[00:00:00] Speaker 06:
Case number 21-5269, Larry Elliot Klayman, at balance, versus Naomi Rao, the honorable at out.

[00:00:08] Speaker 06:
Mr. Klayman for the at balance, Mr. Soder for the at police.

[00:00:13] Speaker 04:
Good morning.

[00:00:15] Speaker 04:
Our panel consists today of Judge Sack, Judge Erickson and myself.

[00:00:19] Speaker 04:
We're sitting by inter circuit assignment.

[00:00:22] Speaker 04:
We're very grateful for all the assistance of the clerk's office.

[00:00:26] Speaker 04:
And we are very grateful that you have given us your presence today.

[00:00:30] Speaker 04:
Since the case has already been called, Mr. Klayman, you can proceed whenever you're ready.

[00:00:36] Speaker 01:
Thank you, Your Honors.

[00:00:37] Speaker 01:
It's my honor to appear in front of you, and may it please the Court.

[00:00:43] Speaker 01:
This case presents a very important and exceptional situation.

[00:00:50] Speaker 01:
What do you do when the D.C.

[00:00:53] Speaker 01:
Circuit Court does not review the record?

[00:00:56] Speaker 01:
and overlooks intentionally, regrettably, because it became very controversial in terms of the lower court judges, overlooks major errors of law.

[00:01:08] Speaker 02:
At some point, would you explain the intentional part?

[00:01:12] Speaker 02:
I understand everything you're saying, but at some point, if you'll explain to us the argument that is intentional rather than bad.

[00:01:20] Speaker 01:
Yeah, regrettably, Your Honor, I've had a very contentious relationship with Judge Colleen Collard Cotelli over the years.

[00:01:26] Speaker 01:
It spans many, many years.

[00:01:29] Speaker 01:
We probably don't have enough time to get into it.

[00:01:31] Speaker 01:
I moved to disqualify her on a number of occasions.

[00:01:34] Speaker 01:
And I have no personal animus towards her.

[00:01:37] Speaker 01:
But this case took 16 years to litigate.

[00:01:40] Speaker 01:
And that tells you something.

[00:01:42] Speaker 01:
And the judges of the panel of the DC Circuit found this to be commendable.

[00:01:47] Speaker 01:
And that tells you something.

[00:01:49] Speaker 01:
Now, I'm asking.

[00:01:50] Speaker 04:
I do want to let you make your argument, but since you mentioned multiple efforts to recuse her, is it easy for you to give a record site to any example of her impartiality that you would point to that's extrinsic to her rulings against you?

[00:02:10] Speaker 01:
Yes, Your Honor.

[00:02:11] Speaker 01:
The very fact that she let in, as we talk about in the briefs, issues dealing with alleged wife beating or sexual harassment had nothing to do with this case.

[00:02:23] Speaker 01:
Lateche, the famous Supreme Court case, says that if legal errors are so grave and so extreme, that that can give rise to an inference of extrajudicial bias.

[00:02:34] Speaker 01:
But let me get to the crux of the argument here, because I'm asking for perspective relief.

[00:02:38] Speaker 01:
What I'm asking for

[00:02:40] Speaker 01:
And under Pullman, there's no immunity in that regard.

[00:02:43] Speaker 01:
I'm sure your honors have read that carefully.

[00:02:45] Speaker 01:
I'm asking this case to be the judgment to be vacated, to go back to the DC circuit so they can review the record.

[00:02:53] Speaker 01:
They never reviewed the record.

[00:02:54] Speaker 01:
There are major errors here, not just with regard to the prejudice in terms of injecting this inflammatory material allegation, which has never been proven.

[00:03:06] Speaker 01:
They didn't bring the woman in here that I allegedly sexually harassed.

[00:03:10] Speaker 01:
They didn't bring my wife in there.

[00:03:11] Speaker 01:
Nothing.

[00:03:13] Speaker 01:
Former wife.

[00:03:14] Speaker 01:
But you have major errors with regard to trademark infringement.

[00:03:18] Speaker 01:
The law of the D.C.

[00:03:19] Speaker 01:
Circuit itself says you have to have appreciable number of consumers that are confused to drive.

[00:03:25] Speaker 04:
If I could ask again, these are therefore, as I understand it, you agree these are errors that Mr Simcovitz, if I'm pronouncing his name correctly, did particularize in his brief to the D.C.

[00:03:37] Speaker 04:
Circuit.

[00:03:38] Speaker 04:
But your contention is they just didn't pay attention to them.

[00:03:43] Speaker 04:
There are no errors in the trial that you're pointing to that you hadn't already pointed to the D.C.

[00:03:48] Speaker 04:
Circuit.

