: Canon 1Canon 1Canon 1Canon 1 - was violated by each of the accused Judges, who made a mockery of the terms “independent,” 2 This issue is articulately pleaded in Civil Action N0. 08-4728 on the Eastern District docket. 3 Ibid.

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“honorable,” “justice,” “high standards of conduct,” and “integrity,” as a result of the misconduct alleged herein. Canon 2(A)Canon 2(A)Canon 2(A)Canon 2(A) - was violated by each of the accused Judges, because they neither respected nor complied with the law, and because the misconduct alleged herein is the antithesis of acting “at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Canon 2(B)Canon 2(B)Canon 2(B)Canon 2(B) - was violated by each of the accused Judges, because they allowed social or other relationships to influence their judicial conduct and judgment, and because they not only conveyed to others the impression that they were in a special position of influence, and did nothing to stop that impression, but then acted in an official capacity to advance the private interests of others. Canon 3(A)(1)Canon 3(A)(1)Canon 3(A)(1)Canon 3(A)(1) - was violated by each of the accused Judges, because not only did they make a mockery of the terms “faithful” and “professional competence in the law,” but they permitted their decision-making to be dictated by partisan interests. Canon 3(A)(4)Canon 3(A)(4)Canon 3(A)(4)Canon 3(A)(4) - was violated by each of the accused Judges, because they engaged in prohibited ex parte communications with others on the merits, and procedures affecting the merits, of proceedings pending before them. Judges Dennis, Barksdale, Garza, and Reavely also violated Canon 3(A)(4) by conspiring with others to deny Complainant oral argument in Case No. 08-30052. Judges Dennis, King and Elrod also violated Canon 3(A)(4) by conspiring with others to deny Complainant oral argument in Case No. 08-30362. Canon 3(B)(1), (2), and (3)Canon 3(B)(1), (2), and (3)Canon 3(B)(1), (2), and (3)Canon 3(B)(1), (2), and (3) - were violated by each of the accused Judges, because they took no action after learning of misconduct by Brother and/or Sister Judges, Court officials and Staff, lawyers and others.

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7. The Complaints of judicial misconduct contained herein are not made for the purpose of seeking review of the erroneous decisions involving Complainant and his clients by the Judicial Council of the Fifth Circuit,4 but rather to instill public confidence in the integrity and independence of judges, and to ensure that judges comply with their oath of office, the law, and the applicable Code of Conduct.

8. More to the point, Complainant avers that although reasonable minds might conclude that the misconduct alleged herein is peripherally related to merits of the decisions in the referenced cases, Complainant specifically avers that his allegations of misconduct are NOT DIRECTLY RELATED TO the decisions in those cases, but rather to the lack of integrity of the accused Judges and of those who wrongfully influenced them.

9. Complainant avers that the Chief Judge should appoint a Special Committee (or Committees) to investigate these complaints and to make recommendations to the Judicial Council. Notwithstanding, this requested relief, Complainant avers that he has no confidence in the ability of the Chief Judge of the United States Court of Appeals for the Fifth Circuit, any Special Committee which may be appointed by the Chief Judge, or of the Judicial Council of the Fifth Circuit to competently, fairly and impartially investigate and decide the merits of the complaints of misconduct contained herein. In support of these assertions, Complainant refers to the 4 However, Complainant avers that judicial review of the erroneous decisions is absolutely warranted under the facts and circumstances.

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September 28, 2007 Order of Reprimand and Reasons by the Judicial Council in the matter involving former Judge Samuel B. Kent who, since the referenced Order of Reprimand and Reasons, and more particularly on February 23, 2009, pleaded guilty of one count of obstruction of justice, thus demonstrating the abject incompetency of the judicial misconduct process within the Fifth Circuit. Complainant further avers that any investigation(s) by the Special Committee or Committees should also include the appointment of competent forensic experts to analyze office computers, personal computers and blackberries, as well as telephone records, of the accused Judges and others, in order to “test” their answers to questions under oath with extrinsic electronic and documentary evidence.

10. Complainant declares that the allegations, averments and statements contained herein are true and correct under penalty of perjury pursuant to the provisions of 28 U.S.C. §1746.

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Exhibit 2 US Court of Appeals for the FifthUS Court of Appeals for the FifthUS Court of Appeals for the FifthUS Court of Appeals for the Fifth Circuit, Complaint(s) of Judicial Misconduct filedCircuit, Complaint(s) of Judicial Misconduct filedCircuit, Complaint(s) of Judicial Misconduct filedCircuit, Complaint(s) of Judicial Misconduct filed 4/16/094/16/094/16/094/16/09


COMES NOW Ashton R. O’Dwyer, Jr., appearing in propria persona pursuant to the provisions of the “Rules Governing Complaints of Judicial Misconduct,” who does declare under penalty of perjury, pursuant to the provisions of 28U.S.C. §1746, the truth and correctness of the following: 1. That the following Judges of the United States Court of Appeals for the Fifth Circuit5 are guilty of judicial misconduct by virtue of the violation of their oath of office, violation of the Canons contained in the “Code of Conduct for United States Judges,” as well as conspiracy to commit same: James L. Dennis6 in Case Nos. 06-30840, 06-30841, and 08-30234 Jacques L. Weiner, Jr., in Case No. 08-30234. W. Eugene Davis in Case Nos. 06-30840 and 06-30841. Edward C. Prado in Case No. 08-30234. 5 Complainant acknowledges the probability that other Federal officials, such as members of the Court’s or the Judges’ Staff, are also guilty of misconduct; however, no complaint against those officials is being made at this time. 6 Complaint(s) of Judicial Misconduct against Dennis were filed on April 14, 2009 in three other cases. The “common denominator” in the clear majority of cases in which Judicial Misconduct is complained about is the name “James L. Dennis,” which Complainant avers is a statistical impossibility unless Dennis is guilty of the conduct complained of herein beyond all reasonable doubt.

18a

Leslie L. Southwick in Case Nos. 06-30840 and 06-30841. Will Garwood in Case No. 08-30234. Ron Clark7 in Case Nos. 06-30840 and 06-03841. 2. The misconduct complained of herein took place during the pendency of the referenced cases at New Orleans, Louisiana, and where the Judges maintain their offices, if elsewhere than New Orleans. 3. The misconduct complained of herein took place during the pendency of the referenced cases at New Orleans, Louisiana, and where the Judges maintain their offices, if elsewhere than New Orleans. 4. The misconduct complained of herein consisted of prohibited ex parte communications between and among the Judges identified herein and all or some of the following, which communications were known by the Judges to be prohibited, because they involved the merits of the cases identified herein and how the outcome(s) in those cases could be improvidently influenced by others: g) One or more members of the Louisiana Supreme Court, including particularly, but without limitation, now Chief Justice Catherine D. Kimball, and/or her surrogates, and/or the surrogates of other members of the Louisiana Supreme Court;

7 District Judge from the Eastern District of Texas, who sat on the United States Court of Appeals for the 5th Circuit by designation.

19a

h) One or more employees of the Office of Disciplinary Counsel for the Louisiana Supreme Court, including particularly, but without limitation, Chief Disciplinary Counsel Charles B. Plattsmier, Jr., and/or his surrogates, and/or the surrogates of other employees of the Office of Disciplinary Counsel; i) Employees of the State of Louisiana, including particularly, but without limitation, employees of the Louisiana Department of Justice and/or State employees within the Executive, Judicial and/or Legislative Branches of Louisiana State Government, and/or their surrogates; j) Members of the Plaintiffs’ Bar of the State of Louisiana, including particularly, but without limitation, those Members of the Plaintiffs’ Bar who represent the interests of plaintiffs, claimants and potential class members in the “Victims of KATRINA” litigation pending in the United States District Court for the Eastern District of Louisiana, but who simultaneously represented the interests of the State of Louisiana between August 29, 2007 and October 9, 2008, and/or Members of the Louisiana Bar who signed fee-sharing agreements with such Plaintiffs’ Bar members, and/or any of their surrogates; k) Members of the United States District Court for the Eastern District of Louisiana and/or Members of the Staff of that Court, including particularly, but without limitation, Stanwood R. Duval, Jr. and his spouse and law clerk, Janet Daley Duval, and/or their surrogates; and

20a

l) Other members of the United States Court of Appeals for the Fifth Circuit and/or their surrogates. 5. In support of these complaints of misconduct, and to specifically avoid running afoul of Rules 2(D) and 3(D) of the Rules Governing Complaints of Judicial Misconduct, Complainant incorporates herein by reference thereto the following Exhibits, copies of which will be submitted if requested by the Chief Judge: Exhibit No. 1 – Transcript of Statement given under Penalty of Perjury by Ashton R. O’Dwyer, Jr., to the Louisiana Department of Justice on October 14, 2005; Exhibit No. 2 – Record Document No. 114 in Civil Action 06-7280, in the Eastern District of Louisiana, being the Complaint in that action; Exhibit No. 3 – Sworn Affidavit of Complainant’s Law Enforcement Expert, David R. Kent, dated August 20, 2007; Exhibit No. 4 – Sworn Affidavit of Complainant’s Law Enforcement Expert, David R. Kent, directed to the issue of discovery dated, December 19, 2007; Exhibit No. 5 – Unsworn Declaration Under Penalty of Perjury made pursuant to 28 U.S.C. §1746 by Complainant’s Law Enforcement Expert, David R. Kent, on March 4, 2009; Exhibit No. 6 – Complainant’s Un-refuted Motion to Strike False and Defamatory Allegations in Case No. 08-30052;

21a

Exhibit No. 7 – Judge Dennis’ Order of September 22, 2008, summarily denying Exhibit No. 6; Exhibit No. 8 – Complainant’s Motion for Disclosure in Case No. 08-30052; Exhibit No. 9 – Complainant’s E-mail to Deputy Clerk Michael Brown, in Case No. 08-30052, referencing Complainant’s Motion for Disclosure by Judge Dennis; Exhibit No. 10 – The Court’s Order of December 18, 2008, summarily denying Exhibit No. 8; Exhibit No. 11 – Complainant’s correspondence in Case No. 08-30052 to the Clerk of the 5th Circuit dated September 24, 2008; Exhibit No. 12 – Complainant’s November 10, 2008 correspondence in Case No. 08-30052 to the Clerk of 5th Circuit; and Exhibit No. 13 – Complainant’s Petition for Panel Rehearing and/or for Rehearing En Banc in Case No. 08-30052, together with attached Exhibits. Complainant avers that the Chief Judge should not act on the complaints alleged herein without review of the Exhibits identified supra, which Complainant is prepared to submit to the Chief Judge, if requested, but which are not attached hereto in order to avoid running afoul of the provisions of Rules 2(D) and 3(D) of the Rules Governing Complaints of Judicial Misconduct.

22a

6. Complainant further avers that the Court’s decisions in Case Nos. 06-30840, 06-30841, and 08-30234 were the result of judicial misconduct, and at least peripherally related to the following issues in Civil Action No. 06-7280 and 05-4182 (and consolidated cases) pending in the United States District Court for the Eastern District of Louisiana: 1) A criminal gangland-style “hit” which was executed by the Louisiana State Police against Complainant at five minutes past midnight on September 20, 2005, on orders from persons employed by the Louisiana Department of Justice, by the Louisiana Supreme Court and by the Office of Disciplinary Counsel for the Louisiana Supreme Court;



8 This issue is articulately pleaded in Civil Action N0. 08-4728 on the Eastern District docket. 9 Ibid.

23a


7. By virtue of their having participated in prohibited ex parte communications as described, supra, and allowing those communications to influence their decision-making on the merits in the referenced cases, the Judges identified herein each violated the following Canons contained in the Code of Conduct for United States Judges:

Canon 1Canon 1Canon 1Canon 1 - was violated by each of the accused Judges, who made a mockery of the terms “independent,” “honorable,” “justice,” “high standards of conduct,” and “integrity,” as a result of the misconduct alleged herein. Canon 2(A)Canon 2(A)Canon 2(A)Canon 2(A) - was violated by each of the accused Judges, because they neither respected nor complied with the law, and because the misconduct alleged herein is the antithesis of acting “at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Canon 2(B)Canon 2(B)Canon 2(B)Canon 2(B) - was violated by each of the accused Judges, because they allowed social or other relationships to influence their judicial conduct and judgment, and because they not only conveyed to others the impression that they were in a special position of influence, and did nothing to stop that impression, but then acted in an official capacity to advance the private interests of others. Canon 3(A)(1)Canon 3(A)(1)Canon 3(A)(1)Canon 3(A)(1) - was violated by each of the accused Judges, because not only did they make a mockery of

24a

the terms “faithful” and “professional competence in the law,” but they permitted their decision-making to be dictated by partisan interests. Canon 3(A)(4)Canon 3(A)(4)Canon 3(A)(4)Canon 3(A)(4) - was violated by each of the accused Judges, because they engaged in prohibited ex parte communications with others on the merits, and procedures affecting the merits, of proceedings pending before them. Judges Davis, Southwick and Clark also violated Canon 3(A)(4) by conspiring with others to deny Complainant oral argument in Case Nos. 06-30840 and 06-30841. Judges Weiner, Prado and Southwick also violated Canon 3(A)(4) by conspiring with others to deny Complainant oral argument in Case No. 08-30234. Canon 3(B)(1), (2), and (3)Canon 3(B)(1), (2), and (3)Canon 3(B)(1), (2), and (3)Canon 3(B)(1), (2), and (3) - were violated by each of the accused Judges, because they took no action after learning of misconduct by Brother and/or Sister Judges, Court officials and Staff, lawyers and others.


