I. GROUNDS & RELIEF
1. Plaintiff Pamela Carvel respectfully requests that this Court, following its remand of this case on appeal, order reassignment of the case to a different district court judge because by actions and words reflected in the attached hearing transcript. The district court has left Plaintiff with no meaningful alternative to secure the First, Fifth, and Fourteenth Amendment rights guaranteed by the U.S. Constitution and enforced by U.S. laws.
2. Judge Scheindlin’s bias resulting from “the Second Circuit's very limited remand” (Tr. 2:3-2:4) and unusual circumstances resulting from the judge’s attitude against pro se litigants, and against allegations of corruption by lawyers and judges. This bias is demonstrated by the tone of a hearing convened by the district court’s calling lawyers who did not file Notices of Appearance, to coach the lawyers in a speedy dismissal of Plaintiff’s remanded case by lack of “plausible” claims. “THE COURT: If she can plead a conspiracy against these people that's viable in federal court under the pleading standards, that's that. But it hasn't been tested yet. Do you wish to test it with a motion to dismiss? (Tr. 8:16- 8:19). “THE COURT: Failure to state a plausible claim of conspiracy.” (Tr. 12:10- 12:11).
3. Reassignment is appropriate where the trial judge has engaged in conduct that gives rise to the appearance of impropriety or a lack of impartiality in the mind of a reasonable member of the public. United States v. White, 846 F.2d 678, 696 (11th Cir.), cert. denied, 488 U.S. 984 (1988); 109 S.Ct. 537, 538, 102 L.Ed.2d 568 (1988).
4. This case was never tried. No motions were made before remand. Both for the judge's sake and the appearance of justice, an assignment to a different judge may be desirable and would not effect judicial economy. There is no suggestion in any of the case law that the district court as an institution must first be given the opportunity to consider whether to reassign a case. If the request for reassignment after remand were made of the district judge by a party on bias grounds, the judge's refusal would be directly reviewable in this court by mandamus petition. United States v. Sears, Roebuck & Co., 785 F.2d 777, 780 (9th Cir.1986) cert. denied, 479 U.S. 988 (1986).
5. "The federal appellate courts have broad discretion to fashion remedies upon remand, including reassignment to a different district court judge, pursuant to 28 U.S.C. § 2106." See 28 U.S.C. 2106 (providing that appellate courts may "remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances"). That provision allows this Court to reassign the case to a different judge on remand. United States v. Microsoft Corp., 56 F.3d 1448, 1463 (D.C. Cir. 1995) (per curiam).
6. Unlike recusal, reassignment may be considered by the courts of appeals in the first instance. See, e.g. United States v. Microsoft Corp., 56 F.3d 1448, 1463 (D.C. Cir. 1995) (per curiam); Bemibenista v. United States, 866 F.2d 493,499 (D.C. Cir. 1989); United States v. Tucker, 78 F.3d 1313, 1322-24(8th Cir. 1996); United States v. Sears. Roebuck & Co., 785 F.2d 777, 780 (9th Cir. 1986) (per curiam).
7. The All Writs Act provides that "[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651(a).
8. These statutes, as well as the court's inherent authority, allow it to direct that a case on remand be assigned to a different judge. Sederquist v. City of Tiburon, 765 F.2d 756, 763 (9th Cir.1984); Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804 (9th Cir.), cert. denied, 375 U.S. 821, 84 S.Ct. 59, 11 L.Ed.2d 55 (1963) (28 U.S.C. Sec. 2106); United States v. Ritter, 273 F.2d 30 (10th Cir.1959), cert. denied, 362 U.S. 950, 80 S.Ct. 863, 4 L.Ed.2d 869 (1960) (inherent authority and All Writs Act); see generally Barber v. United States, 711 F.2d 128 (9th Cir.1983).
