# Opposition Brief — Hoang v. Ummel

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 948

## Text

*. FILED

No.02-156 24
AUG SO 2002

aac

OFFICE OF THE CLERK

IN THE :
Supreme Court of the United States

LIEU B. HOANG,
Petitioner,
v.

JERRY L. UMMEL, MAGISTRATE ALLEN SUPERIOR
COURT, SMALL CLAIMS DIVISION, JAMES A. HERMAN,
SHERIFF, ALLEN COUNTY SHERIFF'S DEPARTMENT,
RUSSELL P. YORK, CHIEF FORT WAYNE POLICE
DEPARTMENT, PGPM, INC., JAMESTOWN HOMES, INC.,
R. SCOTT PERRY, RANDALL L. HOSFORD AND
NATIONAL MOVING SYSTEMS, INC.,

Respondents.

On Petition for Writ of Certiorari to the
United States Court of Appeals for the Seventh Circuit

JOINT BRIEF IN OPPOSITION TO WRIT OF
CERTIORARI FOR THE RESPONDENTS
JAMES A. HERMAN, SHERIFF OF ALLEN COUNTY
AND R. SCOTT PERRY

JOHN O. FEIGHNER THOMAS C. EWING*
Indiana Bar #6800-02 Indiana Bar #6765-02
GEORGE SISTEVARIS* HUNT SUEDHOFF
Indiana Bar #13770-02 KALAMAROS, LLP
HALLER & COLVIN, P.C. 803 S. Calhoun Street
444 East Main Street 900 Courtside Building
Fort Wayne, IN 46802 Fort Wayne, IN 46802
260-426-0444 260-423-1311

Counsel for Respondent, Counsel for Respondent,
James A. Herman, Sheriff R.ScottPerry —
Allen County Indiana

*Counsel of Record

ee

Yy a

QUESTIONS PRESENTED

Whether the Rooker-Feldman Doctrine bars Hoang
from seeking relief in federal district court on claims
which arise from a state court's judgment.

Whether Hoang’s allegation that the district court
judge was biased, which was not raised before the
district court, may form the basis for reversal of the
district court’s decision, and whether evidence of
alleged bias, presented for the first time in the court
of appeals, was sufficient to support a finding of
bias.

Whether the actions of James A. Herman, as Sheriff
of Allen County, Indiana, or of the deputies of the
Allen County Sheriff, were protected by quasi-
judicial immunity, where certain unnamed deputies
acted pursuant to an official order of a state court.

ii

RULE 29.6 DISCLOSURE STATEMENT

As to Respondent James A. Herman, Sheriff of Allen County
Indiana:

James A. Herman is the duly elected Sheriff of the
Allen County Police Department, a law enforcementagency
(established pursuant to Ind. Code § 36-2-13-1 et seq.), of the
County of Allen, State of Indiana, which county is a unit of
local government. Ind. Code § 36-2-1-1 et seq.

rer nt) 7

iii

TABLE OF CONTENTS

Page(s)
QUESTIONS PRESENTED .......csevscesesecsvcses i
RULE 29.6 DISCLOSURE STATEMENT ............. ii

TABLES OF CASES AND OTHER AUTHORITIES ....v

CITATION TO REPORTS OF THE OPINIONS

AND ORDERS ENTERED IN THE CASE............. 1
Fe 18) 63 ay © ee ee 1
CONSTITUTIONAL PROVISIONS AND STATUTES
GA pan ey ere prs eres ree eee a 1
EPR R EEE E GF BEDE SGM on conc nawtccvensceuness 3

I. THE ROOKER-FELDMAN DOCTRINE BARS
HOANG FROM SEEKING RELIEF IN FEDERAL
DISTRICT COURT ON CLAIMS WHICH ARISE
FROM A STATE COURT’S JUDGMENT. ...... 5

Il. HOANG’S ALLEGATIONS OF BIAS AGAINST
THE DISTRICT COURT JUDGE WERE
NOT PROPERLY PRESERVED FOR ARGUMENT
EITHER TO THE DISTRICT COURT OR TO
THE COURT OF APPEALS, AND THE COURT
OF APPEALS WAS CORRECT IN FINDING
THAT THE EVIDENCE PRESENTED SHOWED

iv

Wl. HOANG’S ARGUMENT REGARDING
THE QUASI-JUDICIAL IMMUNITY OF
RESPONDENT JAMES A. HERMAN, SHERIFF OF
ALLEN COUNTY, IS WITHOUT MERIT ...... 17

TV. CONCLUSION .......ccccrcccsccsccsscccees 20

“seat tne

Vv

TABLES OF CASES AND OTHER AUTHORITIES

Page(s)

Cases
Ashbrook v. Hoffman, 617 F.2d 474 (7th Cir.1980) ..... 18, 19
Atlantic Coast Line R. Co. v. Brotherhood of

