No.

IN THE
Supreme Court of the United States

ASHTON R. O’DWYER, JR., MAUREEN O’DWYER,

SHIRLEY D. O’DWYER, LISA MARIE O’DWYER,
HAROLD JOSEPH GAGNET, GLORIA POHLMAN HECKER
AND JOSEPH W.P. HECKER, PETITIONERS

v.

THE STATE OF LOUISIANA, ET AL.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

ASHTON R. O’DWYER, JR.,

MAUREEN O’DWYER,
SHIRLEY D. O’DWYER,
LISA MARIE O’DWYER,
HAROLD JOSEPH GAGNET,
GLORIA POHLMAN HECKER
JOSEPH W.P. HECKER
pro se
c/o Ashton R. O’Dwyer, Jr.
821 Baronne Street
New Orleans, LA 70113
(504) 679-6166

CURRY & TAYLOR  (202) 393-4141

 i ii
QUESTIONS PRESENTED
(1) Whether Petitioners have been denied the
fundamental constitutional right to due process of
law, because the integrity of the litigation in the
courts below was CORRUPTED and
POLLUTED by virtue of an extra-judicial source
of bias and prejudice revolving around the
relationship between the District Judge and
counsel for some of the litigants, namely Calvin
Clifford Fayard, Jr., who the District Judge has
admitted is a “close personal friend of long-
standing”, but whose professional ethics and
integrity have been placed at issue as a result of
his serving on Committees and Sub-Committees
in the litigation, while simultaneously
representing the State of Louisiana, and failing to
disclose that representation to other counsel prior
to 8/29/07?”
(2) Whether Petitioners have been denied the
fundamental constitutional right to due process of
law, because the ability of Petitioners to obtain
“justice” in the Courts below was THWARTED
and TAINTED by judicial misconduct in the
Courts below, all as is meticulously set forth in
separate Complaint(s) of Judicial Misconduct filed
in the United States Court of Appeals for the
Fifth Circuit on April 14 and 16, 2009, attached as
Exhibit Nos. 1 and 2, respectively
3) Whether Petitioner’s civil rights claims against
State and Local government entities and
individuals were erroneously dismissed, “on the
papers”, without the opportunity for any
discovery or for one word to be uttered on cross-
examination, under oath, by public officials?
4) Whether the State of Louisiana, its branches of
government, agencies and instrumentalities,
political subdivisions and individual department
heads have waived immunity from being required
to litigate claims brought against them in Federal
Court pursuant to the 11th Amendment to the U.S.
Constitution, including particularly, but without
limitation, waiver “by litigating conduct” in the
Federal forum by voluntarily invoking the
jurisdiction of the United States District Court for
the Eastern District of Louisiana on multiple
occasions since August 29, 2005. See Gil Seinfeld,
“Waiver-in-Litigation: Eleventh Amendment
Immunity and the Voluntariness Question”, 63
Ohio State Law Journal 871 (2002).
5) Whether Petitioner’s tort-based claims against
State and Local government entities and
individuals were erroneously dismissed “on the
papers”, without the opportunity for any discovery
or for one word to be uttered on cross-
examination, under oath, by public officials?
6) Whether the Federal Court has jurisdiction over
Petitioner’s claims by virtue of Federal pollution
statutes, and by virtue of the claims against the
Government in the nature of set-off against future
tax liability?
7) Whether the Learned District Judge abused his
discretion by failing to exercise supplemental
 iii iv
jurisdiction over Petitioner’s tort claims against PARTIES TO THE PROCEEDING
the non-federal defendants?
PETITIONERS:

Ashton R. O’Dwyer, Jr., Maureen O’Dwyer, Shirley D.

O’Dwyer, Lisa Marie O’Dwyer, Harold Joseph Gagnet,
Gloria Pohlman Hecker and Joseph W.P. Hecker

RESPONDENTS:

DEPARTMENT OF TRANSPORTATION AND

DEVELOPMENT, STATE OF
LOUISIANA; JOHNNY D BRADBERRY,
Individually and in His Official Capacity as Secretary of
the Department of Transportation and Development,
State of Louisiana; DEPARTMENT OF
TRANSPORTATION AND DEVELOPMENT,
STATE OF LOUISIANA; JOHNNY D
BRADBERRY; LOUISIANA STATE; KATHLEEN
BLANCO, Governor, Both Individually and in Her
Official Capacity as Governor of the State of
Louisiana; LOUISIANA DEPARTMENT OF
PUBLIC SAFETY AND CORRECTIONS;
RICHARD L STALDER, Both Individually and in His
Official Capacity as Secretary, Department of Public
Safety and Corrections
LOUISIANA STATE; DEPARTMENT OF
TRANSPORTATION And DEVELOPMENT, STATE
OF LOUISIANA; JOHNNY D BRADBERRY;
GOVERNOR'S OFFICE OF HOMELAND
SECURITY AND EMERGENCY
PREPAREDNESS; COL. JEFF SMITH;
DEPARTMENT OF SOCIAL SERVICES, STATE
OF LOUISIANA; ANN S WILLIAMS;
LOUISIANA DEPARTMENT OF PUBLIC SAFETY
 v vi
AND CORRECTIONS; RICHARD L STALDER TABLE OF CONTENTS
Page

QUESTIONS PRESENTED .............................................................. i

PARTIES TO THE PROCEEDINGS ............................................... iv

TABLE OF AUTHORITIES...........................................................xv

OPINIONS BELOW......................................................................... 1

JURISDICTION ............................................................................... 1

RELEVANT PROVISIONS INVOLVED ......................................... 1

STATEMENT .................................................................................. 3

REASONS FOR GRANTING THE PETITION................................. 6

CONCLUSION............................................................................... 28

APPENDIX

Circuit Court Opinion............................................................ 1a

Rehearing Exhibits................................................................. 8a
District Court Decision ........................................................ 27a
 vii viii
STATUTES
TABLE OF AUTHORITIES
Page 28 U.S.C. 42 ....................................................................... 3, 17, 21
28 U.S.C. §144 ............................................................................... 2
CASES
28 U.S.C. §455(a)........................................................................... 2
28 U.S.C. §1346(c)....................................................................... 28
ADAMS V. UNITED STATES, 615 F.2D 284 (5TH CIR.
28 U.S.C. §1367 ..................................................................... 2, 4, 5
1980) ........................................................................................... 9
28 U.S.C. §1653 ..................................................................... 14, 17
AVERY V. UNITED STATES, 680 F.2D 608 (9TH CIR.
46 U.S.C. §740 ............................................................................. 13
1982) ......................................................................................... 10
46 U.S.C. §742 ............................................................................... 5
CHITIMACHA, TRIBE OF LOUISIANA V. HARRY L.
Louisiana Civil Code Article 1893 ............................................ 28
LAWS CO., 690 F.2D 1157, 1163 (5TH CIR. 1982).................. 16
CLARK V. BARNARD, 108 U.S. 436, 2 S.CT. 878 (1883) ........... 25
RULES
COLLEGE SAVINGS BANK V. FLORIDA PREPAID POST
SECONDARY EDUCATION EXPENSE BOOK, 527
Fed.R.Civ.P. 15(a) ...................................................................... 16
U.S. 666 (1999) ........................................................................ 25
DUSSOUY V. GULF COAST INVESTMENT CORP., 660
OTHER AUTHORITIES
F.2D 594, 597 (5TH CIR. 1981)................................................ 16
ERXLEBEN V. UNITED STATES, 668 F.2D 268 (7TH
Federal Tort Claims Act: Notice of Claim
CIR. 1981) .................................................................................. 9
Requirement, 67 Minnesota Law Review 513 (1982) .......... 8
EXECUTIVE JET AVIATION, INC. V. UNITED STATES,
507 F.2D 508, 515 (6TH CIR. 1974)............................................ 9
Zillman, Presenting a Claim Under the Federal Tort
FERNANDEZ V. PNL ASSET MANAGEMENT
Claims Act, 43 Louisiana Law Review 961 (1983) ............... 8
COMPANY LLC, 123 F.3D 241 (5TH CIR. 1997) ................... 25
FOMAN V. DAVIS, 371 U.S. 178 (1962) ................................. 14-16
FORD MOTOR COMPANY V. DEPARTMENT OF
TREASURY OF INDIANA, 323 U.S. 459 (1945) ..................... 25
GOMEZ V. TOLEDO, 446 U.S. 635 (1980) ................................... 17
JAMIESON V. SHAW, 772 F.2D 1205, 1208 (FIFTH CIR.
1985) ......................................................................................... 16
LAPIDES V. BOARD OF REGENTS OF THE
UNIVERSITY SYSTEM OF GEORGIA, 535 U.S. 613,
122 S.CT. 1640 (2002) .............................................................. 25
LILJEBERG V. HEALTH SERVICES ACQUISITION
CORP., 486 U.S. 847 (1988) ..................................................6, 11
MARTINEZ V. UNITED STATES, 728 F.2D 694 (5TH
CIR. 1984) ................................................................................ 11
YOUNGBLOOD V. FEDERAL DEPOSIT INSURANCE
CORPORATION, 29 F.3D 225 (5TH CR. 1994) ........................ 11
 1 2
OPINIONS BELOW
The opinion of the United States Court of
Appeals for the Fifth Circuit is unreported. The
opinion of the United States District Court for the
Eastern District of Louisiana is unreported.
JURISDICTION
The decision of the Court of Appeals was issued
on 2/5/09. This Petition is filed within 90 days
thereafter. This Court has jurisdiction pursuant to 28
U.S.C. 28 U.S.C. §1254(a).
RELEVANT PROVISIONS INVOLVED
United States Constitution, Amendment XIV, Section I
No State shall make or enforce any law which
shall abridge the privileges or immunities of
citizens of the United States; nor shall any State
deprive any person of life, liberty, or property,
without due process of law; nor deny to any
person within its jurisdiction the equal
protection of the laws.
United States Constitution, Amendment XI
The judicial power of the United States shall not
be construed to extend to any suit in law or
equity, commenced or prosecuted against one of
the United States by citizens of another State, or
by citizens or subjects of any foreign State.
28 U.S.C. §144
Whenever a party to any proceeding in a district
court makes and files a 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.
28 U.S.C. §455(a) and (b)
(a) Any justice, judge or magistrate judge of
the United States shall disqualify himself in any
proceeding in which his impartiality might
reasonably be questioned.
(b) He shall also disqualify himself in the
following circumstances:
(1) Where he has a personal bias or
prejudice concerning a party . . .
28 U.S.C. §1367, Supplemental Jurisdiction
Except as provided in subsections (b) and (c) or
as expressly provided otherwise by Federal
statute, in any civil action of which the district
courts have original jurisdiction, the district
courts shall have supplemental jurisdiction over
all other claims that are so related to claims in
the action within such original jurisdiction that
they form part of the same case or controversy
under Article III of the United States
Constitution. Such supplemental jurisdiction
 3 4
shall include claims that involve the joinder or
intervention of additional parties.
42 U.S.C. §1983, Civil Rights Act
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State or territory or the District of Columbia,
subject, or causes to be subjected, any citizen of
the United States or any person within the
jurisdiction thereof to other deprivation of any
rights, privileges, or immunities secured by the
constitution and laws, shall be libel to the party
injured in an action at law, suit in equity, or
other proper proceeding for redress.
STATEMENT
The issues in this case are identical to or ‘over-lap’
with the issues in Case No. 08-883 on the docket of This
Honorable Court, which is the subject of a Petition for
Rehearing pending before this Court.
This is essentially a tort case (although also
involving constitutional torts under 42 U.S.C. §1983)
brought by totally innocent “Victims of KATRINA” as
a result of what has been called “the greatest civil
engineering disaster in history”. Petitioner has alleged
to be a representative of the following classes of people:
A. Survivors of human beings who died as a result
of government’s intentional and negligent
malfeasance, misfeasance and non-feasance prior
to and after Hurricane KATRINA.
B. Citizens and/or residents of the Parish of
Orleans,1 State of Louisiana, who suffered bodily
injury, mental suffering and emotional distress
as a result of government’s intentional and
negligent malfeasance, misfeasance and non-
feasance prior to and after Hurricane
KATRINA.
C. Citizens and/or residents of the Parish of
Orleans, State of Louisiana, who suffered loss of
or damage to property as a result of
government’s intentional and negligent
malfeasance, misfeasance and non-feasance,
whether by flood, fire or governmental
sanctioning of urban terrorism. See infra.
D. Citizens and/or residents of the Parish of
Orleans, State of Louisiana, who suffered
environmental damages akin to contamination of
natural resources under the federal and state
legislation which make provision for Natural
Resource Damage Assessments and damages
recoverable under the Oil Pollution Act of 1990,
the Louisiana Oil Spill Prevention and Recovery
Act, and CERCLA, among others.
Petitioner’s claims for damages included claims
for the following:
Wrongful death;
Bodily injury;
Property loss and/or damage;
Emotional distress and mental anguish;
1
Petitioner’s original Complaint was later amended to include
residents of the Greater New Orleans Metropolitan Area,
including the Parishes of Jefferson and St. Bernard.
 5 6
Economic losses; and
Pollution
all incurred by virtue of the retaining wall and levee
failures, and government’s incompetence, malfeasance
and negligence in preparing for and responding to the
manmade disaster called Hurricane KATRINA.
Predictably, and consistent with the defense
posture of all bodies, entities and individuals joined as
defendants in “Victims of KATRINA” litigation,
namely that “no one is legally responsible to anyone for
anything”, all defendants responded to Petitioner’s
claims by filing Rule 12(b) motions to dismiss on the
pleadings. All non-Federal defendants also challenged
the jurisdiction of the Federal Court to exercise
supplemental jurisdiction over the claims against them
pursuant to 28 U.S.C. §1367.
On July 19, 2006, with briefing on Rule 12
Motions to Dismiss complete, but without entertaining
oral argument, the District Court entered its Order and
Reasons (Record Document No. 788), essentially
dismissing all of plaintiffs’ claims against virtually
every named defendant, simultaneously entering
Judgment pursuant to the provisions of Rule 54(b).
The issues for which petitioner seeks review in
this Court fall into the following categories:
1. Petitioner’s constitutional-based claims
against non-Federal defendants; and
2. Petitioner’s tort-based claims against non-
Federal defendants.
REASONS FOR GRANTING THE PETITION
(a) The integrity of the underlying
litigation has been irreparably
corrupted, both in the District Court
and in the Court of Appeals, by
judicial misconduct on the part
Federal Judges and other Federal
Court Officials.
This Honorable Court has stated that “the
protection of the integrity and dignity of the judicial
process from any hint or appearance of bias” is “the
palladium of our judicial system”. Liljeberg v. Health
Services Acquisition Corp., 486 U.S. 847 (1988). As the
Court will note from the Questions Presented in this
case and from the issues raised in the Petition for
rehearing in case No. 08-883 on the docket of this Court,
the underlying litigation has been hopelessly
CORRUPTED at both the District Court and Court of
Appeals levels, primarily stemming from one
individual, Calvin Clifford Fayard, Jr., and his “close
personal relationship of long-standing” with the
District Judge and his representation of the State of
Louisiana while simultaneously serving on Committees
and Sub-Committees in the litigation, appointed by the
District Judge. This disgraceful “dual representation”
has been ignored by the District Judge and by the
Judges of the Court of Appeals, in violation of Code of
Conduct for United States Judges and mores of
propriety involving legal and judicial ethics. This
Honorable Court should exercise supervisory
jurisdiction over this case in order that the confidence
of the public in the integrity of the judicial system may
 7 8
be preserved, rather than shaken to its very
foundations
There are a number of reasons for granting the
Petition, each (addressed infra), involving departures
from the accepted and usual course of judicial
proceedings in District Courts and in Courts of Appeal,
as to call for an exercise of this Court’s supervisory
power:
b) The integrity of the underlying
litigation is at issue.
The first question presented for review was
framed in the District Court as follows:
“The integrity of this litigation which has been
called into question by virtue of an extra-judicial
source of bias and prejudice, arising out of the
Court’s long-time friendship with Mr. Fayard,
whose professional ethics and professional
integrity have been placed at issue in this
litigation as a result of his Membership on
Committees while simultaneously representing
the interests of the State of Louisiana, and
failing to disclose his relationship with the State
to the Court or to other counsel prior to August
29, 2007.” Record Document No. 11317 and
related Record Documents.
Amplification on this most serious issue can be
found in Record Document No. 10910 and in the
pleadings filed in Civil Action No. 08-1127 in the United
States District Court for the Eastern District of
Louisiana, and in the Record Documents specifically
identified in that civil action.
With “the protection of the integrity and dignity
of the judicial process from any hint or appearance of
bias” being “the palladium of our judicial system”,
Petitioner respectfully submit that that protection
requires the exercise of this Court’s supervisory power
in this case. “The guiding consideration is that the
administration of justice should reasonably appear to be
disinterested as well as be so in fact.” Liljeberg v.
Health Services Acquisition Corp., 486 U.S. 847 (1988)
and cases cited therein.
c) The Doctrine of Futility has rendered
“moot” any administrative claim
requirement as a prerequisite to filing
suit against the Federal Government.
Petitioner respectfully submit that the Court
should be guided in addressing the second, third and
fifth “questions presented” by the contents of two (2)
Law Review Articles:
1) Federal Tort Claims Act: Notice of Claim
Requirement, 67 Minnesota Law Review
513 (1982); and
2) Zillman, Presenting a Claim Under the
Federal Tort Claims Act, 43 Louisiana
Law Review 961 (1983).
The axioms developed in the cited Law Review
Articles are summarized as:
1) The FTCA was intended to provide for
“more fair and equitable treatment of
 9 10
private individuals and claimants when
they deal with the Government.”2
2) The statute was “intended to provide a
framework conducive to the
administrative settlement of claims, not to
provide a basis for a regulatory checklist
which, when not fully observed, permits
the termination of claims regardless of
their merits.”3
3) “The purpose of the [mandatory
administrative claims procedure] was not
to make recovery from the Government
technically more difficult.”4
4) “An individual with a claim against the
United States, therefore, satisfies section
2675’s requirement that `the claimant
shall have first presented the claim to the
appropriate Federal agency’ if the
claimant (1) gives the agency written
notice of his or her claim sufficient to
enable the agency to investigate and (2)
places a value on his or her claims.”5
5) An agency’s demand for anything more
than a written and signed statement
setting out the manner in which the injury
was received, enough details to enable the
agency to begin its own investigation and
2
Erxleben v. United States, 668 F.2d 268 (7th Cir. 1981).
3
Ibid.
4
Adams v. United States, 615 F.2d 284 (5th Cir. 1980), quoting from
Executive Jet Aviation, Inc. v. United States, 507 F.2d 508, 515 (6th
cir. 1974).
5 9
Ibid.
a claim for money damages is
unwarranted and unauthorized.6
6) Section 2675(a) was not intended to allow
an agency to insist on proof of a claim to
its satisfaction before the claimant
becomes entitled to a day in court. To so
hold would permit federal defendants to
be judge in their own cause by the initial
determination of a claim’s insufficiency.
The result would not be consistent with
the congressional purpose of “providing
for more fair and equitable treatment of
private individuals and claimants when
they deal with the Government.”7
7) Agencies were not intended to bar cases
involving difficult issues from federal
court by turning their difficulty against
the claimants.8
8) Federal court power does not depend on
whether a claimant has successfully
navigated his or way through the gauntlet
of the administrative settlement process,
which, according to the vagaries of the
claims agent, may touch picayune details,
imponderable matters, or both.9
9) The Fifth Circuit has not required
plaintiffs to specifically enumerate legal
6
Ibid.
7
Avery v. United States, 680 F.2d 608 (9th Cir. 1982) and
authorities cited therein.
8
Ibid.
Ibid.
 11
theories of recovery in their
10
administrative claims.
10) The exaltation into a jurisdictional basis
of the non-statutory administrative
requirement of a sum certain in the
administrative claim has been criticized as
beyond the statutory intent and
unnecessarily harsh and unnecessary in
instances, especially where no
administrative purpose is served by
requiring an obviously inflated “sum
certain” where there is honest
uncertainty as to the amount of the
claim.11
With these axioms in mind, Petitioner
respectfully direct the attention of the Court to the
following facts:
1) The “official” litigation position of the
United States of America in “Victims of
KATRINA” litigation is that the Federal
Government is absolutely immune from
any and all liability and damages by virtue
of Section 702(c) of the Flood Control Act
of 1928. Alternatively, the “official”
position of the Federal Government is
that the “due care” and “discretionary
function” exceptions to the waiver of
sovereign immunity contained in the
12
Federal Tort Claims Act immunizes the
Government from liability and damages.
2) Notwithstanding the fact that almost 3
years have elapsed since Hurricane
KATRINA, and notwithstanding the
submission of over 350,000 administrative
claims for sums certain, in writing, to the
U.S. Army Corps of Engineers and to the
Federal Emergency Management
Agency, not one case has been settled or
compromised by the Federal Government,
and not one penny has been paid to
claimants.
3) One of the reasons for the fact that not
one case has been settled or compromised
is the fact that no agency or
instrumentality of the Federal
Government is equipped to deal with the
sheer volume of claims which have been
asserted.
Petitioner respectfully submit that when a
federal agency has done absolutely nothing in a 3-year
period to competently process, adjust and settle not
even one claim in over 350,000 calls for the exercise of
supervisory power by this Court to except Petitioner
from any administrative claim procedures by virtue of
the Doctrine of Futility.

