Reassignment.

• Author: Heytens, Toby J.
• Position: Reviewing courts' returning of case to lower courts to proceed under different trial court judge - Introduction through II. When Does Reassignment Happen? B. Results 2. Who Is Getting Reassigned and by Whom? p. 1-27

INTRODUCTION I. INTRODUCING REASSIGNMENT A. Distinguishing Reassignment from Recusal B. The Mechanics of Reassignment II. WHEN DOES REASSIGNMENT HAPPEN? A. Methodology B. Results 1. Distribution of cases among circuits 2. Who is getting reassigned and by whom? a. The reassigned b. The people ordering reassignment 3. What do the cases in which reassignment is ordered look like? a. Non-Seventh Circuit cases b. Seventh Circuit cases III. WHAT CAN REASSIGNMENT TEACH US? A. Reassignment as a Means of Appellate Control B. Reassignment, Recusal, and Judicial Impartiality 1. Reassignment as a substitute for recusal 2. Reassignment and judicial impartiality C. Rules, Reasons, and Reassignment CONCLUSION INTRODUCTION

In 1996, a remarkable series of events played out between the United States Court of Appeals for the Second Circuit and legendary federal district judge Jack Weinstein in a case called United States v. Londono. (1) The underlying litigation wasn't terribly notable: a criminal defendant pleaded guilty to importing cocaine, and the then-mandatory Federal Sentencing Guidelines called for a term of imprisonment between 108 and 135 months. (2) Judge Weinstein, however, sentenced the defendant to just thirty-seven months of imprisonment. (3) A unanimous Second Circuit panel vacated the sentence and remanded "for resentencing consistent with this opinion." (4)

Six months later, Judge Weinstein issued an opinion stating that he was "not in a position to follow the [Second Circuit's] mandate." (5) The defendant had completed the original thirty-seven-month sentence and been deported to Colombia while the government's appeal was pending, and Judge Weinstein concluded that he lacked the power to resentence without the defendant being physically present. (6) Judge Weinstein further concluded that, as a result of the Second Circuit's vacatur order, the defendant was "unsentenced" and would remain so barring "the unlikely event that custody of the defendant is [again] obtained in the United States." (7)

The Second Circuit didn't take kindly to that. Instead, the panel took the highly unusual step of recalling its mandate and issuing a new opinion. (8) The panel concluded that the defendant's deportation had not rendered the government's appeal moot and that it need not decide whether Judge Weinstein was right about lacking the power to resentence without the defendant being present. (9) Instead, the panel decided to "obviate the issue" by reinstating the original erroneous sentence and remanding with directions to correct that sentence pursuant to Federal Rule of Criminal Procedure 35. (10)

But the Second Circuit did something else, too. Although the case was being returned to the district court, the court of appeals specifically directed that it not go back to Judge Weinstein. (11) The court of appeals identified "several troubling aspects" about Judge Weinstein's "handling of this case." (12) For one thing, the original sentence had been short enough to make it foreseeable that the custodial portion would be completed before any appeal could be heard, and Judge Weinstein had specifically directed that the defendant "should be deported immediately following his period of incarceration." (13) Second, Judge Weinstein's post-remand order had "implied ... that [his] hands were tied" because the parties had declined to follow his "suggestion that they seek an amendment of the mandate," but the court of appeals found no such "recommendation in the record." (14) Finally, the court of appeals stated that Judge Weinstein had "impl[ied] without basis that this Court was aware of the deportation when it issued its [initial] opinion," and it emphasized that no one from the district court had contacted the court of appeals to notify it that the defendant had been deported. (15) Declaring that "Judge Weinstein's handling of this case makes an exorbitant claim on appellate resources," the court of appeals "direct[ed] that further proceedings be assigned to a different judge," who would decide, among other things, the very question Judge Weinstein previously decided: "whether or not the sentencing error can be corrected in the defendant's absence." (16)

A case like Londono obviously raises all sorts of interesting questions. The questions on which this Article will focus, however, involve the Second Circuit's decision to order reassignment--that is, to return the matter to a lower court for further proceedings while simultaneously directing that those proceedings take place before a judge other than the one who conducted the original proceedings. How often do reviewing courts do this sort of thing, and what do the cases in which they do it look like? What can reassignment tell us about the relationship between trial and appellate courts, as well as how we think (or should think) about judicial impartiality? Should reviewing courts be doing this sort of thing at all and, if so, how should they go about doing it?