Locomotive Engineers, 398 U.S. 281,

90 S.Ct. 1739, 26 L.Ed.2d 234 (1970) .............. 6
Bartlett v. Stephenson, __ US. mp Leh ont, 1751,

192 L.Ed.2d 1015, __ (2002) .......ccecccceccece 8
Chick Kam Choo v. Exxon Corp., 486 U.S. 140,

108 S.Ct. 1684, 100 L.Ed.2d 127 (3958) ........ 7
District of Columbia Court of Appeals v. Feldman,

460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d

ok ecu: EERE eT ree eee 5, 6
Duba v. McIntyre, 501 F.2d 590 (8th Cir.1974) ........ --. 18
Garry v. Geils, 82 F.3d 1362 (7* Cir.1996) ................ 6
Henry v. Farmer City State Bank, 808 F.2d 1228

| Pepe fe oe area n aves 18
Hoang v. Jamestown Homes, Inc., 768 N.E.2d

1029 (Ind.Ct.App.2002) reh’g denied........... 8, 20

Hoang v. Ummel, 24 Fed. Appx. 613, 2001 WL
RT I ED cha adele ew es voadaudh des 1

Homola v. McNamara, 59 F.3d 647 (7" Cir.1995) .........

In re Drexel Burnham Lambert Inc., 861 F.2d
1307 (2™ Cir.1988) reh’g denied, 869 F.2d
116 (1989), cert. denied, Milken v. S.E.C.
490 U.S. 1102, 109 S.Ct. 2458, 104
Led DEE COMET 645 Wi awh cdeewseraexewns

Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89
LGM ASE CRED veccncevscrectesncebasesdes

Maple Lanes, Inc. v. Messer, 186 F.3d 823
(7™ Cir.1999) cert. denied, 528 U.S. 1118,
1ZD SCL S39, 163 L.BGBS ST oc ccccsssevsoseses

Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151,
21. DASA 5 ode ic ic cicteslcee

Patmon v. Michigan Supreme Court, 224 F.3d 504
(6"Cir.2000) reh’g and suggestion for
ONO OR DANCES 3c vin s ext deeecensutandeuseens

Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct.
ee ee eee rk

Taylor v. O’Grady, 888 F.2d 1189 (7™ Cir.1989) ..........
U. S. v. Nacrelli, 543 F.Supp. 798, 800 (E.D.Pa.1982) ......
U.S. v. Barrett, 111 F.3d 947 (D.C.Cir.1997) ..........

U.S. v. Bosch, 951 F.2d 1546 (9 Cir.1991), cert. denied
112 S.Ct. 2975, 504 U.S. 989, 119 L.Ed.2d 594 ....

U.S. v. Brown, 539 F.2d 467 (5 Cir.1976) ...........0005

Vii

U.S. v. Garrudo, 869 F.Supp. 1574 (S.D.Fla. 1994),
aff'd, U.S. v. Cerceda, 139 F.3d 847
(11™ Cir.1998), reh’g granted and vacated,
161 F.3d 652, and on reh’g 172 F.3d 806
(1999), cert. denied DeLa Mata v. US.,
928 U.S.985, 120S.Ct. 444, 145 L.Ed.2d

cai RT ee ee nT Tes 13
U.S. v. Hines, 696 F.2d 722 Sr AED nib ik oendne chun 15
U.S. v. Mathison, 157 F.3d 541 (8" Cir.1998) ......... 14
U.S. v. Ruzzano, 247 F.3d 688 (7* Cir.2001) .......... 13, 14
U.S. v. Troxell, 887 F.2d 830 (7 eee 14
Waits v. McGowan, 516 F.2d 203 ie 2h. 18

Vili

Statutes

lh NI oo os one éncnannandeeuenunvenanes ii
al Ci UNE os, i cic cssa pics tiecesecsneeeees ii
A Ee i 3N acpi avd een NNeN ens 1
ee oc. oh cncaunesdisvaesusebeete 2,6
ona ncneccasnss serene 2, 12,13
IR UE oc. sa nandeases st cyaceeeen 2,3, 12-15
RS BI ono ians cavuescusdsseagievewiah 3,15
SO On iss inc psns ih dacs samananees 15
MU BO os ois odin dean seen 3
Rules

Rule 15.3 of the Rules of the Supreme Court of the United
GREG ons cccccvenccccvecnecccenesccesesveaseneuesses 1

CITATION TO REPORTS OF THE OPINIONS
AND ORDERS ENTERED IN THE CASE

This case was decided below by an unpublished and
unreported order of the United States District Court, Northern
District of Indiana, Fort Wayne Division, dated December 17,
2001. The full text of the order is included in the Appendix to
Petitioner's Petition for Writ of Certiorari, at pp. A-6 to A-22.

The United States Court of Appeals for the Seventh
Circuit entered its Order on the appeal on December 17, 2001,
in an unpublished opinion. The full text of that order is
included in the Appendix to Petitioners Petition for Certiorari,
at pp. A-1 to A-5. It is reported as an unpublished opinion in
Hoang v. Ummel, 24 Fed.Appx. 613, 2001 WL 1631716 (7th Cir.
2001).

