Leaman v. Ohio Dept. of Mental Retardation & Development Disabilities, No. 85-3471

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: Before LIVELY, Chief Judge, and ENGEL, KEITH, MERRITT, KENNEDY, MARTIN, JONES, KRUPANSKY, WELLFORD, MILBURN, GUY, NELSON, RYAN and BOGGS; DAVID A. NELSON; After suing the defendants in federal court, Ms. Leaman elected to file a virtually identical c
• Citation: 825 F.2d 946
• Parties: 44 Fair Empl.Prac.Cas. 795, 43 Empl. Prac. Dec. P 37,241 Mary Kate LEAMAN, Plaintiff-Appellant, v. OHIO DEPARTMENT OF MENTAL RETARDATION & DEVELOPMENT DISABILITIES, et al., Defendants-Appellees. . Re
• Docket Number: No. 85-3471
• Decision Date: 23 July 1987

Page 946

825 F.2d 946 44 Fair Empl.Prac.Cas. 795,
43 Empl. Prac. Dec. P 37,241 Mary Kate LEAMAN, Plaintiff-Appellant,
v.
OHIO DEPARTMENT OF MENTAL RETARDATION & DEVELOPMENT
DISABILITIES, et al., Defendants-Appellees. No. 85-3471. United States Court of Appeals,
Sixth Circuit. Reargued Nov. 12, 1986.
Decided July 23, 1987.

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Marc D. Mezibov, Cincinnati, Ohio, for plaintiff-appellant.

Deborah A. Piperni, Asst. Atty. Gen., Columbus, Ohio, Tim Mangan, Gene Holliker (argued), for defendants-appellees.

Before LIVELY, Chief Judge, and ENGEL, KEITH, MERRITT, KENNEDY, MARTIN, JONES, KRUPANSKY, WELLFORD, MILBURN, GUY, NELSON, RYAN and BOGGS, Circuit Judges.

DAVID A. NELSON, Circuit Judge.

This is an appeal from a district court order (reported at 620 F.Supp. 783) in which Chief Judge Carl Rubin dismissed an action that Plaintiff Mary Kate Leaman, a former probationary employee of the Ohio Department of Mental Retardation, had brought against the department and certain of its officials for terminating her employment. The complaint alleged that the discharge violated 42 U.S.C. Sec. 1983, 29 U.S.C. Sec. 794 (the Rehabilitation Act of 1973), and the First and Fourteenth Amendments.

After suing the defendants in federal court, Ms. Leaman elected to file a virtually identical complaint in the Ohio Court of Claims against the Department of Mental Retardation alone. Judge Rubin then dismissed the federal action. As to the Department of Mental Retardation, the dismissal was based on sovereign immunity grounds. As to the individual defendants, Judge Rubin applied a provision of the Ohio Court of Claims Act that reads (in pertinent part) as follows:

"Except in the case of a civil action filed by the state, filing a civil action in the court of claims results in a complete waiver of any cause of action, based on the same act or omission, which the filing party has against any state officer or employee."

Ohio Revised Code Sec. 2743.02(A)(1).

The judgment in favor of the department is not challenged here; what is contested is the district court's holding that by electing to sue the department in the Ohio Court of Claims, the plaintiff voluntarily waived her cause of action against the individual defendants.

By divided vote, a three-judge panel of this court reversed the order dismissing the case against the individual employees. On petition for rehearing, eight of the fifteen active judges of the full court voted to rehear the case en banc, as authorized by 28 U.S.C. Sec. 46(c), and an order was entered vacating the panel decision. After reargument, but before issuance of any final decision, one of the judges who had voted for the rehearing en banc recused himself from further participation. A question was then raised at an administrative meeting of the court as to whether the recusal ought to be deemed to relate back to the vote on the petition for rehearing. Chief Judge Lively ruled that the recusal was not retroactive. After discussion, and on motion duly made and seconded, the court voted, as the minutes of the meeting reflect, to "sustain the ruling of the chair and to ratify the action of the court in voting for en banc rehearing." Only three of the remaining fourteen judges voted against the motion.

This chain of procedural events has caused two members of the court serious concern. Before addressing the merits of the appeal and explaining why we believe the judgment of the trial court must be affirmed, therefore, we shall set forth the reasons why we do not consider it inappropriate for the full court to be deciding this case at this time.

