Cherokee Nation v. United States

26 Cl. Ct. 215, 1992 U.S. Claims LEXIS 227, 1992 WL 105486
United States Court of Claims·Decided May 19, 1992·No. No. 218-89L·Published·Cited by 6 cases

Opinion

ORDER

MOODY R. TIDWELL, III, Judge:

FACTS

During a status conference on March 2, 1992,1 informed the parties of my fourteen year association with the Office of the Solicitor of the United States Department of Interior which ended in 1983 with my appointment to the bench of this court. During the period from January 21, 1981 through May. 16, 1983,1 had general supervisory authority over all decisions of the Office of the Solicitor, including its Division of Indian Affairs. The Division of Indian Affairs provides legal services to the Secretary, Assistant Secretary for Indian Affairs, and the Bureau of Indian Affairs. Mr. Tim Yollmann, the Interior Department Regional Solicitor in charge of the Southwest Region in Tulsa, Oklahoma, is charged with providing legal assistance to the Interior Department’s Bureaus of Indian Affairs and Land Management.

Among [his] responsibilities is the supervision of all legal services in connection with [Bureau of Indian Affairs’] efforts to remove trespassers from that portion of the Arkansas Riverbed in eastern Oklahoma which is held for the benefit of the Cherokee, Choctaw, and Chickasaw [217]*217Indian Nations, and also to seek to settle questions of title to that portion of the Riverbed.

Mr. Vollmann was employed in the Division of Indian Affairs when I was Deputy Solicitor. As Deputy Solicitor of the Department of Interior, I supervised Mr. Vollmann indirectly. Mr. Vollmann remembers meeting with me on the average of twice per week. My recollection is that we did not meet that often, but more like two to three times per month. While it is unclear to me exactly what role Mr. Vollmann will play in this litigation, he is not an attorney of record in this case, or its companion case, Choctaw Nation of Oklahoma and the Chickasaw Nation v. United States, 630-89L.

In a spirit of openness, I, sua sponte, informed both parties of my prior relationship with the Department of Interior, which ended nine years ago. I suggested that, with defendant’s concurrence, plaintiff might wish to speak to Mr. Vollmann to confirm what I had stated for the record. Plaintiff subsequently motioned for my withdrawal from the case apparently because of my affiliation with the Interior Department before entering the federal judiciary.

DISCUSSION

Plaintiff argued that the members of the tribe, on whose behalf these suits were brought, were “concerned” about my previous employment with the Department of Interior. The court concluded from plaintiff’s argument that the members of the tribe might attribute an unfavorable outcome in this litigation to an “anti-Indian” bias after my years of service at the Department of Interior. Defendant opposed the motion on the grounds that during my employment with the Department of Interi- or, I had no connection whatsoever with the issues in the instant litigation. Moreover, argued defendant, my prior association with Mr. Vollmann is insufficient grounds for withdrawal from the case.

RUSCC 63(b) states that a “judge shall withdraw from a case when required by 28 U.S.C. § 455....” Title 28 U.S.C. § 455 (1988) states in relevant part:

(a) Any ... judge ... of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party ...;
(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.

Congress’ intent in enacting § 455 was to guarantee litigants a fair forum in which they may pursue their claims. United States v. Will, 449 U.S. 200, 217, 101 S.Ct. 471, 481, 66 L.Ed.2d 392, 407 (1980). “ ‘[I]f there is [any] reasonable factual basis for doubting the judge’s impartiality, he should disqualify himself____’” Will, 101 S.Ct. at 481 (quoting S.REP. NO. 93-419, p. 5 (1973)).

The goal of section 455(a) is to avoid even the appearance of partiality. If it would appear to a reasonable person that a judge has knowledge of facts that would give him an interest in the litigation then an appearance of partiality is created even though no actual partiality exists because the judge does not recall the facts, because the judge actually has no interest in the case or because the judge is pure in heart and incorruptible. The judge’s forgetfulness, however, is not the sort of objectively ascertainable fact that can avoid the appearance of partiality. Hall v. Small Business Administration, 695 F.2d 175, 179 (5th Cir. 1983). Under section 455(a), therefore, recusal is required even when a judge lacks actual knowledge of the facts indicating his interest or bias in the case if a reasonable person, knowing all the circumstances, would expect that the judge would have actual knowledge.

Health Services Acquisition Corp. v. Liljeberg, 796 F.2d 796, 802 (5th Cir.1986), aff’d, [218]*218486 U.S. 847, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988).

The test under § 455(a) is whether an objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge’s impartiality. McWhorter v. Birmingham, 906 F.2d 674, 678 (11th Cir. 1990); Parker v. Conners Steel Co., 855 F.2d 1510 (11th Cir.1988), cert. denied, 490 U.S. 1066, 109 S.Ct. 2066, 104 L.Ed.2d 631 (1989). Such doubts about a judge’s impartiality cannot be based on mere suggestion or unsupported beliefs and assumptions. Maier v. Orr, 758 F.2d 1578, 1583 (Fed.Cir. 1985). The judge’s bias must be personal and extrajudicial; it must derive from something other than that which the judge learned by participating in the case. McWhorter, at 678. As then Justice Rehnquist noted when faced with a situation uncannily similar to that faced by the court today, “a federal judge has a duty to sit where not disqualified which is equally as strong as the duty to not sit where disqualified. Laird v. Tatum, 409 U.S. 824, 837, 93 S.Ct. 7, 15, 34 L.Ed.2d 50, 60 (1972).

In Laird, Chief Justice Rehnquist had recently been elevated to the Supreme Court when a litigant motioned to disqualify him from participation in the case.

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Cherokee Nation v. United States, 26 Cl. Ct. 215, 1992 U.S. Claims LEXIS 227, 1992 WL 105486 (cc 1992).

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