BASIS FOR JURISDICTION

This Court has jurisdiction to consider opinions of the
Seventh Circuit Court of Appeals upon the filing of a writ of
certiorari pursuant to 28 U.S.C. § 1254. Petitioner’s Petition for
Writ of Certiorari was placed on the docket on August 1, 2002.
Under Rule 15.3 of the Rules of the Supreme Court of the
United States, Respondents, if they so choose to respond, must
file briefs in opposition by August 31,2002.

CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED

In addition to the relevant constitutional provisions
and statutes which Petitioner sets forth in his Petition for
Certiorari, Pet. pp. 1-5, the Respondents submit that the
following additional statutes are involved in this matter.

2

28 U.S.C. § 2283. Stay of State court proceedings.

A court of the United States may not grant an
injunction to stay proceedings in a State court
except as expressly authorized by Act of
Congress, or where necessary in aid of its
jurisdiction, or to protect or effectuate its
judgments.

Also, the full text of 28 U.S.C. § 455 (a), (b)(1) and (b)(2) are set

forth as follows:

28 U.S.C. § 455. Disqualification of justice, judge, or
magistrate judge

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, or personal knowledge of
disputed evidentiary facts concerning the
proceeding;

(2) Where in private practice he served as
lawyer in the matter in controversy, or a lawyer
with whom he previously practiced law served
during such association as a lawyer concerning
the matter, or the judge or such lawyer has
been a material witness concerning it;

3

STATEMENT OF THE CASE

Petitioner seeks to invalidate an unpublished order of
the Seventh Circuit which found that the federal courts lack
jurisdiction over his 42 U.S.C. § 1983 claim against the several
Respondents. The Seventh Circuit upheld the order of the
district court and found that Petitioner was seeking review of
a state court decision, and under the Rooker-Feldman doctrine
the federal courts did not have jurisdiction over issues
inextricably intertwined with the state court case. Petitioner
presents no compelling reason for the Supreme Court to grant
certiorari on a precedent well established in this Court.

Petitioner also challenges the Seventh Circuit's decision
denying his request to have the district court judge
disqualified pursuant to 28 U.S.C. § 455(a) and (b). Petitioner
raised the issue for the first time with his appeal of the district
court's ruling. The Seventh Circuit gave due consideration to
his request and found that exceptional circumstances did not
exist to grant a recusal in this case. Although the Petitioner
alleges that there is a conflict between the circuits,
Respondents submit that the Seventh Circuit's treatment of
this issue provides a mechanism for relief under §455, and that
no genuine conflict exists. Petitioner offers no compelling
reason for the Supreme Court to grant Certiorari on this issue.

Finally, Petitioner challenges the finding of the Seventh
Circuit on the issue of the quasi-judicial immunity of law
enforcement officers who enforce valid orders of a state court.
Although this ruling is not controlling of the Seventh Circuit's
order, it also presents no compelling issues or conflicts which
require review.

4
ARGUMENT OF THE RESPONDENTS

ee

THE ROOKER-FELDMAN DOCTRINE BARS HOANG
- FROM SEEKING RELIEF IN FEDERAL DISTRICT COURT
ON CLAIMS WHICH ARISE FROM A STATE COURT’S
JUDGMENT.

The district court and the Court of Appeals in the
instant case each found that Rooker-Feldman barred Hoang
from having his claim considered in the federal courts.
Pet.App. A-4, A-17. See District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983);
Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed.
362 (1923). “If the constitutional claims presented to a United
States District Court are inextricably intertwined with the state
court's denial in a judicial proceeding of a particular plaintiff's
application for admission to the state bar, then the District
Court is in essence being called upon to review the state court
decision. This the District Court may not do.” Feldman 460 U.S.
at 483 n.16, 103 S.Ct. at 1316. Hoang argues that Rooker-
Feldman has no application in his case.

Hoang contends in his Petition for Writ of Certiorari
that his personal property was removed “without due process
or a state court order” and that this happened independently
from a state court judgment, and thus, was not inextricably
intertwined with a state court judgment. Pet. pp. 23-25. The
facts of the case do not support this allegation. Hoang’s
property was removed upon an eviction order of the state
court, and the eviction order is precisely what prompted
Hoang to seek injunctive relief in federal court. As the district
court pointed out in its Order dismissing the case, “Hoang also
filed on [May 8, 2001] a ‘(Temporary) Motion to Stay the State
Court’s Order’ in which he ‘respectfully moves the Court to

5

issue an order to stay state court's order of Possession until
further order of this court.’” Pet.App. A-7. The district court
refused to overturn or stop the state court eviction order,
finding that “under even the most liberal standards Hoang’s
complaint stated no claim upon which relief could be granted.
The court further noted that to the extent Hoang was
attempting to overturn or stop a state court eviction
Proceeding, the Rooker-Feldman doctrine would bar Hoang’s
request.” Id. at A-7, A-8.

