Metropolitan News-Enterprise


Wednesday, December 28, 2016


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Ninth Circuit Declares:

Judge’s Anger Over Remand Doesn’t Require Recusal

Panel Says Judge Benitez’s Comments About Appeals Court Are ‘Cause for Serious Concern’


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals held yesterday that a judge’s disgruntlement over being reversed in 2011—which he expressed at a hearing following remand—was not sufficient to warrant a reversal of his 2014 decision in the case based on a failure to recuse himself.

The memorandum decision affirms a judgment in favor of the United States in an action brought by Naval constructional engineer Christine Myers on July 10, 2002 on behalf of her minor daughter (now an adult). The child allegedly suffered injuries from exposure to the toxic heavy metal thallium as the result of the Navy dumping soil impregnated with the chemical in a landfill at Camp Pendleton adjacent to her home and her school.

Presiding over the case in the U.S. District Court for the Southern District of California was Judge Roger T. Benitez. His initial decision in the case, in favor of the government, came in 2009, three years after a bench trial of the first phrase of the action.

Benitez held that the Navy was immune from liability.

First Reversal

The Ninth Circuit in 2011 reversed, and directed that the trial court proceed to phase 2—consideration of causation—and, if appropriate, phase 3: damages.

The plaintiff sought an order that the case be shifted to another judge. The appeals court said, in its opinion by Mark Bennett—a senior judge of the U.S. District Court for the Northern District of Iowa, sitting by designation—that the court was “troubled by the undue—and unexplained—three-year delay” in deciding the case, but wrote:

 “We are not convinced, however, that this is of such gravity as to warrant reassignment of the case to preserve the appearance of justice. Nevertheless, we trust that proceedings on remand will proceed expeditiously.”

At a hearing about five months after the 2011 reversal, Benitez berated the Ninth Circuit for reversing him, and expressed disgruntlement over the plaintiff’s effort to disqualify him, telling Myers’ lawyer:

“I think you asked for me to be removed and some other judge to be—that is not going to happen.”

Formal Motion Unnecessary

The three-judge panel, in yesterday’s unpublished ruling, said:

“Myers’s counsel clearly stated grounds for the judge’s recusal; her failure to make a formal motion for the judge’s recusal was excusable, as doing so would have been futile, in light of the judge’s response; we construe her counsel’s comments as a motion for recusal; and we review the judge’s refusal to recuse himself for abuse of discretion.”

The opinion went on to say:

“There is no question the district judge was unhappy about the remand and with members of this panel at a hearing almost five months after our opinion was filed. Nor is there a question that he was still unhappy, more than three years later, at a hearing well over a year after the trial on remand from Myers I ended and only a few months before he issued his decision on the second phase of the bench trial. The district judge’s comments about this panel are a cause for serious concern. Indeed, the more professional approach would have been for the district judge to focus solely on the legal issues rather than injecting personal comments that could be easily interpreted as inappropriately attacking members of the panel.”

Nonetheless, the panel—comprised of Bennett and Ninth Circuit Judges Alex Kozinsky and Johnnie B. Rawlinson—found that Benitez was not obliged to recuse himself.

Supreme Court Decision

The judges pointed to the United States Supreme Court’s 1994 decision in Liteky v. United States, 510 U.S. 540, where the high court said that recusal is not required unless the judge “displays a deep-seated favoritism or antagonism that would make fair judgment impossible.”

The panel said that “given the very high standard in Liteky,” Benitez’s comments were “insufficient to warrant reversal.”

Other arguments in favor of reversal were also rejected.

The court expressed its disapproval of the manner in which the Office of U.S. Attorney handled the appeal. “Inexplicably,” it said, the government “did not deign to respond” to the contention that Benitez was biased, “even though it was Myers’s lead argument.”

The panel complained:

“When questioned at oral argument, counsel for the government [Senior Trial Counsel Adam Bain of the District of Columbia] attempted to explain this omission on the ground that he did not believe that the issue of the district judge’s unhappiness with the panel and its decision was relevant or that it was a strong argument for recusal. We disagree. We are troubled by the cavalier attitude expressed by counsel for the government in the brief and at oral argument. His view of the issue does not justify a complete failure to address it; indeed, failure to address an issue in an answering brief may waive any argument on the issue….Here, counsel’s failure to address the issue is all the more deficient, where the district judge made numerous disparaging comments about this panel’s decision and its members that could erode public confidence in the judiciary.”

The case is Myers v. United States, No. 14-56895.


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