In re: Mary E. Spears and Rosa A. Eliades
921 F.3d 224
D.C. Cir.2019Background
- Abd al‑Rahim Muhammed al‑Nashiri is charged before a Guantanamo military commission with capital offenses (including the USS Cole bombing); Colonel Vance Spath presided as military judge beginning July 2014.
- On November 19, 2015 Spath applied for an immigration judge position in DOJ’s Executive Office for Immigration Review and later received an offer; he never disclosed the application to Al‑Nashiri or defense counsel.
- In 2017–2018 Al‑Nashiri’s civilian defense lawyers (Kammen, Spears, Eliades) sought to withdraw after concerns about attorney‑client confidentiality at Guantanamo; Chief Defense Counsel excused them but Spath refused to recognize the withdrawals and ordered proceedings to continue without ‘‘learned’’ capital counsel.
- Spath issued numerous oral and written rulings while simultaneously pursuing DOJ employment; he abated proceedings on February 16, 2018 and later retired; CMCR reviewed and in part vacated/overturned some of his rulings in October 2018.
- Defense sought discovery and moved to disqualify Spath; CMCR initially denied relief; Al‑Nashiri petitioned this court for a writ of mandamus to vacate orders entered by Spath after his job application date; Spears and Eliades separately sought relief to recognize their withdrawals.
- The D.C. Circuit concluded Spath’s DOJ job application created a disqualifying appearance of partiality and granted mandamus vacating all Spath orders entered on or after November 19, 2015; Spears and Eliades’ petition was dismissed as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Spath’s undisclosed job application to DOJ created an appearance of partiality requiring disqualification | Al‑Nashiri: Spath’s application to the agency that participates in the commission system (including detailing a DOJ prosecutor and AG involvement) created an intolerable appearance of bias; nondisclosure aggravated the appearance | Government: DOJ’s role in commissions is limited compared to DOD; any involvement was too attenuated to require recusal; remedies lie in commission or on appeal | Held: Yes. Appearance of partiality existed; Spath must be disqualified for actions after 11/19/2015 |
| Whether mandamus is available to vacate a disqualified judge’s prior orders | Al‑Nashiri: Ordinary appeal is inadequate because bias inflicts irreparable harm and earlier orders would taint proceedings; mandamus is appropriate to protect appellate jurisdiction | Government: Mandamus is drastic; ordinary remedies in the military commission and CMCR remain available; mandamus unwarranted | Held: Mandamus appropriate because judicial bias causes irreparable harm and ordinary review would not cure the taint |
| Scope of relief: full dismissal of commission vs. selective vacatur of orders | Al‑Nashiri: Prefer complete dissolution of the current commission | Government: Broad vacatur is disruptive; narrow relief or in‑commission challenge suffices | Held: Court ordered vacatur of all Spath orders on or after November 19, 2015 and vacatur of CMCR decisions reviewing those orders (narrower than dissolving entire commission) |
| Relief for Spears and Eliades (recognition of their withdrawal) | Spears/Eliades: CMCR wrongly compelled them to remain as counsel; seek vacatur of CMCR order | Government: CMCR decision stands; separate relief not necessary if Spath’s orders remain intact | Held: Moot. Granting Al‑Nashiri’s relief (vacating Spath and related CMCR orders) provides all requested relief; their petition dismissed as moot |
Key Cases Cited
- Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009) (due‑process limits on judicial participation where probability of bias is high)
- Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (1988) (appearance of justice and factors for vacating judgment for judicial disqualification)
- Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367 (2004) (standards for issuing mandamus relief)
- United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001) (public confidence in judicial integrity requires avoiding even the appearance of partiality)
- In re Murchison, 349 U.S. 133 (1955) (appearance of justice as a prerequisite to judicial proceedings)
- Cobell v. Norton, 334 F.3d 1128 (D.C. Cir. 2003) (mandamus appropriate where recusal is the relief sought because harm is irreparable)
- In re Brooks, 383 F.3d 1036 (D.C. Cir. 2004) (orders issued by a disqualified judge may need vacatur)