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  • Exhibit 1

    Case 1:14-cv-00435-CKK Document 13-1 Filed 05/21/14 Page 1 of 82

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    UNITED STATES COURT OF APPEALS

    FOR THE DISTRICT OF COLUMBIA CIRCUIT

    In re: CHARLES STRANGE, et. al.

    Petitioners.

    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

    of Columbia.

    INTRODUCTION

    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

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    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.

    RELIEF SOUGHT

    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

    proper.

    ISSUES PRESENTED

    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

    Case 1:14-cv-00435-CKK Document 13-1 Filed 05/21/14 Page 3 of 82

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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.

    Case 1:14-cv-00435-CKK Document 13-1 Filed 05/21/14 Page 4 of 82

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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

    Case 1:14-cv-00435-CKK Document 13-1 Filed 05/21/14 Page 5 of 82

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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

    Case 1:14-cv-00435-CKK Document 13-1 Filed 05/21/14 Page 6 of 82

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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

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    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