A Big Question Was Asked of the Court of Appeals for the Eleventh Circuit: Are Y’all Impartial?

Eleventh Circuit’s Recent ‘Big Question’ Recusal Opinion Analyzed by LIT

Burke’s Renewed Motion to Intervene Appeal
(Decided: 1 Mar., 2022)

We review for abuse of discretion a judge’s decision not to recuse under 28 U.S.C. § 455.

Murray v. Scott, 253 F.3d 1308, 1310 (11th Cir. 2001).

Eleventh Circuit issue a conflicting opinion. We subscribe to daily opinions – on March 1, 2022, we did not receive any newsletter, the day this opinion was released. https://t.co/hxzAF1mq9M #Liars

— lawsinusa (@lawsinusa) March 2, 2022

The Burkes’ argument for recusal was based on Judge Marra’s adverse ruling on their motion to intervene, and

“ordinarily, a judge’s rulings in the same or a related case may not serve as the basis for a recusal motion.”

McWhorter v. City of Birmingham, 906 F.2d 674, 678 (11th Cir. 1990) (per curiam);

see also In re Walker, 532 F.3d 1304, 1311 (11th Cir. 2008) (per curiam)

(“Adverse rulings are grounds for appeal but rarely are grounds for recusal.”);

In re Evergreen Sec., Ltd., 570 F.3d 1257, 1274 (11th Cir. 2009)

(“Challenges to adverse rulings are generally grounds for appeal, not recusal.”).

The district court’s denial of the Burkes’ motion for recusal is AFFIRMED.

Reassignment after Appeal (2022 circuit cases)

Tumey v. Mycroft AI, Inc., No. 21-1975 (8th Cir. Mar. 4, 2022)

“Because a reasonable person aware of all the circumstances and events that have transpired so far would harbor doubts about the judge’s impartiality, reassignment to a different judge is appropriate.”

United States v. Romano, 15-992-cr (L), at *7 (2d Cir. Feb. 10, 2022)

“While generally, cases should be remanded to the same judge from whom the appeal originated, we have also recognized that “‘in a few instances there may be unusual circumstances where both for the judge’s sake and the appearance of justice,’ an order of reassignment is appropriate.”

Mackler Prods., Inc. v. Cohen, 225 F.3d 136, 146-47 (2d Cir. 2000) (quoting United States v. Robin, 553 F.2d 8, 9-10 (2d Cir. 1977) (en banc)).

“We conclude that this is one of those rare cases.”

United States v. Johnson, No. 19-2418, at *1 (6th Cir. Jan. 31, 2022)

On remand , we order this case be reassigned to another district court judge for a new trial. We have a duty to supervise district courts to ensure “proper judicial administration in the federal system.”

Reassignment by Lower Court and Transfer to Another District (2022)

Patterson v. Mahwah Bergen Retail Grp., CIVIL 3:21cv167 (DJN), at *1 (E.D. Va. Jan. 13, 2022)

“Finally, the Court FINDS that the interests of justice warrant reassigning this case to another Bankruptcy Judge in this district outside of the Richmond Division and therefore ORDERS the Chief Judge of the Bankruptcy Court for this district to REASSIGN this case on remand to another Bankruptcy Judge in this district outside of the Richmond Division.

Reassignment after Appeal (2021 circuit cases)

United States v. Khan, 997 F.3d 242 (5th Cir. 2021)

“And because the sentencing judge seems immovable from his views of the sentence he imposed, and because the judge displayed bias against the government and its lawyers, we sua sponte reassign this case to a different judge.”

United States v. Lanier, 988 F.3d 284 (6th Cir. 2021)

“The district court’s questionable handling of the Laniers’ case compromised the appearance of justice; to avoid the mien of partiality, we order that this case be assigned to a different district judge on remand .”

United States v. Mathes, No. 20-30183, at *8 (5th Cir. Jan. 6, 2021)

“On remand, the district court shall reassign this case to another judge. Our authority to order reassignment is “an extraordinary power and should rarely be invoked. Reassignment is necessary in this case not only to ensure that justice is done, but also to maintain the appearance of justice.”

Miller v. Sam Hous. State Univ., 986 F.3d 880 (5th Cir. 2021)

Cited in Burkes Appeal constantly.

United States v. Trimm, 999 F.3d 119, 130 (2d Cir. 2021)

“…we conclude that this is one of those rare cases in which “both for the judge’s sake and the appearance of justice, an assignment to a different judge ‘is salutary and in the public interest.’ ”

Winecup Gamble, Inc. v. Gordon Ranch LP, No. 20-16411, at *2-3 (9th Cir. June 17, 2021)

“Upon remand , we instruct the Chief Judge of the District of Nevada to assign this case to a different judge for further proceedings. Because the district court has now twice erroneously issued pretrial orders terminating the case, reassignment is appropriate to preserve the appearance of justice”

United States v. Warren, 8 F.4th 444, 447-48 (6th Cir. 2021)

“Warren’s first argument wins the day. The government indeed breached his plea agreement. We therefore vacate Warren’s sentence and, following our precedent, remand his case for resentencing before a different district court judge.”

A Generational-Shift

In re Citizens Bank, No. 19-3046, at *15 (3d Cir. Oct. 5, 2021)

“The day we issued our stay, the District Judge filed a supplemental response to the mandamus petition, joining Citizen Bank’s request that the case be reassigned.The District Judge indicated that he had taken senior status under 28 U.S.C. § 371 and favored a “generational-shift to another trial judge to manage the case in the future.””