Maier v. Orr

• Decision Date: 26 March 1985
• Docket Number: No. 84-985,84-985
• Citation: 758 F.2d 1578
• Parties: Pamela Lea MAIER, Appellee, v. Verne ORR, Secretary of the Air Force, Appellant. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 1578

758 F.2d 1578

Pamela Lea MAIER, Appellee, v. Verne ORR, Secretary of the Air Force, Appellant.

Appeal No. 84-985.

United States Court of Appeals Federal Circuit.

March 26, 1985.

Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Robert A. Reutershan and Richard W. Oehler, Washington, D.C., Dept. of Justice, for appellant; Lt. Col. Bruce Houston, Dept. of the Air Force, Washington, D.C., of counsel.

Earle A. Partington and Jack F. Schweigert, Schweigert & Associates, Honolulu, Hawaii, for appellee.

Before RICH, DAVIS and NIES, Circuit Judges.

ORDER

On February 4, 1985, a panel published its decision in this appeal. 754 F.2d 973. The decision was accompanied by an opinion written for the panel by the Chief Judge. As is true of all opinions and dispositive orders of this court, that opinion was fully considered and voted on affirmatively in writing by all members of the panel. See Rule 3 of this court.

On February 19, 1985, Pamela Lea Maier, "by and through her attorney, Jack F. Schweigert," filed a document entitled "MOTION TO VACATE ORDER and GRANT REHEARING".

The motion is accompanied only by an affidavit of Mr. Schweigert, which reads in its entirety:

Jack F. Schweigert, being first duly sworn on oath, deposes and says the following:

1. I am co-counsel of record for Appellee.

2. On February 15, 1985 my office received the attached Exhibit 1.

3. On the same day as a result of this letter I contacted Mr. Earle Partington, lead counsel in this case and informed him of the letter's contents.

4. Based on the foregoing, it is both Mr. Partington's and my belief that Chief Judge Markey should have recused himself from sitting in this case under 28 U.S.C. Sec. 455.

5. The Order in which Chief Judge Markey acted is attached hereto as Exhibit 2.

Exhibit 1, attached to Mr. Schweigert's affidavit, is:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

On February 25, 1985, petitioner "through her attorney, Earle A. Partington" filed a "MOTION FOR LEAVE TO FILE SUPPLEMENTAL AFFIDAVIT IN SUPPORT OF MOTION TO VACATE ORDER AND GRANT REHEARING", accompanied by the proffered "SUPPLEMENTAL AFFIDAVIT", That affidavit reads in its entirety Earle A. Partington, after being duly sworn upon oath, deposes and says as follows:

1. I am the lead counsel for the Appellee in the above-entitled case.

2. For the past week I have been away from my office investigating a case in San Francisco. I returned to Honolulu late yesterday.

3. In my absence the Motion to Vacate Order and Grant Rehearing was prepared and sent to the Court.

4. Prior to the receipt of Mr. Albright's letter (Exhibit 1 of the Motion) on February 15, 1985, nobody in my office nor my client had any knowledge nor reason to believe that Chief Judge Markey is a Brigadier General in the Air Force Reserve and thus subject to challenge for cause from sitting on this appeal. At no time did Chief Judge Markey or the Court advise me of his military status.

5. Had I known of Chief Judge Markey's military status, I would have moved to disqualify him from sitting on this appeal.

Further affiant sayeth naught.

The Motion

The motion purports to have been filed pursuant to "Rule 40, Federal Rules of Appellate Procedure", "Rule 29, Rules of the United States Court of Appeals for the Federal Circuit", and "28 U.S.C. Sec. 455(a) & (b)(1)".

The motion does not, as Rule 40 requires, "state with particularity the points of law or fact which in the opinion of the petitioner the court overlooked or misapprehended."

This court has no Rule 29. Petitioner apparently meant to refer to paragraph 29 of this court's Procedural Handbook, which merely announces the provisions of 28 U.S.C. Sec. 455 (1984).

Recusal is appropriate under Sec. 455(a) when a judge's "impartiality may be reasonably questioned," and under Sec. 455(b)(1) when the judge has "a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding."

Counsel's "belief" that the Chief Judge should have recused himself is unsupported by the required allegations of fact warranting recusal. ¹ That "belief" is based solely on receipt of an unsworn letter (Ex. 1), and on his immediate, unquestioning, and uninvestigated acceptance of statements therein as being true. The letter (Ex. 1) is not an affidavit and the statements relied on are not true. Counsel's "belief" is conclusory and totally without foundation. The motion is frivolous. ²

The Exhibit

The letter (Ex. 1) refers to the "decision" of the Chief Judge and indicates that he "decided the case." Those statements are untrue. As above indicated, a decision disposing of an appeal on its merits is a decision of the panel, not that of the individual judge who set forth the panel's reasons. The authoring judge did not "decide" the case, the panel did and did so unanimously.

