Cherokee Nation v. United States

26 Cl. Ct. 794, 1992 U.S. Claims LEXIS 331, 1992 WL 167439
Procedural entryThis page is a short order in Cherokee Nation v. United States. Read the opinion of the Court — 26 Cl. Ct. 798
United States Court of Claims·Decided July 20, 1992·No. No. 218-89L·Published

Opinion

[795]*795ORDER

MOODY R. TIDWELL, III, Judge:

This case is before the court on plaintiffs motion for reconsideration of the court’s Order of May 19, 1992, 26 Cl.Ct. 215, denying plaintiff’s motion for voluntary withdrawal of the presiding judge. For the reasons set forth below, the court denies plaintiff’s motion.

In the court’s Order of May 19, 1992, I denied plaintiff’s motion to voluntarily withdraw from this case. The facts precipitating plaintiff’s motion are amply stated in that Order and need not be repeated here. On June 3, 1992, plaintiff filed its motion for reconsideration pursuant to RUSCC 59, in which it argued, inter alia, that I should disqualify myself from this case based on United States v. Alabama, 828 F.2d 1532 (11th Cir.1987), cert. denied, 487 U.S. 1210, 108 S.Ct. 2857, 101 L.Ed.2d 894 (1988). In that case, the United States, joined by students and faculty of Alabama State University, a predominantly black institution, sued the state of Alabama pursuant to 42 U.S.C. § 2000d (1988) for its failure to eradicate the vestiges of racial discrimination in Alabama’s state-sponsored institutions of higher education, and for its failure to provide these predominantly black institutions with the same levels of funding given other institutions. The case was assigned to Judge U.W. Clemon of the United States District Court for the Northern District of Alabama. Defendants moved to disqualify Judge Clem-on pursuant to 28 U.S.C. § 455 (1988) on several grounds. Judge Clemon found no reason to recuse himself from the litigation. On appeal, after rejecting the bulk of defendant’s arguments for disqualification, the United States Court of Appeals for the Fifth Circuit found that Judge Clemon should have disqualified himself from the case because during his tenure as a state senator, Judge Clemon “actively participated in the very events and shaped the very facts” that were in issue in that case.1 United States v. Alabama, 828 F.2d at 1544. The court described Judge demon’s activities in the following terms:

As chairman of the Senate Rules Committee, Judge Clemon played a critical role in the confirmation of those individuals nominated for positions on the board of trustees of the defendant institutions. Judge Clemon shaped the composition of these governing boards by acting along with other members of his committee to prevent nominations from reaching the Senate floor____ [I]t is clear that Judge demon’s activities in the Senate were relevant to and plainly affected the ultimate outcome of the nomination and confirmation process for the board of trustees of the defendant institutions.

Id.

In addition, the court also stated that, as a state senator, Judge demon worked actively to pass a bill providing Alabama A & M University with $10,000,000 to revitalize its physical plant which, as noted in the bill, was inferior to historically white universities. The court also found that Judge Clemon participated as attorney of record in the case of Lee v. Macon County Bd. of Educ., 317 F.Supp. 103 (M.D.Ala.1970), modified, 453 F.2d 524 (5th Cir.1971), a suit filed pursuant to 42 U.S.C. § 2000d (1988) to eliminate the vestiges of discrimination in high schools and institutions of higher learning in Alabama. Although the [796]*796Judge’s involvement in that suit was restricted to the representation of black high school principals in a race discrimination suit, the court concluded that,

[e]ven this limited involvement in Lee v. Macon, however, left Judge Clemon with knowledge of facts that were in dispute in the instant case. The State’s treatment of black high school principals during the period the trial judge represented their cause became a factual issue at trial. Plaintiff presented testimony about the long, continuous history of racially discriminatory employment practices suffered by black high school principals in Alabama.

United States v. Alabama, 828 F.2d at 1545.

The Fifth Circuit found that Judge Clem-on had personal, extrajudicial knowledge of the facts of United States v. Alabama because of his prior professional involvement with the facts and issues in Lee v. Macon County Bd. of Educ., and his work in the Alabama state senate. For this reason, Judge Clemon was disqualified from hearing the case pursuant to 28 U.S.C. § 455(b)(1).

In the instant case, plaintiff contended that my alleged omissions, as Deputy Solicitor of the Department of Interior, to address the grievances raised in plaintiff’s complaint were

tantamount to a decision not to act—a decision that, in a case such as this, has its foundation in the legal advice the entity receives or fails to receive. As Deputy Solicitor, Judge Tidwell would have been, in part, responsible for the Department’s effective decision not to act.

My alleged omissions fail to trigger disqualification under 28 U.S.C. § 455(b)(1) for two reasons. First, the question of the legality of a Department policy must necessarily be preceded by a policy question presented to the Secretary of Interior, who would then seek the advice of the Office of the Solicitor. Contrary to plaintiff’s assertion that my alleged omission was “a decision not to act,” I made no conscious choice to act or not to act on any issues of fact or law related to the instant litigation because I had never been requested to advise the Secretary on the legality of acting or not acting on the facts of the instant case. I have never had access to, or familiarity with, the facts of this case, other than that which has been presented to me as the judge assigned to this case. To the best of my knowledge, during my tenure as Deputy Solicitor, none of the facts or issues raised in plaintiff’s complaint were ever the subject of a request for advice by the Secretary of Interior or any other policy-maker in the Department of the Interior. As Deputy Solicitor, I did not participate in any fashion whatsoever in the events at issue in this ease. Having never had to decide whether to act or not, I therefore could not have committed the omissions alleged by plaintiff.

Second, I, unlike Judge Clemon, did not glean personal, extrajudicial knowledge of any of the facts of the litigation now before the court at any time, but especially during the twenty-five days in which the statute of limitations in this case overlapped my tenure as Deputy Solicitor of the Department of Interior.2 Judge Clemon had a long and intimate involvement with the factual and legal issues arising from the effects of segregation in Alabama’s institutions of higher learning. Prior to this litigation, I had no knowledge of plaintiff’s claims or the facts involved in its litigation against the United States.

Free access — add to your briefcase to read the full text and ask questions with AI

Cherokee Nation v. United States, 26 Cl. Ct. 794, 1992 U.S. Claims LEXIS 331, 1992 WL 167439 (cc 1992).

26 Cl. Ct. 794 (Cherokee Nation v. United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Foman v. Davis
371 U.S. 178 (Supreme Court, 1962)
Lee v. MacOn County Board of Education
317 F. Supp. 103 (M.D. Alabama, 1970)
Cherokee Nation of Oklahoma v. United States
21 Cl. Ct. 565 (Court of Claims, 1990)
Cherokee Nation v. United States
25 Cl. Ct. 361 (Court of Claims, 1992)
Cherokee Nation v. United States
26 Cl. Ct. 215 (Court of Claims, 1992)
United States v. Alabama
828 F.2d 1532 (Eleventh Circuit, 1987)