[00:03:51] Speaker 01:
I put all the errors in front of them, and it's clear they didn't review the records.

[00:03:56] Speaker 01:
What I'm asking for, Your Honor, I was denied due process, I'm asking for you under Rule 60 to order them

[00:04:04] Speaker 01:
And you can order them on the basis of any other reason, justifying relief from operation of the judgment, as well as mistake, inadvertent surprise, or excuse me, neglect.

[00:04:13] Speaker 01:
I'm asking prospectively to go back and order them to thoroughly review the record.

[00:04:19] Speaker 01:
They didn't do it.

[00:04:19] Speaker 01:
The very fact that they come out with a statement that a 16-year administration of the case is commendable tells you they're protecting a fellow jurist.

[00:04:29] Speaker 01:
This is human nature.

[00:04:30] Speaker 02:
If I may say so, go ahead, Judge Eric.

[00:04:33] Speaker 02:
Go ahead, Judge Zack.

[00:04:35] Speaker 02:
I was just going to say this is a little strange because you're talking about sending it back to the D.C.

[00:04:43] Speaker 02:
Circuit.

[00:04:44] Speaker 02:
What makes it strange is for the present purposes aren't we the D.C.

[00:04:48] Speaker 02:
Circuit?

[00:04:49] Speaker 01:
Well, you are.

[00:04:49] Speaker 01:
And consequently, you can't make the ruling.

[00:04:51] Speaker 01:
That's what I was saying, is that we need to have a review here.

[00:04:54] Speaker 01:
And I thank God and I thank you for your independent review of this matter.

[00:05:01] Speaker 01:
Because we're all human beings, OK?

[00:05:03] Speaker 01:
If my law firm was accused of something or whatever, I mean, we would have the tendency to circle the wagons.

[00:05:10] Speaker 01:
And that's why I am very, very grateful that your honors have this case.

[00:05:15] Speaker 01:
because you can't do it objectively.

[00:05:17] Speaker 01:
You just can't.

[00:05:18] Speaker 01:
And look at Judge Cooper, who dismissed the action, sua sponte.

[00:05:22] Speaker 01:
Before it was even served, I never had a chance to even respond.

[00:05:26] Speaker 01:
And I got this order.

[00:05:28] Speaker 01:
So I'm just asking for due process.

[00:05:30] Speaker 01:
There's no personal animus towards anybody here.

[00:05:33] Speaker 01:
But we're dealing here with a $2.8 million judgment that if it's allowed to be enforced by simply rubber stamping,

[00:05:41] Speaker 01:
what the lower court did will bankrupt me, my family and hurt me.

[00:05:45] Speaker 01:
And this is inappropriate.

[00:05:48] Speaker 01:
And the biggest issue here, notwithstanding the trademark issue or the issue of not even providing adequate notice of what the jury instructions written wise were given to the jury or other issues that I outline in here, which are serious issues is the fact that

[00:06:06] Speaker 01:
You know, I was accused of wife beating.

[00:06:07] Speaker 01:
I mean, even in a criminal case that can't come in, let alone a civil case, the parole evidence rule, I signed the severance agreement, which initial watch was said I left on good terms.

[00:06:17] Speaker 01:
They praised me.

[00:06:19] Speaker 01:
yet I got sandbagged with this and it was allowed in front of the jury.

[00:06:23] Speaker 01:
It was highly inflammatory.

[00:06:25] Speaker 01:
And all of these things were overlooked.

[00:06:26] Speaker 01:
In fact, there was no discussion in the DC Circuit's rulings of the parole evidence rule.

[00:06:32] Speaker 01:
You can't go outside of the scope of the contract.

[00:06:35] Speaker 05:
Were these issues raised in your petition for cert?

[00:06:40] Speaker 05:
Because kind of the ordinary course is you have a three-judge panel, you petition for rehearing on bank, you have to file your petition

[00:06:49] Speaker 05:
for cert, and if they grant it fine, if they don't, it dies, right?

[00:06:54] Speaker 05:
I mean, and so I'm not aware of any case in which a subsequent three-judge panel gets to revisit the previous holdings of the court without running into all kinds of problems with the issue preclusion, right?

[00:07:08] Speaker 05:
And so I'm wondering- There's no- I'm sorry to interrupt you, Your Honor.

[00:07:13] Speaker 01:
My apologies.

[00:07:15] Speaker 01:
There's no issue of preclusion here because the issue of the DC Circuit not reviewing this matter has never been litigated.

[00:07:22] Speaker 01:
That's what we're here on today.

[00:07:24] Speaker 01:
We're not talking about what happened before the lower court.

[00:07:27] Speaker 01:
It's the DC Circuit not doing its job.

