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Today will be the last day that Judge David A. Scholl of the U.S.Bankruptcy Court for the Eastern District of Pennsylvania holds hearings before leaving the bench unhappy that he was not asked to take a second 14-year term by the judges of the 3rd U.S. Circuit Court of Appeals. Scholl’s last official day is Saturday, and he will be out of town on Friday. In an interview Wednesday, just hours after his lawyers had filed suit in the U.S. Court of Federal Claims to challenge his non-reappointment, Scholl spoke at length with The Legal Intelligencer in Philadelphia about his decision to pursue the lawsuit, his thoughts about his critics and his plans for the immediate future. On Monday, Scholl will hang out a shingle, going into private practice with Delaware County, Pa., attorney Eugene J. Malady, whose former law firm, Lastownka Messick & Malady, recently broke up. Scholl said Malady’s is a very small office, with just one associate, and that he intends to practice bankruptcy law but not to limit his practice to that. He will also teach a single course at Temple University’s Beasley School of Law on sales — a course that covers such topics as the law of warranties, an area related to his “consumer background.” He also plans to work with National Consumer Law Center, an organization that works with legal services organizations around the country, and to teach CLE courses. “But I’m hoping that most of it [his income] will come out of the practice,” he said. As for his lawsuit challenging his ouster from the bench, Scholl said he is especially pleased with the “excellent legal team” that is representing him — attorneys Cletus P. Lyman and Richard A. Ash of Philadelphia’s Lyman & Ash and solo practitioner Kenneth A. Jacobsen. While he ultimately wants to be reinstated to his position, Scholl said he is unsure about whether the federal claims court would ever go so far as to order that he be put back on the bench. “My guess is that a court wouldn’t take that on themselves,” he said, speculating that instead, “if the court finds something wrong in the process, it would send the matter back to the 3rd Circuit.” Scholl said that when he received the news in May that he had been denied a second term by the appellate judges, “the whole thing was just utterly shocking and surprising to me. … I have yet to understand what could possibly have been the problem.” Financially, he said, the ouster will have significant effects because he depends on his federal health benefits for such costly items as his son’s growth hormones. And with “very little notice — I am out of here in three months,” Scholl said he did not have the time to land a full-time teaching position. Going into practice after leaving the bench, Scholl said, will affect his federal pension. Although he will receive his full salary beginning at age 65, he said that practicing law will mean that the pension is frozen at its current level. If he taught law school instead, he said, the pension would include any cost-of-living increases that come over the next 11 years. “I’m not crying the blues about that,” he said, but the net loss is likely to be 25 percent to 30 percent. Scholl said he is bothered by the way the appellate court turned him down because “nobody gave me even a hint that there was going to be a vote against me.” When asked why he didn’t just “go away gracefully” by taking a different job before the vote was announced or even held, Scholl said that he never had that chance. “No one ever took me aside and said `maybe you ought to go away gracefully.’ They didn’t do that,” he said. Besides, he said, “I think I am being graceful.” Scholl said “bankruptcy judges nationally were shocked” at the way he was voted off the bench and that he decided to sue because “I think it’s an important issue for all bankruptcy judges.” His “initial thought,” he said, “was to forget about it,” but when his lawyers reviewed the court’s process and looked at the data from comments about him, they said “this is not right.” When the third lawyer also insisted that Scholl was wronged, he said he felt convinced he should file suit. “I respect the court of appeals judges,” Scholl said. “I wouldn’t have thought that anyone on that court would have any problem with me. Somebody must have been telling them something, but I don’t know what.” With any judge, Scholl said, “there will be a substantial minority of lawyers who just don’t like the judge.” But Scholl answered his critics who say he has “an agenda” and that he leans heavily in favor of debtors in his rulings. “If I’m so pro-debtor, why don’t I get reversed in every decision I make?” he asked. But in the next breath, he suggested that there may be some credence to the perception: “I guess relative to some members of the bench and bar I would be [more pro-debtor],” he said. Just prior to the appellate court’s vote in May, Scholl said he was provided with “what purported to be” the comments from lawyers about his performance on the bench. “Many people were disturbed about decisions unfavorable to them,” he said. But Scholl said he was surprised by the court’s decision to send a questionnaire to lawyers — a process they had not used when voting in recent years to give second terms to three other bankruptcy judges. Scholl criticized the process for subjecting bankruptcy judges to the sort of pressures that elected judges must suffer. “If the idea is that we’re going to pick judges to make our lawyers happy, then we’re going to be getting some different results,” he said. But he also said “if it were a judicial retention election, I would have won.” Since the appellate judges never called him in to explain the reasons for their decision, Scholl said he can only speculate. Although it’s “just a feeling,” Scholl said he believes “that there was something said about me, some misconception that was just blown out of proportion — and that I could probably explain it and clear it all up if I were given the chance.” The effect of his ouster, he said, will be damage to judicial independence because it “will create apprehension in the minds of bankruptcy judges — if you get the bar mad at you, you’ll be out of a job.” Judges could react by deciding to “give the lawyers all of the fees they want.”

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