10
Youngblood v. Federal Deposit Insurance Corporation, 29 F.3d
225 (5th Cr. 1994).
11
Martinez v. United States, 728 F.2d 694 (5th Cir. 1984) and
authorities cited therein.
 13
d) The failure to grant leave for
Petitioner to amend her pleadings
violated the clear provision of Rule
15(a) and constituted an abuse of
discretion.
The fourth question presented involves the
failure to grant leave for Petitioner to amend her
Complaint in order to invoke admiralty and maritime
jurisdiction, and the application of substantive maritime
law, so that the Suits in Admiralty Act would be
applicable to this case. The Suits in Admiralty Act
contains no administrative claim requirement.
Petitioner avers that the failure to permit amendment
of the Complaint violated the clear provisions of Rule
15(a) and jurisprudence from this Court interpreting
Rule 15(a).
The Petitioner was trying to accomplish by way
of her 12th Amended Complaint was to expand her
jurisdictional allegations to include the allegation that
admiralty and maritime jurisdiction existed in the hope
that, eventually, they would be given the opportunity
to attempt to persuade the Learned District Judge that
the Suits in Admiralty Act was applicable to
Petitioner’s claims against the United States of
America, so that the administrative claims procedures
of the Federal Tort Claims Act (28 U.S.C. §2671, et
seq.), and the Admiralty Extension Act (46 U.S.C.
§740), were not required as a prerequisite to Petitioner
suing the Government.
14
Rule 15. Amended and Supplemental
Pleadings.
a. Amendments. A party may amend the
party’s pleading once as a matter of
course at any time before responsive
pleading is served . . . Otherwise a party
may amend the party’s pleading only by
leave of Court or by written consent of
the adverse party; and leave shall be
freely given when justice so requires.
(emphasis added).
The District Court and the Court of Appeals also
failed to apply the provisions of 28 U.S.C. §1653 to
Petitioner’s benefit. That statute provides as follows:
§1653. Amendment of pleadings to show
jurisdiction.
Defective allegations of jurisdiction may be
amended, upon terms, in the trial or appellate
courts.
In Foman v. Davis, 371 U.S. 178 (1962), this
Court enunciated the following general standard, which
is to be employed under Rule 15 (a) by District Courts:
If the underlying facts or circumstances relied
upon by a plaintiffs may be a proper subject of
relief, he ought to be afforded an opportunity to
test his claim on the merits. In the absence of
any apparent or declared reason – such as undue
delay, bad faith or dilatory motive on the part of
the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue
 15
prejudice to the opposing party by virtue of
allowance of the amendment, futility of
amendment, etc. – the leave sought should, as
the rules require, be “freely given”. 371 U.S. @
182.
Both the case law and the Learned
Commentators make clear that “prejudice” to the
opposing party, not the mover’s lack of diligence, is the
crucial factor in determining whether or not to grant
leave to amend a complaint. Wright, Miller & Kane,
Federal Practice and Procedure: Civil Second §1487, p.
613, et seq., and cases cited therein. In the case at bar,
no one ever claimed, much less proved, how Petitioner’s
Motion for Leave to Supplement and Amend would
cause any defendant prejudice.
The Learned Commentators report many
circumstances much more egregious than in the case at
bar where amendments have been allowed:
Quite appropriately, the Courts have not
imposed any arbitrary timing restrictions on a
party’s request for leave to amend and
permission has been granted under Rule 15(a) at
various stages of the litigation: following
discovery; after a pre-trial conference; at a
hearing on a motion to dismiss or for summary
judgment; after a motion to dismiss has been
granted but before the order of dismissal has
been entered; when the cases on the trial
calendar and has been set for a hearing by the
district court; at the beginning, during, and at
the close of trial; after a judgment has been
entered; and even on remand following appeal.”
16
Wright, Miller & Kane, §1488, p. 652, et seq., and
cases cited therein.
It is respectfully submitted that the facts and
circumstances of this case do not even come “close” to
duplicating the foregoing “egregious” circumstances in
which amendments were allowed.
The law as enunciated in the Fifth Circuit is as
follows: Fed.R.Civ.P. 15(a) permits amendment of a
pleading after a responsive pleading has been served
with leave of court. However, the court should freely
give leave to amend “when justice so requires.” It is
often said that this determination rests in the sound
discretion of the district court. See, e.g., Chitimacha,
Tribe of Louisiana v. Harry L. Laws Co., 690 F.2d 1157,
1163 (5th Cir. 1982), cert. denied, (1983). However, the
Rule “evinces a bias in favor of granting leave.” Id.
(quoting Dussouy v. Gulf Coast Investment Corp., 660
F.2d 594, 597 (5th Cir. 1981)). The policy of the federal
rules is to permit liberal pleading and amendment, thus
facilitating adjudication on the merits while avoiding an
excessive formalism. Dussouy, 660 F.2d at 598, (citing
Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230 9
L.Ed. 2d 48, 78 S.Ct. 99, 103, 2 L.Ed. 2d 80 (1957)).
Thus, if the district court lacks a “substantial reason” to
deny leave, its discretion “is not broad enough to
permit denial.” Id. Jamieson by and through Jamieson
v. Shaw, 772 F.2d 1205, 1208 (Fifth Cir. 1985).
It is respectfully submitted that, at the very
early stage of the litigation when Petitioner sought
leave to amend, there was no “substantial reason” why
either the District Court or the Court of Appeals should
have denied leave to amend. Petitioner further submits
that this error can be remedied in this Court pursuant
 17
to 28 U.S.C. §1653, which allows Petitioner to cure
“defective allegations of jurisdiction” even in an
appellate court. No party will suffer “prejudice” by
virtue of the proposed amendment. Rather, it was
Petitioner’s case which was prejudiced by denial of
leave to amend.
e) Petitioner adequately stated a cause
of action under 42 U.S.C. §1983.
In the celebrated case of Gomez v. Toledo, 446
U.S. 635 (1980), Justice Marshall, writing for a
unanimous Supreme Court, announced:
“By the plain terms of §1983, two – and only two
–allegations are required to state a cause of
action under the statute. First, the plaintiff
must allege that some person has deprived him
of a “federal right”. Second, he must allege that
the person who has deprived him of that right
acted under color of State or territorial law.”
Petitioner respectfully submit that her
constitutional based allegations against the Governor,
individually, and against the municipal defendants, both
officially and individually, satisfied the requirements
set forth by Justice Marshall in Gomez v. Toledo.
The original handwritten Complaint filed on
behalf of Petitioner on September 19, 2005, specifically
alleged the following facts:
EVIDENCE OF GOVERNOR BLANCO’S AND
MAYOR NAGIN’S INCOMPETENCE AND
VIOLATION, BY MALFEASANCE AND
MISFEASANCE, NEGLIGENCE, GROSS
18
NEGLIGENCE AND INTENTIONAL
INFLICTION OF EMOTIONAL DISTRESS.
1) The real story is not that the City of New
Orleans was ransacked and its citizens
raped and murdered by illegally armed
urban terrorists, commencing even before
Hurricane KATRINA had moved North
of the City, but the fact that the urban
terrorists had been allowed to live
amongst hard-working, law-abiding,
taxpayers and citizens at all before the
storm. If Mayor Nagin and his appointed
Chief of Police had been doing their jobs
these urban terrorists would have been
disarmed, arrested, tried, convicted and
incarcerated long before the approach or
Hurricane KATRINA to the City of New
Orleans.
* * *
5) A competent Governor of a State within
the United States, with full knowledge of
the total breakdown of law and order in
the City of New Orleans, even before
Hurricane KATRINA had moved out of
the City, should have immediately
invoked martial law or invited the United
States Military Forces to do so. Upon
information and belief, Governor Blanco
did not do so, because to have done so
would have required that both she and
Mayor Nagin would have had to (sic)
relinquish all power to the United States
Army Provost Marshall – in other words
the Governor made a political decision
 19
rather than one motivated by
government’s primary obligation to its
citizenry, i.e., the protection of the
citizenry’s lives, property and quality of
life.
6) Mayor Nagin, in a now-celebrated radio
interview with local news celebrity
Garland Robinette, demonstrated his
utter ignorance of the term “martial law”,
which he was powerless to invoke.
Further, Mayor Nagin utterly failed in his
duties to his citizenry by failing to order
Chief of Police Compass to invoke posse
comitatus, and to deputize law-abiding
citizens to do whatever was necessary to
keep the peace, pursue and arrest and/or
kill felons, and to restore order to the
City, which was, in effect, turned over to
illegally armed gangs of urban terrorists
for more than one (1) week after the
storm. By the failure of Governor Blanco
to declare martial law, and by the failure
of Mayor Nagin to order his Chief of
Police to invoke posse comitatus,
Governor Blanco and Mayor Nagin in
effect “organized” State and local
“government sponsored urban terrorism”
on the City and its law-abiding citizens.
For this they should pay a heavy price.
(emphasis in original).
* * *
Plaintiffs reaver and reiterate that
the above and foregoing examples of the
total incompetence, etc. of certain
defendants is a non-exclusive list, and
20
plaintiffs specifically reserve the right to
enumerate other examples of
incompetence, etc. once the facts become
better known.
Petitioner expanded her allegations of
constitutional deprivations commencing on page 37 of
the original Complaint with the following:
XI.
COUNT 5
Plaintiffs reaver and reiterate their
allegations as aforesaid, and in addition aver that
certain defendants intentionally, negligently and
with malfeasance, misfeasance and non-feasance
failed to protect the public from marauding
bands of convicted felons, and persons who were
“already in the criminal justice system”, illegally
armed and terrorizing law-abiding citizens,
including killing them and destroying property.
XII.
COUNT 6
Plaintiffs reaver and reiterate their
allegations as aforesaid, and in addition aver that
certain defendants intentionally, negligently, and
with malfeasance, misfeasance and non-feasance
failed to safeguard the identification records and
criminal records of convicted sex offenders,
including rapists and pedophiles, and “injected”
these individuals into the refugees at the
Louisiana Superdome and Convention Center,
which refugees included large numbers of young
women and children, with entirely predictable
results.”
 21
Commentators have noted that “In evaluating
the sufficiency of a complaint in a civil rights action, the
crucial questions are whether sufficient facts are
pleaded to determine that the complaint is not frivolous
and to provide the defendants with adequate notice to
frame an answer.” Federal Procedure, Lawyers
Edition §11:256 (1989). Petitioner respectfully submits
that the above-quoted allegations from the original
Complaint satisfy any jurisprudential “requirement”
that a §1983 plaintiff must allege with “a certain level of
specificity” the particular facts of a defendant’s conduct
in the complaint, and that the facts they have pleaded
go far beyond mere “conclusory’ allegations. Petitioner
also respectfully submit that her allegations were more
than sufficient to state causes of action pursuant to 42
U.S.C. §1983, for as the Commentators have also noted:
“. . . a court cannot expect a complaint to provide
proof of the plaintiffs’ claims, nor a proffer of all
available evidence. In civil rights cases,
especially class actions, much of the evidence can
be developed only through discovery, and while
plaintiffs may be expected to know the injuries
they allegedly have suffered, it is not reasonable
to expect them to be familiar at the complaint
stage with the full range of the defendants’
practices under challenge. So although a civil
rights complaint which relies on vague
conclusory allegations does not provide fair
notice and will not survive a motion to dismiss,
where sufficient facts are alleged in the
complaint, so that the court is satisfied that the
complaint is not frivolous and that the
defendants have been provided with adequate
notice so that they can answer the complaint,
22
then the complaint will be deemed sufficient and
will be sustained.” Federal Practice, Lawyers
Edition §11:256 (1989).
Petitioner respectfully submit that her
Complaint is such a complaint.
In terms of the so-called defense of “qualified
immunity”, Federal Procedure, Lawyers Edition (1989)
provides guidance. Section 11:281 of that Treatise
reflects:
Once the plaintiff has made out a prima
facie case, the burden of going forward with the
evidence shifts to the defendant. For example,
the burden is on the defendant to establish a
qualified immunity defense by showing that its
conduct does not violate clearly established
statutory or constitutional rights of which a
reasonable person would have known, that is,
that the defendant was acting within the scope of
its discretionary authority when the allegedly
wrongful acts occurred. Once the defendant
establishes the existence of such “objective”
good faith, the burden shifts to the plaintiff to
show a lack of good faith. Federal Procedure,
Lawyers Edition (1989) §11:281 and authorities
cited therein.
Petitioner respectfully submit that it was wrong
for the Court of Appeals to say that “Plaintiffs have not
made a sufficiently clear allegations that the defendant
governmental entities and officials violated the
Plaintiffs’ constitutional rights”, and that this Court
should exercise its supervisory power to set the
District Court and the Court of Appeals “right”.
 23
th
f) The State has waived 11 Amendment
immunity by virtue of its litigating
conduct.
The seventh question presented is:
7) Whether the State of Louisiana, its
branches of government, agencies and
instrumentalities, political subdivisions
and individual department heads have
waived immunity from being required to
litigate claims brought against them in
Federal Court pursuant to the 11th
Amendment to the U.S. Constitution,
including particularly, but without
limitation, waiver “by litigating conduct”
in the Federal forum by voluntarily
invoking the jurisdiction of the United
States District Court for the Eastern
District of Louisiana on multiple occasions
since August 29, 2005.
This Court is respectfully directed to the
following completely voluntary invocations of Federal
jurisdiction by the State of Louisiana since Hurricane
KATRINA:
Civil Action No. 05-4182
Record Document No. 1061
Civil Action No. 06-8676
Record Document Nos. 10, 11, 12,
13, 14, 15, 16, 17, 18, 19, 41,
24
100, 101. 102, 112, 124, 135,
142, 151, 177 and 180
Civil Action No. 07-5023
Record Document No. 1
Civil Action No. 07-5036
Record Document No. 1
Civil Action No. 07-5040
Record Document No. 1
Civil Action No. 07-5226
Record Document No. 1
Petitioner particularly refer this Court to the
claims asserted by the State of Louisiana against the
United States of America in Civil Action No. 07-5040,
which was filed in the United States District Court for
the Eastern District of Louisiana on August 29, 2007, in
order to assert an affirmative claim on behalf of the
State against the Federal Government in the amount of
$200 billion dollars in property damages allegedly
sustained by the State in connection with the levee and
retaining wall failures during Hurricane KATRINA.
Petitioner respectfully submit that if waiver by
litigating conduct and voluntary invocation of the
jurisdiction of the Federal Court system has not
occurred with respect to the State of Louisiana in this
case, then the Doctrine of Waiver no longer means
anything in American jurisprudence.
 25
Petitioner further respectfully refer this Court
to the following legal authorities:
Clark v. Barnard, 108 U.S. 436, 2 S.Ct. 878 (1883)
Ford Motor Company v. Department of
Treasury of Indiana, 323 U.S. 459 (1945)
College Savings Bank v. Florida Prepaid Post
Secondary Education Expense Book, 527 U.S.
666 (1999)
Lapides v. Board of Regents of the University
System of Georgia, 535 U.S. 613, 122 S.Ct. 1640
(2002)
Fernandez v. PNL Asset Management Company
LLC, 123 F.3d 241 (5th Cir. 1997)
Gil Seinfeld, “Waiver-in-Litigation: Eleventh
Amendment Immunity and the Voluntariness
Question”, 63 Ohio State Law Journal 871 (2002).
Nowak and Rotunda, “Treatise on Constitutional
Law – Substance & Procedure”, §2.12 (4th Ed.)
Petitioner respectfully submit that even the
possibility of waiver of 11th Amendment immunity by a
State by virtue of its litigating conduct is an issue
which warrants the exercise of this Court’s supervisory
jurisdiction.
Alternatively, Petitioner respectfully submit
that she should have been permitted to conduct
discovery into whether the State of Louisiana may have
waived 11th Amendment immunity from being required
26
to litigate claims brought against it in Federal Court by
virtue of its having accepted untold billions from the
Federal Government both before and since Hurricanes
KATRINA and RITA. Similarly, Petitioner
respectfully submit that she should have been allowed
to conduct discovery into whether agencies of the
Federal Government, with Congressional authority,
may have abrogated the State’s 11th Amendment
immunity by bestowing untold billions on the State.
g) Even if 11th Amendment immunity was
not waived by the State, failure to
exercise supplemental jurisdiction
over tort claims against the State
constituted an abuse of discretion.
With respect to the 8th and 10th questions
presented, Petitioner respectfully submit that, if the
State has waived 11th Amendment immunity by virtue
of its litigating conduct, then Petitioner’s tort claims
against the State, et al., were properly brought in
Federal Court. In the alternative, however, Petitioner
avers that the District Court’s the failure to exercise
supplemental jurisdiction over Petitioner’s tort claims
against the State constituted an abuse of discretion.
h) Petitioner’s causes of action for
pollution damages and damages in the
nature of off-set or set-off should not
have been dismissed.
What happened to the City of New Orleans and
Greater Metropolitan Area, in terms of damage to the
environment, rivals the M/T EXXON VALDEZ
casualty. However, in many ways, the environmental
 27
disaster visited on Louisiana is much more serious,
because a much greater land area was affected than in
Prince William Sound. Also, the M/T EXXON VALEZ
case did not result in death or personal injury to human
beings. Nor did it result in the destruction and damage
to homes and businesses of thousands, perhaps
hundreds of thousands, of people. The water which
inundated the City, in some places for months, served
as a medium for the transport of oil and other
petroleum products, human and animal waste, decaying
bodies, toxic chemicals and other hazardous materials
to migrate from their points of origin. Whatever was in
several Superfund sites within the City limits also
became “waterborne”, allowing the contents of those
sites to contaminate other parts of the City remote
from the original sites.
Count 9 of Petitioner’s Complaint alleged that
defendant the Governor, individually, the defendant
City and defendant Nagin “negligently, intentionally,
and with malfeasance, misfeasance and non-feasance
caused pollution of the environment of the territory and
atmosphere of the Parish of Orleans, State of Louisiana,
which not only caused damage to plaintiffs and other
persons, firms and corporations similarly situated to
plaintiffs, but which pollution must be contained,
cleaned up, remediated and disposed of – a Herculean
and expensive task.” Complaint, Article XV(9), pp. 43-
44. It is respectfully submitted that Petitioner’s claim
for damages for pollution should not have been
dismissed on a summary basis.
Additionally, in their Eleventh Supplemental
and Amending Complaint filed with leave of Court,
Petitioner specifically pleaded “set-off” against the
United States of America, claiming recoupment of
amounts which Petitioner have paid, owe, or might in
28
the future owe, the United States in taxes. More
particularly, Petitioner alleged, by way of the Eleventh
Amendment to their Complaint, the following against
the United States, which claims were perfected with
leave of Court:
XIXXII.
In the alternative, Plaintiffs plead
“compensation” (as that term is used in
Louisiana Civil Code Article 1893, et seq.) and
the “right of recoupment”, as well as “offset” and
“set-off”, against the United States of America,
through its agencies and instrumentalities, the
Department of the Treasury, the Internal
Revenue Service and the Social Security
Administration.
28 U.S.C. §1346(c) specifically provides that
“[t]he jurisdiction conferred by this section includes
jurisdiction of any set-off . . . or other claim or demand
whatever on the part of the United States against any
plaintiff commencing an action under this section”.
Petitioner read that provision as conferring jurisdiction
over her claims for “compensation”, the “right of
recoupment”, “offset” and “set-off” against the United
States for sums already paid, or to be paid, in Federal
taxes, and respectfully submit that proper judicial
interpretation of the cited federal statute warrants the
exercise of this Court’s supervisory power.
CONCLUSION
For the above and foregoing reasons, Petitioners
respectfully request the issuance of a Writ of Certiorari
 29
to the United States Court of Appeals for the Fifth
Circuit.