Scholars have largely ignored these questions. A leading casebook about the relationship between trial and appellate courts does not mention reassignment at all, (17) and commentators have sometimes described reversal as an appellate court's "only means of disciplining district courts." (18) In fact, although federal courts of appeals have been ordering reassignment for more than half a century, there has been no comprehensive attempt to identify the phenomenon's origins, current scope, or broader implications. (19)

This Article does all of those things. No federal statute or Federal Rule of Appellate Procedure addresses to which trial court judge a case should go following an appellate reversal, so I examined the local rules of all thirteen federal courts of appeals and ninety-four federal district courts. Just one circuit and only a handful of district courts address the issue in their local rules, (20) and the remaining district court clerks' offices confirmed that their apparently universal practice following an appellate remand is to return the case to the original trial court judge unless--as in Londono--the court of appeals expressly directs otherwise. (21)

I next sought to determine when and how appellate-court-ordered reassignment happens. After attempting to locate every publicly available decision or order in which a federal court of appeals has ordered reassignment, I created an original dataset of 668 cases, which I coded by date, circuit, type of case, and trial and appellate judges. (22)

Every federal circuit asserts a power to order reassignment, and they have exercised that power in pretty much every type of case imaginable. At the same time, however, reassignment remains very much the exception rather than the norm--that is, courts of appeals order reassignment in only a tiny fraction of cases in which it is theoretically available. (23) There also are large variations in reassignment numbers both by circuit and by trial court judge, as well as in the types of cases in which reassignment is ordered, the procedures by which various circuits go about ordering it, and the reasons they give for doing so. (24)

This Article does not, however, simply identify the phenomenon of reassignment and describe its current scope. It also asks a more interesting question: what can reassignment teach us? I see three main lessons. (25)

First, reassignment underscores that reversal is not the only tool that appellate courts have for influencing lower court outcomes. Appellate courts can craft the underlying legal tests in ways that make it more likely that a trial court will get it right the first time. Alternatively, they can simply make the final decision themselves instead of remanding for further proceedings, or they can issue detailed marching orders to the trial court that have the effect of doing the same thing. Or appellate courts can reassign a case away from a trial court judge whom they have concluded is too likely to err on remand.

Recognizing these various techniques of appellate control as partial (though imperfect) substitutes for each other yields additional insights. For example, it may help explain why the federal courts of appeals seem particularly likely to order reassignment for sentencing-related errors (because that is a context in which other techniques for appellate control are comparatively less available or useful) and why the modern Supreme Court does not seem to use reassignment at all (because, among other things, the Court has other means for controlling lower court judges). At the same time, reassignment--like other strategies of appellate control--has costs as well. Reassigning cases midstream creates more work for trial court judges, and public case-by-case reassignment orders can strain relationships between trial court and appellate judges. These costs may help explain why reassignment following an appellate reversal is still very much the exception rather than the norm and underscore that appellate judges seem to care about more than simply maximizing the odds that individual cases will be resolved consistent with their policy preferences.

Second, reassignment complicates traditional discussions about judicial impartiality in general and judges' ability to disregard impermissible information in particular. Although the Supreme Court has told us that a trial court judge's in-court conduct or information that the judge learned during the course of her judicial duties will rarely provide a justification for recusal, (26) courts of appeals frequently identify precisely those sorts of things as support for a decision to order reassignment. (27) This Article thus demonstrates that reassignment can operate as a work-around for narrow recusal rules. More broadly, many aspects of our current litigation processes rest on the premise that trial court judges are able to ignore certain information and disregard their own prior views...