Hoang argues, without citation to any authority in
support, that Rooker-Feldman does not apply to injunctive
relief. Pet. p. 25. The decisions from the circuits do not agree
with this overly broad assessment. See Patmon v. Michigan
Supreme Court 224 F.3d 504, 510 (6™Cir.2000), reh’g and
suggestion for reh’g en banc denied (finding that plaintiff's
request for injunction and monetary damages required district
court to review a prior state judicial determination, thus
district court correctly determined thatit lacked subject matter
jurisdiction); Garry v. Geils, 82 F.3d 1362, 1370 (7* Cir.1996)
(holding that the application of Rooker-Feldman applies to both
damages and injunctive relief).

Attempts by Hoang to require the district court to
enjoin enforcement of a State court order, or to otherwise stay
proceedings, also run afoul of the Anti-Injunction Act, 28
U.S.C. § 2283, which states that “[a] court of the United States
may not grant an injunction to stay proceedings in a State
court except as expressly authorized by Act of Congress, or
where necessary in aid of its jurisdiction, or to protect or
effectuate its judgments.” This Court considered the issue in
Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers,
398 U.S. 281, 90 S.Ct. 1739, 26 L.Ed.2d 234 (1970).

[S]ince the statutory prohibition against such
injunctions in part rests on the fundamental

6

constitutional independence of the States and
their courts, the exceptions should not be
enlarged by loose statutory construction.
Proceedings in state courts should normally be
allowed to continue unimpaired by
intervention of the lower federal courts, with
relief from error, if any, through the state
appellate courts and ultimately this Court.

Id. 398 U.S. at 287, 90 S.Ct. at 1743. See also Mitchum v. Foster,
407 US. 225, 233-38, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972)
(discussing the exceptions). As to Hoang’s case, no exception
applies. First, there is no statute that particularly authorizes
the federal courts to issue injunctions in the circumstances of
this case. Second, the injunction could not have been used in
aid of the district court's jurisdiction because the district court
found that it lacked jurisdiction over all claims. Third, the
final exception,"was designed to permit a federal court to
prevent litigation of an issue that previously was presented to
and decided by the federal court. It is founded in the well
recognized concepts of res judicata and collateral estoppel.”
Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 147, 108 S.Ct. 1684,
100 L.Ed.2d 127 (1988). Hoang presents no argument to
support an assertion that the district court could exercise the
power to grant injunctive relief in his case. Hoang’s request
for injunctive relief in federal court was appropriately denied.

Hoang’s argument that the consequences flowing from
the eviction proceeding were independent of the eviction, and,
therefore, not subject to Rooker-Feldman, is also unavailing.
A plaintiff may not circumvent the Rooker-Feldman doctrine
simply by casting his complaint in the form of a federal civil
rights action. Maple Lanes, Inc. v. Messer, 186 F.3d 823, 825 > da
Cir.1999), cert. denied, 528 U.S. 1118, 120 S.Ct. 939, 145 L.Ed.2d
817. Hoang’s civil rights claim arises from the same facts as
the eviction action, and the district court was right to decline

4

to accept jurisdiction of the case. Indeed, Hoang continues to
avail himself of his right to review and appeal to Indiana's
Court of Appeals, of the state court's alleged wrongful eviction
and damages arising as a consequence. On May 31, 2002, the
Indiana Court of Appeals further addressed Mr. Hoang’s case.
In Hoang v. Jamestown Homes, Inc., 768 N.E.2d 1029
(Ind.Ct.App.2002), reh’g denied, the Court of Appeals found
that (1) the small claims court had jurisdiction over the
ejectment action (2) bifurcation of the proceedings for
possession of his unit from proceedings on Hoang’s
counterclaim for damages was proper, and (3) Hoang violated
his occupancy agreement when he refused to allow employees
of the cooperative corporation to enter and inspect the unit. Id.
at 1030-1040.

Hoang presents no authority which conflicts with the
Seventh Circuit’s application of Rooker-Feldman. Additional
support for the application of Rooker-Feldman in this case is
also found in the Anti- Injunction Act. Hoang also presents no
compelling reason for this Court to exercise its supervisory.
power over the Seventh Circuit, as required by
U.S.Sup.Ct.Rule 10, under this Court’s power to grant
certiorari on this issue. An issue “which has few if any
ramifications beyond the instant case does not satisfy any of
the criteria for the exercise of this Court's discretionary
jurisdiction. See this Court's Rule 10.” Bartlett v. Stephenson,
— US. __, 122 S.Ct. 1751, 1753, 152 L.Ed.2d 1015 (2002).
Rule 10 states specifically that “ [a] petition for writ of certiorari
is rarely granted when the asserted error consists of erroneous
factual findings or the misapplication of a properly stated rule
of law.” Hoang presents no tangible argument to support
certiorari on the issue of the Seventh Circuit's application of
the Rooker-Feldman doctrine.

