Patton Boggs' Hannibal Kemerer
ITC appellate litigator James A. Worth
The law of judicial reassignment is not frequently invoked. However, when reassignment is an issue, it is important, both to the parties and to the judge involved. Reassignment occurs when a court of appeals directs that, on remand to the district court, the case be reassigned to another district judge. Like recusal, this may occur on motion or sua sponte. Reassignment presents problems for both litigators and judges, and this article proposes a legislative solution. We propose a "two strikes" rule with a presumption in favor of reassignment, and that the legislature eliminate the balancing of judicial economy when considering the appearance of justice.
The provisions of 28 U.S.C. 2106, permitting an appellate court to require reassignment upon remand, present a mixed bag for litigators. The dilemma for litigators is that they do not want the case to be decided by a judge who they perceive as lacking the requisite impartiality. On the other hand, if the litigator invokes the statute and requests reassignment only to be denied, any prevailing decision resulting in a remand to the errant district court judge will likely be a Pyrrhic victory because the litigant will have further alienated the presiding judge.
Reassignment also presents a problem for district judges and courts of appeals. A district judge may perceive reassignment as a lack of confidence in her ability to be impartial. Additionally, courts of appeals may not want to offend district judges through reassignment. The key is to destigmatize reassignment by emphasizing that it is ordered to preserve the appearance of justice and is not a comment on an actual lack of impartiality. Moreover, the legislative solutions proposed here would provide a framework and guidance for the courts in this area, while preserving judicial discretion.
Courts of appeals sometimes send the message that reassignment is undertaken as a punishment or as the result of problems with being impartial. As a result, they may be hesitant to use the reassignment procedure for fear of offending the district judge. For example, the Third Circuit recently stated that reassignment is appropriate "only rarely." The Ninth Circuit explained in one case that the district judge's views were "too entrenched." In another case, the Fifth Circuit stated that a fully informed, reasonable person "would harbor doubts about the judge's impartiality."
Ironically, even when appeals courts issue reassignments, they may say, as did the First Circuit in a recent case, that they "do so with no criticism of the judge." Although we do not object to this kind of palliative statement, it demonstrates the commonly held belief that reassignment may still be viewed as a criticism of the judge.
PROPOSED LEGISLATIVE SOLUTION
We propose that Congress should amend federal law in the following manner: First, federal law should provide that cases that have twice been reversed and remanded to the same district court for the same reason are presumptively reassigned to a new judge. That is, when a district court judge is reversed, rules the same way upon remand, and then is reversed again, there would be a statutory presumption in favor of reassigning the case to another district judge who could step in to close out the case. The presumption could be overcome, however, if the court of appeals discerned no appearance of partiality on the part of the district court judge. We call this a "two-strikes rule." This rule lies somewhere between the automatic reassignment of the Seventh Circuit, and the practice of some circuits, which may erect unnecessary impediments to reassignment. This two-strikes rule would also serve to destigmatize reassignment because it would say nothing of the district judge's partiality or competence.
Second, Congress should codify a modified version of the common law of reassignment and eliminate any consideration of judicial economy in determining whether to reassign a case. Under current law, several circuits have adopted a common law, three-part test to evaluate whether and when to order reassignment upon remand: whether the original judge would have difficulty putting previous views and findings aside; whether reassignment is appropriate to preserve the appearance of justice; and whether reassignment would entail waste and duplication out of proportion to the gains realized from reassignment.
We propose to legislatively eliminate the third prong in this analysis, which allows a remand to the same district judge even with an apparent lack of impartiality if the appearance concern is outweighed by the interest in judicial economy. As a matter of public policy, it should be enough that the original judge would have difficulty putting aside prior views and, in the views of the appellate court, reassignment is appropriate to preserve the appearance of justice. Moreover, judicial economy is best served by virtue of the reassignment anyway.
We believe that these changes are value-neutral. Instead of advantaging one segment of the bar, they benefit parties who prevail on appeal — irrespective of whether they are plaintiffs, prosecutors or defendants. This modest proposal would not constitute an improper legislative interference into the functioning of the judiciary because the circuits would retain discretion in applying the law. Just as the Federal Circuit noted in applying the Seventh Circuit's Rule 36, applying the rule "does not rob this court of its independent duty to assess reassignment in any particular case." Even if Congress adopted our two-strikes rule, the circuits would be "free to permit the default rule to operate or to permit remand to the same judge or to require reassignment when the default rule would not otherwise operate." Rather than make reassignment mandatory upon a second remand, the two-strikes rule merely makes it "presumptively proper." We stand ready to work with all stakeholders — litigators, trial judges, appellate judges and Congress — to evaluate this proposal.
Hannibal Kemerer is a public policy and litigation associate at Patton Boggs, who served six years on the Senate Judiciary Committee staff. James A. Worth is an appellate litigator at the U.S. International Trade Commission and the author of a 2004 Georgetown Journal of Legal Ethics article, "Destigmatizing the Reassignment Power." The views expressed are their own.
