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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA


STRANGE, et. al

Plaintiffs,
v.

ISLAMIC REPUBLIC OF IRAN, et al

Defendants.







Civil Action No. 1:14-cv-00435





MOTION FOR DISQUALIFICATION PURSUANT TO 28 U.S.C. 144


Pursuant to 28 U.S.C. 144, Plaintiffs hereby respectfully move for disqualification of
this Court and hereby present this memorandum and the attached affidavits of counsel for
Plaintiffs, Larry Klayman, and Plaintiffs Charles Strange, Douglas Hamburger, and Phouthasith
Douangdara (Exhibits 1, 2, 3, 4). In addition, Plaintiffs have attached the affidavit of
distinguished and renowned Professor Ronald Rotunda, an expert on Professional Responsibility
and Constitutional Law, further in support of this Court's disqualification (Exhibit 5). Plaintiffs
further respectfully request that this case be expeditiously transferred to another judge of this
district so that this case may move forward.
Introduction

Plaintiffs, Charles and Mary Ann Strange, Douglas and Shaune Hamburger, and
Phouthasith Douangdara, on behalf of themselves and their sons and stepsons, filed suit against
the Islamic Republic of Iran, Mahmoud Ahmadinejad, Ayatollah Sayyid Ali Hoseyni Khamenei,
the Army of the Guardians of the Islamic Revolution, Hamid Karzai, the Afghan Operational
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Coordination Group, Khasa Amalyati Qeta/Qeta-e-Khas-e-Amalyati or the Afghan Special
Operations Unit, the Afghan National Security Forces, the Islamic Republic of Afghanistan, the
Taliban, and Al Qaeda, for violating Plaintiffs and decedents rights, engaging in racketeering
and other prohibited activities, engaging in international terrorism, harboring and concealing
terrorists, providing material support to terrorists and terrorist groups, directly and proximately
causing the deaths of Plaintiffs decedents, and directly and proximately causing mental anguish,
severe emotional distress, emotional pain and suffering, and the loss of society, earnings,
companionship, comfort, protection, care, attention, advice, counsel or guidance. See, generally,
Complaint [ECF No. 1] at pp. 3.
This case concerns the tragic deaths of American heroes comprised of Navy SEAL Team
VI and other Special Operations forces in the shoot down of their helicopter by the Taliban on
August 6, 2011. Some of these Special Operations forces were the same ones who performed the
successful raid that killed Al Qaeda leader Osama Bin Laden on May 2, 2011.
This case was filed on March 18, 2014 and it was assigned to the Honorable Colleen
Kollar-Kotelly. Counsel for Plaintiffs filed a Motion To Transfer Case Pursuant To Rule
57.13(A) on March 19, 2014, wherein Plaintiffs requested that this Court assign this case to
another judge due to the fact that counsel for Plaintiffs has had long running litigation against
Judge Kollar-Kotelly. Local Rule 57.13(a) states that, A judge, upon written advice to the
Calendar and Case Management Committee, may transfer directly all or part of any case on the
judges docket to any consenting judge. LCrR 57.13(a). Plaintiff's counsel wished to avoid
formally moving for recusal of this Court, and hoped that this Court would recognize the
inherent conflict of interest and transfer the case to another jurist of this district.
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On April 8, 2014, the Court denied Plaintiffs Motion to Transfer. Plaintiffs moved for
Reconsideration of the Court's order of April 8, 2014, only to have this motion denied by the
Court on April 15, 2014. Having already tried to transfer this case to another judge without
much trouble for either this Court or the parties, Plaintiffs are now regrettably forced to formally
move for disqualification of this Court.
The Law