Respectfully submitted,
Ashton R. O’Dwyer, Jr., Maureen O’Dwyer, Shirley D.
O’Dwyer, Lisa Marie O’Dwyer, Harold Joseph Gagnet,
Gloria Pohlman Hecker and Joseph W.P. Hecker
Pro se
c/o Ashton R. O’Dwyer, Jr.
821 Baronne Street
New Orleans, LA 70113
(504) 679-6166
 1a
N RE: KATRINA CANAL BEACHES LITIGATION
MAUREEN O'DWYER; HAROLD JOSEPH
GAGNET; SALLY EGERTON RICHARDS; SHANE
E PORTER; STEPHANIE PORTER; ET AL,
Plaintiffs-Appellants v. DEPARTMENT OF
TRANSPORTATION AND DEVELOPMENT,
STATE OF LOUISIANA; JOHNNY D.
BRADBERRY, Individually and in His Official
Capacity as Secretary of the Department of
Transportation and Development, State of Louisiana;
ET AL, Defendants-Appellees.
No. 07-30349
UNITED STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT
2009 U.S. App. LEXIS 2237
February 5, 2009, Filed
NOTICE:
PLEASE REFER TO FEDERAL RULES OF
APPELLATE PROCEDURE RULE 32.1
GOVERNING THE CITATION TO UNPUBLISHED
OPINIONS.
PRIOR HISTORY: [*1]
Appeal from the United States District Court for the
Eastern District of Louisiana. USDC No. 2:05-CV-4182.
2a
COUNSEL: For MAUREEN O'DWYER, HAROLD
JOSEPH GAGNET, SALLY EGERTON RICHARDS,
SHANE E PORTER, STEPHANIE PORTER, ET
AL, Plaintiffs - Appellants: Ashton R O'Dwyer, Jr,
New Orleans, LA.
For DEPARTMENT OF TRANSPORTATION AND
DEVELOPMENT, State of Louisiana, STATE OF
LOUISIANA, KATHLEEN BLANCO, Governor,
Both Individually and in Her Official Capacity as
Governor of the State of Louisiana, LOUISIANA
DEPARTMENT OF PUBLIC SAFETY AND
CORRECTIONS, RICHARD L STALDER, Both
Individually and in His Official Capacity as Secretary,
Department of Public Safety and Corrections,
JOHNNY D BRADBERRY, Individually and in His
Official Capacity as Secretary of the Department of
Transportation and Development, State of Louisiana,
GOVERNOR'S OFFICE OF HOMELAND
SECURITY AND EMERGENCY
PREPAREDNESS, JEFF SMITH, DEPARTMENT
OF SOCIAL SERVICES, State of Louisiana, ANN S
WILLIAMS, Defendants - Appellees: Michael C Keller,
Phyllis Esther Glazer, Office of the Attorney General
for the State of Louisiana, New Orleans, LA.
JUDGES: Before KING, DENNIS, and ELROD,
Circuit Judges.
OPINION
PER CURIAM: *
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -*
 3a
Pursuant to 5th Cir. R. 47.5, the court has determined
[*2] that this opinion should not be published and is
not precedent except under the limited circumstances
set forth in 5th Cir. R. 47.5.4.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Plaintiffs-Appellants are approximately 1000 "Victims
of [Hurricane] Katrina," whom Attorney Ashton R.
O'Dwyer, Jr. purports to represent in a suit against
various government and private actors. Through this
and similar suits, O'Dwyer has been responsible for a
large volume of Hurricane Katrina-related litigation in
the district court, and for a corresponding bevy of
appeals. n1 We have repeatedly rejected O'Dwyer's
arguments, but he persists in re-arguing the same
issues in subsequent appeals. The present appeal
challenges an order issued April 3, 2007, in which the
district court dismissed claims that, for the most part, it
had previously dismissed (and whose previous dismissal
we affirmed), n2 but which O'Dwyer re-filed in a new
complaint. We AFFIRM the ruling of the district court,
and DENY the parties' cross-motions for sanctions.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1
O'Dwyer's conduct in litigation below led to escalating
sanctions, culminating in his suspension from practice
before the Eastern District of Louisiana. O'Dwyer has
appealed that suspension. Issues related to sanctions
imposed [*3] against O'Dwyer below are not before
the court in the present appeal.2
See O'Dwyer v. United States ex rel. U.S. Army Corps
of Eng'rs, No. 06-30840, 277 Fed. App'x 512 (5th Cir.
2008).
4a
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The district court dismissed O'Dwyer's claims against
Louisiana agencies and officers, in their official
capacities, on sovereign immunity grounds under
Federal Rule of Civil Procedure 12(b)(1). We review a
12(b)(1) dismissal de novo. Lane v. Halliburton, 529
F.3d 548, 557 (5th Cir. 2008). O'Dwyer argues that
Louisiana waived sovereign immunity by bringing
other lawsuits as a plaintiff in federal court, and
constructively waived sovereign immunity by accepting
various forms of federal assistance after Hurricane
Katrina. This court considered and rejected similar
arguments in a prior appeal of this case, and in another
argued by O'Dwyer. See O'Dwyer v. United States ex
rel. U.S. Army Corps of Eng'rs, No. 06-30840, 277 Fed.
App'x 512 (5th Cir. 2008); Fairley v. Stalder, 294 Fed.
Appx. 805 (5th Cir. 2008). Again in this appeal, we hold
that O'Dwyer fails to demonstrate that Louisiana's
litigation conduct created "inconsistency, anomaly, and
unfairness" to a degree that requires waiver of
sovereign [*4] immunity, or that Congress, by
unmistakable statutory language, conditioned post-
Katrina aid on Louisiana waiving sovereign immunity.
See Fairley, 294 Fed. Appx. at 810 (citing Lapides v.
Bd. of Regents, 535 U.S. 613, 620, 122 S. Ct. 1640, 152 L.
Ed. 2d 806 (2002), and Atascadero State Hosp. v.
Scanlon, 473 U.S. 234, 243, 105 S. Ct. 3142, 87 L. Ed. 2d
171 (1985)).
O'Dwyer presents two additional arguments regarding
claims against Louisiana. First, he argues the district
court should have granted him discovery regarding
purported "strings attached" to federal Katrina aid, to
help him demonstrate constructive waiver. He made
 5a
the same argument in Fairley, where we determined
that "discovery [was] unnecessary and dismissal [was]
appropriate," because O'Dwyer failed to identify any
statutory requirement of sovereign immunity waiver.
Id. at 810. Here as well, he fails to argue that any such
discovery would have helped him satisfy the elements
of an otherwise viable claim. Second, O'Dwyer suggests
he should be allowed to sue Louisiana actors in their
official capacities under 42 U.S.C. § 1983. Will v.
Michigan Department of State Police, 491 U.S. 58, 109
S. Ct. 2304, 105 L. Ed. 2d 45 (1989), held that a state is
not a "person" subject to suit under § 1983. O'Dwyer
argues that Will should not apply [*5] when sovereign
immunity is waived. Having affirmed the district
court's ruling that sovereign immunity was not waived,
we need not reach this argument.
The district court dismissed O'Dwyer's § 1983 claims
against individual state officers, on qualified immunity
grounds, under Federal Rule of Civil Procedure
12(b)(6). We review a dismissal for failure to state a
claim de novo. Dorsey v. Portfolio Equities, Inc., 540
F.3d 333, 338 (5th Cir. 2008). This court rejected
O'Dwyer's § 1983 arguments, in connection with the
present case, in Appeal No. 06-30840. See O'Dwyer, 277
Fed. App'x at 513. We do so again. See generally Hare
v. City of Corinth, 135 F.3d 320, 325 (5th Cir. 1998).
After dismissing O'Dwyer's claims against Louisiana
agencies and officials in their public and individual
capacities, the district court declined to retain
supplemental jurisdiction over related state law claims.
We review that decision for abuse of discretion. See
Guzzino v. Felterman, 191 F.3d 588, 596 (5th Cir. 1999).
We previously determined the district court was within
6a
its discretion to decline to exercise supplemental
jurisdiction in this case, see O'Dwyer, 277 Fed. App'x at
513, and reach the same conclusion [*6] now. See
Guzzino, 191 F.3d at 594 (explaining that a district court
may decline to exercise supplemental jurisdiction when,
inter alia, it has dismissed all claims with original
jurisdiction or there are other compelling reasons).
In addition, the district court dismissed certain claims
removed from state court for failure to effect timely
service of process pursuant to Federal Rule of Civil
Procedure 12(b)(5). We review that decision for abuse
of discretion. Lindsey v. U.S. R.R. Ret. Bd., 101 F.3d
444, 445 (5th Cir. 1996). Once the validity of service has
been contested, the plaintiff bears the burden of
establishing its validity. Carimi v. Royal Carribean
Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir. 1992).
The parties dispute the source of law for determining
the service period, but that dispute is immaterial.
O'Dwyer admits his tardiness under any standard. The
district court did not abuse its discretion when it
dismissed O'Dwyer's claims under Rule 12(b)(5).
O'Dwyer next complains about alleged misconduct in
the proceedings before the district court, while
conceding that these issues are "not yet 'squarely'
before This Honorable Court." We agree, and do not
consider them.
Finally, [*7] O'Dwyer argues that the state's lawyers
deserve sanctions for allegedly failing, in the
proceedings below, to disclose the existence of lawsuits
that he argues waived sovereign immunity. It is not
clear if this is a request for sanctions from this court or
an appeal of the district court's denial of O'Dwyer's
 7a
motion to disqualify the Louisiana Department of
Justice. We reject his argument in either event.
Sanctions are not appropriate, and the district court
was within its discretion to deny the motion.
In addition to the merits of the appeal, Defendants-
Appellees have filed a motion for sanctions against
O'Dwyer, to which he responded with a motion for
sanctions against them. We DENY both motions for
sanctions, and AFFIRM the decision of the district
court in all regards.
8a
Exhibit 1 US Court of Appeals for the Fifth
Circuit, Complaint(s) of Judicial Misconduct filed
4/14/2009
COMPLAINT(S) OF
JUDICIAL MISCONDUCT
COMES NOW Ashton R. O’Dwyer, Jr.,
appearing in propria persona pursuant to the
provisions of the “Rules Governing Complaints of
Judicial Misconduct,” who does declare under penalty of
perjury, pursuant to the provisions of 28U.S.C. §1746,
the truth and correctness of the following:
1. That the following Judges of the United States
Court of Appeals for the Fifth Circuit1 are guilty of
judicial misconduct by virtue of the violation of their
oath of office, violation of the Canons contained in the
“Code of Conduct for United States Judges,” as well as
conspiracy to commit same:
James L. Dennis in Case Nos. 08-30052, 07-30349, and
08-30362;
Rhesa H. Barksdale in Case No. 08-30052;
Emilio M. Garza in Case No. 08-30052;
Thomas M. Reavely in Case No. 08-30052;
Carolyn Dineen King in Case Nos. 07-30349 and 08-
30362; and
Jennifer Walker Elrod in Case Nos. 07-30349 and 08-
30362.
1
Complainant acknowledges the probability that other Federal
officials, such as members of the Court’s or the Judges’ Staff, are
also guilty of misconduct; however, no complaint against those
officials is being made at this time.
 9a
2. The misconduct complained of herein took place
during the pendency of the referenced cases at New
Orleans, Louisiana, and where the Judges maintain
their offices, if elsewhere than New Orleans.
3. The misconduct complained of herein consisted
of prohibited ex parte communications between and
among the Judges identified herein and all or some of
the following, which communications were known by
the Judges to be prohibited, because they involved the
merits of the cases identified herein and how the
outcome(s) in those cases could be improvidently
influenced by others:
a) One or more members of the Louisiana Supreme
Court, including particularly, but without limitation,
now Chief Justice Catherine D. Kimball, and/or her
surrogates, and/or the surrogates of other members of
the Louisiana Supreme Court;
b) One or more employees of the Office of
Disciplinary Counsel for the Louisiana Supreme Court,
including particularly, but without limitation, Chief
Disciplinary Counsel Charles B. Plattsmier, Jr., and/or
his surrogates, and/or the surrogates of other
employees of the Office of Disciplinary Counsel;
c) Employees of the State of Louisiana, including
particularly, but without limitation, employees of the
Louisiana Department of Justice and/or State
employees within the Executive, Judicial and/or
Legislative Branches of Louisiana State Government,
and/or their surrogates;
10a
d) Members of the Plaintiffs’ Bar of the State of
Louisiana, including particularly, but without
limitation, those Members of the Plaintiffs’ Bar who
represent the interests of plaintiffs, claimants and
potential class members in the “Victims of KATRINA”
litigation pending in the United States District Court
for the Eastern District of Louisiana, but who
simultaneously represented the interests of the State of
Louisiana between August 29, 2007 and October 9,
2008, and/or Members of the Louisiana Bar who signed
fee-sharing agreements with such Plaintiffs’ Bar
members, and/or any of their surrogates;
e) Members of the United States District Court for
the Eastern District of Louisiana and/or Members of
the Staff of that Court, including particularly, but
without limitation, Stanwood R. Duval, Jr. and his
spouse and law clerk, Janet Daley Duval, and/or their
surrogates; and
f) Other members of the United States Court of
Appeals for the Fifth Circuit and/or their surrogates.
4. In support of these complaints of misconduct,
and to specifically avoid running afoul of Rules 2(D) and
3(D) of the Rules Governing Complaints of Judicial
Misconduct, Complainant incorporates herein by
reference thereto the following Exhibits, copies of
which will be submitted if requested by the Chief
Judge:
Exhibit No. 1 – Transcript of Statement given under
Penalty of Perjury by Ashton R. O’Dwyer, Jr., to the
Louisiana Department of Justice on October 14, 2005;
 11a
Exhibit No. 2 – Record Document No. 114 in Civil
Action 06-7280, in the Eastern District of Louisiana,
being the Complaint in that action;
Exhibit No. 3 – Sworn Affidavit of Complainant’s Law
Enforcement Expert, David R. Kent, dated August 20,
2007;
Exhibit No. 4 – Sworn Affidavit of Complainant’s Law
Enforcement Expert, David R. Kent, directed to the
issue of discovery dated, December 19, 2007;
Exhibit No. 5 – Unsworn Declaration Under Penalty of
Perjury made pursuant to 28 U.S.C. §1746 by
Complainant’s Law Enforcement Expert, David R.
Kent, on March 4, 2009;
Exhibit No. 6 – Complainant’s Un-refuted Motion to
Strike False and Defamatory Allegations in Case No.
08-30052;
Exhibit No. 7 – Judge Dennis’ Order of September 22,
2008, summarily denying Exhibit No. 6;
Exhibit No. 8 – Complainant’s Motion for Disclosure in
Case No. 08-30052;
Exhibit No. 9 – Complainant’s E-mail to Deputy Clerk
Michael Brown, in Case No. 08-30052, referencing
Complainant’s Motion for Disclosure by Judge Dennis;
Exhibit No. 10 – The Court’s Order of December 18,
2008, summarily denying Exhibit No. 8;
Exhibit No. 11 – Complainant’s correspondence in Case
12a
No. 08-30052 to the Clerk of the 5th Circuit dated
September 24, 2008;
Exhibit No. 12 – Complainant’s November 10, 2008
correspondence in Case No. 08-30052 to the Clerk of 5th
Circuit; and
Exhibit No. 13 – Complainant’s Petition for Panel
Rehearing and/or for Rehearing En Banc in Case No.
08-30052, together with attached Exhibits.
Complainant avers that the Chief Judge should not act
on the complaints alleged herein without review of the
Exhibits identified supra, which Complainant is
prepared to submit to the Chief Judge, if requested, but
which are not attached hereto in order to avoid running
afoul of the provisions of Rules 2(D) and 3(D) of the
Rules Governing Complaints of Judicial Misconduct.
5. Complainant further avers that the Court’s
decisions in Case Nos. 08-20052, 07-30349 and 08-30362
were the result of judicial misconduct, and at least
peripherally related to the following issues in Civil
Action No. 06-7280 and 05-4182 (and consolidated cases)
pending in the United States District Court for the
Eastern District of Louisiana:
1) A criminal gangland-style “hit” which was
executed by the Louisiana State Police against
Complainant at five minutes past midnight on
September 20, 2005, on orders from persons employed
by the Louisiana Department of Justice, by the
Louisiana Supreme Court and by the Office of
Disciplinary Counsel for the Louisiana Supreme Court;
 13a
2) A patently obvious non-consentable, concurrent
conflict of interests on the part of certain so-called
prominent Members of the Plaintiffs’ Bar who
simultaneously represented plaintiffs, claimants and
potential class members in the “Victims of KATRINA”
litigation bearing Civil Action No. 05-4182 (and
consolidated cases) in the U.S. District Court for the
Eastern District of Louisiana, as well as the interests of
the State of Louisiana, between August 29, 2007 and
October 9, 20082;
3) Bias, prejudice and partiality, and other judicial
misconduct, warranting the recusal of Stanwood R.
Duval, Jr., in the “Victims of KATRINA” litigation3;
and
4) Claims asserted by Complainant and his clients
against the State of Louisiana, its agencies and
instrumentalities, political subdivisions, and individual
department heads, in the “Victims of KATRINA”
litigation.
6. By virtue of their having participated in
prohibited ex parte communications as described,
supra, and allowing those communications to influence
their decision-making on the merits in the referenced
cases, the Judges identified herein each violated the
following Canons contained in the Code of Conduct for
United States Judges:
Canon 1 - was violated by each of the accused Judges,
who made a mockery of the terms “independent,”
2
This issue is articulately pleaded in Civil Action N0. 08-4728 on
the Eastern District docket.
3
Ibid.
14a
“honorable,” “justice,” “high standards of conduct,” and
“integrity,” as a result of the misconduct alleged herein.
Canon 2(A) - was violated by each of the accused
Judges, because they neither respected nor complied
with the law, and because the misconduct alleged herein
is the antithesis of acting “at all times in a manner that
promotes public confidence in the integrity and
impartiality of the judiciary.”
Canon 2(B) - was violated by each of the accused
Judges, because they allowed social or other
relationships to influence their judicial conduct and
judgment, and because they not only conveyed to others
the impression that they were in a special position of
influence, and did nothing to stop that impression, but
then acted in an official capacity to advance the private
interests of others.
Canon 3(A)(1) - was violated by each of the accused
Judges, because not only did they make a mockery of
the terms “faithful” and “professional competence in the
law,” but they permitted their decision-making to be
dictated by partisan interests.
Canon 3(A)(4) - was violated by each of the accused
Judges, because they engaged in prohibited ex parte
communications with others on the merits, and
procedures affecting the merits, of proceedings pending
before them. Judges Dennis, Barksdale, Garza, and
Reavely also violated Canon 3(A)(4) by conspiring with
others to deny Complainant oral argument in Case No.
08-30052. Judges Dennis, King and Elrod also violated
Canon 3(A)(4) by conspiring with others to deny
Complainant oral argument in Case No. 08-30362.
Canon 3(B)(1), (2), and (3) - were violated by each of
the accused Judges, because they took no action after
learning of misconduct by Brother and/or Sister Judges,
Court officials and Staff, lawyers and others.
 15a 16a
7. The Complaints of judicial misconduct contained September 28, 2007 Order of Reprimand and Reasons
herein are not made for the purpose of seeking review by the Judicial Council in the matter involving former
of the erroneous decisions involving Complainant and Judge Samuel B. Kent who, since the referenced Order
his clients by the Judicial Council of the Fifth Circuit,4 of Reprimand and Reasons, and more particularly on
but rather to instill public confidence in the integrity February 23, 2009, pleaded guilty of one count of
and independence of judges, and to ensure that judges obstruction of justice, thus demonstrating the abject
comply with their oath of office, the law, and the incompetency of the judicial misconduct process within
applicable Code of Conduct. the Fifth Circuit. Complainant further avers that any
investigation(s) by the Special Committee or
8. More to the point, Complainant avers that Committees should also include the appointment of
although reasonable minds might conclude that the competent forensic experts to analyze office computers,
misconduct alleged herein is peripherally related to personal computers and blackberries, as well as
merits of the decisions in the referenced cases, telephone records, of the accused Judges and others, in
Complainant specifically avers that his allegations of order to “test” their answers to questions under oath
misconduct are NOT DIRECTLY RELATED TO the with extrinsic electronic and documentary evidence.
decisions in those cases, but rather to the lack of
integrity of the accused Judges and of those who 10. Complainant declares that the allegations,
wrongfully influenced them. averments and statements contained herein are true
and correct under penalty of perjury pursuant to the
9. Complainant avers that the Chief Judge should provisions of 28 U.S.C. §1746.
appoint a Special Committee (or Committees) to
investigate these complaints and to make
recommendations to the Judicial Council.
Notwithstanding, this requested relief, Complainant
avers that he has no confidence in the ability of the
Chief Judge of the United States Court of Appeals for
the Fifth Circuit, any Special Committee which may be
appointed by the Chief Judge, or of the Judicial Council
of the Fifth Circuit to competently, fairly and
impartially investigate and decide the merits of the
complaints of misconduct contained herein. In support
of these assertions, Complainant refers to the
4
However, Complainant avers that judicial review of the
erroneous decisions is absolutely warranted under the facts and
circumstances.
 17a
Exhibit 2 US Court of Appeals for the Fifth
Circuit, Complaint(s) of Judicial Misconduct filed
4/16/09
COMPLAINT(S) OF
JUDICIAL MISCONDUCT
COMES NOW Ashton R. O’Dwyer, Jr.,
appearing in propria persona pursuant to the
provisions of the “Rules Governing Complaints of
Judicial Misconduct,” who does declare under penalty of
perjury, pursuant to the provisions of 28U.S.C. §1746,
the truth and correctness of the following:
1. That the following Judges of the United States
Court of Appeals for the Fifth Circuit5 are guilty of
judicial misconduct by virtue of the violation of their
oath of office, violation of the Canons contained in the
“Code of Conduct for United States Judges,” as well as
conspiracy to commit same:
James L. Dennis6 in Case Nos. 06-30840, 06-30841, and
08-30234
Jacques L. Weiner, Jr., in Case No. 08-30234.
W. Eugene Davis in Case Nos. 06-30840 and 06-30841.
Edward C. Prado in Case No. 08-30234.
5
Complainant acknowledges the probability that other Federal officials,
such as members of the Court’s or the Judges’ Staff, are also guilty of
misconduct; however, no complaint against those officials is being made
at this time.
6
Complaint(s) of Judicial Misconduct against Dennis were filed on April
14, 2009 in three other cases. The “common denominator” in the clear
majority of cases in which Judicial Misconduct is complained about is the
name “James L. Dennis,” which Complainant avers is a statistical
impossibility unless Dennis is guilty of the conduct complained of herein
beyond all reasonable doubt.
18a
Leslie L. Southwick in Case Nos. 06-30840 and 06-
30841.
Will Garwood in Case No. 08-30234.
Ron Clark7 in Case Nos. 06-30840 and 06-03841.
2. The misconduct complained of herein took place
during the pendency of the referenced cases at New
Orleans, Louisiana, and where the Judges maintain
their offices, if elsewhere than New Orleans.
3. The misconduct complained of herein took place
during the pendency of the referenced cases at New
Orleans, Louisiana, and where the Judges maintain
their offices, if elsewhere than New Orleans.
4. The misconduct complained of herein consisted
of prohibited ex parte communications between and
among the Judges identified herein and all or some of
the following, which communications were known by
the Judges to be prohibited, because they involved the
merits of the cases identified herein and how the
outcome(s) in those cases could be improvidently
influenced by others:
g) One or more members of the Louisiana Supreme
Court, including particularly, but without limitation,
now Chief Justice Catherine D. Kimball, and/or her
surrogates, and/or the surrogates of other members of
the Louisiana Supreme Court;
7
District Judge from the Eastern District of Texas, who sat on the United
States Court of Appeals for the 5th Circuit by designation.
 19a
h) One or more employees of the Office of
Disciplinary Counsel for the Louisiana Supreme Court,
including particularly, but without limitation, Chief
Disciplinary Counsel Charles B. Plattsmier, Jr., and/or
his surrogates, and/or the surrogates of other
employees of the Office of Disciplinary Counsel;
i) Employees of the State of Louisiana, including
particularly, but without limitation, employees of the
Louisiana Department of Justice and/or State
employees within the Executive, Judicial and/or
Legislative Branches of Louisiana State Government,
and/or their surrogates;
j) Members of the Plaintiffs’ Bar of the State of
Louisiana, including particularly, but without
limitation, those Members of the Plaintiffs’ Bar who
represent the interests of plaintiffs, claimants and
potential class members in the “Victims of KATRINA”
litigation pending in the United States District Court
for the Eastern District of Louisiana, but who
simultaneously represented the interests of the State of
Louisiana between August 29, 2007 and October 9,
2008, and/or Members of the Louisiana Bar who signed
fee-sharing agreements with such Plaintiffs’ Bar
members, and/or any of their surrogates;
k) Members of the United States District Court for
the Eastern District of Louisiana and/or Members of
the Staff of that Court, including particularly, but
without limitation, Stanwood R. Duval, Jr. and his
spouse and law clerk, Janet Daley Duval, and/or their
surrogates; and
20a
l) Other members of the United States Court of
Appeals for the Fifth Circuit and/or their surrogates.
5. In support of these complaints of misconduct,
and to specifically avoid running afoul of Rules 2(D) and
3(D) of the Rules Governing Complaints of Judicial
Misconduct, Complainant incorporates herein by
reference thereto the following Exhibits, copies of
which will be submitted if requested by the Chief
Judge:
Exhibit No. 1 – Transcript of Statement given under
Penalty of Perjury by Ashton R. O’Dwyer, Jr., to the
Louisiana Department of Justice on October 14, 2005;
Exhibit No. 2 – Record Document No. 114 in Civil
Action 06-7280, in the Eastern District of Louisiana,
being the Complaint in that action;
Exhibit No. 3 – Sworn Affidavit of Complainant’s Law
Enforcement Expert, David R. Kent, dated August 20,
2007;
Exhibit No. 4 – Sworn Affidavit of Complainant’s Law
Enforcement Expert, David R. Kent, directed to the
issue of discovery dated, December 19, 2007;
Exhibit No. 5 – Unsworn Declaration Under Penalty of
Perjury made pursuant to 28 U.S.C. §1746 by
Complainant’s Law Enforcement Expert, David R.
Kent, on March 4, 2009;
Exhibit No. 6 – Complainant’s Un-refuted Motion to
Strike False and Defamatory Allegations in Case No.
08-30052;
 21a
Exhibit No. 7 – Judge Dennis’ Order of September 22,
2008, summarily denying Exhibit No. 6;
Exhibit No. 8 – Complainant’s Motion for Disclosure in
Case No. 08-30052;
Exhibit No. 9 – Complainant’s E-mail to Deputy Clerk
Michael Brown, in Case No. 08-30052, referencing
Complainant’s Motion for Disclosure by Judge Dennis;
Exhibit No. 10 – The Court’s Order of December 18,
2008, summarily denying Exhibit No. 8;
Exhibit No. 11 – Complainant’s correspondence in Case
No. 08-30052 to the Clerk of the 5th Circuit dated
September 24, 2008;
Exhibit No. 12 – Complainant’s November 10, 2008
correspondence in Case No. 08-30052 to the Clerk of 5th
Circuit; and
Exhibit No. 13 – Complainant’s Petition for Panel
Rehearing and/or for Rehearing En Banc in Case No.
08-30052, together with attached Exhibits.
Complainant avers that the Chief Judge should not act
on the complaints alleged herein without review of the
Exhibits identified supra, which Complainant is
prepared to submit to the Chief Judge, if requested, but
which are not attached hereto in order to avoid running
afoul of the provisions of Rules 2(D) and 3(D) of the
Rules Governing Complaints of Judicial Misconduct.
22a
6. Complainant further avers that the Court’s
decisions in Case Nos. 06-30840, 06-30841, and 08-30234
were the result of judicial misconduct, and at least
peripherally related to the following issues in Civil
Action No. 06-7280 and 05-4182 (and consolidated cases)
pending in the United States District Court for the
Eastern District of Louisiana:
1) A criminal gangland-style “hit” which was
executed by the Louisiana State Police against
Complainant at five minutes past midnight on
September 20, 2005, on orders from persons employed
by the Louisiana Department of Justice, by the
Louisiana Supreme Court and by the Office of
Disciplinary Counsel for the Louisiana Supreme Court;
2) A patently obvious non-consentable, concurrent
conflict of interests on the part of certain so-called
prominent Members of the Plaintiffs’ Bar who
simultaneously represented plaintiffs, claimants and
potential class members in the “Victims of KATRINA”
litigation bearing Civil Action No. 05-4182 (and
consolidated cases) in the U.S. District Court for the
Eastern District of Louisiana, as well as the interests of
the State of Louisiana, between August 29, 2007 and
October 9, 20088;
3) Bias, prejudice and partiality, and other judicial
misconduct, warranting the recusal of Stanwood R.
Duval, Jr., in the “Victims of KATRINA” litigation9;
and
8
This issue is articulately pleaded in Civil Action N0. 08-4728 on
the Eastern District docket.
9
Ibid.
 23a
4) Claims asserted by Complainant and his clients
against the State of Louisiana, its agencies and
instrumentalities, political subdivisions, and individual
department heads, in the “Victims of KATRINA”
litigation.
7. By virtue of their having participated in
prohibited ex parte communications as described,
supra, and allowing those communications to influence
their decision-making on the merits in the referenced
cases, the Judges identified herein each violated the
following Canons contained in the Code of Conduct for
United States Judges:
Canon 1 - was violated by each of the accused Judges,
who made a mockery of the terms “independent,”
“honorable,” “justice,” “high standards of conduct,” and
“integrity,” as a result of the misconduct alleged herein.
Canon 2(A) - was violated by each of the accused
Judges, because they neither respected nor complied
with the law, and because the misconduct alleged herein
is the antithesis of acting “at all times in a manner that
promotes public confidence in the integrity and
impartiality of the judiciary.”
Canon 2(B) - was violated by each of the accused
Judges, because they allowed social or other
relationships to influence their judicial conduct and
judgment, and because they not only conveyed to others
the impression that they were in a special position of
influence, and did nothing to stop that impression, but
then acted in an official capacity to advance the private
interests of others.
Canon 3(A)(1) - was violated by each of the accused
Judges, because not only did they make a mockery of
24a
the terms “faithful” and “professional competence in the
law,” but they permitted their decision-making to be
dictated by partisan interests.
Canon 3(A)(4) - was violated by each of the accused
Judges, because they engaged in prohibited ex parte
communications with others on the merits, and
procedures affecting the merits, of proceedings pending
before them. Judges Davis, Southwick and Clark also
violated Canon 3(A)(4) by conspiring with others to
deny Complainant oral argument in Case Nos. 06-30840
and 06-30841. Judges Weiner, Prado and Southwick
also violated Canon 3(A)(4) by conspiring with others to
deny Complainant oral argument in Case No. 08-30234.
Canon 3(B)(1), (2), and (3) - were violated by each of
the accused Judges, because they took no action after
learning of misconduct by Brother and/or Sister Judges,
Court officials and Staff, lawyers and others.
8. The Complaints of judicial misconduct contained
herein are not made for the purpose of seeking review
of the erroneous decisions involving Complainant and
his clients by the Judicial Council of the Fifth Circuit,10
but rather to instill public confidence in the integrity
and independence of judges, and to ensure that judges
comply with their oath of office, the law, and the
applicable Code of Conduct.
9. More to the point, Complainant avers that
although reasonable minds might conclude that the
misconduct alleged herein is peripherally related to
merits of the decisions in the referenced cases,
Complainant specifically avers that his allegations of
10
However, Complainant avers that judicial review of the
erroneous decisions is absolutely warranted under the facts and
circumstances.
 25a
misconduct are NOT DIRECTLY RELATED TO the
decisions in those cases, but rather to the lack of
integrity of the accused Judges and of those who
wrongfully influenced them.
26a
11. Complainant declares that the allegations,
averments and statements contained herein are true
and correct under penalty of perjury pursuant to the
provisions of 28 U.S.C. §1746.