9. More to the point, Complainant avers that although reasonable minds might conclude that the misconduct alleged herein is peripherally related to merits of the decisions in the referenced cases, Complainant specifically avers that his allegations of 10 However, Complainant avers that judicial review of the erroneous decisions is absolutely warranted under the facts and circumstances.

25a

misconduct are NOT DIRECTLY RELATED TO the decisions in those cases, but rather to the lack of integrity of the accused Judges and of those who wrongfully influenced them.

10. Complainant avers that the Chief Judge should appoint a Special Committee (or Committees) to investigate these complaints and to make recommendations to the Judicial Council. Notwithstanding, this requested relief, Complainant avers that he has no confidence in the ability of the Chief Judge of the United States Court of Appeals for the Fifth Circuit, any Special Committee which may be appointed by the Chief Judge, or of the Judicial Council of the Fifth Circuit to competently, fairly and impartially investigate and decide the merits of the complaints of misconduct contained herein. In support of these assertions, Complainant refers to the September 28, 2007 Order of Reprimand and Reasons by the Judicial Council in the matter involving former Judge Samuel B. Kent who, since the referenced Order of Reprimand and Reasons, and more particularly on February 23, 2009, pleaded guilty of one count of obstruction of justice, thus demonstrating the abject incompetency of the judicial misconduct process within the Fifth Circuit. Complainant further avers that any investigation(s) by the Special Committee or Committees should also include the appointment of competent forensic experts to analyze office computers, personal computers and blackberries, as well as telephone records, of the accused Judges and others, in order to “test” their answers to questions under oath with extrinsic electronic and documentary evidence.

26a


No.

IN THE

Supreme Court of the United States

MAUREEN O'DWYER; SALLY EGERTON RICHARDS; STEPHANIE PORTER; SHEILA

JORDAN; CHARLES EDWARD JORDAN, LETICIA BROWN, PETITIONERS

v.

BOARD OF COMMISSIONERS OF THE PORT OF NEW ORLEANS

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

MAUREEN O'DWYER SALLY EGERTON RICHARDS SHEILA JORDAN CHARLES EDWARD JORDAN STEPHANIE PORTER LETICIA BROWN

pro se

c/o Brooks Bros., One Canal Place, Foot of Canal Street and the Missisippi River, New Orleans, La., 70130 (504) 522-4200.

CURRY & TAYLOR (202) 393-4141

i

QUESTIONS PRESENTED


fundamental constitutional right to due process of law, because the integrity of the litigation in the courts below was CORRUPTED and POLLUTED by virtue of an extra-judicial source of bias and prejudice revolving around the relationship between the District Judge and counsel for some of the litigants, namely Calvin Clifford Fayard, Jr., who the District Judge has admitted is a “close personal friend of long-standing”, but whose professional ethics and integrity have been placed at issue as a result of his serving on Committees and Sub-Committees in the litigation, while simultaneously representing the State of Louisiana, and failing to disclose that representation to other counsel prior to 8/29/07?”


fundamental constitutional right to due process of law, because the ability of Petitioners to obtain “justice” in the Courts below was THWARTED and TAINTED by judicial misconduct in the Courts below, all as is meticulously set forth in separate Complaint(s) of Judicial Misconduct filed in the United States Court of Appeals for the Fifth Circuit on April 14 and 16, 2009, attached as Exhibit Nos. 1 and 2, respectively

3) Whether the District Judge violated the standards

for deciding a Motion for Judgment on the Pleadings by granting the motion, and dismissing all claims against the Board of Commissioners for

ii

the Port of New Orleans, with prejudice, without even considering the allegations of the well-pleaded Complaint(s) filed by plaintiffs/appellants, and without affording them the opportunity to amend their Complaint(s) as an alternative to dismissal?

4) Whether the District Judge improvidently failed to take judicial notice of FACTS which clearly raise issues concerning the legal liability of the Board of Commissioners for the Port of New Orleans for breaches on both sides of the Industrial Canal during Hurricane KATRINA?

5) Whether the District Judge erroneously relied on a State statute which has since been ruled to be unconstitutional in granting the Motion for Judgment on the Pleadings?

6) Whether the rights of plaintiffs/appellants were prejudiced by the fact that the Plaintiffs’ Liaison Committee, which has glaring conflict of interests which was not disclosed to plaintiffs/appellants or their counsel, and which failed to file any Memorandum in Opposition to the Motion for Judgment on the Pleadings, a clear dereliction of duty that was motivated solely by the conflict of interests on the part of certain Committee and Sub-Committee Members?

7) Whether the District Judge’s erroneous decision was influenced by his actual bias and prejudice, not only against plaintiffs/appellants and their counsel, but in favor of his “close personal friend of long-standing”, Calvin Fayard, and in favor of Mr. Fayard’s client, the State of Louisiana?

iii

TABLE OF CONTENTS

Page QUESTIONS PRESENTED.............................................................. i TABLE OF AUTHORITIES............................................................ iv OPINIONS BELOW......................................................................... 1 JURISDICTION............................................................................... 1 RELEVANT PROVISIONS INVOLVED ......................................... 1 STATEMENT .................................................................................. 2 REASONS FOR GRANTING THE PETITION............................... 23 CONCLUSION............................................................................... 35 APPENDIX

Circuit Court Opinion............................................................ 1a Rehearing Exhibits................................................................. 8a District Court Decision ........................................................ 27a

iv

TABLE OF AUTHORITIES

Page

Cases Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955

(May 21, 2007) ................................................................... 26, 27 Johnson v. Johnson, 385 F.3d 503, 529 (5th Cir. 2004) ........... 26 Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847

(1988)............................................................................ 23, 24, 25

Statutes 28 U.S.C. §1333(1)........................................................... 7, 8, 9, 13 28 U.S.C. §1367 ............................................................................. 2 28 U.S.C. §144 ............................................................................... 1 28 U.S.C. §455(a)........................................................................... 1 28 U.S.C. 28 ................................................................................... 1 42 U.S.C. §1983 ............................................................................. 2 LSA-R.S. 29.735 ................................................................... 15, 20 LSA-R.S. 9:2798.1 ...................................................................... 14 LSA-R.S. 9:2800 ............................................................. 21, 29, 30 U.S.C. §1254(a) ............................................................................. 1

Rules FRCP 12(c).................................................................................. 25

1 OPINIONS BELOW

The opinion of the United States Court of Appeals for the Fifth Circuit is unreported. The opinion of the United States District Court for the Eastern District of Louisiana is unreported.

JURISDICTION

The decision of the Court of Appeals was issued on 2/609. This Petition is filed within 90 days thereafter. This Court has jurisdiction pursuant to 28 U.S.C. 28 U.S.C. §1254(a).

RELEVANT PROVISIONS INVOLVED

28 U.S.C. §144

Whenever a party to any proceeding in a district court makes and files a sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

28 U.S.C. §455(a) and (b)

(a) Any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances:

2 (1) Where he has a personal bias or

prejudice concerning a party . . .

28 U.S.C. §1367, Supplemental Jurisdiction Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.

42 U.S.C. §1983, Civil Rights Act

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or territory or the District of Columbia, subject, or causes to be subjected, any citizen of the United States or any person within the jurisdiction thereof to other deprivation of any rights, privileges, or immunities secured by the constitution and laws, shall be libel to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

STATEMENT

a)a)a)a) Course of proceedings and DispositionCourse of proceedings and DispositionCourse of proceedings and DispositionCourse of proceedings and Disposition

in Court Belowin Court Belowin Court Belowin Court Below

3 This appeal involves the dismissal of plaintiffs’/appellants’ claims against the Board of Commissioners for the Port of New Orleans “on the papers”, and more particularly the dismissal of all claims against the Board pursuant to Rule 12(c), Federal Rules of Civil Procedure, which addresses the “Motion for Judgment on the Pleadings”. No evidence, either documentary or testimonial, was adduced in connection with the Board’s Motion for Judgment on the Pleadings, which was summarily granted, without oral argument. Although six (6) separate Civil Actions filed by plaintiffs/appellants, are referenced, both in the Board’s motion, and in the Court’s Order and Reasons and Judgments, and in plaintiffs’/appellants’ Notice of Appeal, namely Civil Action Nos. 05-4181, 06-1885, 06-4389, 06-5771, 06-5786 and 07-0206, only Civil Action Nos. 06-4389 and 06-5786 are relevant to this appeal, because it was only in those cases that plaintiffs/appellants herein sued and made liability allegations against the Board1 of Commissioners for the Port of New Orleans. Civil Action No. 06-4389, which included the Board as a party defendant, and contains specific jurisdictional and liability allegations against the Board, among others, was filed in the United States District Court for the Eastern District of Louisiana on August 17, 2006. Civil Action No. 06-4389 was filed for the primary purposes of invoking admiralty and maritime jurisdiction, among other jurisdictional bases, and in order to have a lawsuit filed in a Court of competent

1 The Board is not a party to Civil Action No. 05-4181. Civil Action Nos. 06-1885, 06-5771 and 07-0206 involve only claims against the United States of America.

4 jurisdiction prior to the one year anniversary of Hurricane KATRINA. Civil Action No. 06-5786 was originally filed in Civil District Court for the Parish of Orleans as Case No. 2006-8322 on August 24, 2006, for the purpose of having a lawsuit similar to Civil Action No. 06-4389 of record in State Court prior to the one year anniversary of Hurricane KATRINA, in the event it was determined that Federal Court lacked jurisdiction. This particular lawsuit was later removed to Federal Court by one of the Board’s co-defendants and assigned Civil Action No. 06-5786. Prior to the filing of the Motion for Judgment on the Pleadings by the Board on June 11, 2007, the Plaintiffs’ Liaison Committee had filed a “Superseding Consolidated Master Class Action Complaint” (Record Document No. 3420, filed on March 15, 2007), which was specifically referenced in the Board’s Motion for Judgment on the Pleadings. (Record Document No. 5522). Notwithstanding the fact that Civil Action Nos. 06-4389 and 06-5786 were identified by number on the Title Page of the Board’s motion, none of plaintiffs’/appellants’ allegations against the Board in either of those cases were addressed in the body of the Board’s motion or Memorandum in Support. Undersigned counsel for plaintiff in Civil Action Nos. 06-4389 and 06-5786 reasonably assumed that the “Plaintiffs’ Liaison Committee” would file a timely and proper Memorandum in Opposition to the Board’s Motion for Judgment on the Pleadings, which no reasonable mind could have concluded would be summarily granted, without any opportunity for oral argument in litigation as significant as “Victims of KATRINA” litigation. Unfortunately, for reasons which will become apparent to This Honorable Court

5 infra, the Plaintiffs’ Liaison Committee filed no opposition at all, and the Board’s Motion for Judgment on the Pleadings was granted by default in an Order and Reasons issued by the District Judge, which can only be described as “superficial” at best. In addition, plaintiffs/appellants respectfully submit that the “motivation” of the District Judge in summarily granting the Board’s Motion for Judgment on the Pleadings involved the District Judge’s personal bias and prejudice, which plaintiffs/appellants and their counsel have averred should require recusal of the District Judge in all “Victims of KATRINA” litigation. See infra. A timely Notice of Appeal (Record Document No. 10933) was filed. b)b)b)b) Statement of FactsStatement of FactsStatement of FactsStatement of Facts On August 17, 2006, plaintiffs/appellants, through undersigned counsel, filed Civil Action No. 06-4389 in the United States District Court for the Eastern District of Louisiana. That Civil Action specifically named as a party defendant “The Board of Commissioners of the Port of the New Orleans” (Article III (10)). Civil Action No. 06-4389 is a Class Action in which plaintiffs/appellants alleged themselves to be representative of the following classes of people, inter-alia:

A. Citizens and/or residents of the Parishes of Orleans, Jefferson and St. Bernard, State of Louisiana, who are survivors of human beings who died as a result of the fault, neglect, strict liability and/or breach of the implied warranty of workmanlike performance pleaded herein.