[00:07:30] Speaker 04:
In fact, when they denied it- I understand Judge Erickson's question is, did you make that argument as to the panel's delinquency when you filed your en banc petition and when you filed your cert petition?

[00:07:43] Speaker 01:
I did, Your Honor, but as Your Honor is aware, that the Supreme Court takes very, very few cases.

[00:07:48] Speaker 01:
They actually had, you know, very important cases on their docket dealing with Roe v. Wade.

[00:07:52] Speaker 01:
It's discretionary.

[00:07:54] Speaker 01:
And that is not demonstrative of the legal duty of Your Honors, in all due respect, to address this issue.

[00:08:02] Speaker 01:
Because this issue had been filed long before I filed a cert petition.

[00:08:06] Speaker 04:
The issue before us is the correctness of Judge Cooper's dismissal.

[00:08:13] Speaker 04:
And so I want to give you the opportunity before your time runs out to actually respond to the threshold jurisdictional case law cited by the government.

[00:08:23] Speaker 04:
And I want to draw your attention, particularly to the Supreme Court Seletex decision and to the DC Circuit Smalls decision.

[00:08:31] Speaker 04:
Those both stand for the proposition that Judge Cooper has no authority

[00:08:37] Speaker 04:
to review the DC Circuit's ruling.

[00:08:41] Speaker 04:
Could you respond to those two cases specifically?

[00:08:44] Speaker 04:
Because I didn't see it in your reply.

[00:08:46] Speaker 01:
I don't read those cases that way, Your Honor.

[00:08:49] Speaker 01:
I just don't.

[00:08:49] Speaker 01:
And in fact, we're in front of you right now.

[00:08:52] Speaker 01:
You do have the authority.

[00:08:54] Speaker 04:
Well, but I'm just going to interrupt you because you need to respond.

[00:08:57] Speaker 04:
If you don't read them that way, how do you read them?

[00:08:59] Speaker 04:
Because those are binding on us.

[00:09:01] Speaker 04:
And the DC Circuit cited them originally, and now the government cited them.

[00:09:06] Speaker 04:
So I really need to know how you read them differently.

[00:09:09] Speaker 01:
Number one, we pled all that we needed to plead under a notice pleading requirement under Rule 9.

[00:09:15] Speaker 04:
OK, but I'm not getting to the plausibility of your claim.

[00:09:19] Speaker 04:
So I'm asking what's your authority that Judge Cooper could review?

[00:09:24] Speaker 04:
a decision that you took on direct appeal all the way en banc to cert.

[00:09:29] Speaker 04:
How do we avoid those two cases?

[00:09:31] Speaker 04:
So speak to those two cases.

[00:09:33] Speaker 01:
This is an exceptional case.

[00:09:36] Speaker 01:
In order to get up in front of you, I had to go there first.

[00:09:41] Speaker 01:
And consequently, Judge Cooper, by denying or dismissing my case, actually created the predicate to be in front of you.

[00:09:47] Speaker 01:
So now I'm in front of you.

[00:09:49] Speaker 01:
I'm in a superior court right now.

[00:09:51] Speaker 01:
That's how I got there.

[00:09:53] Speaker 01:
I couldn't file directly in front of you.

[00:09:55] Speaker 01:
I tried to do that with the petition for rehearing en banc.

[00:09:58] Speaker 01:
It was dismissed with a huge record of 16 years in 11 days.

[00:10:03] Speaker 01:
That's simply not plausible.

[00:10:05] Speaker 04:
As concisely as possible, what is the reversible error that Judge Cooper committed when he stated he didn't have jurisdiction to give you the relief, vacatur and neutral that you're asking?

[00:10:18] Speaker 04:
Where is the reversible error in that jurisdictional holding of his?

[00:10:25] Speaker 01:
Reversible error is that he should have referred the matter to a higher authority at that point, but I had to start there, Your Honor.

[00:10:33] Speaker 01:
I had to start there and I tried.

[00:10:34] Speaker 05:
What process exists under the rules for a district judge to just refer the matter to

[00:10:40] Speaker 05:
I was a district judge for a long time.

[00:10:43] Speaker 05:
I would have wanted to do that from time to time, but I didn't know any way I could.

[00:10:47] Speaker 01:
I was going to start this hearing by asking you a question, okay?

[00:10:52] Speaker 01:
What would you do under these circumstances?

[00:10:54] Speaker 01:
It is so unique.

[00:10:55] Speaker 01:
It is so unbelievable.

[00:10:58] Speaker 01:
that a circuit court could write that this was commendable the way this case was handled.

[00:11:05] Speaker 01:
I mean, it's beyond the pale.

[00:11:06] Speaker 01:
It's beyond imagination.

[00:11:08] Speaker 01:
And that's why I implore you to actually read the record as well.