10. Complainant avers that the Chief Judge should

appoint a Special Committee (or Committees) to
investigate these complaints and to make
recommendations to the Judicial Council.
Notwithstanding, this requested relief, Complainant
avers that he has no confidence in the ability of the
Chief Judge of the United States Court of Appeals for
the Fifth Circuit, any Special Committee which may be
appointed by the Chief Judge, or of the Judicial Council
of the Fifth Circuit to competently, fairly and
impartially investigate and decide the merits of the
complaints of misconduct contained herein. In support
of these assertions, Complainant refers to the
September 28, 2007 Order of Reprimand and Reasons
by the Judicial Council in the matter involving former
Judge Samuel B. Kent who, since the referenced Order
of Reprimand and Reasons, and more particularly on
February 23, 2009, pleaded guilty of one count of
obstruction of justice, thus demonstrating the abject
incompetency of the judicial misconduct process within
the Fifth Circuit. Complainant further avers that any
investigation(s) by the Special Committee or
Committees should also include the appointment of
competent forensic experts to analyze office computers,
personal computers and blackberries, as well as
telephone records, of the accused Judges and others, in
order to “test” their answers to questions under oath
with extrinsic electronic and documentary evidence.
 No.

IN THE
Supreme Court of the United States

MAUREEN O'DWYER; SALLY EGERTON

RICHARDS; STEPHANIE PORTER; SHEILA
JORDAN; CHARLES EDWARD JORDAN, LETICIA
BROWN, PETITIONERS

v.

BOARD OF COMMISSIONERS OF THE PORT OF

NEW ORLEANS

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

MAUREEN O'DWYER
SALLY EGERTON RICHARDS
SHEILA JORDAN
CHARLES EDWARD JORDAN
STEPHANIE PORTER
LETICIA BROWN
pro se
c/o Brooks Bros.,
One Canal Place,
Foot of Canal Street and the
Missisippi River,
New Orleans, La., 70130
(504) 522-4200.

