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Saturday, November 02, 2013

Stays and appellate benchslaps

In staying the injunction pending appeal in the New York stop-and-frisk, the Second Circuit also ordered that the district judge, Shira Scheindlin, be removed from the case for running "afoul" of the judicial code of conduct. The court then remanded the case to the district court to 1) be reassigned to a different judge so 2) that new judge to implement the stay and "otherwise await further action by the Court of Appeals on the merits of the ongoing appeals,." But the case remains in the court of appeals, and subject to its jurisdiction, in all other respects.

In a listserv discussion, Aaron Caplan (Loyola-LA) questioned the necessity of this limited remand. FRCP 62 makes clear that the power of district judges to stay proceedings pending appeal does not limit the power of the court of appeals to stay proceedings and to issue orders preserving the status quo. So why the remand at this point? Why did the Second Circuit not simply order the stay, decide the merits, and remand to a new district judge only if and when remand is necessary once the Second Circuit decides the appeal. One  answer may be that this ensures formal procedural regularity--under FRAP 8, the expectation is that a stay will be sought and entered in the district court in the first instance. So the remand order ensures that there is a stay in the trial court.

A second, and more likely, explanation is implicit in Emily Bazelon's article on the case, which describes this as the court of appeals reaching to call out Judge Scheindlin. Remanding now maximizes the appellate benchslap, drawing particular attention to her removal from the case. The removal would not carry the same force as a criticism of Scheindlin if it came at the end of the appeal, particularly if the court affirms the injunction (which remains possible). If the goal was to publicly bring the judge to heel, this was the way to do it.

Note how the Second Circuit's view of the relation between the court of appeals and the district court on stays contrasts with the Fifth Circuit's approach in the Texas abortion case. The court of appeals issued the stay even though the state never requested a stay in the district court, as required by FRAP 8(a)(1). The rule allows for a first request in the court of appeals if a motion in the district court would be "impracticable." Of course, the court did not explain why a motion in the district court was impracticable; it simply asserted that the plaintiffs did not push this point and that the challenged law was due to take effect the day after the final judgment and injunction issued from the trial court. I'm not sure what any of that has to do with the practicality of seeking a stay there.

Posted by Howard Wasserman on November 2, 2013 at 09:25 AM in Civil Procedure, Howard Wasserman | Permalink


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Commenters seem to be upset at the idea that some process was due before the Second Circuit issued its sua sponte order concluding that she violated judicial ethics.

What nobody seems capable of doing is defending the Second Circuit's order. It is indeed indefensible. A devastating takedown of it is here: http://www.dorfonlaw.org/2013/11/the-appearance-of-impropriety-and.html

Posted by: AF | Nov 6, 2013 11:22:20 AM

Interesting. I wonder if Scheindlin will file a due process lawsuit in the SDNY. Maybe she will even assign the case to herself.

Posted by: andy | Nov 5, 2013 4:06:18 PM

anon: No. See my comment directly above yours. The Court could have reassigned the case without purporting to "conclude" that Scheindlin violated the Code of Conduct for United States Judges.

Posted by: AF | Nov 5, 2013 9:52:46 AM

AF, when reassigning a case, the appellate court must give notice and an opportunity to be heard? Is there a rule or case that so holds?

Posted by: anon | Nov 4, 2013 11:00:57 PM

Did you read the Second Circuit's decision andy? The Second Circuit expressly concluded that Judge Scheindlin had violated the Code of Conduct for United States Judges. There is a Second Circuit process for determining whether judges are guilty of misconduct, which provides for notice and an opportunity to be heard, and the Second Circuit did not follow it.

Posted by: AF | Nov 4, 2013 8:24:05 PM

"Judge Scheindlin's due process rights"

Uh, what?

Posted by: andy | Nov 4, 2013 6:01:57 PM

I think what the Second Circuit did is hypocritical in the extreme. The decision came one business day before the NYC mayoral election, which Bill deBlasio, who opposes stop and frisk, is likely to win. If deBlasio wins, he will likely either drop the appeal or enter into some sort of agreement with the plaintiffs. It is impossible to believe that the Second Circuit did not take the timing of the election into account in its decision. Furthermore, as the decision was issued sua sponte without any briefing or even a request by either party, the Court appears to have disregarded ordinary adversarial procedures -- not to mention Judge Scheindlin's due process rights -- for the sole purpose of reaching out to deliver Judge Scheindlin a public rebuke before political events rendered it too late to do so. And yet the Second Circuit had the temerity to accuse Judge Scheindlin of being political and lacking impartiality.

Posted by: AF | Nov 4, 2013 10:58:01 AM

Interesting that Ms. Bazelon keeps applauding Judge S for being a "bold" judge and encouraging other judges to be "bold." I guess now that that the policy arguments for "activist" judges have been thoroughly rebutted, the new technique is to praise and encourage "boldness."

Posted by: judicialrestraint | Nov 2, 2013 2:52:04 PM

The rules cite in the last paragraph should be to the FRAP, not the FRCP.

Posted by: Slight correction | Nov 2, 2013 12:23:46 PM

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