9. In the scheme of the federal judicial system, the district court is required to follow and implement appeallate court decisions just as those courts are oath- and duty-bound to follow the decisions and mandates of the United States Supreme Court. "[U]nless we wish anarchy to prevail within the federal judicial system, a precedent of this court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be." Hutto v. Davis, 454 U.S. 370, 375, 102 S.Ct. 703, 706, 70 L.Ed.2d 556 (1982); also see United States v. Sears, Roebuck & Co., 785 F.2d 777, 780 (9th Cir.1986) at 780-81 cert. denied, 479 U.S. 988 (1986), 107 S.Ct. 580, 93 L.Ed.2d 583 (1986); United States v. Yagid, 528 F.2d 962, 965 (2d Cir.1976). See also 28 U.S.C. § 2106 (1982).
10. In addition, a court of appeals decision ordering reassignment rests upon a long line of cases permitting a court of appeals to order reassignment of a case to a different judge in the exercise of the court's inherent power to administer the system of appeals and remands. United States v. Sears, Roebuck & Co., 785 F.2d 777; United States v. Alverson, 666 F.2d 341 (9th Cir.1982); United States v. Wolfson, 634 F.2d 1217 (9th Cir.1980); United States v. Ferguson, 24 F.2d 81 (9th Cir.1980); United States v. Robin, 553 F.2d 8 (2d Cir.1977) (en banc); United States v. Yagid, 528 F.2d 962 (2d Cir.1976).
11. Under these standards, reassignment here is warranted to preserve the appearance of fairness, to facilitate completion of the serious legal duties at issue, and to mitigate the wholesale violation of Constitutional rights to redress of grievances, due process, equal treatment, etc. Such rhetoric as memorialized in the transcript of the hearing raises appearance concerns going to the heart of the fairness and decorum of Article III proceedings on civil rights.
III. REASONS WHY THE CASE SHOULD BE REASSIGNED TO A DIFFERENT DISTRICT COURT JUDGE
13. This district court’s hearing began with a wholly gratuitous reference to “Our biggest problem” (Tr. 3:1-3:3) referring to Pamela Carvel’s amended complaint, and continued derogatorily referring to Pamela Carvel as one who goes “barging into” Defendant’s office to serve papers (Tr. 13:15-13:16). The hearing included a misstatement of “judicial immunity” (Tr. 3:14) with inference that discovery would quashed. (Tr. 6:19-6:20). Judge Scheindlin followed by coaching Defendants’ lawyers on using plausibility to assert motions to dismiss (Tr. 12,14), and motions for sanctions (Tr. 8:25-9:3). Judge Scheindlin assured “this time, there's no leave to amend.” (Tr. 12:14-12:15). The district court’s pronouncements are even more extraordinary because they are not based on any record of evidence before the court.
14. The transcript of the first hearing in this case demonstrates Judge Scheindlin is frustrated with Petitioner’s persistence in obtaining discovery of the primary evidence from the Scarpinos that would prove or disprove conclusively Pamela Carvel’s assertions of bribery. “Take nonparty discovery, if you can.” (Tr. 6:19-6:20). Judge Scheindlin seemed frustrated to the point of expanding the legal limits of “judicial immunity” beyond the accepted precedents. “Absolute judicial immunity, and his wife.” (Tr. 3:14). The judge’s frustration appears to have affected how the district court has conducted hearings involving pro se Plaintiff and defense counsels. Judge Scheindlin coached Defendants’ lawyers as to how to seek dismissal, “You think there's still a failure to state a claim, a plausible claim of conspiracy? Is that your position?” (Tr. 12:4-12:6) “That's good, because if I dismiss it this time, there's no leave to amend.” (Tr. 12:14- 12:15).
IV. UNDERLYING LEGAL ISSUES EXPLAINED – BUT NOT HERE ARGUED
15. Plaintiff Pamela Carvel does not challenge Judge Scheindlin’s determination on judicial immunity by this application but will indeed assert its impropriety by appeal after Judge Scheindlin dismisses the case again – this time promised by Judge Scheindlin to be dismissed with prejudice. Judge Scheindlin refused to allow an appeal at this time.
