Aronson v. Brown

Aronson v. Brown, 4 Vet. App. 133, decided 1993-01-25.

NEBEKER, Chief Judge: This matter is before us on petitioner’s motion, under Rule 35(b), to review a single judge’s refusal to recuse himself from petitioner’s case. We hold that, under 28 U.S.C. § 455, the judge’s decision whether to recuse himself, under the facts of this case, was the province of the individual judge and is not subject to review within this Court. Accordingly, the motion is dismissed.

Petitioner filed a motion for review of a single-judge order denying his application for a writ of mandamus. He subsequently filed a motion for review by a panel or by the en banc Court and a motion that one of the judges recuse himself because that judge once served as General Counsel to the Veterans’ Administration (now Department of Veterans Affairs). That motion was denied by the single judge, and petitioner filed a motion for review by a panel or the en banc Court concerning, inter alia, the denial of the motion for recusal. The decision on the merits remains with that panel. The instant panel was convened solely for the purposes of considering the order denying recusal.

Petitioner asserts error in the failure to recuse under the provisions of 28 U.S.C. § 455. That section provides, in part, that “[a]ny justice, judge, or magistrate of the United States shall disqualify himself in any proceedings in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). That provision is made expressly applicable to this Court by 38 U.S.C. § 7264(c) (formerly § 4064(c)). Under Rule 35 of this Court’s Rules of Practice and Procedure, a party in a case decided by a single judge may move for review by a panel of the Court. However, we hold that, under the facts presented in this case, this Court may not review the individual judge’s refusal to recuse *134himself. Section 455 is a self-enforcing statute; whether a reason exists in a case making it improper for a judge to participate in it is a decision confined to the conscience of that judge. Weiss v. Hunna, 312 F.2d 711, 714 (2d Cir.1963), cert. denied, 374 U.S. 853, 83 S.Ct. 1920, 10 L.Ed.2d 1073 (1963); Kinnear-Weed Corp. v. Humble Oil & Refining Co., 441 F.2d 631, 635 (5th Cir.1971) (“Congress made it expressly plain that it placed in the justice or judge the responsibility for making the determination ‘in his opinion’ that he should disqualify himself”) (emphasis in original); see also Jewell Ridge Coal Corp. v. United Mine Workers of America, 325 U.S. 897, 65 S.Ct. 1550, 89 L.Ed. 2007 (1945) (memorandum decision) (each Justice bears responsibility to determine for himself the propriety of withdrawing in any particular circumstances).

Moreover, section 455 “includes no provision for referral of the question of recusal to another judge.” United States v. Sibla, 624 F.2d 864, 868 (9th Cir.1980); see also United States v. Studley, 783 F.2d 934, 940 (9th Cir.1986) (neither chief judge nor committee of disinterested judges from district was required to rule on recusal motion); United States v. Balistrieri, 779 F.2d 1191, 1202-03 (7th Cir.1985) (section 455 decisions should be made by judge sitting in case; no provision is made in statute for transfer of issue to another judge).

Accordingly, petitioner’s motion seeking review of the recusal decision of the single judge is DISMISSED as beyond the purview of this Court’s review authority.

Before NEBEKER *, Chief Judge, and KRAMER, FARLEY, MANKIN *, HOLDAWAY, IVERS, and STEINBERG *, Associate Judges.

ORDER

On August 14, 1992, the court issued a single-judge order denying petitioner’s re-cusal motion. Petitioner subsequently filed a motion for review of that order by a three-judge panel, or in the alternative, for en banc review. A panel opinion issued today dismisses petitioner’s motion for review as beyond the purview of the Court’s authority.

On consideration of the foregoing, and it appearing that no judge has called for a vote on the en banc motion, it is by the en banc Court

ORDERED that petitioner’s alternative motion for en banc review is denied.

Aronson v. Brown, 4 Vet. App. 134, decided 1993-01-26.

ORDER

This matter is before the Court on motions filed by petitioner on August 20,1992, August 28, 1992, September 9, 1992, and November 20, 1992.

On July 20, 1992, petitioner moved that Judge Ivers recuse himself from deciding a simultaneously filed motion for review of this Court’s July 7, 1992, denial of petitioner’s writ of mandamus. Petitioner sought recusal under the provisions of 28 U.S.C. § 455.

On August 14,1992, Judge Ivers issued a single-judge order which denied the motion.

On August 20 and 28, 1992, the Court received from petitioner, pursuant to Rule 35(b) of this Court’s Rules of Practice and Procedure, motions for review of the *135Court’s August 14, 1992, order which denied the recusal of Judge Ivers.