6 B. Citizens and/or residents of the Parishes

of Orleans, Jefferson and St. Bernard, State of Louisiana, who suffered bodily injury, pain and suffering, mental anguish and/or emotional distress as a result of the fault, neglect, strict liability and/or breach of the implied warranty of workmanlike performance pleaded herein.

C. Citizens and/or residents of the Parishes

of Orleans, Jefferson and St. Bernard, State of Louisiana, who suffered loss of or damage to property, both real and personal, and/or diminution in the value of their property, as a result of the fault, neglect, strict liability and/or breach of the warranty of workmanlike performance pleaded herein.

D. Citizens and/or residents of the Parishes of Orleans, Jefferson and St. Bernard, State of Louisiana, who suffered purely economic losses as a result of the fault, neglect, strict liability and/or breach of the implied warranty of workmanlike performance pleaded herein, including lost income, lost profits and relocation and/or increased living expenses.

E. Citizens and/or residents of the Parishes

of Orleans, Jefferson and St. Bernard, State of Louisiana, who suffered damage from pollution, including bodily injury, contamination of real or personal property, lost revenues, profits and earning capacity due to pollution, and

7 damage for subsistence use, as well as damage for the cost of containment, clean-up, remediation and restoration, and for damage to the environment.

F. Citizens and/or residents of the Parishes

of Orleans, Jefferson and St. Bernard, State of Louisiana, who experienced the threat of loss or damage as a result of the fault, neglect, strict liability and/or breach of the implied warranty of workmanlike performance pleaded herein, including damages for anxiety, fear, fright, despair and hopelessness.

The jurisdictional allegations in Civil Action No. 06-4389 included allegations concerning the commission of maritime torts by the defendants. More particularly, in Article IV, plaintiffs/appellants specifically pleaded as follows:

IV. This Court has jurisdiction of the claims herein asserted pursuant to 28 U.S.C. §1333(1) by virtue of the following maritime torts committed by defendants:

1) Defective and negligent design, construction, operation, inspection and maintenance of an entire navigable waterway system, including levees and retaining wall structures, consisting of the Mississippi River Gulf Outlet, the Gulf Intracoastal Waterway, the Inner Harbor Navigation Canal

8 (a/k/a “The Industrial Canal”), the London Avenue Canal, the Orleans Avenue Canal and the 17th Street Canal, their environs and tributaries;

2) Negligent failure to contain the

navigable waters of the United States identified, supra;

3) Negligent dredging of the

navigable waters of the Untied States identified, supra;

Plaintiffs/appellants also pleaded causes of action for pollution damage, a “takings” claim, the breach of the warranty of workmanlike performance, and claims sounding in negligence, as well as strict liability under the general maritime law, as well as violation of State laws, which are not in conflict with the general maritime law. See Articles V, VI, VII, VIII and IX of the Complaint. In Articles XI and XII of their Complaint, plaintiffs/appellants alleged as follows:

XI.XI.XI.XI.

Sometime at or about the time Hurricane KATRINA made landfall in Louisiana on the early morning of August 29, 2006, and thereafter, numerous breaches in the levees and retaining wall structures occurred along the Mississippi River Gulf Outlet, the Gulf Intracoastal Waterway, the Inner Harbor Navigation Canal (a/k/a the Industrial Canal), the London Avenue Canal and the 17th Street

9 Canal. As a result of those breaches, flooding of the Greater Metropolitan Area, including parts of the Parishes of Orleans, Jefferson and St. Bernard, occurred. Additional flooding was caused by storm surge flowing over “low spots” or unprotected areas along the banks of the London Avenue and Orleans Avenue Canals.

XII.XII.XII.XII. Plaintiffs aver that the above-described breaches in the levees and retaining wall structures of the navigable waterways identified, supra, and the resulting flooding of the Greater New Orleans Metropolitan Area, were caused or occasioned by defendants’ fault, neglect, strict liability and/or breach of the implied warranty of workmanlike performance which was owed plaintiffs and their property by defendants. Plaintiffs also aver that defendants failed in their duty to ensure the competent design, construction operation, inspection and maintenance of an entire navigable waterway system, consisting of the Mississippi River Gulf Outlet, the Gulf Intracoastal Waterway, the Inner Harbor Navigation Canal (a/k/a the Industrial Canal), the London Avenue Canal, the Orleans Avenue Canal and the 17th Street Canal, and their environs and tributaries, which were defectively and negligently designed, constructed, operated, inspected and maintained, and that

10 defendants failed in their duty to properly contain navigable waters of the United States in that navigable waterway system.

With specific reference to the Board of Commissioners of the Port of New Orleans with respect to breaches on both sides of the Inner Harbor Navigational Canal (a/k/a and sometimes referred to herein as “the Industrial Canal”), plaintiffs/appellants specifically alleged the following, in addition to the above and foregoing “general” allegations of fault and legal liability therefor:

XIII. As to the defendants . . . The Board of Commissioners of the Port of New Orleans, plaintiffs aver the following facts in support of their allegations of liability for fault, neglect, strict liability and/or breach of the warranty of workmanlike performance by said defendants: 1) Failing to discharge their statutory

obligations as outlined in Titles 33, 36 and 38 of the Louisiana Revised Statutes.

2) Failing to have or implement competent management structures, rules procedures, standards and training programs.

* * *

11 4) Failing to coordinate with the U.S.

Army Corps of Engineers and with other State and local agencies so that responsibility for cooperation concerning levees, drainage and flood control, and for inspection and maintenance of completed portions of the Lake Pontchartrain Project, were clearly spelled out.

* * *

6) Failing to properly train employees

and to coordinate with each other and with the U.S. Army Corps of Engineers in order to better discharge the statutory duties of inspecting and maintaining the levee systems.

7) Failing to competently inspect and

maintain the levee systems or maintain proper records addressing inspection and maintenance.

8) Failing to remedy obviously

deficient conditions in the levee systems, which proper inspection should have disclosed.

* * *

11) Negligently dredging the navigable

waterways identified herein which

12 eliminated any factor of safety in the original designs for the levee and retaining wall structures.

* * *

15) Failing to remedy levees which

were known to be below design height.

16) Failing to repair the W-30

floodgate on the West side of the Industrial Canal prior to KATRINA, and failing to adequately close the gap left in the hurricane protection system by that damaged floodgate.

17) Failing to have and/or to follow a

competent emergency operations plan, including the failure to stockpile materials for use in an emergency.

* * *

19) Failing to learn any lessons from

prior hurricane exercises, including particularly the Hurricane PAM exercise, among others.

* * *

21) Failing to have a clear

understanding with the Federal

13 Government (the U.S. Army Corps of Engineers) and with each other about who was responsible for what, when there was a problem.

* * *

27) Failing to establish and have

competent Engineering Staff(s), and in a sufficient number, to do what the law required them to do.

28) Constructing earthen levees with

unsuitable materials.

Plaintiffs/appellants specifically included in their allegations as aforesaid the statement that “Plaintiffs reserve the right to amend the foregoing Article when the facts become more fully known.” Complaint, Article XIII. Plaintiffs’ allegations also specifically included an allegation which would, theoretically, constitute an exception to any “immunity” arguably conferred by any State statute by specifically pleading as follows in Article XVI:

XVI. Plaintiffs aver that the conduct of certain defendants, described, supra, was criminal, willful, wanton and reckless, so as to constitute legal misconduct, entitling plaintiffs to an award of punitive or exemplary damages from those defendants under the general maritime law.

14 On August 24, 2006, plaintiffs/appellants filed a Petition in Civil District Court for the Parish of Orleans which was assigned Case No. 2006-8322, and which also joined as a party defendant the Board of Commissioners of the Port of New Orleans, among others. That case was subsequently removed to the United States District Court for the Eastern District of Louisiana, and now bears Civil Action No. 06-5786. The allegations of plaintiffs’/appellants’ Petition in Civil Action No. 06-5786, which was originally filed in State Court as a precautionary measure in the event it was ultimately determined that Federal Court lacked jurisdiction over Civil Action No. 06-4389, largely tracked the allegations of Civil Action No. 06-4389 insofar as the Board of Commissioners of the Port of New Orleans was concerned. However, the lawsuit which now bears Civil Action No. 06-5786 in Federal Court also contained the following allegations:

AS TO ALL CAUSES OF ACTIONAS TO ALL CAUSES OF ACTIONAS TO ALL CAUSES OF ACTIONAS TO ALL CAUSES OF ACTION

XXII.XXII.XXII.XXII.

Plaintiffs aver that the actions and inaction by the public entities named as defendants, and by their officers, complained of herein, were willful, and constituted criminal, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct, so as to deprive those entities and officers of immunity from liability pursuant to the provisions of LSA-R.S. 9:2798.1, and, additionally aver that those entities and officers were in derogation of and violated specific rules and regulations promulgated pursuant to

15 the provisions of LSA-R.S. 29.735, so as to deprive those entities and officers of immunity from liability under the provisions of that statute as well.

XXIII.XXIII.XXIII.XXIII.

More to the point, plaintiffs aver that defendants had no discretion to violate federal or state law or to deprive plaintiffs of their constitutional rights.

XXIV.XXIV.XXIV.XXIV.

Plaintiffs aver that any State law, ordinance, proclamation, regulation, statute, etc., pursuant to which defendants, or any of them, claim they acted, is unconstitutional, and that defendants’ conduct pursuant to any State law, ordinance, proclamation, regulation, statute, etc., complained of herein, cannot be immunized by State law.

Since the two referenced Civil Actions (Nos. 06-4389 and 06-5786) were filed, and since the Board’s Motion for Judgment on the Pleadings was summarily granted by the District Judge on October 12, 2007, a great deal of “work” involving the Industrial Canal has been performed in the “Victims of KATRINA” litigation, primarily in connection with opposing motions filed by defendant Washington Group International, Inc. during the Fall and Winter 2007. Defendant Washington Group was contracted to the

16 U.S. Army Corps of Engineers to perform extensive work for the Corps between 1997 and shortly before KATRINA in an area known as “the East Bank Industrial Area”, on the East side of the Industrial Canal between the Claiborne Avenue and Florida Avenue bridges. This is the precise area where two (2) large breaches occurred during KATRINA. See Record Documents Nos. 8599, 8852, 8954, 9000, 9237, 9464, 9469, 10240 and 10271, which contain detailed descriptions of the work performed by Washington Group and the breaches in way of its work. During the “work” in connection with opposing Washington Group’s motion(s), a great deal of “new” information concerning the Industrial Canal, and the part that “the Industrial Canal Lock Replacement Project”, in which the Board of Commissioners for the Port of New Orleans played a prominent role as “Local Sponsor” to the Corps of Engineers has been discovered, none of which information was known when the Board’s Motion for Judgment on the Pleadings was summarily granted on October 12, 2007. More particularly, it now appears rather clear that work performed pre-KATRINA in connection with the Industrial Canal Lock Replacement Project played a very prominent role in the breaches which occurred on both sides of the Industrial Canal during KATRINA, and all of that work involved the Board as Local Sponsor. Plaintiffs/appellants aver that the above-described breaches on both sides of the Industrial Canal were contributed to by the direct participation, as “Local Sponsor” to the U.S. Army Corps of Engineers, in the Industrial Canal Lock Replacement Project, direct involvement not addressed at all, either in the Board’s Motion for Judgment on the Pleadings or

17 in the District Judge’s Order and Reasons. Indeed, in their motion, the Board made only the following arguments:

1. “Plaintiffs have failed to state a reasonably cognizable claim against it [the Board] for the allegedly defective flood control devices at issue.” Board’s Motion (Record Document No. 5522), p. 1. Plaintiffs/appellants never identified “flood control devices”, but rather alleged fault by the Board within the Industrial Canal for the defective and negligent design, construction, operation and maintenance of an entire navigable waterway system, which the Industrial Canal Lock Replacement Project clearly formed an integral part of.

2. The Board’s motion and Memorandum in

Support focused on the “Superseding Master Consolidated Class Action Complaint” without specifically addressing any of the allegations of plaintiffs/appellants against the Board in Civil Action Nos. 06-4389 and 06-5786.2

3. Similarly, the Board argued that it could

not have custody or “garde” over “flood control systems”, “levees”, “flood walls” and/or “flood gates”, which the Board argued was within the exclusive province

2 Where plaintiffs/appellants specifically objected to the so-called “Superseding Master Consolidated Class Action Complaint. See Record Document No. 3469, and Argument in part III, infra.