16. Judge Scheindlin from the bench questioned the wisdom of the substantive law she had to apply pursuant to the Second Circuit’s remand and challenged the Plaintiff’s right to assert nonjudicial claims against Mr. And Mrs. Scarpino (Tr. 3-6). Mr. And Mrs. Scarpino entered into conspiracies that commenced prior to Anthony Scarpino’s election as Surrogate’s Court judge. Judge Scheindlin indicated “plausibility” could become impossible to overcome because discovery might be impossible to obtain -- “Take nonparty discovery, if you can.” (Tr. 6:19-6:20).
17. Judicial immunity is immunity from suit, not just from ultimate assessment of damages, and it can be overcome only if a judge's actions are nonjudicial or were taken in the complete absence of all jurisdiction. Mireles v. Waco, 502 U.S. 9 (1991). Based on the doctrine expressed in Bradley v. Fisher, 13 Wall. 335 (1872), the Court has consistently adhered to the rule that "judges defending against § 1983 actions enjoy absolute immunity from damages liability for acts performed in their judicial capacities. Pierson v. Ray, 386 U. S. 547 (1967); Stump v. Sparkman, 435 U. S. 349 (1978); Supreme Court of Virginia v. Consumers Union, 446 U. S. 719, 446 U. S. 734-735 (1980); Dennis v. Sparks, 449 U.S. 24 (1980). Judge Scheindlin expanded this doctrine to include a judge’s wife (Tr. 3:14) and the couple’s nonjudicial acts in conspiracy with others. These are two separate issues: immunity for acts as judge; liability for conspiracy against rights (42 U.S.C. 1981 et seq) as individuals with other individuals. The conspiracy is a violation “under color of state law” when the individual uses his official position to further the private conspiracy, but the official act does not determine the existence of the private conspiracy, it merely illegally guarantees success of the private conspiracy.
V. GOVERNING LAW & STANDARD OF REVIEW
18. In the absence of actual bias, the courts of appeals generally ask:
See United States v. Robin, 553 F.2d 8, 10 (2d Cir. 1977); see also e.g., Cohesive Techs., Inc. v. Waters Corp., 543 F.3d 1351, 1375 (Fed. Cir. 2008) (applying First Circuit law); United States v. Lentz, 383 F.3d 191, 221-222 (4th Cir. 2004), cert. denied, 544 U.S. 979 (2005); Solomon v. United States, 467 F.3d 928, 935 (6th Cir. 2006); Mitchell v. Maynard, 80 F.3d 1433, 1450 (10th Cir. 1996); cf. United States v. Heubel, 864 F.2d 1104, 1112 (3d Cir. 1989) (applying three factors); United States v. White, 846 F.2d 678, 696 (11th Cir.) (same), cert. denied, 488 U.S. 984 (1988); United States v. Wolff, 127 F.3d 84, 88-89 (D.C. Cir. 1997) (same), cert. denied, 524 U.S. 929 (1998); In re DaimlerChrysler Corp., 294 F.3d 697, 700-701 (5th Cir. 2002) (suggesting that the Third, Eleventh, and District of Columbia Circuits apply a "more lenient test" and declining to choose which test to adopt); Simon v. City of Clute, 825 F.2d 940, 943-44 (5th Cir.1987) (footnote omitted) (citing United States v. National Medical Enterprises, Inc., 792 F.2d 906, 914 (9th Cir.1986) (quoting United States v. Robin, 553 F.2d 8, 10 (2d Cir.1977) (en banc)); Bercheny v. Johnson, 633 F.2d 473, 476-77 (6th Cir.1980)); Cook v. Reno, 74 F.3d 97, 99 (5th Cir.1996) (citing Clute and using this test); United States v. Waknine, 543 F.3d 546, 559-560 (2008); United States v. Atondo-Santos, 385 F.3d 1199, 1201 (2004)); United States v. Ressam, 593 F.3d 1095, 1131-1132 (2010); United States v. Paul, 561 F.3d 970, 975 (2009); Rhoades v. Avon Prods., Inc., 504 F.3d 1151, 1165 (2007); United States v. DeMott, 513 F. 3d 55, 59 (2d Cir. 2008).