[00:11:11] Speaker 01:
Because if I need to go another route, I can go another route, but I had no other route to go at this time.

[00:11:17] Speaker 01:
Rule 60 seemed to cover it.

[00:11:19] Speaker 01:
I'm not seeking to relitigate other cases.

[00:11:22] Speaker 01:
This is a unique case dealing with the D.C.

[00:11:25] Speaker 01:
Circuit's failure to provide me Fifth Amendment and Fourteenth Amendment due process rights.

[00:11:30] Speaker 01:
Where else do I go?

[00:11:31] Speaker 01:
As far as the Supreme Court is concerned, that's discretionary.

[00:11:34] Speaker 01:
They're not going to be giving much time to Larry Klayman on the discretionary matter when they're dealing with Roe v. Wade and issues like that.

[00:11:41] Speaker 01:
So you're my last hope.

[00:11:44] Speaker 01:
You're my last recourse here.

[00:11:46] Speaker 01:
And I had to start with Cooper to get up to you.

[00:11:49] Speaker 01:
But I never had an opportunity to even brief the issue in front of him.

[00:11:53] Speaker 01:
I was denied due process there as well.

[00:11:56] Speaker 01:
I've never seen a situation like this where before I even served the complaint, he's writing an order.

[00:12:00] Speaker 01:
So there obviously is something going on there.

[00:12:03] Speaker 01:
And we know.

[00:12:04] Speaker 01:
and y'all are not from Washington, D.C.

[00:12:07] Speaker 01:
We know the atmosphere in Washington, D.C.

[00:12:08] Speaker 01:
today.

[00:12:09] Speaker 01:
I'm the founder of Judicial Watch.

[00:12:11] Speaker 01:
I'm the founder of Freedom Watch.

[00:12:13] Speaker 01:
It's highly toxic on both sides of the political aisle.

[00:12:17] Speaker 01:
And Larry Klayman has been, over the years, a thorn in the side of the establishment.

[00:12:22] Speaker 01:
And I wrote a book which was very critical of the judges on that court because I've been practicing there for 45 years, nearly.

[00:12:29] Speaker 04:
So you're claiming your answer.

[00:12:31] Speaker 04:
I mean, we have read this record, of course.

[00:12:35] Speaker 04:
And you gave us voluminous record excerpts.

[00:12:38] Speaker 04:
And so I'm looking at your page 241.

[00:12:40] Speaker 04:
There's your en banc rehearing.

[00:12:43] Speaker 04:
And you did make this argument that the panel had overlooked your arguments.

[00:12:46] Speaker 04:
That was not to the Supreme Court, but to the D.C.

[00:12:49] Speaker 04:
Circuit en banc.

[00:12:51] Speaker 04:
And I take it your response would be the same that they too overlooked everything.

[00:12:57] Speaker 01:
The Supreme Court?

[00:12:58] Speaker 04:
Oh, the D.C.

[00:13:00] Speaker 04:
Circuit.

[00:13:00] Speaker 01:
Yes, yes, they did.

[00:13:01] Speaker 01:
They did, Your Honor, because look, everybody we know, we know, you know, what what the situation is here.

[00:13:07] Speaker 01:
People in the same courthouse judges like everybody else, you know, go to lunch together.

[00:13:12] Speaker 01:
They socialize together.

[00:13:13] Speaker 01:
They talk about litigants.

[00:13:15] Speaker 01:
They talk about what's going on, their impressions of them.

[00:13:19] Speaker 01:
They didn't want to be bothered with this.

[00:13:21] Speaker 01:
And so they just rubber stamped it.

[00:13:23] Speaker 01:
But how can as a matter of justice,

[00:13:27] Speaker 01:
a situation occur where someone smeared for beating his wife that has nothing to do with the case, where they ignore their own case law, which in the D.C.

[00:13:38] Speaker 01:
Circuit that says you have to have appreciable number of consumers confused to give rise to trademark infringement.

[00:13:44] Speaker 01:
And that's where most of this ultimate question.

[00:13:46] Speaker 02:
And I had to take your time to ask with my mind.

[00:13:50] Speaker 02:
The ultimate question is, who are we to do something about?

[00:13:56] Speaker 01:
You have rule 60 as a vehicle to do that, because this is it falls in in particular number six any other reason justifying relief from operation of a judgment what i'm saying is vacate the judgment and order them to do a review.

[00:14:11] Speaker 01:
order them to do their job, or if you can do the review, if it stays in front of you, and I trust it will, take a look at the law here, take a look at the facts.

[00:14:20] Speaker 01:
This thing is frankly, on Mars, what came down, and then I don't get a review.

[00:14:26] Speaker 01:
Would you, Your Honor, write that it was commendable to administer to a case for 16 years?