An impartial judiciary is a fundamental component of the system of justice in the United
States. The right to a neutral and detached judge in any proceeding is protected by the
Constitution and is an integral part of maintaining the publics confidence in the judicial system.
Ward v. City of Monroeville, 409 U.S. 57, 61-62 (1972). See also Marshall v. Jerrico, Inc., 446
U.S. 238, 243 (1980) (powerful constitutional interest in fair adjudicative procedure).
Congress has sought to secure the impartiality of judges by requiring them to step aside, or in
some instances, disqualify themselves, in various circumstances.
In order to preserve the integrity of the judiciary, and to ensure that justice is carried out
in each individual case, judges must adhere to high standards of conduct." York v. United States,
785 A.2d 651, 655 (D.C. 2001). "A judge should disqualify himself in a proceeding in which his
impartiality might reasonably be questioned. . . ." ABA Code Of Judicial Conduct Canon 3(C)(1)
see also Scott v. United States, 559 A.2d 745, 750 (D.C. 1989) (en banc).
The language of the Judicial Code leaves no doubt that that recusal process is to be self-
executing, as the judge should not unethically wait for a recusal motion to be filed. It is
intended to be used by a judge at the start of each case as a checklist to assist in deciding
whether at that point he should disqualify himself from any participation in the
proceedings . . . [E]ven before appraising participation in the case under the [Judicial
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Code], the judge should first consult his own emotions and conscience, and pass an
'internal test of freedom' from disabling conflicts." Leslie W. Abramson, Judicial
Disqualification Under Canon 3 of the Code of Judicial Conduct 10 (2d ed. 1992).
Recusal is required when there is even the appearance that the court's impartiality may be
called into question, and "could suggest, to an outside observer, such a 'high degree of favoritism
or antagonism' to defendants' position that 'fair judgment is impossible.' Liteky v. United States,
510 U.S. 540, 555, 127 L. Ed. 2d 474, 114 S. Ct. 1147 (1994)); See also Jackson v. Microsoft
Corp., 135 F. Supp. 2d 38, 40 (D.D.C. 2001) (recusal was proper because the judge "ha[d]
created an appearance of personal bias or prejudice").
Under the United States Code, a district judge must recuse herself from a proceeding
after a party has properly filed an affidavit pursuant to 28 U.S.C. 144.
28 U.S.C. 144 provides in its entirety:
"Whenever a party to any proceeding in a district court makes and files a timely and
sufficient affidavit that the judge before whom the matter is pending has a personal bias
or prejudice either against him or in favor of any adverse party, such judge shall proceed
no further therein, but another judge shall be assigned to hear such proceeding.

"The affidavit shall state the facts and the reasons for the belief that bias or prejudice
exists, and shall be filed not less than ten days before the beginning of the term at which
the proceeding is to be heard, or good cause shall be shown for failure to file it within
such time. A party may file only one such affidavit in any case. It shall be accompanied
by a certificate of counsel of record stating that it is made in good faith."

