Ligon v. City of N.Y. (In re Motion of Dist. Judge)

• Decision Date: 13 November 2013
• Docket Number: Nos. 13–3123,13–3088.,s. 13–3123
• Citation: 736 F.3d 166
• Parties: In re MOTION OF DISTRICT JUDGE. Jaenean Ligon, et al., Plaintiffs–Appellees, v. City of New York, et al., Defendants–Appellants. David Floyd, et al., Plaintiffs–Appellees, v. City of New York, et al., Defendants–Appellants.
• Court: U.S. Court of Appeals — Second Circuit

736 F.3d 166

In re MOTION OF DISTRICT JUDGE.

Jaenean Ligon, et al., Plaintiffs–Appellees,

v.City of New York, et al., Defendants–Appellants.

David Floyd, et al., Plaintiffs–Appellees,

v.City of New York, et al., Defendants–Appellants.

Nos. 13–3123, 13–3088.

United States Court of Appeals, Second Circuit.

Nov. 13, 2013.

Alexis B. Karteron, Esq., Christopher Thomas Dunn, Daniel Mullkoff, Esq., New York Civil Liberties Union, Juan Cartagena, Esq., Roberto Concepcion, Jr., Esq., Latino Justice Prldef, Michael Grunfeld, Esq., John A. Nathanson, Esq., Jeffrey J. Resetarits, Esq., Shearman & Sterling Llp, J. McGregor Smyth, Jr., Esq., New York Lawyers for the Public Interest, New York, NY, Mariana Louise Kovel, Esq., The Bronx Defenders, Bronx, NY, for Plaintiffs–Appellees.

Celeste L. Koeleveld, Deborah A. Brenner, Kathy H. Chang, Esq., Heidi Grossman, Fay Sue Ng, New York City Law

Department, New York, NY, for Defendants–Appellants.

Present: JOHN M. WALKER, JR., JOSÉ A. CABRANES, and BARRINGTON D. PARKER, Circuit Judges.

PER CURIAM.

These cases, motions of which were argued in tandem and decided on October 31, 2013, and which concern the so-called “stop-and-frisk” policies of the New York City Police Department, have, quite apart from the underlying merits, raised a number of unusual procedural issues. In a separate opinion published contemporaneously with this one, we explain the basis of our prior, brief order reassigning these cases from Judge Shira A. Scheindlin to a new district judge of the United States District Court for the Southern District of New York, to be chosen randomly. In this opinion, we address the unprecedented motion filed by Judge Scheindlin herself, through counsel, to appear and seek reconsideration of our order of reassignment. The motion, submitted substantially in the form of a brief in favor of reconsideration, presents the threshold question whether, in the circumstances presented, a district judge may participate as a party, as an intervenor, or as an amicus curiae in an appeal of her decisions. For the reasons set forth below, we DENY Judge Scheindlin's motion to appear in this Court in support of retaining authority over these cases.

Background¹

These cases deal with the constitutionality of certain practices of the New York City Police Department (“NYPD”). The practices—and these cases themselves—present issues of prominent public concern and have attracted intense scrutiny in the media. On August 12, 2013, following a nine-week trial in Floyd v. City of New York, Judge Scheindlin held that the City of New York (the “City”) violated the Fourth and Fourteenth Amendments by acting with deliberate indifference towards the NYPD's practice of unconstitutional stops and unconstitutional frisks and by adopting a policy of “indirect racial profiling” that targeted racially defined groups for “stops-and-frisks.” ² Judge Scheindlin also ordered an array of injunctive remedies, including but not limited to the appointment of a monitor, the institution of a program requiring certain officers to wear cameras on their persons, and the amendment of the forms used to document stopand-frisks.³

After some delay, the City sought, in the District Court, to stay those remedies until a decision on the merits had been reached by the Court of Appeals in the normal course. Judge Scheindlin denied that motion and, as is the normal practice, the City renewed its request for a stay in this Court. We held extended oral argument and, on October 31, 2013, granted the motion for a stay during the pendency of the appeals and, based on the record of the proceedings in the District Court and Judge Scheindlin's participation in media interviews, reassigned the cases to a differentdistrict judge, to be chosen randomly, in order to avoid the appearance of partiality.⁴

On November 8, 2013, Judge Scheindlin moved in this court, through counsel, for “leave in the nature of an order under Rule 21(b)(4) of the Federal Rules of Appellate Procedure governing mandamus proceedings providing for appellate review of motions for judicial disqualification pursuant to 28 U.S.C. § 455, authorizing counsel to appear on behalf of the District Judge in order to address the factual and legal sufficiency of the Motion Panel's sua sponte order of removal.” ⁵ On November 9, 2013, Judge Scheindlin's counsel, now styling himself as amicus curiae on her behalf, filed a letter urging us to vacate our order of reassignment “to terminate a dispute that is distracting attention from the underlying merits.” ⁶