[00:14:32] Speaker 01:
That tells you something commendable.

[00:14:35] Speaker 01:
Are you kidding me?

[00:14:36] Speaker 01:
So this is where we are.

[00:14:38] Speaker 04:
And the government, just so you know, and you'll have rebuttal time, but the government has cited law just for the proposition that we don't have equity authority when you had a remedy at law.

[00:14:48] Speaker 04:
And your answer would be that the remedy of law was just illusory.

[00:14:53] Speaker 01:
My answer is, is that I was never provided due process.

[00:14:55] Speaker 01:
Therefore I was never provided a remedy at law.

[00:14:58] Speaker 01:
I was completely denied due process.

[00:15:01] Speaker 02:
doesn't.

[00:15:02] Speaker 02:
I think we are into his.

[00:15:03] Speaker 02:
Oh, I apologize.

[00:15:05] Speaker 02:
Yes.

[00:15:05] Speaker 02:
So we're gonna have to somehow.

[00:15:07] Speaker 02:
Yeah, you're gonna have to, I think, give him an additional several minutes.

[00:15:12] Speaker 04:
I've been told that Mr Klayman, you will get two extra minutes added on for a rebuttal because we did.

[00:15:18] Speaker 04:
I kept asking questions.

[00:15:20] Speaker 04:
Thank you.

[00:15:21] Speaker 04:
So we'll hear from the government now.

[00:15:22] Speaker 04:
Thank you, Judge Zach.

[00:15:26] Speaker 00:
Mr Soder, whenever you're ready,

[00:15:28] Speaker 00:
Thank you very much.

[00:15:29] Speaker 00:
Good morning, Your Honor.

[00:15:29] Speaker 00:
May it please the court, Kevin Soder from the Department of Justice for the defendants.

[00:15:34] Speaker 00:
The district court properly dismissed this lawsuit for a simple reason.

[00:15:38] Speaker 00:
Litigants who are dissatisfied with the results in their cases cannot resort to suing the judges.

[00:15:43] Speaker 00:
In a thoroughly reasoned decision, the district court relied on four independent doctrinal bases in support of that common sense conclusion.

[00:15:50] Speaker 00:
This would be Judge Cooper.

[00:15:55] Speaker 00:
Yes, Judge Cooper.

[00:15:57] Speaker 00:
Issue the thorough decision that's available in the appendix that details these four doctrinal bases to support the conclusion that a litigant disappointed with the results cannot sue the judges.

[00:16:08] Speaker 00:
This court should affirm for the reasons that we set forth in our brief.

[00:16:12] Speaker 00:
I think we've laid out the various options this court has for affirming and I'm happy to address any questions if the court has them.

[00:16:19] Speaker 04:
Well, when you say he did list out four, some are jurisdictional, some not.

[00:16:24] Speaker 04:
So I assume you'd agree we would start with the jurisdictional ones.

[00:16:28] Speaker 04:
And I saw at least two, which of those would you say have current and controlling DC circuit law to support them?

[00:16:38] Speaker 04:
Because judicial immunity seems to be a little bit more of a murky world.

[00:16:43] Speaker 00:
I think this court could certainly begin where we began in our brief with the jurisdictional issue whether a district court has jurisdiction to vacate the orders of another federal court.

[00:16:55] Speaker 00:
That it follows directly from the Supreme Court's decision in seal of text the honor was discussing as well as the DC circus decision in smalls that there is no such

[00:17:07] Speaker 00:
or affirming the results here.

[00:17:10] Speaker 00:
To the extent the court continues on, I think everything past that is sort of an additional basis confirming this result on multiple other grounds, including immunity, issue of preclusion and merits.

[00:17:30] Speaker 04:
Well, you do point out that polium has complexities and your brief suggested even infirmities.

[00:17:37] Speaker 04:
You want to elaborate a little on that?

[00:17:42] Speaker 00:
Yes, I think as an initial matter for the reasons we've discussed, it's not necessary to get into these details of what exactly the scope of Pulliam is because of this threshold jurisdictional issue to the extent the court goes on to reach alternative basis for affirming that result.

[00:17:56] Speaker 00:
I think there are a few distinctions from Pulliam that are important to keep in mind.

[00:17:59] Speaker 00:
One is that Pulliam only involved a claim for truly prospective, injunctive, equitable relief.

[00:18:11] Speaker 00:
the results reached in prior litigation.

[00:18:14] Speaker 00:
And then the other key distinction that's been discussed by the nine

[00:18:22] Speaker 00:
with a case involving state judges, state judicial officials.

[00:18:25] Speaker 00:
And there are just different considerations at play.

