TJ Files Motion to Clarify

Judge Wilson had a conflict of interest

It is the opinion of Targeted Justice, that Judge Wilson had a conflict of interest and should have recused himself. He represented Microsoft - one of the named “interested parties.”

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TJ Files Motion to Clarify

No. 23-20342

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In the

United States Court of Appeals For the Fifth Circuit

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TARGETED JUSTICE, INCORPORATED; WINTER O. CALVERT; DR. LEONID BER; DR. TIMOTHY SHELLEY; KAREN STEWART; ARMANDO DELATORRE; BERTA JASMIN DELATORRE; J. D., a minor; DEBORAH MAHANGER; L. M., a minor; LINDSAY J. PENN; MELODY ANN HOPSON; ANA ROBERTSON MILLER; YVONNE MENDEZ; DEVIN DELAINEY FRALEY; SUSAN OLSEN; JIN KANG; JASON FOUST; H. F.,

Plaintiffs-Appellants,

v.

MERRICK B. GARLAND, Attorney General of the United States, in his individual and official capacity; FEDERAL BUREAU OF INVESTIGATION; CHRISTOPHER WRAY, Director of Federal Bureau of Investigations, in his individual and official capacity; CHARLES KABLE, JR., Director of the Federal Bureau of Investigation’s Terrorist Screening Center, in his individual and official capacity; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; SECRETARY ALEJANDRO MAYORKAS, Secretary of the Department of Homeland Security, in his individual and official capacity; KENNETH WAINSTEIN, Department of Homeland Security’s Under Secretary for Intelligence and Analysis, in his individual and official capacity,

Defendants-Appellees,

Appeal from the United States District Court for the Southern District of Texas

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USDC No. 4:23-CV-1013

MOTION FOR CLARIFICATION OF ORDER

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April 29, 2024                                              Ana Luisa Toledo

Counsel for Plaintiffs-Appellants

TO THE HONORABLE COURT:

1.                 On April 24, 2024, the panel that issued the unpublished Per Curiam Opinion in this case denied the Petition for Rehearing En Banc filed on April 5th expressing the following:

Per Curiam:

Treating the petition for rehearing en banc as a petition for panel rehearing (5th Cir. R. 35 I.O.P.), the petition for panel rehearing is DENIED. Because no member of the panel or judge in regular active service requested that the court be polled on rehearing en banc (Fed. R. App. P. 35 and 5th Cir. R. 35), the petition for rehearing en banc is DENIED.

2.                 Plaintiffs seek clarification of the order on various grounds. Namely:

a.      Whether the panel adhered to Internal Operating Procedures that control the handling of En Banc Petitions.

b.     Whether one of the members of the panel that has ruled against Plaintiffs on well-grounded issues raised since the beginning of the case should have recused himself from evaluating the Petition for Rehearing En Banc.

Applicable Rules and Internal Operating Procedures

3.                 Fed.R.App.Proc. 35.6 provides that the case will be heard on rehearing when it meets the criteria set forth in Fed.R.App.Proc. 35(a).

4.                 The Petition for Rehearing En Banc filed in this case fully complied with both requirements of Rule 35(a). In fact, it exceeded the criteria compared to other cases within this Court where such petitions have been granted. Particularly since the instant case presents a controversy that has never been adjudicated by any Court of the United States: the illegality of Individual Capacity Defendants’ ultra vires act of listing innocent Americans that do not meet the reasonable suspicion criteria and thus do not represent a threat to national security in two secret categories of the terrorist screening database.

5.                 This ultra vires obliteration of the presumption of innocence by Individual Capacity Defendants in excess of their legal authority is certainly just one of the questions of utmost importance that warranted the rehearing sought.

6.                 For this reason, Plaintiffs seek clarification of the order denying rehearing.

7.                 The order denying rehearing fails to set forth why the petition did not meet Rule 35(a)’s criteria, even though Plaintiffs invoked more than eight Supreme Court and Fifth Circuit precedents as well as two questions of utmost importance that warranted the Court’s rehearing of the panel’s decision.

8.                 Although a Petition for Rehearing En Banc can be treated in first instance as a request for panel rehearing, 5th Cir. R. 35 I.O.P provides that once the panel declines to reconsider its decision, an en banc poll is desired. (Emphasis ours).

9.                 5th Cir. R. 35 I.O.P provides that if the panel declines the petition for rehearing, it should refer the petition to the Chief Judge who in turn is to circulate it among the active members of the Court. The panel’s denial of the petition does not specify this procedure was carried out.

10.             The panel’s Per Curiam unpublished opinion whose Rehearing Plaintiffs sought has the legal effect of denying the latter their most basic due process rights.  The panel not only refused to adjudicate the matters properly brought before the court, but instead chose to adjudicate a matter that Plaintiffs did not brief.

11.             The panel acted contrary to law by refusing to evaluate the merits of Plaintiffs’ arguments in support of reversal of the dismissal --stating it was not a final order, only to discuss and adjudicate the denial of the preliminary injunction that Plaintiffs did not brief. The resulting collateral confirmation of the complaint’s dismissal with prejudice for lack of jurisdiction is a legal gotcha game that violates numerous Court precedents, violates basic due process, and deprives Plaintiffs of the possibility of ever seeking redress for the atrocious harm that Defendants have caused them.

