Federal Circuit disposition — 2010-m929-5-19-10-1-pdf

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# United States Court of Appeals for the Federal Circuit

IN RE CAROLYN D. SHOCKNESS,
Petitioner.

2010-M929

On Petition for Writ of Mandamus to the Merit Sys-
tems Protection Board in case no. DC0752090689-I-2

## ON PETITION FOR WRIT OF MANDAMUS

Before RADER, FRIEDMAN and GAJARSA, Circuit Judges.
PER CURIAM.

## ORDER

Carolyn D. Shockness petitions for a writ of manda-
mus to direct the Administrative Judge in her case to
vacate her order denying Shockness's motion for recusal,
to direct the Administrative Judge to disqualify herself,
and to direct that Shockness's representative be allowed
to represent her before the Merit Systems Protection
Board. Shockness moves to "correct" the docketing of her
mandamus petition to change the designation of the
respondent and moves to stay proceedings before the

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Board. Shockness also moves for leave to proceed in
forma pauperis.

Shockness filed an appeal with the Board challenging
an asserted constructive suspension. During the proceed-
ings, the Administrative Judge warned Shockness's
representative, Paula K. Lua, to not initiate inappropriate
contact. For example, in an order dated August 25, 2009,
the Administrative Judge mentioned that the appellant's
representative left "a very rude and angry voicemail
message ... concerning the docket number in this ap-
peal." In the order, the Administrative Judge also warned
that the voicemail message "appears to be an attempt to
engage in prohibited ex parte communications with the
administrative judge concerning the merits of the appel-
lant's pending appeal as the agency was not privy to her
communication." The Administrative Judge ordered the
representative "not to attempt to contact me again, orally
or in writing, without providing the agency with an oppor-
tunity to participate in the communication."

In the August 25, 2009 order, the Administrative
Judge also denied Shockness's motion that she recuse
herself. The Administrative Judge stated:

The appellant argues that she is entitled to re-
ceive a fair and just adjudication of her affirma-
tive defense of disability discrimination (failure to
accommodate). The appellant has no basis to as-
sert that I have not fairly adjudicated this matter.
Nor has she shown a substantial showing of per-
sonal bias to justify my disqualification from the
appeal. Therefore, the appellant's request for me
to recuse myself from this appeal is DENIED.

Subsequently, on January 26, 2010, the Administra-
tive Judge granted the Postal Service's motion to disqual-
ify the appellant's representative from further
participation in the case. The events leading to the

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disqualification of the appellant's representative, as listed
by the Administrative Judge in her January 26, 2010
order, are summarized below.

The Administrative Judge first mentions the voice-
mail message that she previously discussed in her August
25, 2009 order. The Administrative Judge also mentions
that during a December 10, 2009 conference call:

Ms. Lua was extremely rude and disrespectful.
She commented that I was not a very good admin-
istrative judge and again implied that I was bi-
ased as she alleged that I had colluded with the
agency in all of my rulings that were not in the
appellant's favor. She raised her voice and spoke
over me after repeatedly being cautioned not to do
so.

The Administrative Judge notes that, following the con-
ference call, the Postal Service's representative filed two
pleadings to have various e-mail communications entered
into the record. The Administrative Judge notes that Lua
stated in her e-mails, inter alia:

"I pray for you and the judge that you repent from
your evil ways."

"The word of the Most High God promised to re-
move all my STUMBLING BLOCKS. GOD WILL
PART THE RED SEA FOR ME AND MS.
SHOCKNESS. I AM MANDATED BY PSALMS
149 TO DEAL WITH YOU AND THE CORRUPT
JUDGE."

"WHY ARE YOU UPLOADING DOCUMENTS
TO THE BOARD AFTER THE RECORD
CLOSED. YOU KNOW THE RECORD CLOSED
ON OCTOBER 4, 2009. YOU LOW DOWN
SNAKE YOU DID NOT USE THE E-FILE
SYSTEMS SO THAT I WOULD NOT BE

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NOTIFIED. MORE EVIDENCE THAT YOU
MUST BE DISBARRED. YOU NEED TO
VOLUNTARILY RESIGN TO SAVE THE
AGENCY'S RESOURCES !!! SO I THANK YOU
FOR MAKING IT SO EASY."