[00:18:27] Speaker 00:
The reasoning of William doesn't extend in the same way when you're dealing with federal judges for whom, again, sort of tying back to the general theme, there are avenues to obtain the sort of relief that Mr. Klayman has asked for here, a vacater of a judgment, that those are to go through the orderly process of an appeal to seek reconsideration in the district court, the court of appeals, all of this that already happened.

[00:18:49] Speaker 00:
And the process has to come to an end at some point, and it ended already in this case.

[00:18:56] Speaker 04:
Now, Mr. Klayman-Prose is asking, particularly, repeatedly, suggesting there was no fair trial, above all, because of what we could call 404b evidence, and in particular, the alleged assaultive behavior.

[00:19:12] Speaker 04:
Do you want to speak to whether or not that would that specific issue the correctness of the introduction of that evidence?

[00:19:19] Speaker 04:
This is assuming just for the sake of argument that we would get to the claims.

[00:19:25] Speaker 04:
Was that never considered either in district court or in circuit court?

[00:19:29] Speaker 00:
I think that was clearly considered in the D.C.

[00:19:33] Speaker 00:
Circuit's decision.

[00:19:34] Speaker 00:
And as Your Honor mentioned, these issues were raised in the briefing to the D.C.

[00:19:38] Speaker 00:
Circuit and in the en banc briefing.

[00:19:41] Speaker 00:
And there was also a cert petition that was recently denied.

[00:19:43] Speaker 00:
These are all the sorts of issues.

[00:19:45] Speaker 00:
that can be raised in litigation and on appeal and that, in fact, were raised here.

[00:19:50] Speaker 00:
And there is no authority to support bringing a collateral lawsuit against the judges asking for a do-over of those sorts of decisions and trying to inject these claims of bias and improper judicial decision-making.

[00:20:05] Speaker 06:
There is an orderly process that already happened here.

[00:20:16] Speaker 06:
I'm curious, yeah, go ahead, Judge Jackson.

[00:20:21] Speaker 05:
This is contemplating, is there some other orderly process for this?

[00:20:25] Speaker 05:
And I'm wondering, you know, a court superior to the DC Court of Appeals, which would be by definition only the Supreme Court in the United States, couldn't you petition for a writ of mandamus directing, I mean, if you really did have evidence, I mean, and the problem here is we've got, you know, perhaps part of the problem is

[00:20:45] Speaker 05:
We have, of course, only a complaint.

[00:20:47] Speaker 05:
It's conclusory.

[00:20:48] Speaker 05:
There was never anything developed above that.

[00:20:51] Speaker 05:
And there is no evidence other than arguments that are inferential.

[00:20:58] Speaker 05:
And so the Supreme Court would have the authority to issue a writ of mandamus to the DC Circuit, actually, to just say, we find that you did actually review the case, and we order you to do it.

[00:21:12] Speaker 05:
Or am I wrong?

[00:21:12] Speaker 00:
Yes, Your Honor.

[00:21:13] Speaker 00:
I think the important point is there are processes at law.

[00:21:17] Speaker 00:
There are what would be adequate remedies at law, which include appeal in addition to a writ of mandamus if the circumstance is warranted.

[00:21:24] Speaker 00:
What there isn't and what the case law makes completely clear is there isn't an opportunity to bring a separate collateral lawsuit where you go before a different district judge and ask that district judge to order vacater of an existing final judgment.

[00:21:41] Speaker 03:
I'm just curious a little on a slightly side issue, but it was an issue decided below and therefore before us.

[00:21:47] Speaker 04:
If in fact all judges on a circuit are recused, what is the government's, you have multiple arguments against the authority to transfer.

[00:21:56] Speaker 04:
And I wasn't exactly sure which was your primary, that factually there would be no other venue with jurisdiction over the defendant judges.

[00:22:07] Speaker 04:
or that transfer itself is an issue that's been decided and therefore there's race judicata even as to that issue?

[00:22:16] Speaker 00:
I think there are several grounds on which this court could affirm the decision about disqualification or transfer.

[00:22:24] Speaker 00:
Perhaps the one at the core of it that may be most straightforward is to just agree with what Judge Cooper said about why he did not need to recuse himself from this case.

[00:22:36] Speaker 00:
up for transfer there.

[00:22:38] Speaker 00:
And that was fully consistent with the ethics opinion that's been issued by the relevant committee of the judicial conference that we cited in our brief.

[00:22:47] Speaker 00:
I believe that's at page 29 of our brief, there's a citation to the opinion that says that when you have this sort of case where someone tries to sue the judges and it's not a claim with merit, there is no conflict for the

[00:23:08] Speaker 00:
of misconduct and other issues.

[00:23:12] Speaker 00:
In addition to that, there are other bases, including that this court can affirm for the reasons in part one of our brief.

