strange v islamic republic of iran dcd 14_00435 13_1
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Case 1:14-cv-00435-CKK Document 13-1 Filed 05/21/14 Page 1 of 82
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
In re: CHARLES STRANGE, et. al.
PETITION FOR WRIT OF MANDAMUS
Pursuant to 28 U.S.C. 1651, and D.C. Cir. R. 21, Petitioners Charles and
Mary Ann Strange, Douglas and Shaune Hamburger, and Phouthasith Douangdara,
on behalf of themselves and their sons and stepsons respectfully petition for a writ
of mandamus to compel Respondent, the Honorable Colleen Kollar-Kotelly
(Kotelly) to recuse herself from the case of Strange, et. al. v. Islamic Republic,
et. al., No. 14-cv-435, that is being heard in the U.S. District Court of the District
Petitioners' counsel, Larry Klayman, has been actively engaged in litigation
with Respondent Kotelly for over three years, with a Petition for Writ of Certiorari
currently pending before the U.S. Supeme Court. In order to avoid a clear cut
conflict of interest caused by the district court judge being actively involved in
litigation with the Petitioners' counsel, Petitioners attempted to have the case
Case 1:14-cv-00435-CKK Document 13-1 Filed 05/21/14 Page 2 of 82
transferred to another judge pursuant to the district court's Local Rule 57.13(a).
When Kotelly refused to transfer the case, Petitioners were then forced to filed a
motion for disqualification pursuant to 28 U.S.C. 144, complete with affidavits
from all the Petitioners, as well as an affidavit from distinguished and renowned
Professor Ronald Rotunda, an expert on Professional Responsibility and
Constitutional Law, further in support of the district court's disqualification Now,
despite meeting the requirements for disqualification, Kotelly has refused to
disqualify herself and continues to refuse to recuse herself. A writ of mandamus is
thus required to compel Kotelly to recuse or disqualify herself from the Strange, et.
al. v. Islamic Republic, et. al. proceedings.
1. Respondent Kotelly should respectfully be compelled, pursuant to the
issuance of a writ of mandamus, to remove herself either by recusal or
disqualification, by doing her duty to follow the law under 28 U.S.C. 144.
2. Petitioners also pray for such other relief as this Court may deem just and
1. This writ of mandamus deals with the issue of judicial bias and prejudice
and the refusal of a District Court judge to recuse herself as mandated by
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the strict language of 28 U.S.C. 144 even when faced with a clear cut
conflict of interest.
STATEMENT OF FACTS NECESSARY TO UNDERSTAND THE ISSUE
PRESENTED BY THE PETITION
Petitioners, Charles and Mary Ann Strange, Douglas and Shaune
Hamburger, and Phouthasith Douangdara, on behalf of themselves and their sons
and stepsons, filed suit against the Islamic Republic of Iran, Mahmoud
Ahmadinejad, Ayatollah Sayyid Ali Hoseyni Khamenei, the Army of the
Guardians of the Islamic Revolution, Hamid Karzai, the Afghan Operational
Coordination Group, Khasa Amalyati Qeta/Qeta-e-Khas-e-Amalyati or the Afghan
Special Operations Unit, the Afghan National Security Forces, the Islamic
Republic of Afghanistan, the Taliban, and Al Qaeda, for violating Plaintiffs and
decedents rights, engaging in racketeering and other prohibited activities,
engaging in international terrorism, harboring and concealing terrorists, providing
material support to terrorists and terrorist groups, directly and proximately causing
the deaths of Plaintiffs decedents, and directly and proximately causing mental
anguish, severe emotional distress, emotional pain and suffering, and the loss of
society, earnings, companionship, comfort, protection, care, attention, advice,
counsel or guidance.
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This case concerns the tragic deaths of American heroes comprised of Navy
SEAL Team VI and other Special Operations forces in the shoot down of their
helicopter by the Taliban on August 6, 2011. Some of these Special Operations
forces were the same ones who performed the successful raid that killed Al Qaeda
leader Osama Bin Laden on May 2, 2011.