20. Some circuits have said that they will invoke the reassignment power when the facts "might reasonably cause an objective observer to question [the judge's] impartiality." United States v. Microsoft Corp., 56 F.3d 1448, 1463 (D.C.Cir.1995) (quoting Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 865, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988)); see also Haines v. Liggett Group, Inc., 975 F.2d 81, 98 (3d Cir.1992) (purpose of reassignment is "to avoid both bias and the appearance of bias"), United States v. Torkington, 874 F.2d 1441, 1446 (11th Cir.1989) ("Reassignment is appropriate where the trial judge has engaged in conduct that gives rise to the appearance of impropriety or a lack of impartiality in the mind of a reasonable member of the public."). This criteria is also demonstrated by the transcript of the hearing.
21. The judicial system has the obligation of preserving public confidence in the impartial and fair administration of justice. If a district judge's continued participation in a case presents a significant risk of undermining this public confidence, this Court has the authority and the duty to order the case reassigned to a different district judge.
23. In Rhoades v. Avon Prods., Inc., 504 F.3d 1151, 1165 (2007), the court explained that remand to a different district judge is appropriate "if there is a demonstration of personal bias," or if "unusual circumstances" are deemed to exist after considering the three factors outlined above. Ibid. (quoting United Nat'l Ins. Co. v. R&D Latex Corp., 141 F.3d 916, 920 (9th Cir. 1998)).
24. Pamela Carvel asserts that the transcript demonstrates personal bias to the remand, especially in a pro se case against lawyers. Judge Scheindlin’s early exposure as clerk to Judge Brieant’s bias against pro se litigants (see Affirmation at 16) may be the “unusual circumstances” that subconsciously make it difficult for her to hear pro se cases objectively, especially after remand. See, e.g., Research Corp. Techs., Inc. v. Microsoft Corp., 536 F.3d 1247, 1255 (Fed. Cir. 2008) (reassigning case because judge's "previously-expressed views or findings may make it difficult * * * to approach a remanded case with an open mind"); Scherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 142 (2d Cir. 2007) (reassigning case be cause it was "questionable" whether judge could be "objective"); United States v. Andrews, 390 F.3d 840, 851 (5th Cir. 2004) (reassignment because judge "breached the barrier between the rule of law and exercise of personal caprice"); Mitchell v. Maynard, 80 F.3d 1433, 1450 (10th Cir. 1996) at 1448-1450 (reassignment following reversal of entry of judgment as a matter of law where, inter alia, judge previously expressed views that the plaintiff's "Eighth Amendment claims are frivolous, a waste of the jury's time and as a matter of law fail to state a claim"); Hermes Automation Tech., Inc. v. Hyundai Elecs. Indus. Co., 915 F.2d 739, 752 (1st Cir. 1990) (reassignment following reversal of dismissal order where judge had "strong criticism of plaintiffs' claims as not only frivolous, but verging on fraudulent," even though court had "no doubt that the original district judge could handle plaintiffs' claims with unquestionable fairness"); United States v. Torkington, 874 F.2d 1441, 1446-1147 (11th Cir. 1989) (reassignment following reversal of entry of judgment of acquittal where, among other things, the judge "questioned the wisdom of the substantive law" and "challenged the government's decision to prosecute"); In re Ellis, 356 F.3d 1198, 1211 (9th Cir.2004) (en banc) (citation omitted); United States v. Arnett, 628 F.2d 1162, 1165 (9th Cir.1979); Cullen v. United States, 194 F.3d 401, 408 (2d Cir. 1999) (noting that reassignment would be appropriate "in recognition of the 'difficulty' that a judge might have 'putting aside his previously expressed views'") (quoting United States v. Campo, 140 F.3d 415, 420 (2d Cir. 1998)).