CURRY & TAYLOR  (202) 393-4141

 i ii
QUESTIONS PRESENTED
(1) Whether Petitioners have been denied the
fundamental constitutional right to due process of
law, because the integrity of the litigation in the
courts below was CORRUPTED and
POLLUTED by virtue of an extra-judicial source
of bias and prejudice revolving around the
relationship between the District Judge and
counsel for some of the litigants, namely Calvin
Clifford Fayard, Jr., who the District Judge has
admitted is a “close personal friend of long-
standing”, but whose professional ethics and
integrity have been placed at issue as a result of
his serving on Committees and Sub-Committees
in the litigation, while simultaneously
representing the State of Louisiana, and failing to
disclose that representation to other counsel prior
to 8/29/07?”
(2) Whether Petitioners have been denied the
fundamental constitutional right to due process of
law, because the ability of Petitioners to obtain
“justice” in the Courts below was THWARTED
and TAINTED by judicial misconduct in the
Courts below, all as is meticulously set forth in
separate Complaint(s) of Judicial Misconduct filed
in the United States Court of Appeals for the
Fifth Circuit on April 14 and 16, 2009, attached as
Exhibit Nos. 1 and 2, respectively
3) Whether the District Judge violated the standards
for deciding a Motion for Judgment on the
Pleadings by granting the motion, and dismissing
all claims against the Board of Commissioners for
the Port of New Orleans, with prejudice, without
even considering the allegations of the well-
pleaded Complaint(s) filed by
plaintiffs/appellants, and without affording them
the opportunity to amend their Complaint(s) as an
alternative to dismissal?
4) Whether the District Judge improvidently failed
to take judicial notice of FACTS which clearly
raise issues concerning the legal liability of the
Board of Commissioners for the Port of New
Orleans for breaches on both sides of the
Industrial Canal during Hurricane KATRINA?
5) Whether the District Judge erroneously
relied on a State statute which has since been
ruled to be unconstitutional in granting the
Motion for Judgment on the Pleadings?
6) Whether the rights of plaintiffs/appellants
were prejudiced by the fact that the Plaintiffs’
Liaison Committee, which has glaring conflict of
interests which was not disclosed to
plaintiffs/appellants or their counsel, and which
failed to file any Memorandum in Opposition to
the Motion for Judgment on the Pleadings, a
clear dereliction of duty that was motivated
solely by the conflict of interests on the part of
certain Committee and Sub-Committee
Members?
7) Whether the District Judge’s erroneous
decision was influenced by his actual bias and
prejudice, not only against plaintiffs/appellants
and their counsel, but in favor of his “close
personal friend of long-standing”, Calvin Fayard,
and in favor of Mr. Fayard’s client, the State of
Louisiana?
 iii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED .............................................................. i
TABLE OF AUTHORITIES............................................................ iv
OPINIONS BELOW......................................................................... 1
JURISDICTION ............................................................................... 1
RELEVANT PROVISIONS INVOLVED ......................................... 1
STATEMENT .................................................................................. 2
REASONS FOR GRANTING THE PETITION............................... 23
CONCLUSION............................................................................... 35
APPENDIX
Circuit Court Opinion............................................................ 1a
Rehearing Exhibits................................................................. 8a
District Court Decision ........................................................ 27a
iv
TABLE OF AUTHORITIES
Page
Cases
Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955
(May 21, 2007) ................................................................... 26, 27
Johnson v. Johnson, 385 F.3d 503, 529 (5th Cir. 2004) ........... 26
Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847
(1988)............................................................................ 23, 24, 25
Statutes
28 U.S.C. §1333(1)........................................................... 7, 8, 9, 13
28 U.S.C. §1367 ............................................................................. 2
28 U.S.C. §144 ............................................................................... 1
28 U.S.C. §455(a)........................................................................... 1
28 U.S.C. 28 ................................................................................... 1
42 U.S.C. §1983 ............................................................................. 2
LSA-R.S. 29.735 ................................................................... 15, 20
LSA-R.S. 9:2798.1 ...................................................................... 14
LSA-R.S. 9:2800 ............................................................. 21, 29, 30
U.S.C. §1254(a) ............................................................................. 1
Rules
FRCP 12(c).................................................................................. 25
 1 2
OPINIONS BELOW
The opinion of the United States Court of
Appeals for the Fifth Circuit is unreported. The
opinion of the United States District Court for the
Eastern District of Louisiana is unreported.
JURISDICTION
The decision of the Court of Appeals was issued
on 2/609. This Petition is filed within 90 days
thereafter. This Court has jurisdiction pursuant to 28
U.S.C. 28 U.S.C. §1254(a).
RELEVANT PROVISIONS INVOLVED
28 U.S.C. §144
Whenever a party to any proceeding in a district
court makes and files a 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.
28 U.S.C. §455(a) and (b)
(a) Any justice, judge or magistrate judge of
the United States shall disqualify himself in any
proceeding in which his impartiality might
reasonably be questioned.
(b) He shall also disqualify himself in the
following circumstances:
(1) Where he has a personal bias or
prejudice concerning a party . . .
28 U.S.C. §1367, Supplemental Jurisdiction
Except as provided in subsections (b) and (c) or
as expressly provided otherwise by Federal
statute, in any civil action of which the district
courts have original jurisdiction, the district
courts shall have supplemental jurisdiction over
all other claims that are so related to claims in
the action within such original jurisdiction that
they form part of the same case or controversy
under Article III of the United States
Constitution. Such supplemental jurisdiction
shall include claims that involve the joinder or
intervention of additional parties.
42 U.S.C. §1983, Civil Rights Act
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State or territory or the District of Columbia,
subject, or causes to be subjected, any citizen of
the United States or any person within the
jurisdiction thereof to other deprivation of any
rights, privileges, or immunities secured by the
constitution and laws, shall be libel to the party
injured in an action at law, suit in equity, or
other proper proceeding for redress.
STATEMENT
a) Course of proceedings and Disposition
in Court Below
 3 4
This appeal involves the dismissal of
plaintiffs’/appellants’ claims against the Board of
Commissioners for the Port of New Orleans “on the
papers”, and more particularly the dismissal of all
claims against the Board pursuant to Rule 12(c),
Federal Rules of Civil Procedure, which addresses the
“Motion for Judgment on the Pleadings”. No evidence,
either documentary or testimonial, was adduced in
connection with the Board’s Motion for Judgment on
the Pleadings, which was summarily granted, without
oral argument.
Although six (6) separate Civil Actions filed by
plaintiffs/appellants, are referenced, both in the Board’s
motion, and in the Court’s Order and Reasons and
Judgments, and in plaintiffs’/appellants’ Notice of
Appeal, namely Civil Action Nos. 05-4181, 06-1885, 06-
4389, 06-5771, 06-5786 and 07-0206, only Civil Action
Nos. 06-4389 and 06-5786 are relevant to this appeal,
because it was only in those cases that
plaintiffs/appellants herein sued and made liability
allegations against the Board1 of Commissioners for the
Port of New Orleans.
Civil Action No. 06-4389, which included the
Board as a party defendant, and contains specific
jurisdictional and liability allegations against the Board,
among others, was filed in the United States District
Court for the Eastern District of Louisiana on August
17, 2006. Civil Action No. 06-4389 was filed for the
primary purposes of invoking admiralty and maritime
jurisdiction, among other jurisdictional bases, and in
order to have a lawsuit filed in a Court of competent
1
The Board is not a party to Civil Action No. 05-4181. Civil Action Nos.
06-1885, 06-5771 and 07-0206 involve only claims against the United
States of America.
jurisdiction prior to the one year anniversary of
Hurricane KATRINA.
Civil Action No. 06-5786 was originally filed in
Civil District Court for the Parish of Orleans as Case
No. 2006-8322 on August 24, 2006, for the purpose of
having a lawsuit similar to Civil Action No. 06-4389 of
record in State Court prior to the one year anniversary
of Hurricane KATRINA, in the event it was
determined that Federal Court lacked jurisdiction.
This particular lawsuit was later removed to Federal
Court by one of the Board’s co-defendants and assigned
Civil Action No. 06-5786.
Prior to the filing of the Motion for Judgment on
the Pleadings by the Board on June 11, 2007, the
Plaintiffs’ Liaison Committee had filed a “Superseding
Consolidated Master Class Action Complaint” (Record
Document No. 3420, filed on March 15, 2007), which was
specifically referenced in the Board’s Motion for
Judgment on the Pleadings. (Record Document No.
5522). Notwithstanding the fact that Civil Action Nos.
06-4389 and 06-5786 were identified by number on the
Title Page of the Board’s motion, none of
plaintiffs’/appellants’ allegations against the Board in
either of those cases were addressed in the body of the
Board’s motion or Memorandum in Support.
Undersigned counsel for plaintiff in Civil Action Nos.
06-4389 and 06-5786 reasonably assumed that the
“Plaintiffs’ Liaison Committee” would file a timely and
proper Memorandum in Opposition to the Board’s
Motion for Judgment on the Pleadings, which no
reasonable mind could have concluded would be
summarily granted, without any opportunity for oral
argument in litigation as significant as “Victims of
KATRINA” litigation. Unfortunately, for reasons
which will become apparent to This Honorable Court
 5 6
infra, the Plaintiffs’ Liaison Committee filed no
opposition at all, and the Board’s Motion for Judgment
on the Pleadings was granted by default in an Order
and Reasons issued by the District Judge, which can
only be described as “superficial” at best. In addition,
plaintiffs/appellants respectfully submit that the
“motivation” of the District Judge in summarily
granting the Board’s Motion for Judgment on the
Pleadings involved the District Judge’s personal bias
and prejudice, which plaintiffs/appellants and their
counsel have averred should require recusal of the
District Judge in all “Victims of KATRINA” litigation.
See infra.
A timely Notice of Appeal (Record Document
No. 10933) was filed.
b) Statement of Facts
On August 17, 2006, plaintiffs/appellants,
through undersigned counsel, filed Civil Action No. 06-
4389 in the United States District Court for the
Eastern District of Louisiana. That Civil Action
specifically named as a party defendant “The Board of
Commissioners of the Port of the New Orleans” (Article
III (10)). Civil Action No. 06-4389 is a Class Action in
which plaintiffs/appellants alleged themselves to be
representative of the following classes of people, inter-
alia:
A. Citizens and/or residents of the Parishes
of Orleans, Jefferson and St. Bernard,
State of Louisiana, who are survivors of
human beings who died as a result of the
fault, neglect, strict liability and/or breach
of the implied warranty of workmanlike
performance pleaded herein.
B. Citizens and/or residents of the Parishes
of Orleans, Jefferson and St. Bernard,
State of Louisiana, who suffered bodily
injury, pain and suffering, mental anguish
and/or emotional distress as a result of the
fault, neglect, strict liability and/or breach
of the implied warranty of workmanlike
performance pleaded herein.
C. Citizens and/or residents of the Parishes
of Orleans, Jefferson and St. Bernard,
State of Louisiana, who suffered loss of or
damage to property, both real and
personal, and/or diminution in the value of
their property, as a result of the fault,
neglect, strict liability and/or breach of
the warranty of workmanlike
performance pleaded herein.
D. Citizens and/or residents of the Parishes
of Orleans, Jefferson and St. Bernard,
State of Louisiana, who suffered purely
economic losses as a result of the fault,
neglect, strict liability and/or breach of
the implied warranty of workmanlike
performance pleaded herein, including
lost income, lost profits and relocation
and/or increased living expenses.
E. Citizens and/or residents of the Parishes
of Orleans, Jefferson and St. Bernard,
State of Louisiana, who suffered damage
from pollution, including bodily injury,
contamination of real or personal
property, lost revenues, profits and
earning capacity due to pollution, and
 7 8
damage for subsistence use, as well as
damage for the cost of containment, clean-
up, remediation and restoration, and for
damage to the environment.
F. Citizens and/or residents of the Parishes
of Orleans, Jefferson and St. Bernard,
State of Louisiana, who experienced the
threat of loss or damage as a result of the
fault, neglect, strict liability and/or breach
of the implied warranty of workmanlike
performance pleaded herein, including
damages for anxiety, fear, fright, despair
and hopelessness.
The jurisdictional allegations in Civil Action No.
06-4389 included allegations concerning the commission
of maritime torts by the defendants. More particularly,
in Article IV, plaintiffs/appellants specifically pleaded
as follows:
IV.
This Court has jurisdiction of the claims
herein asserted pursuant to 28 U.S.C. §1333(1)
by virtue of the following maritime torts
committed by defendants:
1) Defective and negligent design,
construction, operation, inspection
and maintenance of an entire
navigable waterway system,
including levees and retaining wall
structures, consisting of the
Mississippi River Gulf Outlet, the
Gulf Intracoastal Waterway, the
Inner Harbor Navigation Canal
(a/k/a “The Industrial Canal”), the
London Avenue Canal, the Orleans
Avenue Canal and the 17th Street
Canal, their environs and
tributaries;
2) Negligent failure to contain the
navigable waters of the United
States identified, supra;
3) Negligent dredging of the
navigable waters of the Untied
States identified, supra;
Plaintiffs/appellants also pleaded causes of action
for pollution damage, a “takings” claim, the breach of
the warranty of workmanlike performance, and claims
sounding in negligence, as well as strict liability under
the general maritime law, as well as violation of State
laws, which are not in conflict with the general
maritime law. See Articles V, VI, VII, VIII and IX of
the Complaint. In Articles XI and XII of their
Complaint, plaintiffs/appellants alleged as follows:
XI.
Sometime at or about the time
Hurricane KATRINA made landfall in
Louisiana on the early morning of August
29, 2006, and thereafter, numerous
breaches in the levees and retaining wall
structures occurred along the Mississippi
River Gulf Outlet, the Gulf Intracoastal
Waterway, the Inner Harbor Navigation
Canal (a/k/a the Industrial Canal), the
London Avenue Canal and the 17th Street
 9 10
Canal. As a result of those breaches,
flooding of the Greater Metropolitan
Area, including parts of the Parishes of
Orleans, Jefferson and St. Bernard,
occurred. Additional flooding was caused
by storm surge flowing over “low spots”
or unprotected areas along the banks of
the London Avenue and Orleans Avenue
Canals.
XII.
Plaintiffs aver that the above-
described breaches in the levees and
retaining wall structures of the navigable
waterways identified, supra, and the
resulting flooding of the Greater New
Orleans Metropolitan Area, were caused
or occasioned by defendants’ fault,
neglect, strict liability and/or breach of
the implied warranty of workmanlike
performance which was owed plaintiffs
and their property by defendants.
Plaintiffs also aver that defendants failed
in their duty to ensure the competent
design, construction operation, inspection
and maintenance of an entire navigable
waterway system, consisting of the
Mississippi River Gulf Outlet, the Gulf
Intracoastal Waterway, the Inner Harbor
Navigation Canal (a/k/a the Industrial
Canal), the London Avenue Canal, the
Orleans Avenue Canal and the 17th Street
Canal, and their environs and tributaries,
which were defectively and negligently
designed, constructed, operated,
inspected and maintained, and that
defendants failed in their duty to properly
contain navigable waters of the United
States in that navigable waterway
system.
With specific reference to the Board of
Commissioners of the Port of New Orleans with respect
to breaches on both sides of the Inner Harbor
Navigational Canal (a/k/a and sometimes referred to
herein as “the Industrial Canal”), plaintiffs/appellants
specifically alleged the following, in addition to the
above and foregoing “general” allegations of fault and
legal liability therefor:
XIII.
As to the defendants . . . The Board
of Commissioners of the Port of New
Orleans, plaintiffs aver the following facts
in support of their allegations of liability
for fault, neglect, strict liability and/or
breach of the warranty of workmanlike
performance by said defendants:
1) Failing to discharge their statutory
obligations as outlined in Titles 33,
36 and 38 of the Louisiana Revised
Statutes.
2) Failing to have or implement
competent management structures,
rules procedures, standards and
training programs.
* * *
 11
4) Failing to coordinate with the U.S.
Army Corps of Engineers and with
other State and local agencies so
that responsibility for cooperation
concerning levees, drainage and
flood control, and for inspection
and maintenance of completed 15)
portions of the Lake Pontchartrain
Project, were clearly spelled out.
* * * 16)
6) Failing to properly train employees
and to coordinate with each other
and with the U.S. Army Corps of
Engineers in order to better
discharge the statutory duties of
inspecting and maintaining the
levee systems. 17)
7) Failing to competently inspect and
maintain the levee systems or
maintain proper records
addressing inspection and
maintenance.
8) Failing to remedy obviously 19)
deficient conditions in the levee
systems, which proper inspection
should have disclosed.
* * *
11) Negligently dredging the navigable 21)
waterways identified herein which
12
eliminated any factor of safety in
the original designs for the levee
and retaining wall structures.
* * *
Failing to remedy levees which
were known to be below design
height.
Failing to repair the W-30
floodgate on the West side of the
Industrial Canal prior to
KATRINA, and failing to
adequately close the gap left in the
hurricane protection system by
that damaged floodgate.
Failing to have and/or to follow a
competent emergency operations
plan, including the failure to
stockpile materials for use in an
emergency.
* * *
Failing to learn any lessons from
prior hurricane exercises, including
particularly the Hurricane PAM
exercise, among others.
* * *
Failing to have a clear
understanding with the Federal
 13
Government (the U.S. Army Corps
of Engineers) and with each other
about who was responsible for
what, when there was a problem.
* * *
27) Failing to establish and have
competent Engineering Staff(s),
and in a sufficient number, to do
what the law required them to do.
28) Constructing earthen levees with
unsuitable materials.
Plaintiffs/appellants specifically included in their
allegations as aforesaid the statement that “Plaintiffs
reserve the right to amend the foregoing Article when
the facts become more fully known.” Complaint, Article
XIII.
Plaintiffs’ allegations also specifically included an
allegation which would, theoretically, constitute an
exception to any “immunity” arguably conferred by any
State statute by specifically pleading as follows in
Article XVI:
XVI.
Plaintiffs aver that the conduct of
certain defendants, described, supra, was
criminal, willful, wanton and reckless, so
as to constitute legal misconduct, entitling
plaintiffs to an award of punitive or
exemplary damages from those
defendants under the general maritime
law.
14
On August 24, 2006, plaintiffs/appellants filed a
Petition in Civil District Court for the Parish of Orleans
which was assigned Case No. 2006-8322, and which also
joined as a party defendant the Board of
Commissioners of the Port of New Orleans, among
others. That case was subsequently removed to the
United States District Court for the Eastern District of
Louisiana, and now bears Civil Action No. 06-5786. The
allegations of plaintiffs’/appellants’ Petition in Civil
Action No. 06-5786, which was originally filed in State
Court as a precautionary measure in the event it was
ultimately determined that Federal Court lacked
jurisdiction over Civil Action No. 06-4389, largely
tracked the allegations of Civil Action No. 06-4389
insofar as the Board of Commissioners of the Port of
New Orleans was concerned. However, the lawsuit
which now bears Civil Action No. 06-5786 in Federal
Court also contained the following allegations:
AS TO ALL CAUSES OF ACTION
XXII.
Plaintiffs aver that the actions and
inaction by the public entities named as
defendants, and by their officers,
complained of herein, were willful, and
constituted criminal, malicious,