18 of Levee Boards. However, that argument by the Board in no way addressed the Board’s participation in the Industrial Canal Lock Replacement Project in which the Board of Commissioners for the Port of New Orleans was specifically named by the State of Louisiana as the “Local Sponsor”, with attendant duties, obligations and responsibilities, legal and otherwise, to third-parties such as plaintiffs/appellants.

4. While the Board correctly defined some of

the standards for deciding Rule 12 (c) motions, it failed to address other standards which, if they had been considered by the District Judge, would have required denial of the Board’s Motion for Judgment on the Pleadings.

The Industrial Canal, as well as the many terminal facilities lining both the East and West sides of the Canal, which are owned, operated or leased by the Board of Commissioners for the Port of New Orleans, are described at length in United States Coast Pilot 5 (30th Edition), published by the National Ocean Service and the National Oceanic and Atmospheric Administration, at pages 300 to 304. The Industrial Canal also is addressed at length and in meticulous detail in the “Final Report”, dated July 31, 2006, issued by the “Independent Levee Investigation Team”, entitled: “Investigation of the Performance of the New Orleans Flood Protection Systems”, which is available at http://www.ce.berkeley.edu/~new_orleans/ (The ILIT Final Report will be referred to herein as “the

19 ILIT Report”). See pages 4-24 through 4-26 and 4-29 of the ILIT Report. A considerable number of breaches (or other “problems”) which caused flooding of property owned by plaintiffs/appellants on both sides of the Industrial Canal occurred during Hurricane KATRINA:

EAST SIDE OF THE INDUSTRIALEAST SIDE OF THE INDUSTRIALEAST SIDE OF THE INDUSTRIALEAST SIDE OF THE INDUSTRIAL CANALCANALCANALCANAL Two large breaches occurred on the East side of the Canal between the Claiborne Avenue and Florida Avenue Bridges. These two (2) breaches totally destroyed the Lower Ninth Ward. ILIT Report, pages 6-6 through 6-8, 6-15 through 6-20, 6-20 and 6-21, 11-10 through 11-12, and 15-3 and 15-4. WEST SIDE OF THE INDUSTRIALWEST SIDE OF THE INDUSTRIALWEST SIDE OF THE INDUSTRIALWEST SIDE OF THE INDUSTRIAL CANCANCANCANALALALAL

1) A significant breach on the West side

of the Canal “behind the main Port of New Orleans”, just to the South of the juncture of the Mississippi River Gulf Outlet an the Gulf Intracoastal Waterway, which run into the Industrial Canal. ILIT Report, pages 8-3 through 8-7, 8-9 and 8-10, and 11-12 through 11-14, and 15-3 and 15-4.

2) Significant erosional distress at a

concrete I-wall and floodgate structure “behind the Port of New Orleans”, a few hundred yards to the South of the breach described in no. 1,

20 supra. ILIT Report, pages 8-8 through 8-10, 11-12 through 11-14, and 15-3 and 15-4.

3) Two (2) adjacent erosional

embankment breaches at the North end of “the Port of New Orleans” on the West side of the canal. ILIT Report, pages 8-8 through 8-10, 11-12 through 11-14, and 15-3 and 15-4.

4) A washed out so-called “levee” section

in way of the CSX railroad tracks on the West side of the canal immediately to the South of the I-10 Highway Bridge. ILIT Report, pages 8-4 and 8-5, 8-9 and 8-10, 11-12 through 11-14, and 15-3 and 15-4.

The “Independent Levee Investigation Team” concluded that, notwithstanding the fact that the West side breaches (or other “problems”) which caused flooding were not as catastrophic to the City of New Orleans as the East side breaches were to the Lower Ninth Ward, the “issues” on the West side definitely caused flooding which resulted in legally recoverable damages to plaintiffs/appellants:

The breaches along the west bank of the IHNC were each “non catastrophic” as none of them eroded or scoured to such depth that their lip dropped below mean sea level. Accordingly, although they admitted significant volumes of floodwaters into the greater Orleans East Bank (downtown) protected area, these

21 flows eventually ceased as the storm surge subsided. Together, these features appear to have contributed approximately 10% to 20% of the overall volume of floodwaters that eventually flowed into the Orleans East Bank (downtown) protected area. ILIT Report, page 8-9. (emphasis added).

In his Order and Reasons the District Judge essentially said as follows:

1. “No opposition to this motion [the Board’s Motion for Judgment on the Pleadings] has been filed and as such the motion can be granted as unopposed.”

2. The District Judge believed that LSA-

R.S. 9:2800 (H)(1 through 4) barred claims for damages arising from Hurricanes KATRINA or RITA against public entities, “except for gross negligence and willful and wanton misconduct”. In so ruling, the District Judge made no reference to plaintiffs’/appellants’ specific allegations of gross negligence and willful and wanton misconduct in Civil Action Nos. 06-4389 and 06-5786, not to mention their allegations of the unconstitutionality of State ex-post-facto “immunity” statutes. Additionally, LSA-R.S. 9:2800 (h) has since been ruled to be unconstitutional. See Burmaster v. Plaquemines Parish Government, Case No. 2007-CA-2432, decided by the

22 Louisiana Supreme Court on May 21, 2008.

3. The District Judge said “Maintenance of

the levees involved” fall under the jurisdiction of a Levee Board or Boards, not the Board of Commissioners for the Port of New Orleans. Of course, this erroneous conclusion ignored the fact that plaintiffs’/appellants’ allegations against the Port Board were much broader than “levees”, and totally ignored the Board’s participation as the Local Sponsor for the Industrial Canal Lock Replacement Project.

4. The District Judge also did not even

consider the fact that plaintiffs/appellants were entitled to leave to amend their pleadings (assuming for argumentative purposes that they were insufficient, which is denied, as an alternative to dismissal.

Plaintiffs/appellants are aggrieved by the one-dimensional arguments advanced by the Board, and by the District Judge’s erroneous decision, and his own one-dimensional unwarranted conclusions on which he based his erroneous decision, and want the dismissal of their claims against the Board of Commissioners for the Port of New Orleans reversed and their claims against the Board reinstated.

23 REASONS FOR GRANTING THE PETITION

(a) The integrity of the underlying

litigation has been irreparably

corrupted, both in the District Court

and in the Court of Appeals, by

judicial misconduct on the part

Federal Judges and other Federal

Court Officials.

This Honorable Court has stated that “the protection of the integrity and dignity of the judicial process from any hint or appearance of bias” is “the palladium of our judicial system”. Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988). As the Court will note from the Questions Presented in this case and from the issues raised in the Petition for rehearing in case No. 08-883 on the docket of this Court, the underlying litigation has been hopelessly CORRUPTED at both the District Court and Court of Appeals levels, primarily stemming from one individual, Calvin Clifford Fayard, Jr., and his “close personal relationship of long-standing” with the District Judge and his representation of the State of Louisiana while simultaneously serving on Committees and Sub-Committees in the litigation, appointed by the District Judge. This disgraceful “dual representation” has been ignored by the District Judge and by the Judges of the Court of Appeals, in violation of Code of Conduct for United States Judges and mores of propriety involving legal and judicial ethics. This Honorable Court should exercise supervisory jurisdiction over this case in order that the confidence of the public in the integrity of the judicial system may

24 be preserved, rather than shaken to its very foundations

There are a number of reasons for granting the Petition, each (addressed infra), involving departures from the accepted and usual course of judicial proceedings in District Courts and in Courts of Appeal, as to call for an exercise of this Court’s supervisory power:

b) The integrity of the underlying

litigation is at issue.

The first question presented for review was framed in the District Court as follows:

“The integrity of this litigation which has been called into question by virtue of an extra-judicial source of bias and prejudice, arising out of the Court’s long-time friendship with Mr. Fayard, whose professional ethics and professional integrity have been placed at issue in this litigation as a result of his Membership on Committees while simultaneously representing the interests of the State of Louisiana, and failing to disclose his relationship with the State to the Court or to other counsel prior to August 29, 2007.” Record Document No. 11317 and related Record Documents.

Amplification on this most serious issue can be found in Record Document No. 10910 and in the pleadings filed in Civil Action No. 08-1127 in the United States District Court for the Eastern District of

25 Louisiana, and in the Record Documents specifically identified in that civil action. With “the protection of the integrity and dignity of the judicial process from any hint or appearance of bias” being “the palladium of our judicial system”, Petitioner respectfully submit that that protection requires the exercise of this Court’s supervisory power in this case. “The guiding consideration is that the administration of justice should reasonably appear to be disinterested as well as be so in fact.” Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988) and cases cited therein. MAY IT PLEASE THE COURT:MAY IT PLEASE THE COURT:MAY IT PLEASE THE COURT:MAY IT PLEASE THE COURT:

CCCC HAD HE APPLIED THE CORRECTHAD HE APPLIED THE CORRECTHAD HE APPLIED THE CORRECTHAD HE APPLIED THE CORRECT LEGAL STANDARDS TO THELEGAL STANDARDS TO THELEGAL STANDARDS TO THELEGAL STANDARDS TO THE FACTS, THEN THE DISTRICTFACTS, THEN THE DISTRICTFACTS, THEN THE DISTRICTFACTS, THEN THE DISTRICT JUDGE WOULD NEVER HAVEJUDGE WOULD NEVER HAVEJUDGE WOULD NEVER HAVEJUDGE WOULD NEVER HAVE GRANTED THE BOARD’S MOTIONGRANTED THE BOARD’S MOTIONGRANTED THE BOARD’S MOTIONGRANTED THE BOARD’S MOTION FOR JUDGMENT ON THEFOR JUDGMENT ON THEFOR JUDGMENT ON THEFOR JUDGMENT ON THE PLEADINGSPLEADINGSPLEADINGSPLEADINGS

Plaintiffs/appellants do not disagree with the law as was set forth by the Board and its lawyers in their Memorandum in Support of the Motion for Judgment on the Pleadings, namely the summation that:

In deciding a motion for judgment on the pleadings under FRCP 12(c), the U.S. Fifth Circuit has outlined the following procedure: The standard for dismissal under Rule 12(c) is the same as that for dismissal for failure to state a claim under Rule 12(b)(6). We accept the

26 complaint’s well-pleaded facts as true and view them in the light most favorable to the plaintiff. The motion to dismiss should not be granted unless the plaintiff would not be entitled to relief under any set of facts that he could prove consistent with the complaint. Johnson v. Johnson, 385 F.3d 503, 529 (5th Cir. 2004).

Indeed, Rule 12(c), FRCP, specifically states as follows:

1. Motion for Judgment on the PleadingsMotion for Judgment on the PleadingsMotion for Judgment on the PleadingsMotion for Judgment on the Pleadings. After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

Plaintiffs/appellants (and we are sure the Board and its lawyers, as well) concede that the application of the Rule was modified fairly recently by the United States Supreme Court in Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955 (May 21, 2007). However, plaintiffs/appellants aver that even under Bell Atlantic Corp. v. Twombly, supra, their pleadings were more than sufficient, and the Board’s motion would never have been granted if plaintiffs’/appellants’ allegations against the Board had been considered by the District Judge.

27 Plaintiffs/appellants also are aggrieved by the fact that the Board did not disclose all of the necessary facts to the District Judge (perhaps because counsel at the time the Board’s motion was filed did not know all of the facts, although his client clearly knew the facts), and the District Judge made erroneous conclusions about the facts he thought he knew, which were totally wrong, simultaneously ignoring the allegations of plaintiffs’/appellants’ well-pleaded Complaint and Petition in Civil Action Nos. 06-4389 and 06-5786. As was alluded to in the Statement of Facts, supra, pages 12, et seq., it was only in late 2007, when dealing with motions involving defendant Washington Group International, Inc., including a Rule 12(b)(6) Motion to Dismiss by Washington Group, that the impact of “the Industrial Canal Lock Replacement Project”, in which the Board of Commissioners for the Port of New Orleans is the Local Sponsor, appointed by the State of Louisiana, on the breaches which occurred on the East side of the Industrial Canal, between the Florida Avenue and Claiborne Avenue bridges,3 became apparent. It now appears that the work done by the Board in connection with the Lock Replacement Project involved replacement of the Florida Avenue Bridge, which plaintiffs/appellants aver contributed to breaches which occurred on the West side of the Industrial Canal, as well, thus contributing to the flooding of the Lower Ninth Ward and New Orleans proper. More particularly, there was a large sewer pipe which traversed the canal immediately south of the original Florida Avenue Bridge, which had to be removed in connection with the demolition of the old

3 The Florida Avenue bridge is the “blue” bridge which can be plainly seen from tall buildings across the New Orleans skyline.