25. Reassignment may be appropriate, for example, if a judge’s conduct creates the appearance that she is or may be unable to perform her role in an unbiased manner, United States v. White, 846 F.2d at 695 ("[W]here a reasonable person would question the trial judge's impartiality, reassignment is appropriate."); United States v. Holland, 655 F.2d 44 (5th Cir. Unit B 1981) (remarks by judge during trial may give rise to inference of bias or prejudice), or if the judge has demonstrated that she is unwilling to carry out the law in a particular case. Brooks v. Central Bank of Birmingham, 717 F.2d 1340, 1343 (11th Cir.1983) ("stalemated posture" required reassignment of case to different judge)(emphasis added).
26. Judge Scheindlin demonstrated her great difficulty in putting aside her prior conclusions about the merits of this complaint involving corruption by lawyers and that reassignment is necessary to preserve the appearance of impartiality. Although on remand Judge Scheindlin might have fairly considered the complaint on the merits, the transcript demonstrates she has difficulty in so doing. In light of Judge Scheindlin's firmly expressed position memorialized in the transcript, the appearance of impartiality would best be preserved by reassignment of this case. Reassignment will not “entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.” United States v. Robin, 553 F.2d 8, 10 (2d Cir.1977) (per curiam). In determining whether to reassign a case this Court considers not only whether a judge could be expected to have difficulty putting aside her previously expressed views, but also “whether reassignment is advisable to preserve the appearance of justice.” ”‚United States v. Robin, 553 F.2d 8, 10 (2d Cir.1977) (per curiam); See, e.g., United States v. Londono, 100 F.3d 236, 242 (2d Cir.1996).
28. In ordering reassignment following consecutive reversals on related points, the en banc First Circuit explained: “A third remand would put the district court judge in a very awkward position. If he ordered a new trial yet again, it might be thought that he was wedded to an outcome; if he altered his result, [one] might suppose that the judge had yielded to exhaustion or to a supposed message from this court.” Conley v. United States, 323 F.3d 7, 15(1st Cir. 2003) (en banc). Although this case has thus far been remanded only once, Judge Scheindlin seems nonetheless to be “wedded to an outcome”. i.e. dismissal with prejudice -- “That's good, because if I dismiss it this time, there's no leave to amend.” (Tr. 12:14-12:15). Although the First Circuit had “no doubt about the good faith of the district judge,” it held that reassignment was warranted “despite the cost of requiring a new district judge to master this record.” Id.
30. Not surprisingly, courts repeatedly have ordered reassignment in cases involving both disparaging judicial comments and a repeated failure to follow appellate guidance. See e.g., Mitchell v. Maynard, 80 F.3d 1433, 1450(10th Cir. 1996) (“The history of this case, combined with evidence of [the judge’s] expressions of his disapproval toward [the party], his attorney and his claims indicate that in order to prevent any probability of unfairness or appearance of impropriety we should direct a new judge to hear the case on remand.”); United States v. Torkington, 874 F.2d 1441, 1447(11th Cir. 1989) (per curiam) (reassignment following two reversals and comment that prosecution was “silly” and a “vendetta”); Sears. Roebuck & Co., 785 F.2d at 781 (reassignment following three reversals and comment that prosecution was “egregious”).
31. “To reassign a case on remand, [the Court] need only find that the facts might reasonably cause an objective observer to question [the judge’s] impartiality.” United States v. Londono, 100 F.3d 236, 242 (2d Cir. 1996) (quoting Pescatore v. Pan American World Airways, Inc., 97 F.3d 1, 21 (2d Cir. 1996)) (internal quotation marks omitted) (abrogated on other grounds by United States v. Mercurris,192 F.3d 290, 294 (2d Cir. 1999)).