I

The ruling of the Chief Judge on the retroactivity question, and the vote sustaining the ruling and ratifying the decision to

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rehear the appeal en banc, are consistent with the way in which at least one other circuit has dealt with the question of the retroactivity of recusals under 28 U.S.C. Sec. 455(a). See United States v. Widgery, 778 F.2d 325, 328 (7th Cir.1985), and United States v. Murphy, 768 F.2d 1518, 1541 (7th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1188, 89 L.Ed.2d 304 (1986), which teach that such recusals are prospective only and do not invalidate prior judicial actions. Our decision to go forward with this proceeding en banc is also consonant with the Supreme Court's concept that voting on whether to rehear a case en banc "is essentially a policy decision of judicial administration," Moody v. Albemarle Paper Co., 417 U.S. 622, 627, 94 S.Ct. 2513, 2516, 41 L.Ed.2d 358 (1974), and a policy decision as to which "each Court of Appeals is vested with a wide latitude of discretion to decide for itself just how that power shall be exercised." Western Pacific R. Corp. v. Western Pacific R. Co., 345 U.S. 247, 259, 73 S.Ct. 656, 662, 97 L.Ed. 986 (1953). The end to be served by such decisions " 'is to enable the court to maintain its integrity as an institution by making it possible for a majority of its judges always to control and thereby to secure uniformity and continuity in its decisions....' " United States v. American-Foreign Steamship Corp., 363 U.S. 685, 689-90, 80 S.Ct. 1336, 1339, 4 L.Ed.2d 1491 (1960) (quoting Maris, "Hearing and Rehearing Cases in Banc," 14 F.R.D. 91, 96 (1954)).

If it makes any difference whether recusal was mandatory in this case, it bears emphasis that the mere fact of recusal does not mean that the recusing judge had concluded that his recusal was mandatory. Section 455(a) of Title 28 requires disqualification only where a judge's impartiality "might reasonably be questioned." Here the recusing judge, who as a member of the lower house of the Ohio legislature was a sponsor of the Ohio Court of Claims Act, has never believed that his role as a legislator could reasonably draw into question his ability to participate impartially as a judge in this case. We are not required to decide whether he is correct in this, but we note that his view is consistent with the practice of the late Chief Justice Fred Vinson and the late Justices Harold Burton and Hugo Black, who as members of the United States Supreme Court routinely sat on cases involving legislation passed while they were members of Congress. ¹ The recusal statute has embodied an "objective" standard only since 1974, to be sure, and views on judicial mores do sometimes change over time--see, e.g., Philip Elman's oral reminiscences on "The Solicitor General's Office, Justice Frankfurter, and Civil Rights Litigation, 1946-1960," 100 Harv.L.Rev.

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817 (1987)--but aside from Limeco, Inc. v. Division of Lime, 571 F.Supp. 710 (N.D.Miss.1983), where a senior district judge recused himself from a case involving a bill for which he had voted as a legislator more than four decades earlier, we know of no published decision holding that the practice followed by Chief Justice Vinson and Justices Burton and Black is no longer permissible.

The plaintiff in this case did not move for recusal, moreover, notwithstanding that the judge who ultimately recused himself was on the bench throughout the oral argument and notwithstanding that his sponsorship of the Ohio Court of Claims Act was a matter of public record. The plaintiff's failure to move for recusal could be considered to have some marginal significance, perhaps, insofar as it may suggest that the plaintiff herself did not consider recusal mandatory. Mandatory or not, however, the question is now academic; acting on his own motion, the judge did in fact recuse himself.

Hardly less academic, in our view, is the question of retroactivity. There was no reason to ask the parties to brief the question of whether the recusal ought to have been deemed retroactive, because, by a large majority, the post-recusal court expressly ratified the vote for an en banc rehearing. What was ratified was not the ruling of the Chief Judge on the retroactivity question--that ruling was "sustained"--but the original action of the court in deciding that the case would be reheard en banc. Ratification, according to the common understanding, "is equivalent to a previous authorization and relates back to [the] time when [the] act ratified was done, except where intervening rights of third persons are concerned." Black's Law Dictionary (5th Ed.1979). When an absolute majority of the full court, acting without the recusing judge, voted "to ratify the action of the court in voting for an en banc rehearing," it was voting nunc pro tunc to rehear the case en banc.

If there had been no such ratification, if the recusal had been deemed retroactive, and if the panel decision had been reinstated without the full court having decided whether the panel decision was correct, any victory the plaintiff might have won in the district court on remand would almost certainly have proved Pyrrhic. Without counting the recused judge, there are eight active judges of this court who now believe that the district court ruled correctly in dismissing the action. Barring a change in the composition of the court, there is no reason to suppose that on a second appeal the court would not again have voted to hear the case en banc. This would put us exactly where we are now, except that the litigants and their counsel and the trial court would all have wasted a fair amount of time after the remand, and the litigants would have spent additional money, in order to get to a point where the full court of appeals would be prepared to say whether the district court reached the right result in dismissing the plaintiff's suit in the first place. We think the district court did reach the right result, and we see no common sense reason for postponing our decision on that question.

And so we turn to the merits of the appeal.

II

The Ohio Department of Mental Retardation hired Plaintiff Leaman as a case management specialist on December 12, 1983. Ms. Leaman was hired as a probationary employee whose appointment was not to become final, under Ohio Revised Code Sec....