8

Il.

HOANG’S ALLEGATIONS OF BIAS AGAINST THE
DISTRICT COURT JUDGE WERE NOT PROPERLY
PRESERVED FOR ARGUMENT EITHER TO THE
DISTRICT COURT OR TO THE COURT OF APPEALS,
AND THE COURT OF APPEALS WAS CORRECT IN
FINDING THAT THE EVIDENCE PRESENTED SHOWED
NO BIAS.

A. The Allegations.

Hoang’s allegation of bias on the part of the district
court judge was not asserted until the filing of his appeal with
the Seventh Circuit Court of Appeals, and Hoang again
presents these allegations, along with additional allegations,
in his Petition for Writ of Certiorari. With regard to the
specific allegations of bias, Hoang ignores the need to present
or authenticate evidence, with the bulk of his allegations being
in the form of representations by Hoang himself of perceived
bias by the judge.

Hoang spins a very fanciful tale in an effort to support
sucha serious allegation. The districtjudge who presided over
Mr. Hoang’s case in the United States District Court for the
Northern District of Indiana, Fort Wayne Division, was
William C. Lee, the Chief Judge of the Northern District. In his
Petition, Hoang reiterates several “conflicts of interest”
previously presented to the Seventh Circuit, which he claims
require the disqualification of Judge Lee. Hoang also submits
new allegations which are presented for the first time in his
Petition for Certiorari. These alleged conflicts are restated here
and are addressed in seriatim.

1. Alleged Conflict due to Judge Lee’s
former association with a law firm. Hoang claims that a

9

conflict of interest exists as a result of Judge Lee’s former
association and partnership in the law firm of Hunt, Seudhoff,
Borror, Eilbacher & Lee. That law firm is now known as Hunt
Seudhoff Kalamaros, LLP, and it was the law firm of record for
two of the named defendants: R. Scott Perry and National
Moving Systems, Inc. Hoang claims that Judge Lee “has still
drawn a salary after leaving the law firm.” Although this
statement seems to imply that the Judge may still be receiving
benefits from the firm, Hoang’s only reference to support his
claim is to a newspaper article appearing in a Fort Wayne
Newspaper in June of 1982. The article was never placed in
the record before the district court, and was first presented to
- the Court of Appeals during the briefing stage of Hoang’s
appeal.

The newspaper article, which is over 20 years old,
makes reference to the relative incomes of the judges of the
Northern District of Indiana. The article also references
payments to Judge Lee by his former law firm for an apparent
buy-out of his interest in the firm. The article reports that he
would be receiving payments through 1983. There is therefore
no indication that Judge Lee has received any payments or
benefits from his former law firm for over 18 years.

Hoang also claims that prior to the time Judge Lee left
his law firm to assume the district court bench in August of
1981, his law firm represented Jamestown (presumably, the
respondent, Jamestown Homes, Inc.). Again, Hoang offers no
tangible proof to support his claim. However, he does seem to
suggest a connection through aninsurance company. “[W]hen
Judge Lee was a partner with ‘Hunt, Suedhoff, Borror,
Eilbacher & Lee’, his law firm represented Jamestown through
its insurance company.” Pet. p.6.

Although this tenuous connection between the judge
and one of the respondents may or may not have existed more

10

than 20 years ago, given the record presented, one can only
speculate as to the facts which support the allegation. No
Court should be required to do so.

2. Alleged Conflict due to Judge Lee’s
alleged ownership interest in apartment complex. Hoang next
attacks Judge Lee’s former ownership in an apartment
complex which is not a party to this case. Hoang alleges,
without documentation or admissible evidence, that Judge Lee
once had an ownership interest in Brentwood Apartments, and
that the law firm of Haller & Colvin, P.C., which represents the
respondent, James A. Herman, Sheriff of Allen County, also
represented the apartment complex in small claims matters
before the respondent, Jerry L. Ummel, Magistrate, Allen
Superior Court, Small Claims Division. Hoang submits no
specific dates when Judge Lee might have had an ownership
interest in these apartments, he submits no particular cases or
dates when Haller & Colvin might have appeared before the
magistrate on behalf of this apartment complex, and he does
not allege that Brentwood Apartments is affiliated in any way
with any of the parties in the instant case. He does not allege
that Judge Lee has a financial interest in the outcome of the
proceedings in the instant case as a result of a former alleged
interest in Brentwood apartments, or otherwise.