intentional, willful, outrageous, reckless,
or flagrant misconduct, so as to deprive
those entities and officers of immunity
from liability pursuant to the provisions of
LSA-R.S. 9:2798.1, and, additionally aver
that those entities and officers were in
derogation of and violated specific rules
and regulations promulgated pursuant to
 15
the provisions of LSA-R.S. 29.735, so as to
deprive those entities and officers of
immunity from liability under the
provisions of that statute as well.
XXIII.
More to the point, plaintiffs aver
that defendants had no discretion to
violate federal or state law or to deprive
plaintiffs of their constitutional rights.
XXIV.
Plaintiffs aver that any State law,
ordinance, proclamation, regulation,
statute, etc., pursuant to which
defendants, or any of them, claim they
acted, is unconstitutional, and that
defendants’ conduct pursuant to any State
law, ordinance, proclamation, regulation,
statute, etc., complained of herein, cannot
be immunized by State law.
Since the two referenced Civil Actions (Nos. 06-
4389 and 06-5786) were filed, and since the Board’s
Motion for Judgment on the Pleadings was summarily
granted by the District Judge on October 12, 2007, a
great deal of “work” involving the Industrial Canal has
been performed in the “Victims of KATRINA”
litigation, primarily in connection with opposing
motions filed by defendant Washington Group
International, Inc. during the Fall and Winter 2007.
Defendant Washington Group was contracted to the
16
U.S. Army Corps of Engineers to perform extensive
work for the Corps between 1997 and shortly before
KATRINA in an area known as “the East Bank
Industrial Area”, on the East side of the Industrial
Canal between the Claiborne Avenue and Florida
Avenue bridges. This is the precise area where two (2)
large breaches occurred during KATRINA. See
Record Documents Nos. 8599, 8852, 8954, 9000, 9237,
9464, 9469, 10240 and 10271, which contain detailed
descriptions of the work performed by Washington
Group and the breaches in way of its work.
During the “work” in connection with opposing
Washington Group’s motion(s), a great deal of “new”
information concerning the Industrial Canal, and the
part that “the Industrial Canal Lock Replacement
Project”, in which the Board of Commissioners for the
Port of New Orleans played a prominent role as “Local
Sponsor” to the Corps of Engineers has been
discovered, none of which information was known when
the Board’s Motion for Judgment on the Pleadings was
summarily granted on October 12, 2007. More
particularly, it now appears rather clear that work
performed pre-KATRINA in connection with the
Industrial Canal Lock Replacement Project played a
very prominent role in the breaches which occurred on
both sides of the Industrial Canal during KATRINA,
and all of that work involved the Board as Local
Sponsor.
Plaintiffs/appellants aver that the above-
described breaches on both sides of the Industrial
Canal were contributed to by the direct participation,
as “Local Sponsor” to the U.S. Army Corps of
Engineers, in the Industrial Canal Lock Replacement
Project, direct involvement not addressed at all, either
in the Board’s Motion for Judgment on the Pleadings or
 17
in the District Judge’s Order and Reasons. Indeed, in
their motion, the Board made only the following
arguments:
1. “Plaintiffs have failed to state a
reasonably cognizable claim against it [the
Board] for the allegedly defective flood
control devices at issue.” Board’s Motion
(Record Document No. 5522), p. 1.
Plaintiffs/appellants never identified
“flood control devices”, but rather alleged
fault by the Board within the Industrial
Canal for the defective and negligent
design, construction, operation and
maintenance of an entire navigable
waterway system, which the Industrial
Canal Lock Replacement Project clearly
formed an integral part of.
2. The Board’s motion and Memorandum in
Support focused on the “Superseding
Master Consolidated Class Action
Complaint” without specifically
addressing any of the allegations of
plaintiffs/appellants against the Board in
Civil Action Nos. 06-4389 and 06-5786.2
3. Similarly, the Board argued that it could
not have custody or “garde” over “flood
control systems”, “levees”, “flood walls”
and/or “flood gates”, which the Board
argued was within the exclusive province
2
Where plaintiffs/appellants specifically objected to the so-called
“Superseding Master Consolidated Class Action Complaint. See Record
Document No. 3469, and Argument in part III, infra.
18
of Levee Boards. However, that
argument by the Board in no way
addressed the Board’s participation in the
Industrial Canal Lock Replacement
Project in which the Board of
Commissioners for the Port of New
Orleans was specifically named by the
State of Louisiana as the “Local Sponsor”,
with attendant duties, obligations and
responsibilities, legal and otherwise, to
third-parties such as plaintiffs/appellants.
4. While the Board correctly defined some of
the standards for deciding Rule 12 (c)
motions, it failed to address other
standards which, if they had been
considered by the District Judge, would
have required denial of the Board’s
Motion for Judgment on the Pleadings.
The Industrial Canal, as well as the many
terminal facilities lining both the East and West sides
of the Canal, which are owned, operated or leased by
the Board of Commissioners for the Port of New
Orleans, are described at length in United States Coast
Pilot 5 (30th Edition), published by the National Ocean
Service and the National Oceanic and Atmospheric
Administration, at pages 300 to 304. The Industrial
Canal also is addressed at length and in meticulous
detail in the “Final Report”, dated July 31, 2006, issued
by the “Independent Levee Investigation Team”,
entitled: “Investigation of the Performance of the New
Orleans Flood Protection Systems”, which is available
at http://www.ce.berkeley.edu/~new_orleans/ (The
ILIT Final Report will be referred to herein as “the
 19
ILIT Report”). See pages 4-24 through 4-26 and 4-29 of
the ILIT Report. A considerable number of breaches
(or other “problems”) which caused flooding of property
owned by plaintiffs/appellants on both sides of the
Industrial Canal occurred during Hurricane
KATRINA:
EAST SIDE OF THE INDUSTRIAL
CANAL
Two large breaches occurred on the East
side of the Canal between the Claiborne
Avenue and Florida Avenue Bridges.
These two (2) breaches totally destroyed
the Lower Ninth Ward. ILIT Report,
pages 6-6 through 6-8, 6-15 through 6-20,
6-20 and 6-21, 11-10 through 11-12, and 15-
3 and 15-4.
WEST SIDE OF THE INDUSTRIAL
CANAL
CAN AL
1) A significant breach on the West side
of the Canal “behind the main Port of
New Orleans”, just to the South of the
juncture of the Mississippi River Gulf
Outlet an the Gulf Intracoastal
Waterway, which run into the
Industrial Canal. ILIT Report, pages
8-3 through 8-7, 8-9 and 8-10, and 11-12
through 11-14, and 15-3 and 15-4.
2) Significant erosional distress at a
concrete I-wall and floodgate
structure “behind the Port of New
Orleans”, a few hundred yards to the
South of the breach described in no. 1,
20
supra. ILIT Report, pages 8-8
through 8-10, 11-12 through 11-14, and
15-3 and 15-4.
3) Two (2) adjacent erosional
embankment breaches at the North
end of “the Port of New Orleans” on
the West side of the canal. ILIT
Report, pages 8-8 through 8-10, 11-12
through 11-14, and 15-3 and 15-4.
4) A washed out so-called “levee” section
in way of the CSX railroad tracks on
the West side of the canal immediately
to the South of the I-10 Highway
Bridge. ILIT Report, pages 8-4 and 8-
5, 8-9 and 8-10, 11-12 through 11-14,
and 15-3 and 15-4.
The “Independent Levee Investigation Team”
concluded that, notwithstanding the fact that the West
side breaches (or other “problems”) which caused
flooding were not as catastrophic to the City of New
Orleans as the East side breaches were to the Lower
Ninth Ward, the “issues” on the West side definitely
caused flooding which resulted in legally recoverable
damages to plaintiffs/appellants:
The breaches along the west bank
of the IHNC were each “non catastrophic”
as none of them eroded or scoured to such
depth that their lip dropped below mean
sea level. Accordingly, although they
admitted significant volumes of
floodwaters into the greater Orleans East
Bank (downtown) protected area, these
 21
flows eventually ceased as the storm
surge subsided. Together, these features
appear to have contributed approximately
10% to 20% of the overall volume of
floodwaters that eventually flowed into
the Orleans East Bank (downtown)
protected area.
ILIT Report, page 8-9. (emphasis added).
In his Order and Reasons the District Judge
essentially said as follows:
1. “No opposition to this motion [the Board’s
Motion for Judgment on the Pleadings]
has been filed and as such the motion can
be granted as unopposed.”
2. The District Judge believed that LSA-
R.S. 9:2800 (H)(1 through 4) barred claims
for damages arising from Hurricanes
KATRINA or RITA against public
entities, “except for gross negligence and
willful and wanton misconduct”. In so
ruling, the District Judge made no
reference to plaintiffs’/appellants’ specific
allegations of gross negligence and willful
and wanton misconduct in Civil Action
Nos. 06-4389 and 06-5786, not to mention
their allegations of the unconstitutionality
of State ex-post-facto “immunity”
statutes. Additionally, LSA-R.S. 9:2800
(h) has since been ruled to be
unconstitutional. See Burmaster v.
Plaquemines Parish Government, Case
No. 2007-CA-2432, decided by the
22
Louisiana Supreme Court on May 21,
2008.
3. The District Judge said “Maintenance of
the levees involved” fall under the
jurisdiction of a Levee Board or Boards,
not the Board of Commissioners for the
Port of New Orleans. Of course, this
erroneous conclusion ignored the fact that
plaintiffs’/appellants’ allegations against
the Port Board were much broader than
“levees”, and totally ignored the Board’s
participation as the Local Sponsor for the
Industrial Canal Lock Replacement
Project.
4. The District Judge also did not even
consider the fact that plaintiffs/appellants
were entitled to leave to amend their
pleadings (assuming for argumentative
purposes that they were insufficient,
which is denied, as an alternative to
dismissal.
Plaintiffs/appellants are aggrieved by the one-
dimensional arguments advanced by the Board, and by
the District Judge’s erroneous decision, and his own
one-dimensional unwarranted conclusions on which he
based his erroneous decision, and want the dismissal of
their claims against the Board of Commissioners for the
Port of New Orleans reversed and their claims against
the Board reinstated.
 23
REASONS FOR GRANTING THE PETITION
(a) The integrity of the underlying
litigation has been irreparably
corrupted, both in the District Court
and in the Court of Appeals, by
judicial misconduct on the part
Federal Judges and other Federal
Court Officials.
This Honorable Court has stated that “the
protection of the integrity and dignity of the judicial
process from any hint or appearance of bias” is “the
palladium of our judicial system”. Liljeberg v. Health
Services Acquisition Corp., 486 U.S. 847 (1988). As the
Court will note from the Questions Presented in this
case and from the issues raised in the Petition for
rehearing in case No. 08-883 on the docket of this Court,
the underlying litigation has been hopelessly
CORRUPTED at both the District Court and Court of
Appeals levels, primarily stemming from one
individual, Calvin Clifford Fayard, Jr., and his “close
personal relationship of long-standing” with the
District Judge and his representation of the State of
Louisiana while simultaneously serving on Committees
and Sub-Committees in the litigation, appointed by the
District Judge. This disgraceful “dual representation”
has been ignored by the District Judge and by the
Judges of the Court of Appeals, in violation of Code of
Conduct for United States Judges and mores of
propriety involving legal and judicial ethics. This
Honorable Court should exercise supervisory
jurisdiction over this case in order that the confidence
of the public in the integrity of the judicial system may
24
be preserved, rather than shaken to its very
foundations
There are a number of reasons for granting the
Petition, each (addressed infra), involving departures
from the accepted and usual course of judicial
proceedings in District Courts and in Courts of Appeal,
as to call for an exercise of this Court’s supervisory
power:
b) The integrity of the underlying
litigation is at issue.
The first question presented for review was
framed in the District Court as follows:
“The integrity of this litigation which has been
called into question by virtue of an extra-judicial
source of bias and prejudice, arising out of the
Court’s long-time friendship with Mr. Fayard,
whose professional ethics and professional
integrity have been placed at issue in this
litigation as a result of his Membership on
Committees while simultaneously representing
the interests of the State of Louisiana, and
failing to disclose his relationship with the State
to the Court or to other counsel prior to August
29, 2007.” Record Document No. 11317 and
related Record Documents.
Amplification on this most serious issue can be
found in Record Document No. 10910 and in the
pleadings filed in Civil Action No. 08-1127 in the United
States District Court for the Eastern District of
 25
Louisiana, and in the Record Documents specifically
identified in that civil action.
With “the protection of the integrity and dignity
of the judicial process from any hint or appearance of
bias” being “the palladium of our judicial system”,
Petitioner respectfully submit that that protection
requires the exercise of this Court’s supervisory power
in this case. “The guiding consideration is that the
administration of justice should reasonably appear to be
disinterested as well as be so in fact.” Liljeberg v.
Health Services Acquisition Corp., 486 U.S. 847 (1988)
and cases cited therein.
MAY IT PLEASE THE COURT:
C HAD HE APPLIED THE CORRECT
LEGAL STANDARDS TO THE
FACTS, THEN THE DISTRICT
JUDGE WOULD NEVER HAVE
GRANTED THE BOARD’S MOTION
FOR JUDGMENT ON THE
PLEADINGS
Plaintiffs/appellants do not disagree with the law
as was set forth by the Board and its lawyers in their
Memorandum in Support of the Motion for Judgment
on the Pleadings, namely the summation that:
In deciding a motion for judgment on the
pleadings under FRCP 12(c), the U.S. Fifth
Circuit has outlined the following procedure:
The standard for dismissal under Rule 12(c) is
the same as that for dismissal for failure to state
a claim under Rule 12(b)(6). We accept the
26
complaint’s well-pleaded facts as true and view
them in the light most favorable to the plaintiff.
The motion to dismiss should not be granted
unless the plaintiff would not be entitled to relief
under any set of facts that he could prove
consistent with the complaint.
Johnson v. Johnson, 385 F.3d 503, 529 (5th Cir.
2004).
Indeed, Rule 12(c), FRCP, specifically states as
follows:
1. Motion for Judgment on the Pleadings.
Pleadings
After the pleadings are closed but within such
time as not to delay the trial, any party may
move for judgment on the pleadings. If, on a
motion for judgment on the pleadings, matters
outside the pleadings are presented to and not
excluded by the court, the motion shall be
treated as one for summary judgment and
disposed of as provided in Rule 56, and all
parties shall be given reasonable opportunity to
present all material made pertinent to such a
motion by Rule 56.
Plaintiffs/appellants (and we are sure the Board
and its lawyers, as well) concede that the application of
the Rule was modified fairly recently by the United
States Supreme Court in Bell Atlantic Corp. v.
Twombly, ___ U.S. ___, 127 S.Ct. 1955 (May 21, 2007).
However, plaintiffs/appellants aver that even under
Bell Atlantic Corp. v. Twombly, supra, their pleadings
were more than sufficient, and the Board’s motion
would never have been granted if plaintiffs’/appellants’
allegations against the Board had been considered by
the District Judge.
 27
Plaintiffs/appellants also are aggrieved by the
fact that the Board did not disclose all of the necessary
facts to the District Judge (perhaps because counsel at
the time the Board’s motion was filed did not know all
of the facts, although his client clearly knew the facts),
and the District Judge made erroneous conclusions
about the facts he thought he knew, which were totally
wrong, simultaneously ignoring the allegations of
plaintiffs’/appellants’ well-pleaded Complaint and
Petition in Civil Action Nos. 06-4389 and 06-5786.
As was alluded to in the Statement of Facts,
supra, pages 12, et seq., it was only in late 2007, when
dealing with motions involving defendant Washington
Group International, Inc., including a Rule 12(b)(6)
Motion to Dismiss by Washington Group, that the
impact of “the Industrial Canal Lock Replacement
Project”, in which the Board of Commissioners for the
Port of New Orleans is the Local Sponsor, appointed by
the State of Louisiana, on the breaches which occurred
on the East side of the Industrial Canal, between the
Florida Avenue and Claiborne Avenue bridges,3
became apparent. It now appears that the work done
by the Board in connection with the Lock Replacement
Project involved replacement of the Florida Avenue
Bridge, which plaintiffs/appellants aver contributed to
breaches which occurred on the West side of the
Industrial Canal, as well, thus contributing to the
flooding of the Lower Ninth Ward and New Orleans
proper. More particularly, there was a large sewer pipe
which traversed the canal immediately south of the
original Florida Avenue Bridge, which had to be
removed in connection with the demolition of the old
3
The Florida Avenue bridge is the “blue” bridge which can be plainly
seen from tall buildings across the New Orleans skyline.
28
bridge and construction of the new bridge. As was the
case with respect to the extensive excavations and
sump holes dug by Washington Group in the “East
Bank Industrial Area” prior to Hurricane KATRINA
(see Record Document Nos. 8599, 8852, 8954, 9000,
9237, 9464 9469, 10240 and 10271), the excavations and
holes and dug by the Board in connection with the
removal of the sewer pipe, demolition of the old Florida
Avenue Bridge and construction of the new (the “blue”)
bridge contributed to the breaches that developed on
the East side of the canal South of the Florida Avenue
Bridge, and to the breaches that developed on the West
side of the canal both North and South of the Florida
Avenue Bridge.
In no event should plaintiffs’ claims against the
Board have been dismissed on the papers, which
plaintiffs/appellants aver occurred not only because the
facts were not considered to the District Judge, but also
because the District Judge thought he knew the facts
when he did not know them at all, and made totally
unwarranted assumptions about what the facts were,
ignoring plaintiffs/appellants allegations in their
pleadings entirely.
Alternatively, plaintiffs/appellants aver that
they should have been granted leave to amend their
pleadings as an alternative to dismissal of their claims,
for as is stated in Federal Procedure, Lawyers Edition
(1984), 62:470, and authorities cited therein:
“It is generally agreed, however, that the
plaintiff should be given a chance to amend a
complaint which fails to state a claim upon which
relief can be granted. In order for the court to
dismiss without giving the plaintiff an
opportunity to amend, it must appear that the
 29
claim for relief does not exist, rather than that
the claim has been defectively stated.”
D THE STATE STATUTE RELIED
UPON BY THE DISTRICT JUDGE
HAS SINCE BEEN RULED
UNCONSTITUTIONAL
In the Order and Reasons appealed from
(Record Document No. 8389), the District Judge cited
LSA-R.S. 9:2800 (H) (1 through 4), which is an ex post
facto statute passed by the Louisiana Legislature
AFTER Hurricane’s KATRINA and RITA, as
authority for his erroneous statement: “By operation of
this statute, all claims for defalcations arising from the
garde of any levee or flood gates are barred if brought
against a public body.”
The case cited in footnote no. 1 of the District
Judge’s Order and Reasons of October 11, 2007, namely
Burmaster v. Plaquemines Parish Government, Case
No. 2007-CA-2432, decided by the Louisiana Supreme
Court on May 21, 2008, specifically determined LSA-
R.S. 9:2800 (H) to be unconstitutional.
E. THE PLAINTIFFS’ LIAISON
COMMITTEE DID NOT OPPOSE
THE BOARD’S MOTION FOR
JUDGMEN TON THE PLEADINGS
BECAUSE CERTAIN MEMBERS
WERE
WE RE PROTECTING THEIR
“OTHER” CLIENT, THE STATE OF
LOUISIANA
30
Following the filing of the Superseding Master
Consolidated Class Action Complaint by the Plaintiffs’
Liaison Committee on March 15, 2007, undersigned
counsel for plaintiffs/appellants in Civil Action Nos. 06-
4389 and 06-5786 filed a pleading entitled: “Certain
Plaintiffs’ Notice of Objection to the Superseding
Master Consolidated Class Action Complaint” (Record
Document No. 3469, filed on March 21, 2007. That
pleading, to which was attached two (2) Exhibits,
reflected as follows:
CERTAIN PLAINTIFFS’ NOTICE OF
OBJECTION TO
THE SUPERSEDING MASTER
CONSOLIDATED
CLASS ACTION COMPLAINT
COME NOW, plaintiffs in the above-
styled and numbered cause(s), appearing
through undersigned counsel, and object to
certain contents of the Superseding Master
Consolidated Class Action Complaint (Record
Document No. 3420), filed of record in these
proceedings on March 15, 2007,upon the
following grounds, to-wit:
1. Neither This Honorable
Court nor any member of the Plaintiffs’ Liaison
Committee, nor any member of the “Levee
Plaintiffs’ Subgroup Litigation Committee”, has
the authority to cause to be filed any pleading
which supersedes or replaces any pleading
previously filed on behalf of the plaintiffs named
in the proceedings identified, supra.
 31
2. Undersigned counsel for
plaintiffs was given one (1) hour’s notice of the
filing of the proposed Superseding Master
Consolidated Class Action Complaint, and was