"The disqualification statute, 28 U.S.C. 144, is mandatory and automatic, requiring
only a timely and sufficient affidavit alleging personal bias or prejudice of the judge. The judge
is a silent defendant, unable to make findings on the truth or falsity of the affiant's allegations,
and truth must be presumed. United States v. Hanrahan, 248 F. Supp. 471, 474 (D.D.C.
1965)(Emphasis added); and the allegations may be based upon information and belief, Berger
v. United States, 255 U.S. 22, 34, 65 L. Ed. 481, 41 S. Ct. 230 (1920)." Brotherhood of
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Locomotive Firemen & Enginemen v. Bangor & Aroostook Railroad Co., 380 F.2d 570, 576
(D.C. 1967).
Courts have also held that a jurist is subject to disqualification when a conflict of interest
or extra-judicial bias toward the clients attorney becomes manifest. Souder v. Owens-Corning
Fiberglas Corp., 939 F.2d 647, 653 (8th Cir. 1991). (Bias against an attorney can reasonably be
imputed to a party.). In Foster, the court held that an attorney who files a motion for change of
judge in good faith is not required to prove actual prejudice by the judge. State ex. rel. Strain v.
Foster, 537 P.2d 547 (Ore. 1975). In Hulme, a judge who had a prior negative interaction with
litigants counsel in other cases was held to be disqualified in a mandamus proceeding. Hulme v.
Woleslagel, 493 P.2d 541 (Kan. 1972). More importantly, however, courts have held that the
facts are legally sufficient to disqualify a judge where there has been prior conflict between the
judge and counsel, where there was severe antipathy on the part of the judge toward counsel, and
where an attorney filed a complaint or charges against the judge.
In James, a judge was required to disqualify himself when an attorney for a litigant in the
medical malpractice case filed a motion alleging that the judge was biased against him because
the attorney had previously represented a client who had sued the judge when he was in private
practice. James v. Theobald, 557 So. 2d 591 (Fla. 1990). In Brewton, the court held that the
judge should be disqualified in an election-misconduct case because the partners of defendants
counsel had brought about a bill of impeachment against the judge, and counsel for the plaintiffs
had appeared for the judge at the same impeachment trial. The court, in issuing a writ of
prohibition disqualifying the judge, said that prejudice of a judge toward counsel for a party may
be of such a degree as to effect a prejudice against the party itself. Brewton v. Kelly, 166 So. 2d
834 (Fla. 2d DCA 1964). In Hahn, the court held that a change of judge should have been
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granted for bias when the prosecuting attorneys in the action had previously prosecuted the judge
and obtained a conviction. State v. Hahn, 660 N.E.2d 606 (Ind. Ct. App. 1996).
Finally, in Roberts, a judge recused himself even though he stated he had no personal
bias against the litigants attorney. The court there stated that the issue of what a reasonable
person would think about a judges impartiality should be approached from the viewpoint of the
party to the action. Recusal was necessary because the functioning of the justice system would be
impaired if counsel were to go to trial before a judge that counsel thought had a conflict of
interest and was biased against him. Roberts v. Ace Hardware, Inc., 515 F. Supp. 29 (N.D. Ohio
1981).
Discussion
Nothing can create more of a conflict of interest than when the presiding judge is
involved with ongoing litigation with an attorney appearing before that judge. Here, counsel for
Plaintiffs has appeared twice before Judge Kollar-Kotelly, only to have his reputation and
financial well-being harmed, and has thus been forced to move for disqualification in both
previous lawsuits. See Exhibit 1 -- Klayman Affidavit 6. Even more, Judge Kollar-Kotelly's
refusal to recuse herself from these previous lawsuits has regrettably forced Plaintiffs' counsel to
personally sue Judge Kollar-Kotelly, and Plaintiffs counsel will soon be filing a petition for writ
of certiorari and petition for writ of mandamus before the U.S. Supreme Court with regard to this
very same lawsuit. Klayman Affidavit 4,5.
The applicable standard for recsual is whether a judge's participation in a lawsuit will
create the appearance of bias and prejudice. See Liteky v. United States, 510 U.S. 540, 555, 127
L. Ed. 2d 474, 114 S. Ct. 1147 (1994)); Jackson v. Microsoft Corp., 135 F. Supp. 2d 38, 40
(D.D.C. 2001), supra. Any adverse decision to Plaintiffs, even if legally sound, could be
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questioned and would create, at the very least, the appearance of bias and prejudice against
Plaintiffs and their counsel.
For a case of such importance, which involves some of the American heroes who served
justice on terrorist mastermind Osama Bin Laden, the focus should only be strictly on the merits
of the lawsuit. Plaintiffs, who are the grieving family members of these American heroes, need to
be assured that any adverse decisions are based on the law, and not on a potential bias and
prejudice against them because of any built up latent animosity toward their attorney. See
Exhibits 2, 3,4 -- Affidavits of Charles Strange, Douglas Hamburger, and Phouthasith
Douangdara. Importantly, a distinquished and respected expert on legal ethics has attested,
under oath, that this Court must recuse or disqualify herself from this lawsuit. See Exhibit 5 --
Affidavit of Professor Ronald Rotunda. In order to prevent any such appearance of bias and
prejudice, it would be best served for all those involved if this case is transferred to another jurist
who is not currently involved in litigation with a party's counsel.
WHEREFORE, for the foregoing reasons Plaintiffs respectfully move for the
disqualification of this Court, 28 U.S.C. 144, and respectfully request that this case be assigned
to another jurist of this district. Given the circumstances, recsual would be the only way to
ensure that justice is served on both parties without creating an appearance of bias and prejudice.

Dated: May 8, 2014

Respectfully submitted,
/s/ Larry Klayman
Larry Klayman, Esq.
Washington, D.C. Bar No. 334581
Freedom Watch, Inc.
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8
2020 Pennsylvania Avenue N.W.
Suite 345
Washington, D.C. 20006
(310) 595-0800
leklayman@gmail.com

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