3. New Allegations of Judicial
Improprieties in Petition for Certiorari. Hoang goes on to
engage in a further attack of Judge Lee in his Petition for
Certiorari, where for the first time, Hoang suggests that while
his case was pending before the Court of Appeals, Judge Lee
interposed his influence upon the Seventh Circuit Judges to
rule against Hoang. Hoang claims that he obtained
information from the “Seventh Circuit’s Deputy Clerk” thaton
December 13, 2001, Judge Lee “called one of the three assigned
Circuit Judges to explain his side of the ‘conflicts of interest.’
And so, on the next day of Friday, December 14, 2000, this case

11

was immediately submitted to said three Circuit Judges who
hastily affirmed Chief Judge Lee’s decision on the following
working day of Monday, December 17, 2001.” Pet. p. 23.
Hoang also engages in unsupported allegations that the
district judge took “kickbacks” in a criminal matter. Pet. p. 21,
n.44. Respondents submit that these unsupported and
scurrilous accusations have no place ina Petition for Certiorari
to the Supreme Court, and without a proper foundation or
supporting evidence, should be stricken or disregarded.

Hoang mistakenly argues that under the findings of the
Seventh Circuit, “the District Judge is not required to disclose
his or her conflict of interest, bias and prejudice against a
party... but the party is required to discover the District Judge’s
conflict of interest, bias and prejudice.” Pet. p.19. There is no
such finding by the Seventh Circuit in this case. Indeed, the
Court of Appeals considered Hoang’s request for relief under
both 28 U.S.C. §455(a) and 28 U.S.C. §455(b).’ The Court found
that Hoang’s request for the Judge’s recusal was not supported
under either section. Pet.App. pp. A-4, A-5.

'28 U.S.C. § 455 (a) and (b)(2) read as follows:
(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:

* * *

(2) Where in private practice he served as lawyer in the matter
in controversy, ora lawyer with whom he previously practiced
law served during such association as a lawyer concerning the
matter, or the judge or such lawyer has been a material witness
concerning it....

12
B. Requirements for recusal under 28 U.S.C.

Contrary to Hoang’s assertions, the Seventh Circuit
followed the long established precedent that a judge’s recusal
under § 455 is self -executing and the judge is obligated to
recuse himself sua sponte under the stated circumstances.
Taylor v. O'Grady, 888 F.2d 1189, 1200, 1201 (7" Cir.1989). A
judge is under a self-enforcing obligation to recuse himself
‘ where legal grounds exist for disqualification. The standard to
be applied is objective and not subjective. U.S. v. Garrudo, 869
F.Supp. 1574 (S.D.Fla. 1994), aff'd, U.S. v. Cerceda, 139 F.3d
847 (11 Cir.1998), reh’g granted and vacated, 161 F.3d 652,
and on reh’g 172 F.3d 806 (1999), cert. denied DeLa Mata v.
U.S., 528 U.S.985, 120 S.Ct. 444, 145 L.Ed.2d 362 (1999). An
interest which is remote, contingent or speculative is not the
kind which reasonably brings judge's impartiality into question
for disqualification purposes. Jn re Drexel Burnham Lambert
Inc., 861 F.2d 1307 (2™ Cir.1988) reh’g denied, 869 F.2d 116
(1989), cert. denied, Milken v. S.E.C. 490 U.S. 1102, 109 S.Ct.
2458, 104 L.Ed.2d 1012 (1989).

1. Application of 28 U.S.C. § 455(a). The
Court of Appeals took into account Hoang’s attempt to raise
the issue of conflict of interest for the first time at the appellate
level. The Court considered 28 U.S.C. § 455(a) which requires
a federal judge to disqualify himself “in any proceedings in
which his impartiality might be questioned.” The Court found
that Hoang waived his right to relief under 28 U.S.C. § 455(a)
“because he failed to move for recusal until after the district
court dismissed the case.” Pet.App. p. A-5. The Court of
Appeals relied on U.S. v. Ruzzano, 247 F.3d 688 (7* Cir.2001),
which outlines the Seventh Circuit's position on the
application of § 455(a), and states that a claim can be waived
even though the defendant discovered alleged grounds for
recusal after being sentenced. Id. 247 F.3d at 694.

13

Hoang attempts to distinguish the application of
§455(a) in the Fifth Circuit from its application in the Seventh
Circuit. Pet. pp. 19, 20. Respondents submit that the
application of §455(a) between the circuits is not in conflict.
Hoang is correct when he states that the Fifth Circuit in U.S. v.
Brown, 539 F.2d 467 (5™ Cir.1976) confers upon itself
jurisdiction to consider claims of bias under §455(a). However,
Respondents do not agree that the Seventh Circuit forever
forecloses a §455(a) review if it is not raised in the district
court. Indeed, this Court did give Hoang that review, and
relied on Ruzzano in so doing. Pet. App. p. A-4, A-5. The
Seventh Circuit requires the filing of a writ of mandamus to
raise § 455(a) recusal challenges, otherwise they are waived, Jd.
247 F.3d at 694. Other circuits, although not requiring the
filing of a writ of mandamus, have also found waiver of §
455(a) in cases where a party fails to preserve this issue at the
district court level. Jd. (citing U.S. v. Mathison, 157 F.3d 541,
545-45 (8" Cir.1998); U.S. v. Barrett, 111 F.3d 947, 952-53
(D.C.Cir.1997)).