not consulted by anyone with respect to the
contents of the said “Master” Complaint.
3. Plaintiffs’ objection to
certain of the contents of the Superseding
Master Consolidated Class Action Complaint
was promulgated to the Plaintiffs’ Liaison
Committee and to the Levee Plaintiffs’
Subgroup Litigation Committee. See exchange
of E-mail messages dated March 15, 2007,
attached as Exhibit No. 1.
4. Notwithstanding plaintiffs’
objection, the Superseding Master Consolidated
Class Action Complaint was filed anyway, with
the objected-to language, and more particularly
the following:
(a) Use the word
“superseding”; and
(b) “The instant
Complaint, mandated by Case Management
Order No. 4 on March 1, 2007, is intended to
supersede and replace all class action complaints
arising from the catastrophe which previously
have been filed in or transferred to this Section
of Court, and placed within the “Levee” category
of cases.”
32
See E-mail dated March 19, 2007, attached as
Exhibit No. 2.
Accordingly, plaintiffs object.
Civil Action Nos. 06-4389 and 06-5786 were
specifically referenced in the Notice of Objection
(Record Document No. 3469).
In point of fact, undersigned counsel was
“prescient” when he filed the Notice of Objection,
because on August 29, 2007, the names of certain
Committee and Sub-Committees Members showed up
as counsel of record on pleadings filed on behalf of the
State of Louisiana, asserting claims against the Federal
Government on behalf of the State totaling $200 billion
in property damages allegedly sustained by the State
during Hurricane KATRINA. This clearly unethical
“dual representation”, which presents certain
Committee and Sub-Committee Members with a clear
irreconcilable conflict of interests, had been concealed
from the other litigants and their lawyers until
KATRINA’s second anniversary, and is more
particularly addressed in undersigned counsel’s Main
Brief in Case No. 08-30438, which is currently pending
on the docket of This Honorable Court, and which was
filed of record in this Court on July 15, 2008.
F. THE DISTRICT JUDGE’S
ERRONEOUS SUMMARY
SU MMARY
DECISION WAS MOTIVATED BY
HIS PERSONAL BIAS AND
PREJUDICE TO ASSIST HIS
“CLOSE PERSONAL FRIEND OF
LONG-
LONG-STANDING”, CALVIN
FAYARD, AND MR. FAYARD’S
 33
“OTHER” CLIENT, THE STATE OF
LOUISIANA
Although the precise “motivation” of the District
Judge was unknown to undersigned counsel for
plaintiffs/appellants when the Order and Reasons
appealed from were entered on October 12, 2007,
during the late Summer, Fall and Winter of 2007-2008,
the true “picture” slowly but surely became “clear” to
undersigned counsel. Once he learned precisely what
he has been “fighting” for the past three (3) years, he
not only filed a Motion to Disqualify certain Committee
and Sub-Committee Members from serving on
Committees in the “Victims of KATRINA” litigation
(all addressed in Case No. 08-30438 in this Court), but
he also filed an Affidavit of Personal Bias and Prejudice
of a District Judge, subsequently filing a Motion for
Recusal of the District Judge. (Record Document No.
10331). The pleadings addressing recusal of the District
Judge are referenced in the appellant’s Main Brief in
Case No. 08-30362, which was filed in This Honorable
Court on August 25, 2008. See Argument at pages 12
through 14 of that Brief, and District Court pleadings
referenced therein. To make a long story short, the
undersigned’s affidavit was summarily found to be
“untimely and insufficient”, and the Motion for Recusal
was summarily denied.4 However, in making these
rulings the District Judge failed to address the focal
issue which the undersigned maintains warrants his
recusal and reversal of the Judgment(s) in this case,
namely:
4
Most recently the Motion for Disqualification of Counsel also was
summarily denied.
34
“The integrity of all “Victims of
KATRINA” litigation which has been called into
question by virtue of an extra-judicial source of
bias and prejudice, arising out of the Court’s
long-time friendship with Mr. Fayard, whose
professional ethics and professional integrity
have been placed at issue in this litigation as a
result of his Membership on Committees while
simultaneously representing the interests of the
State of Louisiana, and failing to disclose his
relationship with the State to the Court or to
other counsel prior to August 29, 2007.” Record
Document No. 11317 and related Record
Documents.
Similarly, the District Judge also has avoided
affording undersigned counsel the opportunity for oral
argument so that he could present to the District Judge
the following unanswered question “on the record”,
which has been addressed to the District Judge in
pleadings and other writings filed of record in Victims
of KATRINA and related litigation:
“When did Your Honor or any Member of Your
Honor’s Staff first become aware of the
representation of the State of Louisiana by
Daniel Becnel and/or by Calvin Fayard
concerning any KATRINA-related matters?
Obviously, at the time the Order and Reasons
appealed from in this case was entered on October 12,
2007, the District Judge had such knowledge, and
plaintiffs/appellants and their counsel aver that the
summary granting of the Board’s Motion for Judgment
on the Pleadings was motivated, at least in part, by the
 35
District Judge’s desire to “help” his “close personal
friend of long-standing”, Calvin Fayard, and Mr.
Fayard’s “other” client, the State of Louisiana. This
Honorable Court will recall that the Board of
Commissioners for the Port of New Orleans is a
political subdivision of the State of Louisiana, and that
the State appointed the Board to be “the Local
Sponsor” for the Industrial Canal Lock Replacement
Project. Accordingly, plaintiffs/appellants and their
counsel respectfully submit that how Mr. Fayard and
his client, the State, were “benefited” by the dismissal
of all claims against the Board should be obvious to
anyone.
CONCLUSION
Had the District Judge bothered to consider the
allegations of plaintiffs’/appellants’ pleadings against
the Board, then he would never have granted the
Board’s Motion for Judgment on the Pleadings or
dismissed the claims of plaintiffs/appellants against the
Board, with prejudice. Plaintiffs/appellants and their
counsel reasonably assumed that they could rely on the
“Plaintiffs’ Liaison Committee” to file an appropriate
Memorandum in Opposition to the Board’s motion,
particularly since the Board’s motion addressed only
the “Superseding Master Consolidated Class Action
Complaint”, which had been prepared and filed by the
Plaintiffs’ Liaison Committee. However, the Plaintiffs’
Liaison Committee did not so do. It later became clear
to undersigned counsel for plaintiffs/appellants that the
reason the Plaintiffs’ Liaison Committee did not oppose
the Board’s motion was to “go-in-the-tank” with respect
to any and all claims against a political subdivision of
the State of Louisiana, which some Committee and Sub-
36
Committee Members actually represent. When
reasonable minds subject what transpired with respect
to the claims against the Board, and the summary
granting of the Board’s motion, plaintiffs/appellants and
their counsel respectfully submit that those minds will
conclude that, more likely than not, there was “hanky
panky” at best, and something else at worse,
warranting reversal of the erroneous decision to
dismiss plaintiffs’/appellants’ claims against the Board
of Commissioners for the Port of New Orleans.
Alternatively, plaintiffs/appellants aver that they
should have been allowed to amend their pleadings as
an alternative to outright summary dismissal.
For the above and foregoing reasons, Petitioners
respectfully request the issuance of a Writ of Certiorari
to the United States Court of Appeals for the Fifth
Circuit.
Respectfully submitted,
MAUREEN O'DWYER; SALLY EGERTON RICHARDS;
SHEILA JORDAN ; CHARLES EDWARD JORDAN;
LETICIA BROWN
Pro se
c/o Brooks Bros.,
One Canal Place,
Foot of Canal Street and the Missisippi River,
New Orleans, La., 70130
tel. no. (504) 522-4200.
 1a
IN RE: KATRINA CANAL BREACHES
LITIGATION; MAUREEN O'DWYER et al.,
Plaintiffs-Appellants v. BOARD OF
COMMISSIONERS OF THE PORT OF NEW
ORLEANS, Defendant-Appellee
No. 08-30234
UNITED STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT
2009 U.S. App. LEXIS 2365
February 6, 2009, Filed
NOTICE:
PLEASE REFER TO FEDERAL RULES OF
APPELLATE PROCEDURE RULE 32.1
GOVERNING THE CITATION TO UNPUBLISHED
OPINIONS.
PRIOR HISTORY: [*1]
Appeal from the United States District Court for the
Eastern District of Louisiana.
C OUNSEL: For MAUREEN O'DWYER, SALLY
EGERTON RICHARDS, STEPHANIE PORTER,
dba Interior Specialties LLC, SHEILA JORDAN
JORDAN, CHARLES EDWARD JORDAN, ET AL,
Plaintiffs - Appellants: Ashton R O'Dwyer, Jr, New
Orleans, LA.
2a
For BOARD OF COMMISSIONERS OF THE PORT
OF NEW ORLEANS, Defendant - Appellee: John
Fredrick Kessenich,
Kessenich Jonathan H Sandoz,
Sandoz Kirk N
Aurandt,
Aurandt Daigle Fisse & Kessenich, Madisonville, LA.
JUDGES: Before GARWOOD, DENNIS, and
PRADO, Circuit Judges.
OPINION
PER CURIAM: *
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -*
Pursuant to 5TH CIR. R. 47.5, 47.5 the court has
determined that this opinion should not be published
and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4. 47.5.4
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Plaintiffs-Appellants Maureen O'Dwyer et al.
("O'Dwyer") appeal the district court's grant of Rule
12(c) judgment on the pleadings in favor of Defendant-
Appellee Board of Commissioners of the Port of New
Orleans ("the Port"). O'Dwyer's appeal is without merit
because it attempts to argue (1) an issue that was not
raised or ruled upon below; and (2) an issue that relates
to an alternative ground not essential to the district
court's decision. Accordingly, we affirm the district
[*2] court's judgment.
On August 17, 2006, O'Dwyer filed a class action lawsuit
in the Eastern District of Louisiana seeking to recover
damages for the levee breaches and flooding caused by
Hurricane Katrina; the Port was among the many
 3a
defendants named in this suit. O'Dwyer's suit was
consolidated within the In re: Katrina Canal Breaches
Litigation umbrella, and the claims at issue here were
assigned to the "Levee" category.
On March 1, 2007, the district court issued Case
Management Order No. 4 pursuant to FederalFederal Rule of
Civil Procedure 16. 16 This pre-trial order directed all
class-action plaintiffs in the Levee category ("Levee
Plaintiffs") to file a single Master Consolidated Class
Action Complaint ("Master Complaint"). The order
specifically stated that the Master Complaint "shall
supersede and replace all previously filed class action
complaints." The Levee Plaintiffs complied with the
order and filed a Master Complaint, which alleged that
the Port held full responsibility and duty for the design,
construction, and maintenance of certain levees in New
Orleans and that the Port was therefore liable for any
flood damage attributable to the failure of those levees.
O'Dwyer filed a "Notice [*3] of Objection" to the
Master Complaint, asserting that the district court did
not have the authority to supersede O'Dwyer's
pleadings and objecting to the Master Complaint's use
of the word "superseding." O'Dwyer offered no
reasoning or authority in support of this objection.
The Port filed an answer to the Master Complaint on
March 30, 2007, and subsequently moved for judgment
on the pleadings, seeking to dismiss all the Master
Complaint's claims against the Port for failure to state a
claim upon which relief could be granted. No party
opposed the Port's motion.
On October 12, 2007, the district court issued an order
4a
and reasons granting the Port's motion for judgment on
the pleadings. The district court noted that the motion
was unopposed and granted the motion on the ground
that the Port had no duties or responsibilities under
Louisiana law with respect to levee maintenance or
flood control; rather, the court held that La. Rev. Stat.
§ 38:307 vested such duties and responsibilities
exclusively in another state agency, the Orleans Levee
District. No party filed a motion for reconsideration or
a new trial in response to the district court's grant of
the Port's motion for judgment on [*4] the pleadings,
and on November 7, 2007, the Port filed a motion for
entry of final judgment under Rule 54(b).
54(b) Again, no
party opposed the motion. Thus, on January 15, 2008,
for the reasons stated in its order and reasons dated
October 12, 2007, the district court entered judgment
dismissing with prejudice the claims by O'Dwyer and
others against the Port. O'Dwyer timely appealed, and
we now affirm.
O'Dwyer argues that the district court erred in
granting judgment on the pleadings because it failed to
consider the arguments presented in O'Dwyer's
individual complaint but not presented in the Master
Complaint. However, this argument lacks merit
because the Master Complaint, filed pursuant to the
district court's Rule 16 pre-trial order, superseded
O'Dwyer's individual complaint. It is well settled that
"[o]nce the pretrial order is entered, it controls the
course and scope of the proceedings under Federal
Rule of Civil Procedure 16(e),
16(e) and if a claim or issue is
omitted from the order, it is waived, even if it appeared
in the complaint." Elvis Pre
Presley
sley Enters., Inc. v.
Capece, 141 F.3d 188, 206 (5th Cir. 1998) (citing
Valley Ranch Dev. Co. v. FDIC, 960 F.2d 550, 554
 5a
(5th Cir. 1992);
1992) Flannery v. Carroll, 676 F.2d 126,
129- 1982)) [*5] see also Rockwell Int'l
129- 30 (5th Cir. 1982));
Corp. v. United States, 549 U.S. 457, 474, 127 S. Ct.
1397, 167 L. Ed. 2d 190
190 (2007) ("Here, we have not
only an amended complaint, but a final pretrial order
that superseded all prior pleadings and 'controll[ed] the
subsequent course of the action'") (citing Fed. R. Civ.
P. 16(e);
16(e) Wilson v. Muckala, 303 F.3d 1207, 1215
(10th Cir. 2002) ("[C]laims, issues, defenses, or theories
of damages not included in the pretrial order are
waived even if they appeared in the complaint . . . .")).
Here, the district court entered a Rule 16 pre-trial
order stating that the Master Complaint "shall
supersede and replace all previously filed class action
complaints." Thus, O'Dwyer's individual complaint was
superseded, and, contrary to O'Dwyer's assertions, any
arguments or claims that appear in O'Dwyer's
individual complaint but not in the Master Complaint
were waived and cannot be considered on appeal. n1
See, e.g., Am. Rice, Inc. v. Producers Rice Mill, Inc.,
518 F.3d 321, 335 (5th Cir. 2008) ("If a claim or issue is
omitted from the [pretrial] order, it is waived . . . ."
(alteration in original)); Arsement v. Spinnaker
Exploration Co., LLC, 400 F.3d 238, 245 (5th Cir.
2005) ("It goes without saying that a pre-trial [*6]
order controls the scope and course of trial; a claim or
issue not included in the order is waived . . . ."); Elvis
Presley Enters., 141 F.3d at 206.
206 n2
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1
Even if we were to consider the allegations in
O'Dwyer's individual complaint, we would still find that
the district court properly granted judgment on the
pleadings because the allegations in O'Dwyer's
6a
individual complaint do not differ materially from those
in the Master Complaint, which, as discussed infra,
were properly dismissed in light of La. Rev. Stat. §
38:307.2
38:307
Alternatively, O'Dwyer contends that the district court
should have allowed amendment of O'Dwyer's
individual complaint before granting the Port's motion
for judgment on the pleadings. However, this argument
again fails to understand that the Master Complaint,
rather than O'Dwyer's individual complaint, was the
relevant document for the district court to consider in
evaluating whether judgment on the pleadings was
proper. To the extent that O'Dwyer argues that the
district court erred in not permitting amendment to the
Master Complaint, such an argument is waived because
neither O'Dwyer nor any other plaintiff filed before the
district court a motion to amend the Master [*7]
Complaint or a motion for reconsideration of the district
court's judgment on the pleadings. See Nichols v.
Enterasys Networks, Inc., 495 F.3d 185, 189 (5th
Cir. 2007) ("As the issue has not been clearly raised in
front of the district court, it cannot be considered on
appeal."); FDIC v. Mijalis, 15 F.3d 1314, 1327 (5th
Cir. 1994) ("[I]f a litigant desires to preserve an
argument for appeal, the litigant must press and not
merely intimate the argument during the proceedings
before the district court. If an argument is not raised to
such a degree that the district court has an opportunity
to rule on it, we will not address it on appeal.").
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
We decline to address O'Dwyer's argument that the
district court erred in alternatively basing its decision
9:2800(H) As an independent
upon La. Rev. Stat. § 9:2800(H).
 7a
ground for granting the Port's motion, the district court
relied on La. Rev. Stat. § 38:307,
38:307 which gives the
Orleans Levee District, not the Port, "full and exclusive
right, jurisdiction, power, and authority to locate,
relocate, construct, maintain, extend, and improve
levees, embankments, seawalls, jetties, breakwaters,
water-basins, and other works in relation to such
projects." La. Rev. Stat. § 38:307 [*8] (emphasis
added). Based on § 38:307,
38:307 the district court concluded
that the Levee Plaintiffs could prove no set of facts
showing, as the Master Complaint alleged, that the
Port was responsible and liable for the design,
construction, maintenance, or failure of the levees and
floodgates. We agree, and we hold that because the
district court properly granted the Port's motion under
§ 38:307,
38:307 any error in its alternative reliance on §
9:2800(H) would be harmless.
Finally, O'Dwyer argues that the district court and the
attorneys primarily responsible for producing the
Master Complaint were improperly motivated by
conflicts of interest and personal bias. However, these
issues are not properly presented in this appeal because
O'Dwyer did not include them in her notice of appeal.
Cf. In re Katrina Canal Breaches
Breaches Litig., No. 08-08 -
30362, 2008 U.S. App. LEXIS 24492, 2008 WL
5069808 at *1 (5th Cir. 2008) (unpublished per curiam)
("O'Dwyer has filed, and the district court denied, two
motions to recuse the district judge. Neither of the
motions to recuse is part of this appeal. . . . We will not
address issues that are not relevant to this appeal.").
For these reasons, the judgment of the district court is
AFFIRMED.
8a
Exhibit 1 US Court of Appeals for the Fifth
Circuit, Complaint(s) of Judicial Misconduct filed
4/14/2009
4/14/2009
COMPLAINT(S) OF
JUDICIAL MISCONDUCT
COMES NOW Ashton R. O’Dwyer, Jr.,
appearing in propria persona pursuant to the
provisions of the “Rules Governing Complaints of
Judicial Misconduct,” who does declare under penalty of
perjury, pursuant to the provisions of 28U.S.C. §1746,
the truth and correctness of the following:
1. That the following Judges of the United States
Court of Appeals for the Fifth Circuit1 are guilty of
judicial misconduct by virtue of the violation of their
oath of office, violation of the Canons contained in the
“Code of Conduct for United States Judges,” as well as
conspiracy to commit same:
James L. Dennis in Case Nos. 08-30052, 07-30349, and
08-30362;
Rhesa H. Barksdale in Case No. 08-30052;
Emilio M. Garza in Case No. 08-30052;
Thomas M. Reavely in Case No. 08-30052;
Carolyn Dineen King in Case Nos. 07-30349 and 08-
30362; and
Jennifer Walker Elrod in Case Nos. 07-30349 and 08-
30362.
1
Complainant acknowledges the probability that other Federal
officials, such as members of the Court’s or the Judges’ Staff, are
also guilty of misconduct; however, no complaint against those
officials is being made at this time.
 9a
2. The misconduct complained of herein took place
during the pendency of the referenced cases at New
Orleans, Louisiana, and where the Judges maintain
their offices, if elsewhere than New Orleans.
3. The misconduct complained of herein consisted
of prohibited ex parte communications between and
among the Judges identified herein and all or some of
the following, which communications were known by
the Judges to be prohibited, because they involved the
merits of the cases identified herein and how the
outcome(s) in those cases could be improvidently
influenced by others:
a) One or more members of the Louisiana Supreme
Court, including particularly, but without limitation,
now Chief Justice Catherine D. Kimball, and/or her
surrogates, and/or the surrogates of other members of
the Louisiana Supreme Court;
b) One or more employees of the Office of
Disciplinary Counsel for the Louisiana Supreme Court,
including particularly, but without limitation, Chief
Disciplinary Counsel Charles B. Plattsmier, Jr., and/or
his surrogates, and/or the surrogates of other
employees of the Office of Disciplinary Counsel;
c) Employees of the State of Louisiana, including
particularly, but without limitation, employees of the
Louisiana Department of Justice and/or State
employees within the Executive, Judicial and/or
Legislative Branches of Louisiana State Government,
and/or their surrogates;
10a
d) Members of the Plaintiffs’ Bar of the State of
Louisiana, including particularly, but without
limitation, those Members of the Plaintiffs’ Bar who
represent the interests of plaintiffs, claimants and
potential class members in the “Victims of KATRINA”
litigation pending in the United States District Court
for the Eastern District of Louisiana, but who
simultaneously represented the interests of the State of
Louisiana between August 29, 2007 and October 9,
2008, and/or Members of the Louisiana Bar who signed
fee-sharing agreements with such Plaintiffs’ Bar
members, and/or any of their surrogates;
e) Members of the United States District Court for
the Eastern District of Louisiana and/or Members of
the Staff of that Court, including particularly, but
without limitation, Stanwood R. Duval, Jr. and his