The letter (Ex. 1) states that the Chief Judge "is a Reserve Brigadier General in the Air Force." That statement is untrue. The Chief Judge has been retired from, and has thus not been "in" or associated with the Air Force Reserve or any military organization for nine years. ³

In the instance the writer of the letter cites, the writer was in October 1983 given the opportunity to opt anonymously for recusal. Apparently seeing no reasonable basis for questioning impartiality or for assuming bias, prejudice, or knowledge of evidentiary facts, the letter writer declined that opportunity. Following a supersensitive and over-scrupulous approach, the Chief Judge had at that time instructed the Clerk to inform counsel in cases involving a military service that the Chief Judge was a military retiree/annuitant, and to report whether an objection was raised without disclosing which if either side objected. ⁴ Those instructions were given before the Advisory Committee on Codes of Conduct had spoken in respect of judges who were annuitants/pensioners of military and governmental services.

Recusal

On October 26, 1984, (i.e., well before petitioner's appeal was assigned) the Advisory Committee on Codes of Conduct of the Judicial Conference of the United States, responding to the number of judges receiving what it broadly called pensions, published this guidance for federal judges:

ADVISORY COMMITTEE ON CODES OF CONDUCT ADVISORY OPINION NO. 75

Military and other governmental pensions.

A number of judges receive pensions earned in the course of their military service or other governmental service. A question has been raised concerning disqualification when a military service or public body is a party.

The Committee advises that no reasonable basis for questioning the impartiality of the judge is raised when a judge who is receiving a military pension participates in a proceeding in which a military service is a party. Judges receiving a pension for state, federal, or other government service are not disqualified from cases in which the governmental entity is a party. Judges participate in cases in which the Federal Government, from which the judge receives compensation for his judicial services, is a party, without raising any reasonable question of the judge's impartiality.

Disqualification would be mandatory when the outcome of the case could substantially affect the amount of the judge's pension or his right to receive it. Canon 3C(1)(c). The mere presence as a party of the military service in which the judge served or another military service, however, when a judge's interest in his pension is not substantially affected, raises no question of disqualification. ⁵

The outcome of petitioner's appeal could not possibly have affected the amount of the Chief Judge's annuity or his right to receive it, both of which are fixed by law and regulation applicable to his 34 years of service.

There was thus no basis on which the Chief Judge's impartiality could have been reasonably questioned and no basis for an assumption or even an appearance of bias, prejudice, or personal knowledge of disputed evidentiary facts. Following issuance of Advisory Opinion 75, there was not even a colorable reason for informing counsel that a judge was an annuitant. There being no basis in 28 U.S.C. Sec. 455 for recusal, that statute, if it were applicable to motions to vacate and grant rehearing (which it is not), would form no support whatever for the present motion.

It is well that status as an annuitant in itself forms no basis for recusal. Among judges receiving annuities are three active judges (25%) of this court who receive them as retirees of the military services. For all three to recuse on that ground alone from all of the many appeals involving the military services in this court would result in an unconscionable transfer of workload to the remaining active judges of this court, and would result in an inappropriate fixed assignment of judges to panels on the basis of subject matter. See paragraph 20 of this court's Procedural Handbook.

Absent a factual showing of a reasonable basis for questioning his or her impartiality, or allegations of facts establishing other disqualifying circumstances, a judge should participate in cases assigned. Conclusory statements are of no effect. Nor are counsel's unsupported beliefs and assumptions. Frivolous and improperly based suggestions that a judge recuse should be firmly declined. See City of Cleveland v. Krupansky, 619 F.2d 576 (6th Cir.), cert. denied, 449 U.S. 834, 101 S.Ct. 106, 66 L.Ed.2d 40 (1980); Scarrella v. Midwest Federal Savings and Loan, 536 F.2d 1207 (8th Cir.), cert. denied, 429 U.S. 885, 97 S.Ct. 237, 50 L.Ed.2d 166 (1976); Curry v. Jensen, 523 F.2d 387 (9th Cir.), cert. denied, 423 U.S. 998, 96 S.Ct. 428, 46 L.Ed.2d 373 (1975); United States v. Anderson, 433 F.2d 856 (8th Cir.1970). Nor does mere prior association form a reasonable basis for questioning a judge's impartiality. See Parrish v. Board...