[00:23:18] Speaker 00:
And this is not the sort of threshold issue that needs to be reached at all.

[00:23:22] Speaker 02:
Mr. Klayman, is our- Part one of your brief being, remind me, you say part one of your brief, which refers to what issue?

[00:23:31] Speaker 00:
The correctness of the dismissal rather than the, just the sort of transfer or disqualification issue.

[00:23:39] Speaker 00:
It follows from, we cited the Supreme Court's sign-a-cam decision in our brief for why this sort of issue about whether the judge needs to disqualify ICE.

[00:23:49] Speaker 00:
Yeah.

[00:23:51] Speaker 05:
Mr. Soder, Mr. Klayman has argued that the process here that was followed by Judge Cooper is somewhat unusual.

[00:24:01] Speaker 05:
That he ruled sua sponte, he ruled sua sponte before actual service of the complaint and any opportunity on the part of the defendants to respond.

[00:24:11] Speaker 05:
And that the unusual nature of that is evidence of

[00:24:17] Speaker 05:
bias or prejudice such that recusal really actually is the appropriate remedy.

[00:24:25] Speaker 05:
How would you respond to that?

[00:24:27] Speaker 00:
I think your honor what's unusual in this case is the repeated attempts to attack the same judgment through after going through all of the available actual processes to already collateral attack it before

[00:24:41] Speaker 00:
was before Judge Shetken and to bring these claims that just do not have any basis in law to proceed with.

[00:24:50] Speaker 00:
And so in that circumstance,

[00:24:55] Speaker 00:
resolve this case on threshold jurisdictional grounds that were incurable, and also to rely on the D.C.

[00:25:00] Speaker 00:
Circuit's Baker case that we've mentioned in our brief that stands for the proposition that even a standard sort of merits 12b6 dismissal, when it's patently obvious from reading the complaint that that's warranted, a district court has discretion to dismiss the case without notice to the plaintiff.

[00:25:19] Speaker 05:
Thank you.

[00:25:26] Speaker 00:
If there are no further questions, I am happy to rest on briefs for the remaining points.

[00:25:31] Speaker 04:
Thank you very much, Mr Soder and Mr Klayman.

[00:25:34] Speaker 04:
I apologize again for not paying attention to your rebuttal time in our court.

[00:25:38] Speaker 04:
That's usually a frozen amount of time.

[00:25:41] Speaker 04:
Why don't you go ahead and take two?

[00:25:42] Speaker 04:
I think you had two minutes.

[00:25:46] Speaker 01:
Go ahead.

[00:25:47] Speaker 01:
Thank you.

[00:25:47] Speaker 01:
I appreciate that.

[00:25:49] Speaker 01:
I just want to make it clear.

[00:25:49] Speaker 01:
I'm asking for perspective relief.

[00:25:51] Speaker 01:
So we do fall within the scope of Pulliam.

[00:25:54] Speaker 01:
I'm asking that

[00:25:56] Speaker 01:
DC Circuit be required.

[00:25:58] Speaker 01:
You can do it obviously now because you are the DC Circuit to review the record.

[00:26:03] Speaker 01:
Okay, Ashley, look at the record and see what happened.

[00:26:06] Speaker 01:
This is a manifest injustice and it behooves the court.

[00:26:11] Speaker 02:
So that would be satisfactory to you if we just say go back

[00:26:16] Speaker 02:
and look at the record thoroughly.

[00:26:18] Speaker 01:
As long as you're doing it, yes, that would be satisfactory, Your Honor.

[00:26:23] Speaker 01:
The other thing is there's no distinction.

[00:26:25] Speaker 01:
This is another point, but that's not the major point.

[00:26:27] Speaker 01:
There's no distinction between federal and state judges in terms of immunity for equitable relief and power to grant it.

[00:26:36] Speaker 01:
That's just simply not in the cases.

[00:26:38] Speaker 01:
You won't find it.

[00:26:39] Speaker 01:
So I mean, that's the bottom line is that we need to have due process here.

[00:26:43] Speaker 01:
This is an example that creates a very bad precedent for other litigants to come into the court in a day and age when people are already having on both sides of the well sides of the political spectrum concern about the functioning of our legal system.

[00:26:58] Speaker 01:
It's very important that the courts create that confidence.

[00:27:01] Speaker 01:
or even someone like Larry Klayman, who's been a public interest advocate that he gets due process as well.

[00:27:08] Speaker 01:
So I thank you very much for your time.

[00:27:10] Speaker 01:
I'm very grateful that you're on the case.

[00:27:13] Speaker 01:
I ask that you review the record, take a look at it.