Significantly, the Seventh Circuit has fashioned a safety
valve for the exceptional case where waiver would otherwise
have barred review. In the instant case, the Seventh Circuit
did not end its analysis of § 455(a) after finding waiver. It
went on, as it did in Ruzzano, to acknowledge that under
“exceptional circumstances” an appellant might be excused for
failing to timely seek a recusal. The Seventh Circuit found that
Hoang had not demonstrated such circumstances. Pet.App.
pp. A-4, A-5. The Court of Appeals , in reaching this
conclusion, necessarily examined the record in the case and in
citing U.S. v. Troxell, 887 F.2d 830, 833 (7" Cir.1989), found
specifically that “there is no evidence in the record that the
alleged grounds for recusal had any effect on Hoang’s case or
affected his substantial rights in any way.” Pet.App. p. A-5.
Hoang, in effect, is asking the Supreme Court to review

14

allegations of bias which are not supported in the record and
which did not affect his rights in any way.

2. Application of 28 U.S.C. § 455(b). The

Seventh Circuit also acknowledged that Hoang raised a §
455(b) claim for the first time on appeal. Pet.App. p. A-5.
Hoang’s § 455(b) argument is essentially merged with his
arguments on § 455 (a). Pet. p. 19-21. However, in a specific
reference to §455(b), Hoang argues thatas a result of his failure
to raise the issues below, the Seventh Circuit found that he
waived the right to argue them on appeal. Pet. p. 20. The
Seventh Circuit actually found that after considering the
allegations made by Hoang, and in applying the §455(b)
requirement that there be a showing of “actual interest or bias
on the part of the judge,” the facts alleged did not require the
Judge to recuse himself. Pet. App. p. A-5. See, U.S. v. Hines,
696 F.2d 722 (10 Cir.1982) (finding that the recusal of the trial
judge was not required under § 455(b)(1) where there was no
adequate proof of the trial judge's actual bias or prejudice);
U.S. v. Nacrelli, 543 F.Supp. 798, 800 (E.D.Pa. 1982) (holding
that absent allegation of factual basis to support petitioner's
claim that trial judge should have recused himself, it was
completely reasonable for judge to preside over the trial); U.S.
v. Bosch, 951 F.2d 1546, 1549 (9 Cir.1991), cert. denied, 504 U.S.
989, 119 L.Ed.2d 594, 112 S.Ct. 2975 (1992) (finding that the
failure of appellant to show actual bias, or actual prejudice

caused by an alleged bias, precluded relief under §455(a)).
The Seventh Circuit's ruling on this issue is entirely consistent
with established precedent.

Hoang does not establish that a conflict exists in the
circuits sufficient to grant certiorari. Hoang’s arguments
regarding recusal under both § 455 (a) and (b) were adequately
considered by the Seventh Circuit. He simply is not happy
with the outcome. Hoang offers no compelling reason as
required by Rule 10 to substantiate the granting of certiorari.

15
Ill.

HOANG’S ARGUMENT REGARDING THE QUASI-
JUDICIAL IMMUNITY OF RESPONDENT JAMES A.
HERMAN, SHERIFF OF ALLEN COUNTY, IS WITHOUT
MERIT.

In Hoang’s final argumentin his Petition for Certiorari,
he alleges that officers of the Allen County Police Department
(“County Sheriff's Deputies”) are not entitled to immunity in
this case. The Seventh Circuit addresses this issue in a
footnote. “While we affirm the district court’s dismissal of the
entire complaint based on the Rooker-Feldman doctrine, we note
that the district court was also correct in asserting that . . . the
law enforcement officers had qualified immunity for their
actions in enforcing the ejectment order, see Homola v.
McNamara, 59 F.3d 647, 651 (7" Cir.1995).” Pet.App. p. A-4.
Respondents submit that this finding is not controlling of the
case and itis either an alternative ruling or dicta in the Seventh
Cireuits unpublished opinion.

Since both the district court and the Seventh Circuit
correctly ruled that the entire complaint should be dismissed
based on the Rooker Feldman doctrine, it is unnecessary for
this Court to grant Certiorari to review the immunity issue.
Further, Hoang offers no sound basis for review of the
decision. Hoang cites only Malley v. Briggs, 475 U.S. 335, 341,
106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) for the proposition that
the actions of the County Sheriff's Deputies were “not
ministerial acts but clearly violations of established law, e.g. §
1983.” Pet.App. p. 30. In Malley, this Court ruled that police
officers where entitled to qualified immunity and not absolute
immunity for causing an unconstitutional arrest by presenting
an inappropriate affidavit to a judicial officer in seeking a
warrant. Id. at 475 U.S. at 345, 106 S.Ct. at 1098. In the instant
case, the County Sheriff's Deputies were acting on a judicially

16

valid eviction order. This action is protected under quasi-
judicial immunity, and the district court in the instant case was
correct to find sufficient grounds for dismissal of Hoang’s
claim in that regard.

