A U.S. District Court Judge Actually Refused to Recuse Himself When He Was Assigned a Case in Which He Was a Named Defendant

The Failure of U.S. Federal Judges to Promote Public Confidence in the Impartiality of the Judicial Process

On November 5, 2020, a civil RICO complaint was filed against the Honorable Carl J. Barbier, co-liaison counsel, and two fund administrators as a result of their tortious conduct in the BP oil well blowout multidistrict litigation (MDL 2179). In light of the concerns about the spread of the COVID-19 virus, Plaintiff only filed the complaint. Plaintiff did not present a summons to the clerk for signature and seal. Contingent on the severity of the spread of the COVID-19 virus, Plaintiff intended to have the defendants served with a copy of the summons and complaint within the time allowed by FRCP Rule 4(m). This lawsuit was filed against the defendants in the U.S. District Court for the Middle District of Florida.

On November 23, 2020, only 18 days after the complaint was filed and before a summons was even issued, the Judicial Panel on Multidistrict Litigation (“JPML”) files a Conditional Transfer Order (CTO-140) for the purpose of initiating the transfer of the civil RICO complaint from the U.S. District Court for the Middle District of Florida to the U.S. District Court for the Eastern District of Louisiana.

On February 4, 2021, the JPML issues a Transfer Order transferring Donovan v. Barbier, et al. to the U.S. District Court for the Eastern District of Louisiana and, with the consent of that court, assigning the case to the Honorable Carl J. Barbier.

On February 17, 2021, given that Judge Barbier refused to recuse himself from this case, a case in which he is a named defendant, Plaintiff voluntarily dismissed the case for the reasons stated in the memorandum of law filed in support of his Notice of Voluntary Dismissal.

The Two Principal Statutes Governing the Disqualification or Recusal of Federal Judges

The two principal statutes governing the disqualification or recusal of federal judges are 28 U.S.C. § 144 (“Bias or prejudice of judge”) and 28 U.S.C. § 455 (“Disqualification of justice, judge or magistrate judge”). 28 U.S.C. § 144 deals exclusively with actual bias or prejudice, whereas 28 U.S.C. § 455(a) deals with the appearance of partiality. 28 U.S.C. § 144 is triggered by a party’s affidavit, whereas 28 U.S.C. § 455 may be invoked in a motion by a party or sua sponte by the judge.

28 U.S.C. § 455(a): The Appearance of Partiality

Any justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. 28 U.S.C. § 455(a). As the U.S. Supreme Court has explained, that provision requires that the judicial conduct at issue be evaluated on an objective basis, so that what matters is not the reality of bias or prejudice but its appearance. Quite simply and quite universally, recusal was required whenever “impartiality might reasonably be questioned.” Liteky v. United States, 510 U.S. 540, 548 (1994)(Scalia, J.). Thus, it is the appearance of partiality - and not actual bias - that is the test for recusal under Section 455(a): “In applying § 455(a), the judge’s actual state of mind, purity of heart, incorruptibility, or lack of partiality are not the issue.” United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993).

Even if the decision to recuse in a particular case were a close one, the statute’s purpose of promoting public confidence in the judiciary requires that judges must resolve any doubts in favor of recusal. See, e.g., Republic of Panama v. American Tobacco Co., 217 F.3d 343, 347 (5th Cir. 2000)(“[I]f the question of whether § 455(a) requires disqualification is a close one the balance tips in favor of recusal.”); In re United States, 158 F.3d 26, 30 (1st Cir. 1998), Nichols v. Alley, 71 F.3d 347, 352 (10th Cir. 1995); United States v. Dandy, 998 F.2d 1344, 1349 (6th Cir. 1993)(“Where the question is close, the judge must recuse himself.”); United States v. Kelly, 888 F.2d 732, 744 (11th Cir. 1989) (Section 455(a) “requires judges to resolve any doubts they may have in favor of disqualification.”).

Congress established the “appearance of impartiality” standard “to promote public confidence in the integrity of the judicial process.” Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 860 (1988). The legislative history of § 455(a) is clear:

This general standard is designed to promote public confidence in the impartiality of the judicial process by saying, in effect, if there is a reasonable factual basis for doubting the judge’s impartiality, he should disqualify himself and let another judge preside over the case. H. Rep. No. 93-1453, p. 5 (1974), U.S. Code Cong. & Admin. News 1974, p. 6355.

In the words of the Seventh Circuit, “Once a judge whose impartiality toward a particular case may reasonably be questioned presides over that case, the damage to the integrity of the system is done.” Durhan v. Neopolitan, 875 F.2d 91, 97 (1989).

Plaintiff points out that the Honorable Carl J. Barbier’s impartiality “might reasonably be questioned,” and the public’s confidence in the integrity of the judicial process is damaged, when Judge Barbier is presiding over a civil RICO case in which he is a defendant.

There is a Heightened Need to Preserve the Appearance of Impartiality in Bench Trials

The question has sometimes arisen as to whether the standard for disqualification differs in a bench trial where the judge’s role is even more pivotal than in a jury trial. In Alexander v. Primerica Holdings, Inc., 10 F.3d 155 (3d Cir. 1993), the court of appeals said: “We cannot overlook the fact that this is a non-jury case, and that [the judge] will be deciding each and every substantive issue at trial….When the judge is the actual trier of fact, the need to preserve the appearance of impartiality is especially pronounced.”

Plaintiff points out that there is a heightened need to preserve the appearance of impartiality in Donovan v. Barbier, et al., a bench trial in which Judge Barbier is a defendant.

Generally, Why Do MDL Judges Refuse to Recuse Themselves?

Judge Alex Kozinski characterizes self-transfer in MDL as “a remarkable power grab by federal judges,” because the practice exceeds the authority Congress granted to MDL judges.

Judge Patrick E. Higginbotham further explains, “The disconnect between the power of the transferee judge and the power that the judge exercises rests on a statute that authorizes only the transfer of cases to that judge for purposes of pretrial proceeding with return to their filing homes, as the U.S. Supreme Court made clear in Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach. The rest of the operation finds its footing in some form of consent and assertions of implied and inherent authority sometimes on little more than empty air.”

Nonetheless, an MDL judge wants to be viewed as the hero who has resolved the disputes rather than the ineffectual colleague whose inability to achieve a settlement left his fellow trial judges with the task of trying each case individually. As a result, MDL cases most often result in settlement or other disposition before the MDL judge rather than proceed to final judgment. This increased pressure on MDL judges to promote an early settlement or dismiss cases, rather than remand, exists independently of the true value of the claims.

An MDL judge’s ego will not allow him to appear as an “ineffectual colleague” who leaves his fellow trial judges with the task of trying each case individually. Unfortunately, this ego results in MDL judges replacing justice with judicial efficiency. The vast majority of MDL judges believe it is better to settle or dismiss cases in MDL, and be respected by their peers, rather than remand the cases and be viewed as a failure by their fellow trial judges.

The JPML views quickly settling a complex case as a hallmark of success that favorably disposes it to reward that judge with a new assignment. Conversely, failing to resolve cases quickly can subject MDL judges to scrutiny from the JPML. As Judge Eduardo Robreno, who handled the asbestos MDL, observed, “As a matter of judicial culture, remanding cases is viewed as an acknowledgement that the MDL judge has failed to resolve the case, by adjudication or settlement, during the MDL process.” So, MDL judges have their own professional and reputational incentives to broker deals and thwart remand.