28 bridge and construction of the new bridge. As was the case with respect to the extensive excavations and sump holes dug by Washington Group in the “East Bank Industrial Area” prior to Hurricane KATRINA (see Record Document Nos. 8599, 8852, 8954, 9000, 9237, 9464 9469, 10240 and 10271), the excavations and holes and dug by the Board in connection with the removal of the sewer pipe, demolition of the old Florida Avenue Bridge and construction of the new (the “blue”) bridge contributed to the breaches that developed on the East side of the canal South of the Florida Avenue Bridge, and to the breaches that developed on the West side of the canal both North and South of the Florida Avenue Bridge. In no event should plaintiffs’ claims against the Board have been dismissed on the papers, which plaintiffs/appellants aver occurred not only because the facts were not considered to the District Judge, but also because the District Judge thought he knew the facts when he did not know them at all, and made totally unwarranted assumptions about what the facts were, ignoring plaintiffs/appellants allegations in their pleadings entirely. Alternatively, plaintiffs/appellants aver that they should have been granted leave to amend their pleadings as an alternative to dismissal of their claims, for as is stated in Federal Procedure, Lawyers Edition (1984), 62:470, and authorities cited therein:

“It is generally agreed, however, that the plaintiff should be given a chance to amend a complaint which fails to state a claim upon which relief can be granted. In order for the court to dismiss without giving the plaintiff an opportunity to amend, it must appear that the

29 claim for relief does not exist, rather than that the claim has been defectively stated.”

DDDD THE STATE STATUTE RELIEDTHE STATE STATUTE RELIEDTHE STATE STATUTE RELIEDTHE STATE STATUTE RELIED UPON BY THE DISTRICT JUDGEUPON BY THE DISTRICT JUDGEUPON BY THE DISTRICT JUDGEUPON BY THE DISTRICT JUDGE HAS SINCE BEEN RULEDHAS SINCE BEEN RULEDHAS SINCE BEEN RULEDHAS SINCE BEEN RULED UNCONSTITUTIONALUNCONSTITUTIONALUNCONSTITUTIONALUNCONSTITUTIONAL

In the Order and Reasons appealed from (Record Document No. 8389), the District Judge cited LSA-R.S. 9:2800 (H) (1 through 4), which is an ex post facto statute passed by the Louisiana Legislature AFTER Hurricane’s KATRINA and RITA, as authority for his erroneous statement: “By operation of this statute, all claims for defalcations arising from the garde of any levee or flood gates are barred if brought against a public body.” The case cited in footnote no. 1 of the District Judge’s Order and Reasons of October 11, 2007, namely Burmaster v. Plaquemines Parish Government, Case No. 2007-CA-2432, decided by the Louisiana Supreme Court on May 21, 2008, specifically determined LSA-R.S. 9:2800 (H) to be unconstitutional.

E.E.E.E. THE PLAINTIFFS’ LIAISONTHE PLAINTIFFS’ LIAISONTHE PLAINTIFFS’ LIAISONTHE PLAINTIFFS’ LIAISON COMMITTEE DID NOT OPPOSECOMMITTEE DID NOT OPPOSECOMMITTEE DID NOT OPPOSECOMMITTEE DID NOT OPPOSE THE BOARD’S MOTION FORTHE BOARD’S MOTION FORTHE BOARD’S MOTION FORTHE BOARD’S MOTION FOR JUDGMEN TON THE PLEADINGSJUDGMEN TON THE PLEADINGSJUDGMEN TON THE PLEADINGSJUDGMEN TON THE PLEADINGS BECAUSE CERTAIN MEMBERSBECAUSE CERTAIN MEMBERSBECAUSE CERTAIN MEMBERSBECAUSE CERTAIN MEMBERS WEWEWEWERE PROTECTING THEIRRE PROTECTING THEIRRE PROTECTING THEIRRE PROTECTING THEIR “OTHER” CLIENT, THE STATE OF“OTHER” CLIENT, THE STATE OF“OTHER” CLIENT, THE STATE OF“OTHER” CLIENT, THE STATE OF LOUISIANALOUISIANALOUISIANALOUISIANA

30 Following the filing of the Superseding Master Consolidated Class Action Complaint by the Plaintiffs’ Liaison Committee on March 15, 2007, undersigned counsel for plaintiffs/appellants in Civil Action Nos. 06-4389 and 06-5786 filed a pleading entitled: “Certain Plaintiffs’ Notice of Objection to the Superseding Master Consolidated Class Action Complaint” (Record Document No. 3469, filed on March 21, 2007. That pleading, to which was attached two (2) Exhibits, reflected as follows:

CERTAIN PLAINTIFFS’ NOTICE OF

OBJECTION TO THE SUPERSEDING MASTER

CONSOLIDATED CLASS ACTION COMPLAINT

COME NOW, plaintiffs in the above-styled and numbered cause(s), appearing through undersigned counsel, and object to certain contents of the Superseding Master Consolidated Class Action Complaint (Record Document No. 3420), filed of record in these proceedings on March 15, 2007,upon the following grounds, to-wit:

1. Neither This Honorable Court nor any member of the Plaintiffs’ Liaison Committee, nor any member of the “Levee Plaintiffs’ Subgroup Litigation Committee”, has the authority to cause to be filed any pleading which supersedes or replaces any pleading previously filed on behalf of the plaintiffs named in the proceedings identified, supra.

31 2. Undersigned counsel for

plaintiffs was given one (1) hour’s notice of the filing of the proposed Superseding Master Consolidated Class Action Complaint, and was not consulted by anyone with respect to the contents of the said “Master” Complaint.

3. Plaintiffs’ objection to certain of the contents of the Superseding Master Consolidated Class Action Complaint was promulgated to the Plaintiffs’ Liaison Committee and to the Levee Plaintiffs’ Subgroup Litigation Committee. See exchange of E-mail messages dated March 15, 2007, attached as Exhibit No. 1.

4. Notwithstanding plaintiffs’ objection, the Superseding Master Consolidated Class Action Complaint was filed anyway, with the objected-to language, and more particularly the following:

(a) Use the word “superseding”; and

(b) “The instant Complaint, mandated by Case Management Order No. 4 on March 1, 2007, is intended to supersede and replace all class action complaints arising from the catastrophe which previously have been filed in or transferred to this Section of Court, and placed within the “Levee” category of cases.”

32 See E-mail dated March 19, 2007, attached as Exhibit No. 2. Accordingly, plaintiffs object.

Civil Action Nos. 06-4389 and 06-5786 were specifically referenced in the Notice of Objection (Record Document No. 3469). In point of fact, undersigned counsel was “prescient” when he filed the Notice of Objection, because on August 29, 2007, the names of certain Committee and Sub-Committees Members showed up as counsel of record on pleadings filed on behalf of the State of Louisiana, asserting claims against the Federal Government on behalf of the State totaling $200 billion in property damages allegedly sustained by the State during Hurricane KATRINA. This clearly unethical “dual representation”, which presents certain Committee and Sub-Committee Members with a clear irreconcilable conflict of interests, had been concealed from the other litigants and their lawyers until KATRINA’s second anniversary, and is more particularly addressed in undersigned counsel’s Main Brief in Case No. 08-30438, which is currently pending on the docket of This Honorable Court, and which was filed of record in this Court on July 15, 2008.

F.F.F.F. THE DISTRICT JUDGE’STHE DISTRICT JUDGE’STHE DISTRICT JUDGE’STHE DISTRICT JUDGE’S ERRONEOUS SUERRONEOUS SUERRONEOUS SUERRONEOUS SUMMARYMMARYMMARYMMARY DECISION WAS MOTIVATED BYDECISION WAS MOTIVATED BYDECISION WAS MOTIVATED BYDECISION WAS MOTIVATED BY HIS PERSONAL BIAS ANDHIS PERSONAL BIAS ANDHIS PERSONAL BIAS ANDHIS PERSONAL BIAS AND PREJUDICE TO ASSIST HISPREJUDICE TO ASSIST HISPREJUDICE TO ASSIST HISPREJUDICE TO ASSIST HIS “CLOSE PERSONAL FRIEND OF“CLOSE PERSONAL FRIEND OF“CLOSE PERSONAL FRIEND OF“CLOSE PERSONAL FRIEND OF LONGLONGLONGLONG----STANDING”, CALVINSTANDING”, CALVINSTANDING”, CALVINSTANDING”, CALVIN FAYARD, AND MR. FAYARD’SFAYARD, AND MR. FAYARD’SFAYARD, AND MR. FAYARD’SFAYARD, AND MR. FAYARD’S

33 “OTHER” CLIENT, THE STATE OF“OTHER” CLIENT, THE STATE OF“OTHER” CLIENT, THE STATE OF“OTHER” CLIENT, THE STATE OF LOUISIANALOUISIANALOUISIANALOUISIANA

Although the precise “motivation” of the District Judge was unknown to undersigned counsel for plaintiffs/appellants when the Order and Reasons appealed from were entered on October 12, 2007, during the late Summer, Fall and Winter of 2007-2008, the true “picture” slowly but surely became “clear” to undersigned counsel. Once he learned precisely what he has been “fighting” for the past three (3) years, he not only filed a Motion to Disqualify certain Committee and Sub-Committee Members from serving on Committees in the “Victims of KATRINA” litigation (all addressed in Case No. 08-30438 in this Court), but he also filed an Affidavit of Personal Bias and Prejudice of a District Judge, subsequently filing a Motion for Recusal of the District Judge. (Record Document No. 10331). The pleadings addressing recusal of the District Judge are referenced in the appellant’s Main Brief in Case No. 08-30362, which was filed in This Honorable Court on August 25, 2008. See Argument at pages 12 through 14 of that Brief, and District Court pleadings referenced therein. To make a long story short, the undersigned’s affidavit was summarily found to be “untimely and insufficient”, and the Motion for Recusal was summarily denied.4 However, in making these rulings the District Judge failed to address the focal issue which the undersigned maintains warrants his recusal and reversal of the Judgment(s) in this case, namely:

4 Most recently the Motion for Disqualification of Counsel also was summarily denied.

34 “The integrity of all “Victims of KATRINA” litigation which has been called into question by virtue of an extra-judicial source of bias and prejudice, arising out of the Court’s long-time friendship with Mr. Fayard, whose professional ethics and professional integrity have been placed at issue in this litigation as a result of his Membership on Committees while simultaneously representing the interests of the State of Louisiana, and failing to disclose his relationship with the State to the Court or to other counsel prior to August 29, 2007.” Record Document No. 11317 and related Record Documents.

Similarly, the District Judge also has avoided affording undersigned counsel the opportunity for oral argument so that he could present to the District Judge the following unanswered question “on the record”, which has been addressed to the District Judge in pleadings and other writings filed of record in Victims of KATRINA and related litigation:

“When did Your Honor or any Member of Your Honor’s Staff first become aware of the representation of the State of Louisiana by Daniel Becnel and/or by Calvin Fayard concerning any KATRINA-related matters?

Obviously, at the time the Order and Reasons appealed from in this case was entered on October 12, 2007, the District Judge had such knowledge, and plaintiffs/appellants and their counsel aver that the summary granting of the Board’s Motion for Judgment on the Pleadings was motivated, at least in part, by the

35 District Judge’s desire to “help” his “close personal friend of long-standing”, Calvin Fayard, and Mr. Fayard’s “other” client, the State of Louisiana. This Honorable Court will recall that the Board of Commissioners for the Port of New Orleans is a political subdivision of the State of Louisiana, and that the State appointed the Board to be “the Local Sponsor” for the Industrial Canal Lock Replacement Project. Accordingly, plaintiffs/appellants and their counsel respectfully submit that how Mr. Fayard and his client, the State, were “benefited” by the dismissal of all claims against the Board should be obvious to anyone.

