including costs, expenses, and attorneys' fees, pursuant to Federal Rule of Appellate Procedure 38 and D.C.Circuit Rule 38." Orly calls that a threatening letter.
MEMORANDUM OF POINTS AND AUTHORITIES
A newly discovered fact, material to this action, that was the reason for most errors in theorder, is
the fact that on October 1, 2009 Your Honor hired as your law clerk anattorney Siddharth Velamoor, who previously worked for Perkins Coie, a law firmrepresenting the defendant in this case, Mr. Obama.
As a matter of fact Perkins Coie wasone of the firms opposing the plaintiffs in a prior legal action filed by the
plaintiffs in this verycase,
Keyes et al v Bowen et al
specifically for not vetting Mr. Obama
as a presidentialcandidate, as Ms. Bowen didn’t request any vital records and never checked any vital records of Mr. Obama, as she and all the other secretaries of states took his Declaration of a Candidate
onit’s face value.
As it is a common knowledge that law clerks do most of the research and write most of theopinions for the judges,
the order to dismiss this case was de facto written or largelyinfluenced by an attorney who until recently worked for a firm representing thedefendant in this case, and who currently is working as a clerk for the presiding judge, as such most of the order is tainted by bias. This is a clear prejudice againstthe plaintiffs.
The Ninth Circuit rule on conflicts of this nature is quite clear: “However, areasonable person might be concerned whether a law clerk's advice to a judge would be biasedin favor of the position taken by a firm, if the law clerk had worked there before his clerkship,was on a leave of absence, and planned to work there after his clerkship.
, 902 F.2d 703, 714 (9th Cir. 1990). “Depending on how an individual judge manages her chambers, a law clerk's role in her decision making may be quite significant.Even if the judge has no reason to recuse herself based upon her own circumstances, a lawclerk's relationships might cause the impartiality of decisions from that judge's chambers inwhich the clerk participates reasonably to be questioned.”
, 51 F.3d1411, 1416 (9th Cir. 1995).In each of the cited cases, the Court of Appeals reviewed the case and found no problem, ruling that therewas no impropriety warranting any action.In paragraph 20 of
Hamid
the Court of Appeals wrote,
"It is to filter out fantastic suggestions likethis that the word 'reasonable' is part of the recusal test."
It probably would have been wiser notto provide, as the best argument one could find, an opinion with that comeback. The opinion, in general,shreds Orly's attempted argument. I quoted the relevant paragraph 12-24 below.12 The motion to vacate on the ground that the judge should have recused herself appears onits face to be no more of a Rule 59 than a Rule 52(b) motion, for the same reasons.Nevertheless, our precedents require that we treat a motion to vacate an order of dismissal as aRule 59(e) motion.
Mir v. Fosburg,
646 F.2d 342, 344 (9th Cir.1980). Our precedents alsorequire that we treat a motion which could have been made as a timely Rule 59 motion asthough it were so made.
Sierra On-Line, Inc. v. Phoenix Software, Inc.,
739 F.2d 1415, 1419(9th Cir.1984). This liberality has the practical effect of letting appeal wait until the timely post-trial motion has been decided. The 1993 amendments to Federal Rule of Appellate Procedure4(a)(4) will no doubt obviate this confusion.13 The appeal was timely as to the merits, not just as to recusal, so we have jurisdiction.14 The appellants claimed below, and argue here, that Judge Marshall should have recusedherself from the case because of her law clerks' employment plans. The motion to recuse JudgeMarshall and vacate the judgment on this ground was denied by a different district judge, JudgeByrne.
We review the district court's denial of the recusal motion for abuse of discretion,
Thomassen v. United States,
835 F.2d 727, 732 (9th Cir.1987), and findnone.
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