Metropolitan News-Enterprise


Friday, July 14, 2017


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Ninth Circuit Holds:

No Reversal Based on Judge Reading Tweets on Case

Court Says U.S. Attorney Office Tweets Were Available to the Public, Not Communications to the Judge


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday held that a judge’s alleged reading of a party’s tweets about a case and his own purported tweet containing a link to a news article on the case, do not warrant vacating the judgment and retroactively recusing the judge.

The case is one in which the U.S. Attorney’s Office represented the government in an action seeking nearly $800 million in connection with a massive fire in 2007 in Plumas and Lassen National Forests. The judge who—according to the defendants, used his Twitter account to follow the U.S. Attorney’s Office—is U.S. District Court Judge William B. Shubb of the Eastern District of California.

Three days before trial was to begin in the case, Sierra Pacific Industries, Inc. and the other defendants agreed to a settlement under which they would pay, cumulatively, $55 million, with Sierra Pacific paying $47 million and transferring 22,500 acres of land to the government. Pursuant to the agreement, Shubb ordered entry of a judgment of dismissal.

The defendants later sought relief from the judgment, alleging discovery of misrepresentations by the government of such magnitude that fraud on the court had been committed.

Defendants’ Brief

In appealing from that denial, the defendants called for Shubb’s recusal and a vacating of the judgment based on his misconduct. They alleged in its brief:

“Judge Shubb issued his order denying Defendants’ motion on April 17, 2015, at 2:45 p.m. Over the next two hours, the Sacramento AUSAs used their ‘@EDCAnews’ Twitter account to broadcast eight congratulatory Tweets concerning Judge Shubb’s order and the case’s merits to their office’s Twitter followers. Defendants have e confirmed that, through his then-public Twitter account, titled ‘@nostalglstl,’ Judge Shubb ‘followed’ @EDCAnews and thus received those Tweets. The mere existence of social network relationships between a judge and one of the parties appearing before him creates an appearance of bias and raises ‘significant concern’ regarding the risk of ex parte communications. Those concerns materialize when a ‘followed’ party posts Tweets regarding the case’s merits and the judge’s reasoning, which are then directed to the judge in his capacity as a follower.”

In a footnote, it was pointed out that Sierra Pacific, too, has a Twitter account, but Shubb did not follow it.

The brief went on to say:

“Additionally, that evening at 9:51 p.m., Judge Shubb completed the feedback loop by posting on his #nostalgist1 public Twitter account: ‘Sierra Pacific still liable for Moonlight Fire damages.’ Just beneath this post. Judge Shubb linked to an article with the same title from the Central Valley Business Times.”

It questioned the accuracy of the article.

Thomas’s Opinion

In affirming yesterday, the Ninth Circuit, in an opinion by Chief Judge Sidney R. Thomas, said the “plain error” standard would be applied to the matter of the tweeting because it was not brought up in the District Court. He spurned Sierra Pacific’s argument that it could not have been brought up because it occurred following the ruling, noting that “evidence submitted by the Defendants shows that the same Twitter account had posted several other news articles about the case while proceedings were still ongoing.”

The judge declared:

“[U]nder the plain error standard, the allegations do not warrant retroactive recusal even if the judge is the owner of the account.”

Thomas explained:

“[W]ithout more, the fact that an account holder ‘follows’ another Twitter user does not evidence a personal relationship and certainly not one that, without more, would require recusal. Thus, assuming the account belonged to the district judge, the judge did not plainly err in not recusing himself because he “followed” the U.S. Attorney’s office on Twitter….

“For similar reasons, the fact that the Twitter account ‘followed’ the U.S. Attorney does not mean that the public tweets published by the U.S. Attorney constituted improper ex parte communications….Here, none of the challenged tweets were specifically directed from the U.S. Attorney to the judge, nor have the Defendants alleged that there were any personally directed tweets. Thus, the public tweets did not constitute communication from the U.S. Attorney to the judge. Rather, the relevant tweets from the U.S. Attorney’s account constituted news items released to the general public, intended for wide distribution to an anonymous public audience.”

In response to Sierra Pacific’s contention of bias having been manifested by the judge in posting a link to a news article on the case, Thomas said:

“Assuming the challenged tweet was from the judge’s account, it still does not warrant retroactive recusal in this case. The tweet consisted only of the title and link to a publicly available news article about the case in a local newspaper, without any further commentary. Under the standard of review applicable at this stage, the district judge did not plainly err in not recusing himself because he tweeted the link to this news article.”

He commented:

“[T]his ease is a cautionary tale about the possible pitfalls of judges engaging in social media activity relating to pending cases, and we reiterate the importance of maintaining the appearance of propriety both on and off the bench.”

Thomas said there it is required that there be “a very high showing for relief for judgment on the basis of fraud on the court,” and that standard was not met by the appellants.

The case is U.S. v. Sierra Pacific Industries, Inc., No. 15-15799.


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