CONCLUSION

Had the District Judge bothered to consider the allegations of plaintiffs’/appellants’ pleadings against the Board, then he would never have granted the Board’s Motion for Judgment on the Pleadings or dismissed the claims of plaintiffs/appellants against the Board, with prejudice. Plaintiffs/appellants and their counsel reasonably assumed that they could rely on the “Plaintiffs’ Liaison Committee” to file an appropriate Memorandum in Opposition to the Board’s motion, particularly since the Board’s motion addressed only the “Superseding Master Consolidated Class Action Complaint”, which had been prepared and filed by the Plaintiffs’ Liaison Committee. However, the Plaintiffs’ Liaison Committee did not so do. It later became clear to undersigned counsel for plaintiffs/appellants that the reason the Plaintiffs’ Liaison Committee did not oppose the Board’s motion was to “go-in-the-tank” with respect to any and all claims against a political subdivision of the State of Louisiana, which some Committee and Sub-

36 Committee Members actually represent. When reasonable minds subject what transpired with respect to the claims against the Board, and the summary granting of the Board’s motion, plaintiffs/appellants and their counsel respectfully submit that those minds will conclude that, more likely than not, there was “hanky panky” at best, and something else at worse, warranting reversal of the erroneous decision to dismiss plaintiffs’/appellants’ claims against the Board of Commissioners for the Port of New Orleans. Alternatively, plaintiffs/appellants aver that they should have been allowed to amend their pleadings as an alternative to outright summary dismissal. For the above and foregoing reasons, Petitioners respectfully request the issuance of a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit. Respectfully submitted, MAUREEN O'DWYER; SALLY EGERTON RICHARDS; SHEILA JORDAN ; CHARLES EDWARD JORDAN; LETICIA BROWN Pro se c/o Brooks Bros., One Canal Place, Foot of Canal Street and the Missisippi River, New Orleans, La., 70130 tel. no. (504) 522-4200.

1a

IN RE: KATRINA CANAL BREACHES LITIGATION; MAUREEN O'DWYER et al., Plaintiffs-Appellants v. BOARD OF COMMISSIONERS OF THE PORT OF NEW ORLEANS, Defendant-Appellee

No. 08-30234

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

2009 U.S. App. LEXIS 2365

February 6, 2009, Filed

NOTICE:NOTICE:NOTICE:NOTICE: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

PRIOR HISTORY:PRIOR HISTORY:PRIOR HISTORY:PRIOR HISTORY: [*1] Appeal from the United States District Court for the Eastern District of Louisiana.

CCCCOUNSEL:OUNSEL:OUNSEL:OUNSEL: For MAUREEN O'DWYER, SALLY EGERTON RICHARDS, STEPHANIE PORTER, dba Interior Specialties LLC, SHEILA JORDAN JORDAN, CHARLES EDWARD JORDAN, ET AL, Plaintiffs - Appellants: Ashton R O'Dwyer, Jr, New Orleans, LA.

2a

For BOARD OF COMMISSIONERS OF THE PORT OF NEW ORLEANS, Defendant - Appellee: JohnJohnJohnJohn Fredrick KessenichFredrick KessenichFredrick KessenichFredrick Kessenich, JonathanJonathanJonathanJonathan H SandozH SandozH SandozH Sandoz, Kirk NKirk NKirk NKirk N AurandtAurandtAurandtAurandt, Daigle Fisse & Kessenich, Madisonville, LA.

JUDGES:JUDGES:JUDGES:JUDGES: Before GARWOOD, DENNIS, and PRADO, Circuit Judges.

OPINIONOPINIONOPINIONOPINION PER CURIAM: * - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -* Pursuant to 5TH CIR. R. 47.55TH CIR. R. 47.55TH CIR. R. 47.55TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.45TH CIR. R. 47.5.45TH CIR. R. 47.5.45TH CIR. R. 47.5.4. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - Plaintiffs-Appellants Maureen O'Dwyer et al. ("O'Dwyer") appeal the district court's grant of Rule 12(c) judgment on the pleadings in favor of Defendant-Appellee Board of Commissioners of the Port of New Orleans ("the Port"). O'Dwyer's appeal is without merit because it attempts to argue (1) an issue that was not raised or ruled upon below; and (2) an issue that relates to an alternative ground not essential to the district court's decision. Accordingly, we affirm the district [*2] court's judgment. On August 17, 2006, O'Dwyer filed a class action lawsuit in the Eastern District of Louisiana seeking to recover damages for the levee breaches and flooding caused by Hurricane Katrina; the Port was among the many

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defendants named in this suit. O'Dwyer's suit was consolidated within the In re: Katrina Canal Breaches Litigation umbrella, and the claims at issue here were assigned to the "Levee" category. On March 1, 2007, the district court issued Case Management Order No. 4 pursuant to FedFedFedFederal Rule oferal Rule oferal Rule oferal Rule of Civil Procedure 16Civil Procedure 16Civil Procedure 16Civil Procedure 16. This pre-trial order directed all class-action plaintiffs in the Levee category ("Levee Plaintiffs") to file a single Master Consolidated Class Action Complaint ("Master Complaint"). The order specifically stated that the Master Complaint "shall supersede and replace all previously filed class action complaints." The Levee Plaintiffs complied with the order and filed a Master Complaint, which alleged that the Port held full responsibility and duty for the design, construction, and maintenance of certain levees in New Orleans and that the Port was therefore liable for any flood damage attributable to the failure of those levees. O'Dwyer filed a "Notice [*3] of Objection" to the Master Complaint, asserting that the district court did not have the authority to supersede O'Dwyer's pleadings and objecting to the Master Complaint's use of the word "superseding." O'Dwyer offered no reasoning or authority in support of this objection. The Port filed an answer to the Master Complaint on March 30, 2007, and subsequently moved for judgment on the pleadings, seeking to dismiss all the Master Complaint's claims against the Port for failure to state a claim upon which relief could be granted. No party opposed the Port's motion. On October 12, 2007, the district court issued an order

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and reasons granting the Port's motion for judgment on the pleadings. The district court noted that the motion was unopposed and granted the motion on the ground that the Port had no duties or responsibilities under Louisiana law with respect to levee maintenance or flood control; rather, the court held that La. Rev. Stat.La. Rev. Stat.La. Rev. Stat.La. Rev. Stat. § 38:307§ 38:307§ 38:307§ 38:307 vested such duties and responsibilities exclusively in another state agency, the Orleans Levee District. No party filed a motion for reconsideration or a new trial in response to the district court's grant of the Port's motion for judgment on [*4] the pleadings, and on November 7, 2007, the Port filed a motion for entry of final judgment under Rule 54(b)Rule 54(b)Rule 54(b)Rule 54(b). Again, no party opposed the motion. Thus, on January 15, 2008, for the reasons stated in its order and reasons dated October 12, 2007, the district court entered judgment dismissing with prejudice the claims by O'Dwyer and others against the Port. O'Dwyer timely appealed, and we now affirm. O'Dwyer argues that the district court erred in granting judgment on the pleadings because it failed to consider the arguments presented in O'Dwyer's individual complaint but not presented in the Master Complaint. However, this argument lacks merit because the Master Complaint, filed pursuant to the district court's Rule 16Rule 16Rule 16Rule 16 pre-trial order, superseded O'Dwyer's individual complaint. It is well settled that "[o]nce the pretrial order is entered, it controls the course and scope of the proceedings under FederalFederalFederalFederal Rule of Civil Procedure 16(e)Rule of Civil Procedure 16(e)Rule of Civil Procedure 16(e)Rule of Civil Procedure 16(e), and if a claim or issue is omitted from the order, it is waived, even if it appeared in the complaint." Elvis PreElvis PreElvis PreElvis Presley Enters., Inc. v.sley Enters., Inc. v.sley Enters., Inc. v.sley Enters., Inc. v. Capece, 141 F.3d 188, 206 (5th Cir. 1998)Capece, 141 F.3d 188, 206 (5th Cir. 1998)Capece, 141 F.3d 188, 206 (5th Cir. 1998)Capece, 141 F.3d 188, 206 (5th Cir. 1998) (citing Valley Ranch Dev. Co. v. FDIC, 960 F.2d 550, 554Valley Ranch Dev. Co. v. FDIC, 960 F.2d 550, 554Valley Ranch Dev. Co. v. FDIC, 960 F.2d 550, 554Valley Ranch Dev. Co. v. FDIC, 960 F.2d 550, 554

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(5th Cir. 1992)(5th Cir. 1992)(5th Cir. 1992)(5th Cir. 1992); Flannery v. Carroll, 676 F.2d 126,Flannery v. Carroll, 676 F.2d 126,Flannery v. Carroll, 676 F.2d 126,Flannery v. Carroll, 676 F.2d 126, 129129129129----30 (5th Cir. 1982))30 (5th Cir. 1982))30 (5th Cir. 1982))30 (5th Cir. 1982)); [*5] see also Rockwell Int'lRockwell Int'lRockwell Int'lRockwell Int'l Corp. v. United States, 549 U.S. 457, 474, 127 S. Ct.Corp. v. United States, 549 U.S. 457, 474, 127 S. Ct.Corp. v. United States, 549 U.S. 457, 474, 127 S. Ct.Corp. v. United States, 549 U.S. 457, 474, 127 S. Ct. 1397, 167 L. Ed. 2d 191397, 167 L. Ed. 2d 191397, 167 L. Ed. 2d 191397, 167 L. Ed. 2d 190 (2007)0 (2007)0 (2007)0 (2007) ("Here, we have not only an amended complaint, but a final pretrial order that superseded all prior pleadings and 'controll[ed] the subsequent course of the action'") (citing Fed. R. Civ.Fed. R. Civ.Fed. R. Civ.Fed. R. Civ. P. 16(e)P. 16(e)P. 16(e)P. 16(e); Wilson v. Muckala, 303 F.3d 1207, 1215Wilson v. Muckala, 303 F.3d 1207, 1215Wilson v. Muckala, 303 F.3d 1207, 1215Wilson v. Muckala, 303 F.3d 1207, 1215 (10th Cir. 2002)(10th Cir. 2002)(10th Cir. 2002)(10th Cir. 2002) ("[C]laims, issues, defenses, or theories of damages not included in the pretrial order are waived even if they appeared in the complaint . . . .")). Here, the district court entered a Rule 16Rule 16Rule 16Rule 16 pre-trial order stating that the Master Complaint "shall supersede and replace all previously filed class action complaints." Thus, O'Dwyer's individual complaint was superseded, and, contrary to O'Dwyer's assertions, any arguments or claims that appear in O'Dwyer's individual complaint but not in the Master Complaint were waived and cannot be considered on appeal. n1 See, e.g., Am. Rice, Inc. v. Producers Rice Mill, Inc.,Am. Rice, Inc. v. Producers Rice Mill, Inc.,Am. Rice, Inc. v. Producers Rice Mill, Inc.,Am. Rice, Inc. v. Producers Rice Mill, Inc., 518 F.3d 321, 335 (5th Cir. 2008)518 F.3d 321, 335 (5th Cir. 2008)518 F.3d 321, 335 (5th Cir. 2008)518 F.3d 321, 335 (5th Cir. 2008) ("If a claim or issue is omitted from the [pretrial] order, it is waived . . . ." (alteration in original)); Arsement v. SpinnakerArsement v. SpinnakerArsement v. SpinnakerArsement v. Spinnaker Exploration Co., LLC, 400 F.3d 238, 245 (5th Cir.Exploration Co., LLC, 400 F.3d 238, 245 (5th Cir.Exploration Co., LLC, 400 F.3d 238, 245 (5th Cir.Exploration Co., LLC, 400 F.3d 238, 245 (5th Cir. 2005)2005)2005)2005) ("It goes without saying that a pre-trial [*6] order controls the scope and course of trial; a claim or issue not included in the order is waived . . . ."); ElvisElvisElvisElvis Presley Enters., 141 F.3d at 206Presley Enters., 141 F.3d at 206Presley Enters., 141 F.3d at 206Presley Enters., 141 F.3d at 206. n2 - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1 Even if we were to consider the allegations in O'Dwyer's individual complaint, we would still find that the district court properly granted judgment on the pleadings because the allegations in O'Dwyer's

