U.S. Court of Appeals for the Ninth Circuit S. Todd Rogers / The Recorder

SAN FRANCISCO — In what it termed a “cautionary tale” about judges posting on social media about pending cases, the U.S. Court of Appeals for the Ninth Circuit on Thursday turned back a bid by Sierra Pacific Industries Inc. to unwind a $122 million deal the timber giant reached to settle federal claims that it was liable for the 2007 Moonlight Fire, a blaze that consumed nearly 65,000 acres in the Plumas National Forest.

In a 34-page opinion written by Chief Judge Sidney Thomas, the appellate court held Sierra Pacific’s allegations that government lawyers withheld pertinent information and induced witnesses to provide misleading testimony didn’t make out a claim rising to the level of fraud on the court. The appellate court also turned back Sierra Pacific’s argument that Twitter posts by the trial judge overseeing the case showed bias and warranted a recusal.

“Nonetheless,” wrote Thomas, “this case is a cautionary tale about the possible pitfalls of judges engaging in social media activity relating to pending cases, and we reiterate the importance of maintaining the appearance of propriety both on and off the bench.”

On appeal, the timber company’s lawyers, led by William Warne of Downey Brand in Sacramento, pointed to the activity of the Twitter account @nostalgist1, which allegedly belonged to U.S. Senior Judge William Shubb in Sacramento, who signed off on the settlement in 2015. The account, the defense lawyers pointed out, followed the Twitter handle for the U.S. Attorney’s Office for the Eastern District of California, the office handling the case which tweeted eight times about the case in the wake of the settlement.

In addition, the defense lawyers pointed out that the @nostalgist1 account retweeted a news story headlined “Sierra Pacific still liable for Moonlight Fire damages,” a headline that Sierra Pacific took particular offense to since the company never admitted liability and the settlement specified that its payment amount was not damages. The @nostalgist1 Twitter account, which was public while the case was ongoing at the district court, was made private by the user after the issue was raised in appellate briefing.

At the Ninth Circuit, Thomas noted that issues surrounding the Twitter account were being raised for the first time on appeal and that the record hadn’t established that the account actually belonged to Shubb. But even assuming that it did, Thomas wrote, Sierra Pacific’s arguments for the judge’s recusal and reversal of the settlement fell short. “The claim that an unknown account, not identified with a judge or the judiciary, followed a public Twitter account maintained by the U.S. Attorney does not provide a basis for recusal here,” Thomas wrote.

In the case of the offending article post, Thomas said that even if it was tweeted by Shubb, it wasn’t problematic. “The tweet consisted only of the title and link to a publicly available news article about the case in a local newspaper, without any further commentary,” Thomas wrote. “Under the standard of review applicable at this stage, the district judge did not plainly err in not recusing himself because he tweeted the link to this news article.”

In a long footnote, Thomas wrote that a committee of the Judicial Conference of the United States has issued an opinion that when judges identify themselves as a “fan” of an organization on social media, it can “create the appearance of impropriety.” Likewise, the judge pointed out that the ABA has warned that social media connections can create “the perception of a relationship that requires disclosure or recusal.”

“Nothing suggests that following a Twitter account under the circumstances here rises to the level of creating an appearance of impropriety,” Thomas wrote.

Sierra Pacific’s attorney Warne and Richard Linkert of Matheny Sears Linkert & Jaime, an attorney for the landowner co-defendants in the case, didn’t immediately respond to email messages Thursday morning.

In a prepared statement, U.S. Attorney Phillip A. Talbert of the Eastern District of California said the office was “gratified but not surprised by today’s decision, which helps make an important point this fire season.”
“Consistent with the best traditions of the U.S. Department of Justice, our office will continue to hold the careless to account,” he said.

Ross Todd is bureau chief of The Recorder in San Francisco. He writes about litigation in the Bay Area and around California. Contact Ross at rtodd@alm.com. On Twitter: @Ross_Todd.