The United States Court of Appeals for the District of Columbia Circuit today ordered the chief judge of the district court to reassign the Indian trust case, Elouise Pepion Cobell, et al., v. Dirk Kempthorne, Secretary of the Interior, et al., to a new judge.
In short, in case after case the district court granted extensive relief against Interior, and in case after case we reversed, even under highly deferential standards of review. To be sure, repeated reversals, without more, are unlikely to justify reassignment. But here there is more. For one thing, on several occasions the district court or its appointees exceeded the role of impartial arbiter by issuing orders without hearings and by actively participating in evidence-gathering. For another, the July 12 opinion levels serious charges against Interior and its officials, charges that not only bear no relationship to the issue pending before the court, but also go beyond criticizing Interior for its serious failures as trustee and condemn the Department as an institution.
From all of this evidence, “an objective observer is left with the overall impression,” Microsoft I, 56 F.3d at 1463, that the district court’s professed hostility to Interior has become “so extreme as to display clear inability to render fair judgment,” Liteky, 510 U.S. at 551. What distinguishes this case from one in which a judge has merely become “exceedingly ill disposed towards [a party which] has been shown to be … thoroughly reprehensible,” id. at 550-51, is, most certainly, not any redeeming aspect of Interior’s behavior as trustee. Rather, what distinguishes this case is the combination of the content of the July 12 opinion and the nature of the district court’s actions. Given these seemingly unique circumstances, and given that “justice must satisfy the appearance of justice,” Offutt v. United States, 348 U.S. 11, 14 (1954)—that is, reasonable observers must have confidence that judicial decisions flow from the impartial application of law to fact, not from a judge’s animosity toward a party—we conclude, reluctantly, that this is one of those rare cases in which reassignment is necessary.
“From all of this evidence, “an objective observer is left with the overall impression,” Microsoft I, 56 F.3d at 1463, that the district court’s professed hostility to Interior has become “so extreme as to display clear inability to render fair judgment,” Liteky, 510 U.S. at 551.”
Ya think? Seems like this was overdue to say the least.
Not counting the removal of the judge, the Court of Appeals reversed the District Court eight times. As they note, “Ten judges of this court have heard one or more of these appeals. Not one has dissented.”