736 F.3d 166
2d Cir.2013Background
- These consolidated matters arise from Judge Shira A. Scheindlin’s rulings in Floyd (stop-and-frisk litigation), in which she found NYPD practices violated the Fourth and Fourteenth Amendments and ordered injunctive relief including a monitor and body-worn cameras.
- The City sought a stay of those remedies; the district court denied a stay and the City renewed the request in the Second Circuit.
- After extended oral argument, the Second Circuit granted a stay of the district-court remedies and sua sponte reassigned the cases to a randomly chosen Southern District judge to avoid an appearance of partiality under 28 U.S.C. § 455(a).
- Judge Scheindlin, through counsel, moved in the Second Circuit for leave to appear to contest the reassignment — alternatively as counsel for the district judge, as amicus, or via an order under Fed. R. App. P. 21 — arguing the reassignment should be vacated or limited.
- The Court considered whether a district judge may formally appear before an appellate court to challenge reassignment or to defend against any suggestion of misconduct, and whether the procedural bases invoked (Rule 21, Rules 27/29, All Writs Act, constitutional claims) supported such participation.
- The Second Circuit concluded reassignment was based on § 455(a) appearance-of-partiality concerns, that Judge Scheindlin identified no proper procedural mechanism to appear, and denied her motion to appear or to litigate reassignment in this Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a district judge may appear in an appellate proceeding to challenge reassignment of her cases | Scheindlin (through counsel) sought leave to appear as party, intervenor, or amicus to contest reassignment and alleged procedural grounds for review | Court: no recognized procedural mechanism allows a district judge to appear in an appeal of her own decisions outside a mandamus context | Denied — district judges may not formally appear to contest reassignment outside proper mandamus proceedings |
| Whether Rule 21 / mandamus procedures authorize a district judge to respond in this posture | Scheindlin invoked Rule 21(b)(4) and related mandamus principles to justify counsel’s appearance | Court: Rule 21 applies only to mandamus petitions; no mandamus petition exists here, so Rule 21 is inapplicable | Denied — Rule 21 not applicable absent a mandamus petition |
| Whether reassignment causes a legal injury giving the judge standing to object | Scheindlin argued reassignment implicated her interests and reputation; sought opportunity to defend against ethics implications | Court: reassignment is not a legal injury to a judge; judges have no legal stake in case outcomes and reassignment preserves appearance of justice under § 455(a) | Held — judge lacks standing to contest reassignment as a legal injury |
| Whether constitutional (First/Fifth) or All Writs Act remedies permit the requested relief | Scheindlin invoked First Amendment, Due Process, All Writs Act, and §§ 2106/1651 to permit review/appearance | Court: First Amendment does not nullify § 455(a) limitations on judicial speech in pending litigation; Due Process not implicated because reassignment is not a legal injury; statutes cited do not create a right for a judge to appear | Denied — constitutional and statutory bases do not authorize the requested participation |
Key Cases Cited
- Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367 (2004) (mandamus is a drastic, extraordinary remedy and is limited in scope)
- Ex parte Fahey, 332 U.S. 258 (1947) (mandamus is reserved for extraordinary causes)
- In re Murchison, 349 U.S. 133 (1955) (appearance of justice and impartiality requirement)
- Brown v. Baden, 815 F.2d 575 (9th Cir. 1987) (appellate authority to order reassignment; mandamus used to compel compliance)
- In re The City of New York, 607 F.3d 923 (2d Cir. 2010) (enumerating standards for extraordinary writs and mandamus relief)