Discussion

We conclude that Judge Scheindlin's motion lacks a procedural basis. As explained more fully in our separate opinion concerning the merits of the order of reassignment, the cases were reassigned not because of any judicial misconduct or ethical lapse on the part of Judge Scheindlin—as to which we have expressly made no finding but solely pursuant to 28 U.S.C. § 455(a). Section 455(a) provides that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify [her]self in any proceeding in which [her] impartiality might reasonably be questioned.” We know of no procedural mechanism that might permit a district judge to come before us and argue on her own behalf in these circumstances, nor has Judge Scheindlin identified one.

Indeed, we note in the motion itself some inconsistency in its theory of Judge Scheindlin's relationship to the proceedings in this Court. The motion requests leave for her lawyers “to appear either as counsel to the District Judge, or as amici curiae on her behalf.” ⁷ Additionally, the motion purports to seek relief “ in the nature of an order under Rule 21(b)(4) of the Federal Rules of Appellate Procedure.” ⁸ This locution is notable becauseRule 21 governs “Writs of Mandamus and Prohibition, and Other Extraordinary Writs,” and provides that the “trial-court judge may request permission to address the petition [for mandamus] but may not do so unless invited or ordered to do so by the court of appeals.” ⁹

Rule 21, however, does not apply to these proceedings because there has been no petition for a writ of mandamus or any other type of extraordinary writ in these cases. The Supreme Court has long instructed that the writ of mandamus is “a ‘drastic and extraordinary’ remedy ‘reserved for really extraordinary causes.’ ” ¹⁰ No writ of mandamus is involved in this appeal: We have not issued an extraordinary writ to the district judge, nor is there a petition for a writ directed to us. For this reason, the case presented here is quite unlike those in which other district judges have appeared before this court pursuant to specific statutory authority.¹¹ Outside of the context of a writ of mandamus, it is procedurally improper for a District Judge to enter an appearance in an appeal of her own decisions, whether as a party, intervenor, or amicus.

We know of no precedent suggesting that a district judge has standing before an appellate court to protest reassignment of a case.¹² While a district judge may believe that he or she has expended a great deal of effort and energy on a case, only to see it reassigned, reassignment is not a legal injury to the district judge. Rather, reassignment allows the courts to ensure that cases are decided by judges without even an appearance of partiality.¹³ A district judge has no legal interest in a case or its outcome, and, consequently, suffers no legal injury by reassignment.

To the extent that Judge Scheindlin seeks to defend herself against the suggestion of violation of the Code of Conduct for United States Judges, our accompanying opinion explains that we have made no findings that Judge Scheindlin has committed judicial misconduct, nor have we suggested that she has abdicated any of her ethical responsibilities. Rather, we have simply concluded that the appearance of her impartiality might reasonably be questioned. We therefore need not consider Judge Scheindlin's argument that she ought to be afforded an opportunity to contest charges of judicial misconduct.

Finally, we note that Judge Scheindlin's counsel, now purporting to serve as amicus “to the district judge,” filed a supplemental letter on November 9, 2013, wherein he urges that we vacate parts of our order of October 31, 2013, “without prejudice,” which would “permit the parties to raise the issues” without “being forced to address them in the context of an unseemly dispute among judges” and in a way that would “terminate a dispute that is distracting attention from the underlying merits.” ¹⁴ First, we cannot subscribe to the view that a decision of this Court—made pursuant to a statute passed by Congress—should be vacated because a non-party (even a judge) claiming to be affected by that order believes that the issue has become controversial or “distracting.”

Second, as we observe in our accompanying opinion, reassignment is an ordinary tool used by our judicial system to maintain and promote the appearance of impartiality across the federal courts.¹⁵ We recognize that it is frustrating to work extensively on a case that is later reassigned, and that reassignment, even if only based on an appearance of partiality, is a displeasing occurrence for any district judge, particularly for a long–serving and distinguished one such as Judge Scheindlin, but we are confident that these matters will be ably handled, without any arguable appearance of partiality, by another of her capable colleagues.

Conclusion

For the foregoing reasons, we DENY Judge Scheindlin's motion to appear in this Court in support of retaining authority over these cases.

1. In this section, we recite only the facts directly relevant to this opinion. A more complete history of these cases may be found in our separate opinion published today, addressing the merits of reassigning the cases to a new district judge.

2.See Floyd v. City of New York, ––– F.Supp.2d ––––, No. 08–cv–1034, 2013 WL 4046209, at *7 (S.D.N.Y. Aug. 12, 2013)...