DOJ Attorneys caught Lying to the 5th Circuit Court
Motion to Strike - 8 November 2023
Motion to Strike - 8 November 2023
| motiontostrike-8nov2023.pdf |
No. 23-20342
_________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________
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
______________________________________________________________
MOTION TO STRIKE APPELLANTS’ NONCONFORMING REPLY BRIEF
________________________________________________________________
November 8, 2023
Ana Luisa Toledo
Counsel for Plaintiffs-Appellants
MOTION TO STRIKE DEFENDANT-APPELLEE’S REPLY BRIEF
TO THE HONORABLE COURT:
COMES NOW the Plaintiffs-Appellants, through the undersigned counsel,
and respectfully set forth and request:
1. On November 6th, 2023, Defendants-Appellees’ filed a reply brief that
should be stricken from the record as it does not conform to the provisions of 5th
Cir. R. 28.2.1, Rule 34 of the Federal Rules of Appellate Procedure and infringes on
the duty of candor to the Court.
2. 5th Cir. R. 28.2.1 demands that counsel certify a “complete list of all
persons, associations of persons, firms, partnerships, corporations, guarantors,
insurers, affiliates, parent corporations, or other legal entities who or which are
financially interested in the outcome of the litigation, specifying a list all persons
known to counsel to be interested, on all sides of the case, whether or not represented
by counsel furnishing the certificate.” (Emphasis ours).
3. Devoid of any signature as a certification to any court requires, the
statement included in Defendants-Appellees’ Reply Brief reads as follows: “A
certificate of interested persons is not required, as defendants-appellees are
governmental parties. 5th Cir. R. 28.2.1.”
4. For the reasons set forth below, Defendants-Appellees’ certification is
deficient and compels that their brief be stricken from the record.
5. First, the ‘Certificate of Interested Persons’ does not contain counsel’s
electronic signature required in any certification that must be included in any
certification made to the Court.
6. Second, the certification incorrectly asserts that none is required, “as
defendants-appellees are governmental parties”. see Rb.ii. Both the official capacity
and the individual capacity defendants are not considered “government” for 5th Cir.
R. 28.2.1’s purposes. While it is correct that defendants FBI, DHS are deemed
“governmental parties”, the official capacity defendants must be listed in the
certification of interested parties to the case, as they have done in prior cases.
7. Furthermore, the Supreme Court has determined that officials sued for
injunctive relief in their official capacities – such as in this case-- are “persons”
subject to liability for civil rights violations under Section 1983. Will v. Michigan
Dept. of State Police, 491 U.S. 58, 91 (1989).
8. Third, counsel for official capacity defendants in prior cases have
correctly submitted 5th Cir. R. 28.2.1’s certification in prior similar cases before this
Court. Appellants request that this Court take judicial notice of the “Certificate of
Interested Persons” included in recent proceedings where some of the same
defendants coincide with the ones in this case. To wit: Appeal number 20-10995,
Ghedi v. Mayorkas and Appeal number 23-10284, Kovac v. Wray, (Examples
Included as Exhibits 1 and 2 of this motion). Counsel in this case overlap with those
who appeared on behalf of Defendants-Appellees in both examples set forth above,
where they complied with 5th Cir. R. 28.2.1’s provisions, demonstrating familiarity
with their legal obligation thereunder, and an intentional failure to comply with it.
9. The fourth reason why the ‘certification’ is deficient and warrants the
striking of the brief stems from the fact that Defendants-Appellees also appear in
their individual capacity. Individual capacity defendants are not deemed
“governmental parties”. Inasmuch as they could be held personally liable should
Plaintiffs-Appellants succeed on the merits of this case; their personal assets could
be affected. “Personal-capacity suits, … seek to impose individual liability upon a
government officer” for civil rights violations. Hafer v. Melo, 502 US 21, 25 (1991).
Therefore, all individual capacity defendants and their respective spouses or
partners, if applicable, had to be listed as “interested parties” in Defendants-
Appellants’ certificate of interested persons.
10. Furthermore, not only do counsel for Defendants-Appellees have an
obligation to include in the certification any other person such that has joint vested
financial interests with any of the individual capacity defendants. The rule specifies
this includes: “a complete list of all persons, associations of persons, firms,
partnerships, corporations, guarantors, insurers, affiliates, parent corporations, or
other legal entities who or which are financially interested in the outcome of the
litigation.”