12.             The panel’s decision as it stands guarantees that Plaintiffs never get their day in court or redress for their grievances. By collaterally confirming an improper dismissal with prejudice for lack of subject matter jurisdiction in contravention to Court precedent, the panel has deprived Plaintiffs of their right to redress for the harm they have suffered.

13.             The panel also refused to review matters that were directly appealable such as the district court’s sua sponte transfer to Houston without any party asking for it, as well as the denial of limited jurisdictional discovery that would have prevented the district court to conclude Plaintiffs’ claims were ‘fantastical’.

14.             In prejudice of Plaintiffs interests, the panel disregarded the inherent conflict of interest by government attorneys representing individual capacity Bivens defendants that are violating the laws and Constitution of the United States of America.

15.             The prejudicial treatment Plaintiffs have received so far on both procedural and substantive grounds from the district court and the panel preclude them from ever challenging the erroneous district court decision. This violates the very essence of fairness and impartiality that is the very essence of our judicial system.

16.             Given the uncontroverted violations of Plaintiffs’ basic due process that the panel’s decision represents, they believe that the full Court would have voted for granting the Petition for Rehearing En Banc.

17.             For this reason, Plaintiffs request a clarification of the order denying the Petition for Rehearing En Banc. They specifically ask that the Court:

a.       Set forth if the panel complied with the provisions set forth above by referring the Petition to the Honorable Chief Judge of the Court;

b.     If the Petition was actually circulated among all active judges;

and

c.      Provide the tabulated results of the polls circulated as provided in Rule 5th Cir. R. 35 I.O.P.

18.             Plaintiffs request to know the results of the circulated polls.

Conflict of Interest Verification

19.             Plaintiffs submitted along the Petition for Rehearing a “Certificate of Interested Persons” including information on persons and corporations that Plaintiffs have discovered have financial interest in the outcome of this case. Defendants refused to do so, stating that the “government” did not have to submit this certification even though there are individual capacity defendants party to the case that are not considered “government”. Defendant’s counsel did not sign the statement, and the panel allowed it.

20.             Plaintiffs’ success on the merits of their claims would cause financial harm to, inter alia, Microsoft Corporation, a former client of the Honorable Cory T. Wilson. See e.g., Hood ex rel. Mississippi v. Microsoft Corp., 428 F.Supp.2d 537 (2006).

21.             Judge Wilson was the only judge consistently active in this case since its inception. He individually granted Defendants’ Opposed forty-five days to file their brief. Thereafter, he has been the only consistent member of all the panels that have adjudicated issues adversely against Plaintiffs on important matters such as Plaintiffs’ Motion to Strike Defendants’ defective brief, and the Petition for Rehearing.

22.             Judge Wilson allowed defendants’ reply brief to proceed despite its substantial noncompliance with the Fifth Circuit rules such as, inter alia, the absence of Defendants’ counsel’s electronic signature on the (negative) Certificate of Interested Persons and Defendants’ failure to substitute under F.R.App.Proc. 43 an official capacity defendant who retired two weeks after this case was originally filed on January 11, 2023.

23.             Plaintiffs ask that the Court examine if Judge Wilson’s prior professional relationship with Microsoft warranted his recusal from the case and particularly from participating on the evaluation of the Petition for Rehearing En Banc seeking the reversal of the decision that is contrary to law, Supreme Court and Fifth Circuit precedent.

CONCLUSION

Plaintiffs request the Court’s clarification on these matters germane to their right to due process and to have their case adjudicated by an impartial court and consequently request that the Court:

a)     Carry out a polling of the Petition for Rehearing En Banc by the Full Court in compliance with the Internal Operating Procedures;

b)    Provide the ballot adjudication of Plaintiffs’ En Banc Petition that should have been referred to the Chief Judge for Court distribution; and

c)     Evaluate the potential prejudice and/or conflict of interest resulting from Judge Wilson’s prior representation of Microsoft Corporation and affecting the various panels’ decisions in all of which he participated and adjudicated every issue adversely to Plaintiffs, in deprivation of their basic due process rights.

RESPECTFULLY SUBMITTED.

Dated:

April 29, 2024                                   /s/ Ana Luisa Toledo

Counsel for Plaintiffs-Appellants

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CERTIFICATE OF COMPLIANCE

This motion complies with the type-volume limit of Federal Rule of Appellate Procedure 27(d)(2) because it contains less than 2,600 words in 14-point Times New Roman font and does not exceed ten pages.

Dated: April 29, 2024                        /s/ Ana Luisa Toledo                                                                                                                Counsel for Plaintiffs-Appellants

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CERTIFICATE OF SERVICE

I hereby certify that on April 29, 2024, I electronically filed this motion with the Clerk of the Court for the United States Court of Appeals for the Fifth Circuit by using the appellate CM/ECF system that carries out service to all counsel of record by the appellate CM/ECF system.

Dated: April 29, 2024                        /s/ Ana Luisa Toledo                                                                             Counsel for Plaintiffs-Appellants

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CERTIFICATE OF CONFERENCE

I certify that prior to filing this motion, the undersigned asked Defendants’ counsel for their position on it, to which they responded:

“The government opposes your motion.”

Dated: April 29, 2024                        /s/ Ana Luisa Toledo                                                                                   Ana Luisa Toledo

                                                          Counsel for Plaintiffs-Appellants

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