Petitioners filed their case in the U.S. District Court for the District of
Columbia ("district court") on March 18, 2014 and it was assigned to the
Honorable Colleen Kollar-Kotelly. Petitioner's counsel has been involved in
contentious litigation with Respondent Kotelly for over three years. See Klayman
v. Kotelly, 2013 U.S. App. LEXIS 26059 (D.C. Cir. Oct. 22, 2013); Klayman v.
Kollar-Kotelly, 892 F. Supp. 2d 261 (D.D.C. 2012) and has stemmed from
Respondent Kotelly's actions in two prior lawsuits what were also before her in the
district court. See Klayman v. Judicial Watch, Civil Action No. 06-cv-00670 and
Sataki v. Broadcasting Board of Governors, et. al., Civil Action No. 10-cv-0534.
This litigation is currently continuing as Petitioners' counsel has recently filed a
Petition for Writ of Certiorari before the U.S. Supreme Court. See In Re: Klayman,
U.S. Supreme Court No. 13-1365. Counsel for Petitioners filed a Motion To
Transfer Case Pursuant To Rule 57.13(A) on March 19, 2014, wherein Plaintiffs
requested that the district court assign this case to another judge due to the fact that
counsel for plaintiffs has had long running and in progress litigation against Judge
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Kollar-Kotelly. Local Rule 57.13(a) states that, A judge, upon written advice to
the Calendar and Case Management Committee, may transfer directly all or part of
any case on the judges docket to any consenting judge. LCrR 57.13(a).
Petitioners' counsel wished to avoid the contentiousness of formally moving for
recusal of this Court, and hoped that this Court would recognize the inherent
conflict of interest and transfer the case to another jurist of this district.
On April 8, 2014, the Kotelly denied Petitioners' Motion to Transfer.
Petitioners then moved for Reconsideration of Kotellys order of April 8, 2014,
only to have this motion denied by the court on April 15, 2014.
Having already tried to transfer this case to another judge without much
trouble for either the district court or the parties, Petitioners then were regrettably
forced to formally move for disqualification of Kotelly pursuant to 28 U.S.C. 144
on May 8, 2014. A copy of the Motion for Disqualification, along with all the
affidavits filed in support of Respondent Kotelly's recusal and/or disqualification
have been attached to the appendix to this petition and are incorporated by
reference. In these affidavits, each and every one of the Petitioners stated that they
believed they could not receive a fair lawsuit due to the fact that Respondent
Kotelly was actively involved in litigation with their counsel.
Not only were affidavits submitted by all of the Petitioners, but also by
distinguished and renowned Professor Ronald Rotunda, an expert on Professional
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Responsibility and Constitutional Law. In his affidavit, Professor Rotunda
testified under oath that,
It is my expert opinion as a professor of legal ethics, based on my 44
years of experience in the legal profession, that a judge who is
engaged in ongoing litigation with counsel for a party who is
appearing before him or her has a clear conflict of interest or at a
minimum creates the appearance of a conflict of interest and must
therefore recuse herself from the case.
Rotunda Aff. 6.
Despite the affidavits by all of the Petitioners, as well as one by a
distinguished professor of legal ethics, Kotelly has yet to recuse herself and
"proceed no further" as required by the text of 28 U.S.C. 144.
Now, it has become clear that Respondent Kotelly is simply avoiding ruling
on the Motion for Disqualification, and this has forced Petitioners to file this
petition, as Respondent is preventing the Petitioners from getting to the merits of
their law suit. For this reason, a writ of mandamus is necessary in order to compel
Respondent Kotelly to recuse herself from the lawsuit or in the alternative to
disqualify her from the proceeding at the earliest stage of the case, before prejudice
will result to the parties.
STATEMENT OF THE REASONS WHY THE WRIT SHOULD ISSUE
Jurisdiction is Proper Under the All Writs Act. 28 U.S.C. 1651.
This Court has jurisdiction under the All Writs Act, 28 U.S.C. 1651. The
All Writs Act is invoked by federal courts of appeals to a district judge, or by the
Case 1:14-cv-00435-CKK Document 13-1 Filed 05/21/14 Page 7 of 82
Supreme Court to issue a writ to a lower court judge. Allied Chemical Corp. v.
Daiflon, Inc., 449 U.S. 33 (1980).
The All Writs Act states:
The Supreme Court and all courts established by Act of C