11. Defendants-Appellees disregarded their obligation to set forth the
private persons or entities with vested financial interests on this Appeal. Plaintiffs-
Appellants’ Amended Complaint identified some private parties that may potentially
have a vested financial interest if this Court declares illegal the inclusion of non-
terrorists on a terrorist database such as the Leidos Corporation, InfraGard and
Citizen Corps. ROA.589, ROA.600. Consequently, Defendants-Appellees must
certify to this Court the names of all private persons and entities that financially
benefit from placing non-terrorists on a terrorist database.
12. Given the national implications of this case, it is likely the list of
persons and entities that meet these “interested persons” criteria are significant. If
there are no additional private interested parties, counsel must certify this fact as
well under their signature.
13. Another reason why Defendant-Appellees’ certification does not
conform to 5th Cir. R. 28.2.1 because it excludes people the rule expressly directs to
be listed, such as the Plaintiffs-Appellants and the attorneys for all parties.
14. Defendants-Appellees’ and their counsel’s failure to submit a legally
compliant certification of interested persons pursuant to 5th Cir. R. 28.2.1 renders
their reply brief unacceptable and warrants it be stricken from the record as it
interferes with this Court’s responsibility to screen for any potential conflict of
interest. Defendant-Appellant’s noncompliance with the rule thus interferes with
Plaintiffs-Appellees right to due process by preventing the Court from detecting at
an early stage of the case any potential conflict of interest.
15. There is yet another significant violation by Defendants-Appellees that
warrants that the Court strike its Reply Brief. On October 28th, 2023, Plaintiffs-
Appellants discovered that roughly two weeks after the filing of the complaint, on
January 31, 2023, official capacity defendant Charles Kable retired as the Director
of the Terrorist Screening Center. Under Federal Rule of Appellate Procedure 46,
Federal Rule of Civil Procedure 11, and counsel’s duty of candor towards this Court
required that they substitute the official capacity defendant that is no longer in office.
16. Consequently, counsel for Defendants-Appellees also infringed their
obligations under 5th Cir. R. 28.2.1 by failing to include Mr. Michael Glasheen in
the certificate of interested persons. Although it seems Mr. Glasheen became the
TSC director on June 26, 2023, Defendants-Appellees did not inform the District
Court either and continued to file motions without substitution of official capacity
defendant Kable for Mr. Steven Glasheen who substituted him, in violation of
F.R.Civ.Proc. Rules 11 and 25(d) and their duty of candor to the court.
17. In light of the above, Defendants-Appellees’ “Certification of Interested
Persons” is intentionally deceptive and violates counsel’s duty to “ascertain and
certify the true facts to the court.” 5th Cir. R. 28.2.1(a). Defendants-Appellees’
experienced counsel’s deviation from this precept is inexcusable and calls for the
imposition of the sanctions the Court deems necessary to prevent any such conduct
in the future.
WHEREFORE, Plaintiffs-Appellants request that this Court be apprised of
the facts set forth herein and consequently:
a) Order that Defendants-Appellees brief be stricken from the record for its
numerous failures to conform to the rules set forth above.
b) Impose the sanctions it deems necessary to prevent future deviations from
this Court’s rules and procedures.
RESPECTFULLY SUBMITTED,
Dated: November 8, 2023
/s/ Ana Luisa Toledo
Ana Luisa Toledo
Counsel for Plaintiffs-Appellants
Targeted Individuals
individuos apuntados
Individuo dirigido
Personne ciblée
Individu ciblé
فرد مستهدف
目标个人
目標個人
लक्षित व्यक्ति
Individu yang Disasarkan
Целевая личность
লক্ষ্যযুক্ত ব্যক্তি
Indivíduo segmentado
対象者
Zielgruppe
Diangkah Individu
대상 개인
Hedeflenen Birey
Cá nhân được nhắm mục tiêu
లక్ష్యంగా ఉన్న వ్యక్తి
लक्ष्यित वैयक्तिक
இலக்கு தனிநபர்
Individuo mirato
نشانہ انفرادی۔
લક્ષ્યાંકિત વ્યક્તિગત
Ukierunkowana osoba
Цільова особа
فردی هدفمند
ടാർഗെറ്റുചെയ്ത വ്യക്തിഗത
ಉದ್ದೇಶಿತ ವೈಯಕ್ತಿಕ
ਨਿਸ਼ਾਨਾ ਵਿਅਕਤੀਗਤ
ඉලක්කගත තනි පුද්ගලයෙකි
Individual vizat
Məqsədli Fərdi