Assigning a Different District Judge on Remand From a Circuit Court of Appeals

In decisions by two different Third Circuit panels today, in two different criminal cases, the court reversed the same District of New Jersey judge and remanded the cases for reassignment to a different judge.  United States v. Bergrin, 682 F.3d 261 (3d Cir. 2012); United States v. Kennedy, 682 F.3d 244 (3d Cir. 2012).  Both decisions contain useful (and, unsurprisingly, largely similar) discussions of the criteria for when the Court of Appeals will direct reassignment to a different judge on remand.

As both opinions note, there are two different statutory bases for a Court of Appeals to order reassignment.  First, 28 U.S.C. §455(a) forbids a judge from presiding over a case when “a reasonable person, with knowledge of all the facts, would conclude that the judge’s impartiality might reasonably be questioned.”  This normally “involve[s] apparent bias deriving from an extrajudicial source,” rather than from judicial rulings in the case alone.  Second, the Court of Appeals has supervisory power under 28 U.S.C. §2106.  That supervisory power is not constrained by the limitations of §455(a).  Nonetheless, the Third Circuit has “typically reviewed requests for reassignment under §2106 under an ‘appearance of impartiality’ standard like that applicable in the §455(a) context.”  Under either statute, “reassignment is an extraordinary remedy that should seldom be employed” or “an exceptional remedy … order[ed] sparingly.”

In Bergrin, the Third Circuit ordered reassignment under its supervisory power.  The panel believed that the district judge’s “impartiality might reasonably be questioned” based on statements that the judge had made about the unfairness to defendant of trying multiple witness-tampering counts together.  Kennedy likewise mandated reassignment due to the district judge’s conduct that “cast a pall of distrust over the prosecution’s handling of the case,” including “openly question[ing] the integrity of the Government’s evidence collection practices, undermin[ing] the professionalism of the prosecutor, and accus[ing] the Government of prosecuting in bad faith– all without evidence of governmental misconduct.”  As a result, “a reasonable observer could very well find neutrality wanting in the proceedings.”

Parties who win a remand on appeal often wish that the trial level judge who got reversed would not stay with the case on remand.  These decisions offer a window into when that might actually happen.