"What is it for a man to gain the whole world and
lose his soul. Sir you are a liar and thief and you
wipe your boots on the US Constitution everyday.
You are a disgrace to our judicial system and to
all the young men and women fighting in the
middle east so that jerks like you eat sleep and
shit another day in peace. Go defile yourself with
your own European American penis. Please know
that I will not stop until I get you disbarred pur-
suant to the False Claims Act. When I think of
you I see Bullwinkle trying to pull a rabbit out of
his hat. Keep watching mail for that infamous
letter rescinding your license to practice law. You
sir would spit on the ground and drown your own
mother in it. You have no integrity or honor what
was I thinking attempting to negoiate [sic] with a
nefarious individual like yourself."

The Administrative Judge states in her order that after
reviewing those e-mail communications, she ordered Lua
on December 15, 2009 to cease and desist from sending
disrespectful, insulting or threatening communications to
her or the Postal Service's representative.

The Administrative Judge states that on January 19,
2010, Lua sent an e-mail message through the Board's e-
Appeal system in which Lua suggests that a document
had been deleted and asserts that "Admin Judge Robin-
son Styles is a slick fish but not slick enough." The Postal
Service attached to its motion to disqualify Lua an e-mail
exchange including Lua's statements, made on January
20, 2010, that referred to the Postal Service's representa-
tive as "a most unsavory character" who exhibited "ruth-

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lessness." Lua's e-mail also stated that the Postal Service
representative needs to "see someone about your
Sociopath disorder it is getting vicious." The Administra-
tive Judge states that Lua did not deny that the com-
ments were made but instead suggested that the
Administrative Judge should only warn her again.

The Administrative Judge held that she could exclude
a party or representative or other person for contuma-
cious conduct or misbehavior. 5 C.F.R. § 1201.31(d)(1)
(2009) ("A judge may exclude a party, a representative, or
other person from all or any portion of the proceeding
before him or her for contumacious misconduct or conduct
that it prejudicial to the administration of justice."). The
Administrative Judge granted the motion to disqualify
Lua from representing Shockness and granted a thirty-
day suspension of proceedings to allow Shockness to
obtain another representative.

In her mandamus petition, Shockness makes general
assertions of error but does not meet the exacting stan-
dard for mandamus relief. The writ of mandamus is
available in extraordinary situations to correct a clear
abuse of discretion or usurpation of judicial power. In re
Calmar, Inc., 854 F.2d 461, 464 (Fed. Cir. 1998). A party
seeking a writ bears the burden of proving that it has no
other means of obtaining the relief desired, Mallard v.
U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296, 309
(1989), and that the right to issuance of the writ is "clear
and indisputable," Allied Chem. Corp. v. Daiflon, Inc., 449
U.S. 33, 35 (1980). A court may deny mandamus relief
"even though on normal appeal, a court might find re-
versible error." In re Cordis Corp., 769 F.2d 733, 737
(Fed. Cir. 1985); see also United States v. Watson, 603
F.2d 192, 196-97 (C.C.P.A. 1979) ("the writ will not issue
to cure the mere commission of reversible error"). "That a
petitioner may suffer hardship, inconvenience, or an
unusually complex trial does not provide a basis for a

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court to grant mandamus." In re Roche Molecular Sys.,
Inc., 516 F.3d 1003, 1004 (Fed. Cir. 2008) (citing Watson,
603 F.2d at 195).

Accordingly,

IT IS ORDERED THAT:

(1) The petition for a writ of mandamus is denied.

(2) The motion for leave to proceed in forma pauperis
is granted.

(2) All other pending motions are denied.

FOR THE COURT

MAY 1 9 2010

/s/ Jan Horbaly

Date

Jan Horbaly Clerk

cc: Carolyn D. Shockness
Jeffrey D. Klingman, Esq.
Merit Systems Protection Board, Administrative
Judge
$8

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
MAY 1 9 2010

JAN HORBALY
CLERK