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individual complaint do not differ materially from those in the Master Complaint, which, as discussed infra, were properly dismissed in light of La. Rev. Stat. §La. Rev. Stat. §La. Rev. Stat. §La. Rev. Stat. § 38:30738:30738:30738:307.2 Alternatively, O'Dwyer contends that the district court should have allowed amendment of O'Dwyer's individual complaint before granting the Port's motion for judgment on the pleadings. However, this argument again fails to understand that the Master Complaint, rather than O'Dwyer's individual complaint, was the relevant document for the district court to consider in evaluating whether judgment on the pleadings was proper. To the extent that O'Dwyer argues that the district court erred in not permitting amendment to the Master Complaint, such an argument is waived because neither O'Dwyer nor any other plaintiff filed before the district court a motion to amend the Master [*7] Complaint or a motion for reconsideration of the district court's judgment on the pleadings. See Nichols v.Nichols v.Nichols v.Nichols v. Enterasys Networks, Inc., 495 F.3d 185, 189 (5thEnterasys Networks, Inc., 495 F.3d 185, 189 (5thEnterasys Networks, Inc., 495 F.3d 185, 189 (5thEnterasys Networks, Inc., 495 F.3d 185, 189 (5th Cir. 2007)Cir. 2007)Cir. 2007)Cir. 2007) ("As the issue has not been clearly raised in front of the district court, it cannot be considered on appeal."); FDIC v. Mijalis, 15 F.3d 1314, 1327 (5thFDIC v. Mijalis, 15 F.3d 1314, 1327 (5thFDIC v. Mijalis, 15 F.3d 1314, 1327 (5thFDIC v. Mijalis, 15 F.3d 1314, 1327 (5th Cir. 1994)Cir. 1994)Cir. 1994)Cir. 1994) ("[I]f a litigant desires to preserve an argument for appeal, the litigant must press and not merely intimate the argument during the proceedings before the district court. If an argument is not raised to such a degree that the district court has an opportunity to rule on it, we will not address it on appeal."). - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - We decline to address O'Dwyer's argument that the district court erred in alternatively basing its decision upon La. Rev. Stat. § 9:2800(H)La. Rev. Stat. § 9:2800(H)La. Rev. Stat. § 9:2800(H)La. Rev. Stat. § 9:2800(H). As an independent

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ground for granting the Port's motion, the district court relied on La. Rev. Stat. § 38:307La. Rev. Stat. § 38:307La. Rev. Stat. § 38:307La. Rev. Stat. § 38:307, which gives the Orleans Levee District, not the Port, "full and exclusive right, jurisdiction, power, and authority to locate, relocate, construct, maintain, extend, and improve levees, embankments, seawalls, jetties, breakwaters, water-basins, and other works in relation to such projects." La. Rev. Stat. § 38:307La. Rev. Stat. § 38:307La. Rev. Stat. § 38:307La. Rev. Stat. § 38:307 [*8] (emphasis added). Based on § 38:307§ 38:307§ 38:307§ 38:307, the district court concluded that the Levee Plaintiffs could prove no set of facts showing, as the Master Complaint alleged, that the Port was responsible and liable for the design, construction, maintenance, or failure of the levees and floodgates. We agree, and we hold that because the district court properly granted the Port's motion under § 38:307§ 38:307§ 38:307§ 38:307, any error in its alternative reliance on §§§§ 9:2800(H)9:2800(H)9:2800(H)9:2800(H) would be harmless. Finally, O'Dwyer argues that the district court and the attorneys primarily responsible for producing the Master Complaint were improperly motivated by conflicts of interest and personal bias. However, these issues are not properly presented in this appeal because O'Dwyer did not include them in her notice of appeal. Cf. In re Katrina Canal BrIn re Katrina Canal BrIn re Katrina Canal BrIn re Katrina Canal Breaches Litig., No. 08eaches Litig., No. 08eaches Litig., No. 08eaches Litig., No. 08----30362, 2008 U.S. App. LEXIS 24492, 2008 WL30362, 2008 U.S. App. LEXIS 24492, 2008 WL30362, 2008 U.S. App. LEXIS 24492, 2008 WL30362, 2008 U.S. App. LEXIS 24492, 2008 WL 5069808 at *1 (5th Cir. 2008)5069808 at *1 (5th Cir. 2008)5069808 at *1 (5th Cir. 2008)5069808 at *1 (5th Cir. 2008) (unpublished per curiam) ("O'Dwyer has filed, and the district court denied, two motions to recuse the district judge. Neither of the motions to recuse is part of this appeal. . . . We will not address issues that are not relevant to this appeal."). For these reasons, the judgment of the district court is AFFIRMED.

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Exhibit 1 US Court of Appeals for the FifthExhibit 1 US Court of Appeals for the FifthExhibit 1 US Court of Appeals for the FifthExhibit 1 US Court of Appeals for the Fifth Circuit, Complaint(s) of Judicial Misconduct filedCircuit, Complaint(s) of Judicial Misconduct filedCircuit, Complaint(s) of Judicial Misconduct filedCircuit, Complaint(s) of Judicial Misconduct filed 4/14/14/14/14/20094/20094/20094/2009


COMES NOW Ashton R. O’Dwyer, Jr., appearing in propria persona pursuant to the provisions of the “Rules Governing Complaints of Judicial Misconduct,” who does declare under penalty of perjury, pursuant to the provisions of 28U.S.C. §1746, the truth and correctness of the following: 1. That the following Judges of the United States Court of Appeals for the Fifth Circuit1 are guilty of judicial misconduct by virtue of the violation of their oath of office, violation of the Canons contained in the “Code of Conduct for United States Judges,” as well as conspiracy to commit same: James L. Dennis in Case Nos. 08-30052, 07-30349, and 08-30362; Rhesa H. Barksdale in Case No. 08-30052; Emilio M. Garza in Case No. 08-30052; Thomas M. Reavely in Case No. 08-30052; Carolyn Dineen King in Case Nos. 07-30349 and 08-30362; and Jennifer Walker Elrod in Case Nos. 07-30349 and 08-30362.

1 Complainant acknowledges the probability that other Federal officials, such as members of the Court’s or the Judges’ Staff, are also guilty of misconduct; however, no complaint against those officials is being made at this time.

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2. The misconduct complained of herein took place during the pendency of the referenced cases at New Orleans, Louisiana, and where the Judges maintain their offices, if elsewhere than New Orleans. 3. The misconduct complained of herein consisted of prohibited ex parte communications between and among the Judges identified herein and all or some of the following, which communications were known by the Judges to be prohibited, because they involved the merits of the cases identified herein and how the outcome(s) in those cases could be improvidently influenced by others: a) One or more members of the Louisiana Supreme Court, including particularly, but without limitation, now Chief Justice Catherine D. Kimball, and/or her surrogates, and/or the surrogates of other members of the Louisiana Supreme Court; b) One or more employees of the Office of Disciplinary Counsel for the Louisiana Supreme Court, including particularly, but without limitation, Chief Disciplinary Counsel Charles B. Plattsmier, Jr., and/or his surrogates, and/or the surrogates of other employees of the Office of Disciplinary Counsel; c) Employees of the State of Louisiana, including particularly, but without limitation, employees of the Louisiana Department of Justice and/or State employees within the Executive, Judicial and/or Legislative Branches of Louisiana State Government, and/or their surrogates;

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d) Members of the Plaintiffs’ Bar of the State of Louisiana, including particularly, but without limitation, those Members of the Plaintiffs’ Bar who represent the interests of plaintiffs, claimants and potential class members in the “Victims of KATRINA” litigation pending in the United States District Court for the Eastern District of Louisiana, but who simultaneously represented the interests of the State of Louisiana between August 29, 2007 and October 9, 2008, and/or Members of the Louisiana Bar who signed fee-sharing agreements with such Plaintiffs’ Bar members, and/or any of their surrogates; e) Members of the United States District Court for the Eastern District of Louisiana and/or Members of the Staff of that Court, including particularly, but without limitation, Stanwood R. Duval, Jr. and his spouse and law clerk, Janet Daley Duval, and/or their surrogates; and f) Other members of the United States Court of Appeals for the Fifth Circuit and/or their surrogates. 4. In support of these complaints of misconduct, and to specifically avoid running afoul of Rules 2(D) and 3(D) of the Rules Governing Complaints of Judicial Misconduct, Complainant incorporates herein by reference thereto the following Exhibits, copies of which will be submitted if requested by the Chief Judge: Exhibit No. 1 – Transcript of Statement given under Penalty of Perjury by Ashton R. O’Dwyer, Jr., to the Louisiana Department of Justice on October 14, 2005;

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Exhibit No. 2 – Record Document No. 114 in Civil Action 06-7280, in the Eastern District of Louisiana, being the Complaint in that action; Exhibit No. 3 – Sworn Affidavit of Complainant’s Law Enforcement Expert, David R. Kent, dated August 20, 2007; Exhibit No. 4 – Sworn Affidavit of Complainant’s Law Enforcement Expert, David R. Kent, directed to the issue of discovery dated, December 19, 2007; Exhibit No. 5 – Unsworn Declaration Under Penalty of Perjury made pursuant to 28 U.S.C. §1746 by Complainant’s Law Enforcement Expert, David R. Kent, on March 4, 2009; Exhibit No. 6 – Complainant’s Un-refuted Motion to Strike False and Defamatory Allegations in Case No. 08-30052; Exhibit No. 7 – Judge Dennis’ Order of September 22, 2008, summarily denying Exhibit No. 6; Exhibit No. 8 – Complainant’s Motion for Disclosure in Case No. 08-30052; Exhibit No. 9 – Complainant’s E-mail to Deputy Clerk Michael Brown, in Case No. 08-30052, referencing Complainant’s Motion for Disclosure by Judge Dennis; Exhibit No. 10 – The Court’s Order of December 18, 2008, summarily denying Exhibit No. 8; Exhibit No. 11 – Complainant’s correspondence in Case

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No. 08-30052 to the Clerk of the 5th Circuit dated September 24, 2008; Exhibit No. 12 – Complainant’s November 10, 2008 correspondence in Case No. 08-30052 to the Clerk of 5th Circuit; and Exhibit No. 13 – Complainant’s Petition for Panel Rehearing and/or for Rehearing En Banc in Case No. 08-30052, together with attached Exhibits. Complainant avers that the Chief Judge should not act on the complaints alleged herein without review of the Exhibits identified supra, which Complainant is prepared to submit to the Chief Judge, if requested, but which are not attached hereto in order to avoid running afoul of the provisions of Rules 2(D) and 3(D) of the Rules Governing Complaints of Judicial Misconduct. 5. Complainant further avers that the Court’s decisions in Case Nos. 08-20052, 07-30349 and 08-30362 were the result of judicial misconduct, and at least peripherally related to the following issues in Civil Action No. 06-7280 and 05-4182 (and consolidated cases) pending in the United States District Court for the Eastern District of Louisiana: 1) A criminal gangland-style “hit” which was executed by the Louisiana State Police against Complainant at five minutes past midnight on September 20, 2005, on orders from persons employed by the Louisiana Department of Justice, by the Louisiana Supreme Court and by the Office of Disciplinary Counsel for the Louisiana Supreme Court;

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6. By virtue of their having participated in prohibited ex parte communications as described, supra, and allowing those communications to influence their decision-making on the merits in the referenced cases, the Judges identified herein each violated the following Canons contained in the Code of Conduct for United States Judges: Canon 1Canon 1Canon 1Canon 1 - was violated by each of the accused Judges, who made a mockery of the terms “independent,” 2 This issue is articulately pleaded in Civil Action N0. 08-4728 on the Eastern District docket. 3 Ibid.

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“honorable,” “justice,” “high standards of conduct,” and “integrity,” as a result of the misconduct alleged herein. Canon 2(A)Canon 2(A)Canon 2(A)Canon 2(A) - was violated by each of the accused Judges, because they neither respected nor complied with the law, and because the misconduct alleged herein is the antithesis of acting “at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Canon 2(B)Canon 2(B)Canon 2(B)Canon 2(B) - was violated by each of the accused Judges, because they allowed social or other relationships to influence their judicial conduct and judgment, and because they not only conveyed to others the impression that they were in a special position of influence, and did nothing to stop that impression, but then acted in an official capacity to advance the private interests of others. Canon 3(A)(1)Canon 3(A)(1)Canon 3(A)(1)Canon 3(A)(1) - was violated by each of the accused Judges, because not only did they make a mockery of the terms “faithful” and “professional competence in the law,” but they permitted their decision-making to be dictated by partisan interests. Canon 3(A)(4)Canon 3(A)(4)Canon 3(A)(4)Canon 3(A)(4) - was violated by each of the accused Judges, because they engaged in prohibited ex parte communications with others on the merits, and procedures affecting the merits, of proceedings pending before them. Judges Dennis, Barksdale, Garza, and Reavely also violated Canon 3(A)(4) by conspiring with others to deny Complainant oral argument in Case No. 08-30052. Judges Dennis, King and Elrod also violated Canon 3(A)(4) by conspiring with others to deny Complainant oral argument in Case No. 08-30362. Canon 3(B)(1), (2), and (3)Canon 3(B)(1), (2), and (3)Canon 3(B)(1), (2), and (3)Canon 3(B)(1), (2), and (3) - were violated by each of the accused Judges, because they took no action after learning of misconduct by Brother and/or Sister Judges, Court officials and Staff, lawyers and others.

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8. More to the point, Complainant avers that although reasonable minds might conclude that the misconduct alleged herein is peripherally related to merits of the decisions in the referenced cases, Complainant specifically avers that his allegations of misconduct are NOT DIRECTLY RELATED TO the decisions in those cases, but rather to the lack of integrity of the accused Judges and of those who wrongfully influenced them.