VI. REASSIGNMENT IS NOT RECUSAL OR DISQUALIFICATION
32. Plaintiff Pamela Carvel is not acting under the disqualification statutes, by which a party must first invoke before the district court. Instead, this Court is being asked in the first instance to exercise its inherent power to administer the system of appeals and remands by ordering a case reassigned on remand. The basis for the reassignment need not be actual bias on the part of the judge, but rather a belief that the healthy administration of the judicial and appellate processes, as well as the appearance of justice, will best be served by such reassignment.
34. As the Second Circuit decision in United States v. Robin, 553 F.2d 8, 10 (2d Cir. 1977) indicates, the appellate court's authority to reassign exists apart from the judicial disqualification statutes. See 553 F.2d at 11. There is simply nothing in the disqualification statutes to prohibit this Court from taking appropriate action in the first instance. The appearance of justice and the orderly administration of this Court's appellate docket would best be served by reassignment of the remanded case to another judge. Since it appears the original judge has difficulty in putting aside previously expressed views, and reassignment is advisable to avoid the appearance of prejudgment, the case remanded to the district court can be reassigned in keeping with the principles stated in United States v. Robin, 553 F.2d 8, 10 (2d Cir. 1977) (en banc) (per curiam).
35. This Court need not doubt the district court's impartiality to nevertheless believe that reassignment is advisable, "both for the judge's sake and the appearance of justice," given the district court's strong beliefs, and soliciting that Plaintiff acted sanctionably by failing to raise a “plausible” issue. United States v. Robin, 553 F.2d 8, 10 (2d Cir. 1977); also see United States v. Quattrone, 441 F.3d 153, 192-93 (2d Cir. 2006). Reassignment is appropriate where the trial judge has engaged in conduct that gives rise to the appearance of impropriety or a lack of impartiality in the mind of a reasonable member of the public. United States v. White, 846 F.2d 678, 696 (11th Cir.), cert. denied, 488 U.S. 984 (1988); 109 S.Ct. 537, 538, 102 L.Ed.2d 568 (1988).
36. Plaintiff Pamela Carvel twice placed before Judge Scheindlin the very serious assertion of conspiracy, against Pamela Carvel’s Constitutional rights, for profit by lawyers engaged in tax fraud and grand larceny under color of state judge-made law apparently induced by bribery, and conflicts of interest. When faced with overwhelming assertions of lawyers’ corruption and violations of civil rights of Pamela Carvel and others, even when such corruption was substantiated by an investigative lawyer from the disciplinary committee, Judge Scheindlin
ignored the duty under 18 U.S.C. § 4 and 18 U.S.C. § 2382. Judge Scheindlin also allow the New York State Attorney General to proceed with gross conflicts of interest by representing accused offenders in nonjudicial acts against the People.
37. In the most recent hearing, Judge Scheindlin demeaned Plaintiff Pamela Carvel’s allegations and assisted in the obstruction of discovery of the evidence that would prove or disprove Pamela Carvel’s assertion of bribery and conspiracy. It is the mandatory duty of every citizen to report felony activities to the judge. It is the judge’s duty as citizen and lawyer to refer these apparent felonies to law enforcement for investigations and prosecutions that a private individual is not authorized to carry out. Plaintiff Pamela Carvel requests that this Court adhere to the requirements of 18 U.S.C. § 4 and 18 U.S.C. § 2382 and refer this case to the U.S. Attorney for investigation and prosecution.
38. For the foregoing reasons, this Court should exercise its discretion under 28 U.S.C. § 2106 to direct the reassignment of this case on remand to a different district court judge and to refer to the U.S. Attorney the serious matter of apparent bribery and judicial corruption in conspiracy against civil rights.
STATEMENT OF VERIFICATION
I have read the above and it is correct to the best of my knowledge.
The undersigned declares under penalty of perjury that she is a party in the above action, that she has read the above, and that the information contained therein is true and correct. (28 U.S.C. 1746, 18 U.S.C. 1621).
August 23, 2010
Respectfully submitted, By: Pamela Carvel
Pamela Carvel, appearing pro se