spouse and law clerk, Janet Daley Duval, and/or their
surrogates; and
f) Other members of the United States Court of
Appeals for the Fifth Circuit and/or their surrogates.
4. In support of these complaints of misconduct,
and to specifically avoid running afoul of Rules 2(D) and
3(D) of the Rules Governing Complaints of Judicial
Misconduct, Complainant incorporates herein by
reference thereto the following Exhibits, copies of
which will be submitted if requested by the Chief
Judge:
Exhibit No. 1 – Transcript of Statement given under
Penalty of Perjury by Ashton R. O’Dwyer, Jr., to the
Louisiana Department of Justice on October 14, 2005;
 11a
Exhibit No. 2 – Record Document No. 114 in Civil
Action 06-7280, in the Eastern District of Louisiana,
being the Complaint in that action;
Exhibit No. 3 – Sworn Affidavit of Complainant’s Law
Enforcement Expert, David R. Kent, dated August 20,
2007;
Exhibit No. 4 – Sworn Affidavit of Complainant’s Law
Enforcement Expert, David R. Kent, directed to the
issue of discovery dated, December 19, 2007;
Exhibit No. 5 – Unsworn Declaration Under Penalty of
Perjury made pursuant to 28 U.S.C. §1746 by
Complainant’s Law Enforcement Expert, David R.
Kent, on March 4, 2009;
Exhibit No. 6 – Complainant’s Un-refuted Motion to
Strike False and Defamatory Allegations in Case No.
08-30052;
Exhibit No. 7 – Judge Dennis’ Order of September 22,
2008, summarily denying Exhibit No. 6;
Exhibit No. 8 – Complainant’s Motion for Disclosure in
Case No. 08-30052;
Exhibit No. 9 – Complainant’s E-mail to Deputy Clerk
Michael Brown, in Case No. 08-30052, referencing
Complainant’s Motion for Disclosure by Judge Dennis;
Exhibit No. 10 – The Court’s Order of December 18,
2008, summarily denying Exhibit No. 8;
Exhibit No. 11 – Complainant’s correspondence in Case
12a
No. 08-30052 to the Clerk of the 5th Circuit dated
September 24, 2008;
Exhibit No. 12 – Complainant’s November 10, 2008
correspondence in Case No. 08-30052 to the Clerk of 5th
Circuit; and
Exhibit No. 13 – Complainant’s Petition for Panel
Rehearing and/or for Rehearing En Banc in Case No.
08-30052, together with attached Exhibits.
Complainant avers that the Chief Judge should not act
on the complaints alleged herein without review of the
Exhibits identified supra, which Complainant is
prepared to submit to the Chief Judge, if requested, but
which are not attached hereto in order to avoid running
afoul of the provisions of Rules 2(D) and 3(D) of the
Rules Governing Complaints of Judicial Misconduct.
5. Complainant further avers that the Court’s
decisions in Case Nos. 08-20052, 07-30349 and 08-30362
were the result of judicial misconduct, and at least
peripherally related to the following issues in Civil
Action No. 06-7280 and 05-4182 (and consolidated cases)
pending in the United States District Court for the
Eastern District of Louisiana:
1) A criminal gangland-style “hit” which was
executed by the Louisiana State Police against
Complainant at five minutes past midnight on
September 20, 2005, on orders from persons employed
by the Louisiana Department of Justice, by the
Louisiana Supreme Court and by the Office of
Disciplinary Counsel for the Louisiana Supreme Court;
 13a
2) A patently obvious non-consentable, concurrent
conflict of interests on the part of certain so-called
prominent Members of the Plaintiffs’ Bar who
simultaneously represented plaintiffs, claimants and
potential class members in the “Victims of KATRINA”
litigation bearing Civil Action No. 05-4182 (and
consolidated cases) in the U.S. District Court for the
Eastern District of Louisiana, as well as the interests of
the State of Louisiana, between August 29, 2007 and
October 9, 20082;
3) Bias, prejudice and partiality, and other judicial
misconduct, warranting the recusal of Stanwood R.
Duval, Jr., in the “Victims of KATRINA” litigation3;
and
4) Claims asserted by Complainant and his clients
against the State of Louisiana, its agencies and
instrumentalities, political subdivisions, and individual
department heads, in the “Victims of KATRINA”
litigation.
6. By virtue of their having participated in
prohibited ex parte communications as described,
supra, and allowing those communications to influence
their decision-making on the merits in the referenced
cases, the Judges identified herein each violated the
following Canons contained in the Code of Conduct for
United States Judges:
Canon 1 - was violated by each of the accused Judges,
who made a mockery of the terms “independent,”
2
This issue is articulately pleaded in Civil Action N0. 08-4728 on
the Eastern District docket.
3
Ibid.
14a
“honorable,” “justice,” “high standards of conduct,” and
“integrity,” as a result of the misconduct alleged herein.
Canon 2(A) - was violated by each of the accused
Judges, because they neither respected nor complied
with the law, and because the misconduct alleged herein
is the antithesis of acting “at all times in a manner that
promotes public confidence in the integrity and
impartiality of the judiciary.”
Canon 2(B) - was violated by each of the accused
Judges, because they allowed social or other
relationships to influence their judicial conduct and
judgment, and because they not only conveyed to others
the impression that they were in a special position of
influence, and did nothing to stop that impression, but
then acted in an official capacity to advance the private
interests of others.
Canon 3(A)(1) - was violated by each of the accused
Judges, because not only did they make a mockery of
the terms “faithful” and “professional competence in the
law,” but they permitted their decision-making to be
dictated by partisan interests.
Canon 3(A)(4) - was violated by each of the accused
Judges, because they engaged in prohibited ex parte
communications with others on the merits, and
procedures affecting the merits, of proceedings pending
before them. Judges Dennis, Barksdale, Garza, and
Reavely also violated Canon 3(A)(4) by conspiring with
others to deny Complainant oral argument in Case No.
08-30052. Judges Dennis, King and Elrod also violated
Canon 3(A)(4) by conspiring with others to deny
Complainant oral argument in Case No. 08-30362.
Canon 3(B)(1), (2), and (3) - were violated by each of
the accused Judges, because they took no action after
learning of misconduct by Brother and/or Sister Judges,
Court officials and Staff, lawyers and others.
 15a 16a
7. The Complaints of judicial misconduct contained September 28, 2007 Order of Reprimand and Reasons
herein are not made for the purpose of seeking review by the Judicial Council in the matter involving former
of the erroneous decisions involving Complainant and Judge Samuel B. Kent who, since the referenced Order
his clients by the Judicial Council of the Fifth Circuit,4 of Reprimand and Reasons, and more particularly on
but rather to instill public confidence in the integrity February 23, 2009, pleaded guilty of one count of
and independence of judges, and to ensure that judges obstruction of justice, thus demonstrating the abject
comply with their oath of office, the law, and the incompetency of the judicial misconduct process within
applicable Code of Conduct. the Fifth Circuit. Complainant further avers that any
investigation(s) by the Special Committee or
8. More to the point, Complainant avers that Committees should also include the appointment of
although reasonable minds might conclude that the competent forensic experts to analyze office computers,
misconduct alleged herein is peripherally related to personal computers and blackberries, as well as
merits of the decisions in the referenced cases, telephone records, of the accused Judges and others, in
Complainant specifically avers that his allegations of order to “test” their answers to questions under oath
misconduct are NOT DIRECTLY RELATED TO the with extrinsic electronic and documentary evidence.
decisions in those cases, but rather to the lack of
integrity of the accused Judges and of those who 10. Complainant declares that the allegations,
wrongfully influenced them. averments and statements contained herein are true
and correct under penalty of perjury pursuant to the
9. Complainant avers that the Chief Judge should provisions of 28 U.S.C. §1746.
appoint a Special Committee (or Committees) to
investigate these complaints and to make
recommendations to the Judicial Council.
Notwithstanding, this requested relief, Complainant
avers that he has no confidence in the ability of the
Chief Judge of the United States Court of Appeals for
the Fifth Circuit, any Special Committee which may be
appointed by the Chief Judge, or of the Judicial Council
of the Fifth Circuit to competently, fairly and
impartially investigate and decide the merits of the
complaints of misconduct contained herein. In support
of these assertions, Complainant refers to the
4
However, Complainant avers that judicial review of the
erroneous decisions is absolutely warranted under the facts and
circumstances.
 17a
Exhibit 2 US Court of Appeals for the Fifth
Circuit, Complaint(s) of Judicial Misconduct filed
4/16/09
COMPLAINT(S) OF
JUDICIAL MISCONDUCT
COMES NOW Ashton R. O’Dwyer, Jr.,
appearing in propria persona pursuant to the
provisions of the “Rules Governing Complaints of
Judicial Misconduct,” who does declare under penalty of
perjury, pursuant to the provisions of 28U.S.C. §1746,
the truth and correctness of the following:
1. That the following Judges of the United States
Court of Appeals for the Fifth Circuit5 are guilty of
judicial misconduct by virtue of the violation of their
oath of office, violation of the Canons contained in the
“Code of Conduct for United States Judges,” as well as
conspiracy to commit same:
James L. Dennis6 in Case Nos. 06-30840, 06-30841, and
08-30234
Jacques L. Weiner, Jr., in Case No. 08-30234.
W. Eugene Davis in Case Nos. 06-30840 and 06-30841.
Edward C. Prado in Case No. 08-30234.
5
Complainant acknowledges the probability that other Federal officials,
such as members of the Court’s or the Judges’ Staff, are also guilty of
misconduct; however, no complaint against those officials is being made
at this time.
6
Complaint(s) of Judicial Misconduct against Dennis were filed on April
14, 2009 in three other cases. The “common denominator” in the clear
majority of cases in which Judicial Misconduct is complained about is the
name “James L. Dennis,” which Complainant avers is a statistical
impossibility unless Dennis is guilty of the conduct complained of herein
beyond all reasonable doubt.
18a
Leslie L. Southwick in Case Nos. 06-30840 and 06-
30841.
Will Garwood in Case No. 08-30234.
Ron Clark7 in Case Nos. 06-30840 and 06-03841.
2. The misconduct complained of herein took place
during the pendency of the referenced cases at New
Orleans, Louisiana, and where the Judges maintain
their offices, if elsewhere than New Orleans.
3. The misconduct complained of herein took place
during the pendency of the referenced cases at New
Orleans, Louisiana, and where the Judges maintain
their offices, if elsewhere than New Orleans.
4. The misconduct complained of herein consisted
of prohibited ex parte communications between and
among the Judges identified herein and all or some of
the following, which communications were known by
the Judges to be prohibited, because they involved the
merits of the cases identified herein and how the
outcome(s) in those cases could be improvidently
influenced by others:
g) One or more members of the Louisiana Supreme
Court, including particularly, but without limitation,
now Chief Justice Catherine D. Kimball, and/or her
surrogates, and/or the surrogates of other members of
the Louisiana Supreme Court;
7
District Judge from the Eastern District of Texas, who sat on the United
States Court of Appeals for the 5th Circuit by designation.
 19a
h) One or more employees of the Office of
Disciplinary Counsel for the Louisiana Supreme Court,
including particularly, but without limitation, Chief
Disciplinary Counsel Charles B. Plattsmier, Jr., and/or
his surrogates, and/or the surrogates of other
employees of the Office of Disciplinary Counsel;
i) Employees of the State of Louisiana, including
particularly, but without limitation, employees of the
Louisiana Department of Justice and/or State
employees within the Executive, Judicial and/or
Legislative Branches of Louisiana State Government,
and/or their surrogates;
j) Members of the Plaintiffs’ Bar of the State of
Louisiana, including particularly, but without
limitation, those Members of the Plaintiffs’ Bar who
represent the interests of plaintiffs, claimants and
potential class members in the “Victims of KATRINA”
litigation pending in the United States District Court
for the Eastern District of Louisiana, but who
simultaneously represented the interests of the State of
Louisiana between August 29, 2007 and October 9,
2008, and/or Members of the Louisiana Bar who signed
fee-sharing agreements with such Plaintiffs’ Bar
members, and/or any of their surrogates;
k) Members of the United States District Court for
the Eastern District of Louisiana and/or Members of
the Staff of that Court, including particularly, but
without limitation, Stanwood R. Duval, Jr. and his
spouse and law clerk, Janet Daley Duval, and/or their
surrogates; and
20a
l) Other members of the United States Court of
Appeals for the Fifth Circuit and/or their surrogates.
5. In support of these complaints of misconduct,
and to specifically avoid running afoul of Rules 2(D) and
3(D) of the Rules Governing Complaints of Judicial
Misconduct, Complainant incorporates herein by
reference thereto the following Exhibits, copies of
which will be submitted if requested by the Chief
Judge:
Exhibit No. 1 – Transcript of Statement given under
Penalty of Perjury by Ashton R. O’Dwyer, Jr., to the
Louisiana Department of Justice on October 14, 2005;
Exhibit No. 2 – Record Document No. 114 in Civil
Action 06-7280, in the Eastern District of Louisiana,
being the Complaint in that action;
Exhibit No. 3 – Sworn Affidavit of Complainant’s Law
Enforcement Expert, David R. Kent, dated August 20,
2007;
Exhibit No. 4 – Sworn Affidavit of Complainant’s Law
Enforcement Expert, David R. Kent, directed to the
issue of discovery dated, December 19, 2007;
Exhibit No. 5 – Unsworn Declaration Under Penalty of
Perjury made pursuant to 28 U.S.C. §1746 by
Complainant’s Law Enforcement Expert, David R.
Kent, on March 4, 2009;
Exhibit No. 6 – Complainant’s Un-refuted Motion to
Strike False and Defamatory Allegations in Case No.
08-30052;
 21a
Exhibit No. 7 – Judge Dennis’ Order of September 22,
2008, summarily denying Exhibit No. 6;
Exhibit No. 8 – Complainant’s Motion for Disclosure in
Case No. 08-30052;
Exhibit No. 9 – Complainant’s E-mail to Deputy Clerk
Michael Brown, in Case No. 08-30052, referencing
Complainant’s Motion for Disclosure by Judge Dennis;
Exhibit No. 10 – The Court’s Order of December 18,
2008, summarily denying Exhibit No. 8;
Exhibit No. 11 – Complainant’s correspondence in Case
No. 08-30052 to the Clerk of the 5th Circuit dated
September 24, 2008;
Exhibit No. 12 – Complainant’s November 10, 2008
correspondence in Case No. 08-30052 to the Clerk of 5th
Circuit; and
Exhibit No. 13 – Complainant’s Petition for Panel
Rehearing and/or for Rehearing En Banc in Case No.
08-30052, together with attached Exhibits.
Complainant avers that the Chief Judge should not act
on the complaints alleged herein without review of the
Exhibits identified supra, which Complainant is
prepared to submit to the Chief Judge, if requested, but
which are not attached hereto in order to avoid running
afoul of the provisions of Rules 2(D) and 3(D) of the
Rules Governing Complaints of Judicial Misconduct.
22a
6. Complainant further avers that the Court’s
decisions in Case Nos. 06-30840, 06-30841, and 08-30234
were the result of judicial misconduct, and at least
peripherally related to the following issues in Civil
Action No. 06-7280 and 05-4182 (and consolidated cases)
pending in the United States District Court for the
Eastern District of Louisiana:
1) A criminal gangland-style “hit” which was
executed by the Louisiana State Police against
Complainant at five minutes past midnight on
September 20, 2005, on orders from persons employed
by the Louisiana Department of Justice, by the
Louisiana Supreme Court and by the Office of
Disciplinary Counsel for the Louisiana Supreme Court;
2) A patently obvious non-consentable, concurrent
conflict of interests on the part of certain so-called
prominent Members of the Plaintiffs’ Bar who
simultaneously represented plaintiffs, claimants and
potential class members in the “Victims of KATRINA”
litigation bearing Civil Action No. 05-4182 (and
consolidated cases) in the U.S. District Court for the
Eastern District of Louisiana, as well as the interests of
the State of Louisiana, between August 29, 2007 and
October 9, 20088;
3) Bias, prejudice and partiality, and other judicial
misconduct, warranting the recusal of Stanwood R.
Duval, Jr., in the “Victims of KATRINA” litigation9;
and
8
This issue is articulately pleaded in Civil Action N0. 08-4728 on
the Eastern District docket.
9
Ibid.
 23a
4) Claims asserted by Complainant and his clients
against the State of Louisiana, its agencies and
instrumentalities, political subdivisions, and individual
department heads, in the “Victims of KATRINA”
litigation.
7. By virtue of their having participated in
prohibited ex parte communications as described,
supra, and allowing those communications to influence
their decision-making on the merits in the referenced
cases, the Judges identified herein each violated the
following Canons contained in the Code of Conduct for
United States Judges:
Canon 1 - was violated by each of the accused Judges,
who made a mockery of the terms “independent,”
“honorable,” “justice,” “high standards of conduct,” and
“integrity,” as a result of the misconduct alleged herein.
Canon 2(A) - was violated by each of the accused
Judges, because they neither respected nor complied
with the law, and because the misconduct alleged herein
is the antithesis of acting “at all times in a manner that
promotes public confidence in the integrity and
impartiality of the judiciary.”
Canon 2(B) - was violated by each of the accused
Judges, because they allowed social or other
relationships to influence their judicial conduct and
judgment, and because they not only conveyed to others
the impression that they were in a special position of
influence, and did nothing to stop that impression, but
then acted in an official capacity to advance the private
interests of others.
Canon 3(A)(1) - was violated by each of the accused
Judges, because not only did they make a mockery of
24a
the terms “faithful” and “professional competence in the
law,” but they permitted their decision-making to be
dictated by partisan interests.
Canon 3(A)(4) - was violated by each of the accused
Judges, because they engaged in prohibited ex parte
communications with others on the merits, and
procedures affecting the merits, of proceedings pending
before them. Judges Davis, Southwick and Clark also
violated Canon 3(A)(4) by conspiring with others to
deny Complainant oral argument in Case Nos. 06-30840
and 06-30841. Judges Weiner, Prado and Southwick
also violated Canon 3(A)(4) by conspiring with others to
deny Complainant oral argument in Case No. 08-30234.
Canon 3(B)(1), (2), and (3) - were violated by each of
the accused Judges, because they took no action after
learning of misconduct by Brother and/or Sister Judges,
Court officials and Staff, lawyers and others.
8. The Complaints of judicial misconduct contained
herein are not made for the purpose of seeking review
of the erroneous decisions involving Complainant and
his clients by the Judicial Council of the Fifth Circuit,10
but rather to instill public confidence in the integrity
and independence of judges, and to ensure that judges
comply with their oath of office, the law, and the
applicable Code of Conduct.
9. More to the point, Complainant avers that
although reasonable minds might conclude that the
misconduct alleged herein is peripherally related to
merits of the decisions in the referenced cases,
Complainant specifically avers that his allegations of
10
However, Complainant avers that judicial review of the
erroneous decisions is absolutely warranted under the facts and
circumstances.
 25a
misconduct are NOT DIRECTLY RELATED TO the
decisions in those cases, but rather to the lack of
integrity of the accused Judges and of those who
wrongfully influenced them.
26a
11. Complainant declares that the allegations,
averments and statements contained herein are true
and correct under penalty of perjury pursuant to the
provisions of 28 U.S.C. §1746.

10. Complainant avers that the Chief Judge should

appoint a Special Committee (or Committees) to
investigate these complaints and to make
recommendations to the Judicial Council.
Notwithstanding, this requested relief, Complainant
avers that he has no confidence in the ability of the
Chief Judge of the United States Court of Appeals for
the Fifth Circuit, any Special Committee which may be
appointed by the Chief Judge, or of the Judicial Council
of the Fifth Circuit to competently, fairly and
impartially investigate and decide the merits of the
complaints of misconduct contained herein. In support
of these assertions, Complainant refers to the
September 28, 2007 Order of Reprimand and Reasons
by the Judicial Council in the matter involving former
Judge Samuel B. Kent who, since the referenced Order
of Reprimand and Reasons, and more particularly on
February 23, 2009, pleaded guilty of one count of
obstruction of justice, thus demonstrating the abject
incompetency of the judicial misconduct process within
the Fifth Circuit. Complainant further avers that any
investigation(s) by the Special Committee or
Committees should also include the appointment of
competent forensic experts to analyze office computers,
personal computers and blackberries, as well as
telephone records, of the accused Judges and others, in
order to “test” their answers to questions under oath
with extrinsic electronic and documentary evidence.