On September 2, 1992, a panel of this Court denied petitioner’s July 20, 1992, motion for review of the July 7,1992, denial of the writ of mandamus.

On September 9, 1992, petitioner filed a motion for clarification of the September 2, 1992, order denying the motion for review. Petitioner’s motion for clarification requested, inter alia, the status of the motions filed August 20,1992, and August 28, 1992. An issue presented by these motions, i.e., whether a panel may review a single judge’s denial of a motion for recu-sal, is addressed in an opinion issued by a three-judge panel (Nebeker, Chief Judge, and Mankin and Steinberg, Associate Judges). The motions filed August 20 and August 28, 1992, have been construed by the Court as motions for reconsideration of the August 14, 1992, order pursuant to Rule 35(a). Accordingly, those motions for reconsideration are considered in this order.

Among the arguments advanced by petitioner in his motions is that the August 14, 1992, order denying the July 21, 1992, motion for recusal should be reconsidered because of a previous recusal by the same Judge in another case. With regard to this matter, this Court states that the bases for the recusal action in Bernklau v. Derwinski, U.S. Vet.App. No. 90-637 (order designating Chief Judge Nebeker to panel in Judge Ivers’ stead, Nov. 6, 1991), are unrelated to any matters raised in this case.

On November 20, 1992, petitioner filed a motion for an injunction or stay pending appeal pursuant to Rule 8 of this Court’s Rules of Practice and Procedure. The initial decision in this case, filed July 2, 1992, remanded petitioner’s case. In his motion, petitioner asserted that the Regional Office (RO) was following through with the initial remand, and petitioner requested that the Court take action to stay or enjoin present actions by the RO. Petitioner’s Mot. at 2. On December 11, 1992, the Court ordered the Secretary to respond to petitioner’s contentions.

On January 12, 1993, the Secretary responded to petitioner’s November 20, 1992, motion for injunction. The Secretary stated that petitioner’s motion should be denied as moot, given that the RO had notified petitioner in a letter dated December 21, 1992, that no further action would be taken with respect to his claim pending a determination by this Court of other motions now before it. Secretary’s Mot. at 8. On January 19, 1993, petitioner submitted a response to the Secretary’s January 12, 1993, response to his motion for injunction.

Upon consideration of the foregoing, it is

ORDERED that petitioner’s motions, dated August 20, 1992, and August 28, 1992, for reconsideration of the August 14, 1992, order denying recusal are denied. It is further

ORDERED that petitioner’s November 22, 1992, motion for injunction is denied.

Aronson v. Brown, 4 Vet. App. 135, decided 1993-01-26.

ORDER

PER CURIAM. On September 9, 1992, Petitioner filed a motion for clarification of a September 2, 1992, order of this Court which denied petitioner’s motion for review of a July 7,1992, 2 Vet.App. 580, order denying his applica*136tion for a writ of mandamus. Petitioner also requested en banc review of several matters pursuant to Rule 35(b). Specifically, petitioner requested that the full Court conduct a “full [r]eview of all issues which I specified in all of my previous motions for review,” and to consider in particular the July 7, 1992, order denying the writ of mandamus; an August 14, 1992, order denying a motion for recusal of Judge Ivers; and the September 2, 1992, order denying the motion for review of the July 7, 1992, denial of the writ of mandamus. Petitioner’s Mot. at 3-4.

Petitioner’s motion for clarification requested the status of motions filed August 20, 1992, and August 28, 1992, which sought review of the August 14, 1992, order denying petitioner’s motion for recusal of Judge Ivers. An issue presented by these motions, i.e., whether a panel may review a single judge’s denial of a motion for recusal, is addressed in an opinion issued by a three-judge panel (Nebeker, Chief Judge, and Mankin and Steinberg, Associate Judges). The motions filed August 20 and August 28, 1992, have been construed by the Court as a motion for reconsideration of the August 14, 1992, order pursuant to Rule 35(a).

The Court recognizes that its September 2,1992, order was issued prior to the disposition of the two August motions. Therefore, the Court today reissues its September 2, 1992, order concerning the motion for review of the July 7,1992, denial of the writ of mandamus and addresses petitioner’s motion for review en banc.

Accordingly, it is

ORDERED, by the panel (members of panel denoted by *), that the Court’s order of September 2, 1992, is vacated. It is further

ORDERED, by the panel, that petitioner’s motion for panel review of the July 7, 1992, order denying his application for a writ of mandamus is denied. It is further

ORDERED, by the Court en banc, that no judge having called for a vote, petitioner’s September 9, 1992, motion for en banc review of the July 7, 1992, order is denied.