[00:27:16] Speaker 01:
There's gotta be a way to skin the cat here because this just isn't right.

[00:27:20] Speaker 04:
I'm gonna ask one last question, Mr. Klayman.

[00:27:22] Speaker 04:
What would be your limiting principle?

[00:27:24] Speaker 04:
Let's just assume any litigant who feels their case is just as important as yours

[00:27:30] Speaker 04:
feels that at every level of direct appeal, their arguments weren't sufficiently considered.

[00:27:35] Speaker 04:
What would be the limiting principle that they couldn't always then allege bias, hostility, and demand to have the courts just look at it again?

[00:27:45] Speaker 01:
How are you differently situated?

[00:27:48] Speaker 01:
This is that extraordinary case, your honor.

[00:27:50] Speaker 01:
And that's why I kept citing.

[00:27:51] Speaker 01:
I mean, look at the opinion itself, which, you know, praises

[00:27:56] Speaker 01:
Judge Cotelli for 16 years of administration of the case.

[00:28:00] Speaker 01:
That was gratuitous.

[00:28:01] Speaker 01:
That didn't have to be put in there.

[00:28:02] Speaker 01:
It tells you where you're coming from.

[00:28:04] Speaker 01:
Or Judge Chutkin.

[00:28:05] Speaker 02:
But is that, if we found, if we were to find similar language, which we disagreed, calling something commendable, and obviously it was not, that is the limiting principle.

[00:28:18] Speaker 02:
No, what I'm saying

[00:28:20] Speaker 01:
Yeah.

[00:28:21] Speaker 01:
Know what I'm saying?

[00:28:22] Speaker 01:
This case is so extreme.

[00:28:24] Speaker 01:
It's the extreme case.

[00:28:26] Speaker 01:
And Judge Chuck, in another example, I asked whether there had been any communications with Judge Cattelli.

[00:28:30] Speaker 01:
She stayed the case pending an appeal.

[00:28:33] Speaker 01:
He decided on her own against Sue Espante to dismiss it before the appeal was even heard and withdrew her order to stay.

[00:28:41] Speaker 01:
There's something that went on over there.

[00:28:43] Speaker 02:
I'm just looking.

[00:28:44] Speaker 02:
The only thing I'm trying to be sure I understand is the answer to Judge Higgins' question.

[00:28:51] Speaker 02:
is to what are the limitations?

[00:28:54] Speaker 02:
I understand your view and your position, but the question is in looking for a general rule of law, what is the general rule of law you would take out of this?

[00:29:04] Speaker 01:
In most instances, Your Honor, it would not be subject to collateral attack, but this is that extreme circumstance.

[00:29:11] Speaker 01:
And you can see it right from the record.

[00:29:14] Speaker 01:
And it is extreme when a lawyer without any proof

[00:29:18] Speaker 01:
is put in front of a jury because a defendant wants to create in flammable prejudicial material that he beat his wife.

[00:29:26] Speaker 01:
That's the worst thing that you can put in front of a jury.

[00:29:29] Speaker 01:
And we cited cases in that regard.

[00:29:31] Speaker 01:
And even a criminal defendant who's accused of violence, if it's not relevant to what he's being accused of, you can't do that.

[00:29:39] Speaker 01:
I was a civil plaintiff.

[00:29:41] Speaker 05:
So you're arguing essentially the limiting principle is if the case is

[00:29:45] Speaker 05:
uh uh sui generis and is in such a way uh unto itself that it shocks the conscience that there's an exception so this is a sort of shock the conscience kind of argument that we yes yes yes it is and when you limit it yes and when you defy the own law of your own circuit with regard to trademark infringement

[00:30:09] Speaker 01:
And again, these consumers, the documents weren't even authenticated.

[00:30:14] Speaker 01:
We don't know that Judicial Watch didn't create them.

[00:30:17] Speaker 01:
They were never authenticated.

[00:30:19] Speaker 01:
And yet the DC Circuit has ruled you need appreciable number of consumers to be confused about trademark infringement.

[00:30:26] Speaker 02:
I would be most interested for you to specifically address yourself to Judge Erickson's question.

[00:30:31] Speaker 02:
Is that the standard shocks the conscience?

[00:30:34] Speaker 02:
Is that what we're talking about?

[00:30:36] Speaker 02:
We're looking for a standard, a rule.

[00:30:38] Speaker 01:
I would say he hit the nail on the head.

[00:30:42] Speaker 01:
This shocks the conscience.

[00:30:44] Speaker 01:
Thank you.

[00:30:45] Speaker 01:
Thank you, Ron.

[00:30:46] Speaker 04:
Thank you both.

[00:30:47] Speaker 04:
We appreciate the arguments.

[00:30:48] Speaker 04:
The case is submitted.