The Western Shoshone filed the following complaint of judicial misconduct on February 28, 2001, pursuant to 28 U.S.C. § 372(c)(1) and the rules of the 9th Circuit. The Clerk assigned it docket number 01-80020.
Western Shoshone National Council and
Chief Raymond D. Yowell
Lloyd D. George, District Court, Nevada; and
to the best of our knowledge, based on docket sheet: Joseph T. Sneed,
Edward Leavy, and Stephen S. Trott, Court of Appeals, Ninth Circuit
CV-S-95-00232-LDG (RJJ) and
95-16599
On June 30, 1995, Complainants filed a petition to intervene as of right in United States v. Nye County, (Nevada District Court No. CV-6-96-00232-LDO (RJJ)) asserting Western Shoshone rights against the United States and Nye County, Nevada.
On July 17, 1995, the United States filed an opposition to intervention, arguing that the law precluded Western Shoshone tribal intervention and that individual intervention was not being sought.
On July 25, 1995, the district court denied intervention, violating its own Local Rule 140-5 by not allowing Complainants ten days to reply to the opposition.[1] Denial was grounded on a finding that "the Shoshone do not have a legally-protectible (sic) interest in the land...."
On July 27, 1995, Complainants' reply was filed, arguing that individual rights were indeed being asserted and challenging the alleged legal preclusion of tribal intervention.
On August 14, 1995, Complainants filed a notice of appeal and a motion for stay of the denial of intervention. On September 25, the court denied the request for a stay.
On November 27, 1995, the appeal was docketed in the ninth circuit court of appeals, No. 95-16599. A district court's denial of a motion to intervene as of right is reviewed de novo (United States. v. Oregon, 913 F.2d 576, 587 (1990)).
On February 7, 1996, the United States filed an opposition to intervention. The Western Shoshone filed a reply the same month. On March 7, 1996, the court of appeals gave notice that it was considering submission of the case without oral argument.
On May 12, 1997, Complainants-having heard news reports of possible dismissal of the U.S. action against Nye County-filed an objection to dismissal in district court. The objection was denied as moot on June 6, 1997, on the grounds that the action had been dismissed on May 6, 1997.
As of May 1997, when the district court action was dismissed, the court of appeals had entered no decision in the matter of intervention. The matter was therefore still pending.
Federal Rules of Civil Procedure, Rule 41, provides that an action may be dismissed by stipulation "signed by all parties" [FRCP 41 (a)(1)(ii)] and by order of the court; except that "If a counterclaim has been pleaded by a defendant prior to the service...of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication...." [FRCP 41 (a)(2)]
FRCP Rule 41(c) states further, clearly and unambiguously, that "The provisions of this rule apply to the dismissal of any counterclaim, cross-claim, or third-party claim."
Complainants' petition to intervene constituted a "third-party claim" that would not "remain pending for independent adjudication" if the action were dismissed. Complainants' objection was therefore a bar to dismissal under FRCP Rule 41. So long as appeal of the petition denial remained unresolved, the Rule precluded dismissal of the action over Complainants' objection. Dismissal of the action against Complainants' objection constituted a denial of due process.
On May 12, 2000, more than four years after notification that the court of appeals was considering the intervention petition without oral argument, the Western Shoshone inquired by letter as to the status of the appeal. The letter asserted that the Western Shoshone, as third-party intervenors, retained rights in the matter, notwithstanding the district court's order of partial judgment as between the United States and Nye County. The letter also asserted that the matter involved continuing unresolved issues regarding the relationship of the Western Shoshone to the United States.
The court of appeals replied with copies of docket sheets indicating a series of events and filings in the district and appeals courts prior to dismissal of the action and after Complainants' intervention petition, involving the United States, Nye County, and other parties-including other intervenors. Complainants had not received notice of any of these events or filings.
According to the docket sheets, Complainants' intervention appeal was submitted to a screening panel on December 15, 1997-28 months after filing, 21 months after notice that the appeal would be considered without argument, and 7 months after dismissal of the district court action. The docket showed that intervention was denied December 19. Complainants had received no notice of this decision.
At no point does it appear from the docket sheets that the court of appeals considered Complainants' intervention on its merits or in relation to FRCP Rule 41. Complainants were effectively shut out from participation in the case, including opportunity to file timely objection to dismissal to preserve their third-party cause of action.
Not until Chief Yowell inquired by letter to the clerk of the court of appeals in May 2000, were Complainants informed of the status of the intervention petition and provided with a docket sheet showing the course of litigation that had been conducted and concluded entirely without notice to Complainants.
The judges' preclusion without due process of law of Western Shoshone intervention in litigation affecting their rights is to be evaluated in conjunction with judicial failures in related subsequent litigation. [See companion complaint of Judicial Misconduct against Howard D. McKibben; docket # CV-S-97-0327-HDM (RLH).] The Western Shoshone National Council needs a fair and judicious review of all proceedings in both cases.
The Western Shoshone believe that the judges' actions have been prejudicial to the fair, effective, and expeditious administration of the business of the courts. They believe that the Nevada District Court and the 9th Circuit Court of Appeals have failed to provide fair, effective, and expeditious means to litigate Western Shoshone rights.
The Western Shoshone request a review of this complaint in accordance with 28 U.S.C. _ 372(c)(1) and the rules of this circuit governing complaints of judicial misconduct.
1. Local Rule 140-5 states that a moving party "shall have ten days after service of the responsive memorandum to file and serve a reply memorandum."