9. Complainant avers that the Chief Judge should appoint a Special Committee (or Committees) to investigate these complaints and to make recommendations to the Judicial Council. Notwithstanding, this requested relief, Complainant avers that he has no confidence in the ability of the Chief Judge of the United States Court of Appeals for the Fifth Circuit, any Special Committee which may be appointed by the Chief Judge, or of the Judicial Council of the Fifth Circuit to competently, fairly and impartially investigate and decide the merits of the complaints of misconduct contained herein. In support of these assertions, Complainant refers to the 4 However, Complainant avers that judicial review of the erroneous decisions is absolutely warranted under the facts and circumstances.

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September 28, 2007 Order of Reprimand and Reasons by the Judicial Council in the matter involving former Judge Samuel B. Kent who, since the referenced Order of Reprimand and Reasons, and more particularly on February 23, 2009, pleaded guilty of one count of obstruction of justice, thus demonstrating the abject incompetency of the judicial misconduct process within the Fifth Circuit. Complainant further avers that any investigation(s) by the Special Committee or Committees should also include the appointment of competent forensic experts to analyze office computers, personal computers and blackberries, as well as telephone records, of the accused Judges and others, in order to “test” their answers to questions under oath with extrinsic electronic and documentary evidence.


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Exhibit 2 US Court of Appeals for the FifthUS Court of Appeals for the FifthUS Court of Appeals for the FifthUS Court of Appeals for the Fifth Circuit, Complaint(s) of Judicial Misconduct filedCircuit, Complaint(s) of Judicial Misconduct filedCircuit, Complaint(s) of Judicial Misconduct filedCircuit, Complaint(s) of Judicial Misconduct filed 4/16/094/16/094/16/094/16/09


COMES NOW Ashton R. O’Dwyer, Jr., appearing in propria persona pursuant to the provisions of the “Rules Governing Complaints of Judicial Misconduct,” who does declare under penalty of perjury, pursuant to the provisions of 28U.S.C. §1746, the truth and correctness of the following: 1. That the following Judges of the United States Court of Appeals for the Fifth Circuit5 are guilty of judicial misconduct by virtue of the violation of their oath of office, violation of the Canons contained in the “Code of Conduct for United States Judges,” as well as conspiracy to commit same: James L. Dennis6 in Case Nos. 06-30840, 06-30841, and 08-30234 Jacques L. Weiner, Jr., in Case No. 08-30234. W. Eugene Davis in Case Nos. 06-30840 and 06-30841. Edward C. Prado in Case No. 08-30234.

5 Complainant acknowledges the probability that other Federal officials, such as members of the Court’s or the Judges’ Staff, are also guilty of misconduct; however, no complaint against those officials is being made at this time. 6 Complaint(s) of Judicial Misconduct against Dennis were filed on April 14, 2009 in three other cases. The “common denominator” in the clear majority of cases in which Judicial Misconduct is complained about is the name “James L. Dennis,” which Complainant avers is a statistical impossibility unless Dennis is guilty of the conduct complained of herein beyond all reasonable doubt.

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Leslie L. Southwick in Case Nos. 06-30840 and 06-30841. Will Garwood in Case No. 08-30234. Ron Clark7 in Case Nos. 06-30840 and 06-03841. 2. The misconduct complained of herein took place during the pendency of the referenced cases at New Orleans, Louisiana, and where the Judges maintain their offices, if elsewhere than New Orleans. 3. The misconduct complained of herein took place during the pendency of the referenced cases at New Orleans, Louisiana, and where the Judges maintain their offices, if elsewhere than New Orleans. 4. The misconduct complained of herein consisted of prohibited ex parte communications between and among the Judges identified herein and all or some of the following, which communications were known by the Judges to be prohibited, because they involved the merits of the cases identified herein and how the outcome(s) in those cases could be improvidently influenced by others: g) One or more members of the Louisiana Supreme Court, including particularly, but without limitation, now Chief Justice Catherine D. Kimball, and/or her surrogates, and/or the surrogates of other members of the Louisiana Supreme Court;

7 District Judge from the Eastern District of Texas, who sat on the United States Court of Appeals for the 5th Circuit by designation.

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h) One or more employees of the Office of Disciplinary Counsel for the Louisiana Supreme Court, including particularly, but without limitation, Chief Disciplinary Counsel Charles B. Plattsmier, Jr., and/or his surrogates, and/or the surrogates of other employees of the Office of Disciplinary Counsel; i) Employees of the State of Louisiana, including particularly, but without limitation, employees of the Louisiana Department of Justice and/or State employees within the Executive, Judicial and/or Legislative Branches of Louisiana State Government, and/or their surrogates; j) Members of the Plaintiffs’ Bar of the State of Louisiana, including particularly, but without limitation, those Members of the Plaintiffs’ Bar who represent the interests of plaintiffs, claimants and potential class members in the “Victims of KATRINA” litigation pending in the United States District Court for the Eastern District of Louisiana, but who simultaneously represented the interests of the State of Louisiana between August 29, 2007 and October 9, 2008, and/or Members of the Louisiana Bar who signed fee-sharing agreements with such Plaintiffs’ Bar members, and/or any of their surrogates; k) Members of the United States District Court for the Eastern District of Louisiana and/or Members of the Staff of that Court, including particularly, but without limitation, Stanwood R. Duval, Jr. and his spouse and law clerk, Janet Daley Duval, and/or their surrogates; and

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l) Other members of the United States Court of Appeals for the Fifth Circuit and/or their surrogates. 5. In support of these complaints of misconduct, and to specifically avoid running afoul of Rules 2(D) and 3(D) of the Rules Governing Complaints of Judicial Misconduct, Complainant incorporates herein by reference thereto the following Exhibits, copies of which will be submitted if requested by the Chief Judge: Exhibit No. 1 – Transcript of Statement given under Penalty of Perjury by Ashton R. O’Dwyer, Jr., to the Louisiana Department of Justice on October 14, 2005; Exhibit No. 2 – Record Document No. 114 in Civil Action 06-7280, in the Eastern District of Louisiana, being the Complaint in that action; Exhibit No. 3 – Sworn Affidavit of Complainant’s Law Enforcement Expert, David R. Kent, dated August 20, 2007; Exhibit No. 4 – Sworn Affidavit of Complainant’s Law Enforcement Expert, David R. Kent, directed to the issue of discovery dated, December 19, 2007; Exhibit No. 5 – Unsworn Declaration Under Penalty of Perjury made pursuant to 28 U.S.C. §1746 by Complainant’s Law Enforcement Expert, David R. Kent, on March 4, 2009; Exhibit No. 6 – Complainant’s Un-refuted Motion to Strike False and Defamatory Allegations in Case No. 08-30052;

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Exhibit No. 7 – Judge Dennis’ Order of September 22, 2008, summarily denying Exhibit No. 6; Exhibit No. 8 – Complainant’s Motion for Disclosure in Case No. 08-30052; Exhibit No. 9 – Complainant’s E-mail to Deputy Clerk Michael Brown, in Case No. 08-30052, referencing Complainant’s Motion for Disclosure by Judge Dennis; Exhibit No. 10 – The Court’s Order of December 18, 2008, summarily denying Exhibit No. 8; Exhibit No. 11 – Complainant’s correspondence in Case No. 08-30052 to the Clerk of the 5th Circuit dated September 24, 2008; Exhibit No. 12 – Complainant’s November 10, 2008 correspondence in Case No. 08-30052 to the Clerk of 5th Circuit; and Exhibit No. 13 – Complainant’s Petition for Panel Rehearing and/or for Rehearing En Banc in Case No. 08-30052, together with attached Exhibits. Complainant avers that the Chief Judge should not act on the complaints alleged herein without review of the Exhibits identified supra, which Complainant is prepared to submit to the Chief Judge, if requested, but which are not attached hereto in order to avoid running afoul of the provisions of Rules 2(D) and 3(D) of the Rules Governing Complaints of Judicial Misconduct.

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6. Complainant further avers that the Court’s decisions in Case Nos. 06-30840, 06-30841, and 08-30234 were the result of judicial misconduct, and at least peripherally related to the following issues in Civil Action No. 06-7280 and 05-4182 (and consolidated cases) pending in the United States District Court for the Eastern District of Louisiana: 1) A criminal gangland-style “hit” which was executed by the Louisiana State Police against Complainant at five minutes past midnight on September 20, 2005, on orders from persons employed by the Louisiana Department of Justice, by the Louisiana Supreme Court and by the Office of Disciplinary Counsel for the Louisiana Supreme Court;



8 This issue is articulately pleaded in Civil Action N0. 08-4728 on the Eastern District docket. 9 Ibid.

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7. By virtue of their having participated in prohibited ex parte communications as described, supra, and allowing those communications to influence their decision-making on the merits in the referenced cases, the Judges identified herein each violated the following Canons contained in the Code of Conduct for United States Judges:

Canon 1Canon 1Canon 1Canon 1 - was violated by each of the accused Judges, who made a mockery of the terms “independent,” “honorable,” “justice,” “high standards of conduct,” and “integrity,” as a result of the misconduct alleged herein. Canon 2(A)Canon 2(A)Canon 2(A)Canon 2(A) - was violated by each of the accused Judges, because they neither respected nor complied with the law, and because the misconduct alleged herein is the antithesis of acting “at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Canon 2(B)Canon 2(B)Canon 2(B)Canon 2(B) - was violated by each of the accused Judges, because they allowed social or other relationships to influence their judicial conduct and judgment, and because they not only conveyed to others the impression that they were in a special position of influence, and did nothing to stop that impression, but then acted in an official capacity to advance the private interests of others. Canon 3(A)(1)Canon 3(A)(1)Canon 3(A)(1)Canon 3(A)(1) - was violated by each of the accused Judges, because not only did they make a mockery of

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the terms “faithful” and “professional competence in the law,” but they permitted their decision-making to be dictated by partisan interests. Canon 3(A)(4)Canon 3(A)(4)Canon 3(A)(4)Canon 3(A)(4) - was violated by each of the accused Judges, because they engaged in prohibited ex parte communications with others on the merits, and procedures affecting the merits, of proceedings pending before them. Judges Davis, Southwick and Clark also violated Canon 3(A)(4) by conspiring with others to deny Complainant oral argument in Case Nos. 06-30840 and 06-30841. Judges Weiner, Prado and Southwick also violated Canon 3(A)(4) by conspiring with others to deny Complainant oral argument in Case No. 08-30234. Canon 3(B)(1), (2), and (3)Canon 3(B)(1), (2), and (3)Canon 3(B)(1), (2), and (3)Canon 3(B)(1), (2), and (3) - were violated by each of the accused Judges, because they took no action after learning of misconduct by Brother and/or Sister Judges, Court officials and Staff, lawyers and others.


9. More to the point, Complainant avers that although reasonable minds might conclude that the misconduct alleged herein is peripherally related to merits of the decisions in the referenced cases, Complainant specifically avers that his allegations of 10 However, Complainant avers that judicial review of the erroneous decisions is absolutely warranted under the facts and circumstances.

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misconduct are NOT DIRECTLY RELATED TO the decisions in those cases, but rather to the lack of integrity of the accused Judges and of those who wrongfully influenced them.

10. Complainant avers that the Chief Judge should appoint a Special Committee (or Committees) to investigate these complaints and to make recommendations to the Judicial Council. Notwithstanding, this requested relief, Complainant avers that he has no confidence in the ability of the Chief Judge of the United States Court of Appeals for the Fifth Circuit, any Special Committee which may be appointed by the Chief Judge, or of the Judicial Council of the Fifth Circuit to competently, fairly and impartially investigate and decide the merits of the complaints of misconduct contained herein. In support of these assertions, Complainant refers to the September 28, 2007 Order of Reprimand and Reasons by the Judicial Council in the matter involving former Judge Samuel B. Kent who, since the referenced Order of Reprimand and Reasons, and more particularly on February 23, 2009, pleaded guilty of one count of obstruction of justice, thus demonstrating the abject incompetency of the judicial misconduct process within the Fifth Circuit. Complainant further avers that any investigation(s) by the Special Committee or Committees should also include the appointment of competent forensic experts to analyze office computers, personal computers and blackberries, as well as telephone records, of the accused Judges and others, in order to “test” their answers to questions under oath with extrinsic electronic and documentary evidence.

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Final

Documents

maureen odwyer

state of louisiana

lisa marie odwyer

united states district

ability of petitioners

united states court

federal court pursuant

supreme court