Support is found in Henry v. Farmer City State Bank, 808
F.2d 1228 (7" Cir.1986), where the plaintiff alleged that a
sheriff violated his civil rights in enforcing a foreclosure
judgment. The sheriff in Henry allegedly entered the plaintiff's
house, seized non-exempt property and later sold that
property at a public auction, all pursuant to a circuit court
order directing the sheriff to enforce a judgment. Id. at 1238.
The plaintiff also alleged that the sheriff falsely charged the
plaintiff with contempt of court in connection with the refusal
to comply with the order. Id. The district court dismissed the
claim against the sheriff and this dismissal was upheld by the
Seventh Circuit, which found as follows:

Non-judicial officials whose official duties have
an integral relationship with the judicial
process are entitled to absolute immunity for
their quasi-judicial conduct. Ashbrook v.
Hoffman, 617 F.2d 474, 476 (7th Cir.1980).
Although immunity is normally extended to
those performing discretionary and not
ministerial acts, "those performing ministerial
acts under a judge's supervision and intimately
related to judicial proceedings have quasi-
judicial immunity." Id. at 477 n. 4; see Waits v.
McGowan, 516 F.2d 203, 206 (3d Cir.1975)
(official entitled to absolute immunity afforded
judge if "he is performing a ministerial function
at the direction of the judge"); Duba v. McIntyre,
901 F.2d 590, 592 (8th Cir.1974) (quasi-judicial
absolute immunity extended to police and
other court officers "for purely ministerial acts

17

where they do nothing other than perform
orders issuing from a court").

Sheriff Massey was at all times acting pursuant
to an official court order to enforce a validly
entered judgment when he performed the
allegedly wrongful acts of which the Henrys
now complain. It is difficult to think of a task
more intimately related to a judicial proceeding
than that of enforcing a money judyment
entered by a court. Because the Sheriff was
acting in furtherance of his "official duties in
aid of the court," id. at 477, he ‘s entitled to
quasi-judicial absolute immunity from suit for
damages arising from those acts.

The proper procedure for a party who wishes
to contest the legality of a court order enforcing
a judgment is to appeal that order and the
underlying judgment, not to sue the official
responsible for its execution. See Ashbrook, 617
F.2d at 477.

As in this instance, the Henrys did pursue state appeal

remedies, and the Seventh Circuit reasoned as follows.

To allow the Henrys to attack the order
collaterally by bringing a § 1983 suit against the
Sheriff for damages would require sheriffs and
other court officers who enforce properly
entered judgments pursuant to facially valid
court orders to act as appellate courts,
reviewing the validity of both the enforcement
orders and the underlying judgments before
proceeding to collect on them. Such a result is
obviously untenable.”

18

Id. 808 F.2d at 1238.

Hoang’s §1983 claim against the Allen County Sheriff
or any of the law enforcement officers must fail under the facts
presented since all actions were done pursuant to a valid order
of eviction, which order has been upheld in Hoang’s recent
appeal to the Indiana Court of Appeals. Hoang, 768 N.E.2d at
1035. )

Hoang’s claim that the sheriff is not entitled to
qualified immunity is unsupported. There exists no sufficient
conflict in the jurisdictions on this issue of quasi-judicial
immunity, and the ruling of the Seventh Circuit, which
amounts to an alternative ruling or dicta, does not evoke a
level of departure from usual judicial proceedings
necessitating the granting of certiorari.

IV.
CONCLUSION

The petition for writ of certiorari should be denied.

In Hoang's Petition, he alleges, inter alia, that Sheriff's
deputies “broke his furniture and . . . helped themselves with
[sic] three (3) boxes of his personal property.” Pet. p. 30.
Hoang makes no citation to the record of these events, and
indeed they were not alleged in the district court. These are
. additional unsupported accusations which have no place in a
Petition for Certiorari to the Supreme Court. Hoang presents no
foundation nor supporting evidence, nor any proof that these
accusations where ever made in the record, and as such they
should not be considered.

19
Dated this 30" day of August, 2002.

Respectfully submitted,

HALLER & COLVIN, P.C. HUNT SUEDHOFF

444 EAST MAIN STREET KALAMAROS, LLP

FORT WAYNE, IN 46802 803 S. CALHOUN STREET
‘PHONE: (260) 426-0444 9™ FLOOR

FORT WAYNE, IN 46802
PHONE: (260) 423-1311

BY:_* | 7 ie BY:

SEORGE SISTEVARIS THOMAS G-EWING 7
Indiana Bar #13770-02 Indiana Bar #6765-02
Counsel of Record Counsel of Record

JOHN O. FEIGHNER Counsel for Respondent
Indiana Bar #6800-02 R. Scott Perry

Counsel for Respondent,
James A. Herman, Sheriff
Allen County, Indiana

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0176%3A2. Public record. Not legal advice.