Does a Judge have to recuse if a conflicted party files an amicus brief? Or should the brief be struck?

The Fifth Circuit struck the brief. Judge Brasher (CA11) recused.

|The Volokh Conspiracy |

As a general matter, federal judges will recuse if they have some sort of relationship with one of the named parties. Indeed, most clerks will screen cases, to avoid assigning a matter to a judge that would create a potential recusal. Occasionally, conflicted cases slip through the cracks–even at the Supreme Court. Sometimes the identity of all parties isn't obvious, and a conflict only becomes clear after the case is assigned. But what happens when the conflict arises based on an amicus brief? Friends of the court may file briefs long after the panels are assigned. And these filings may give rise to conflicts of interest. What should a court do in such a case?

In 2018, the Federal Rules of Appellate Procedure were amended to address this situation. Rule 29(a)(2) provides:

 Any other amicus curiae may file a brief only by leave of court or if the brief states that all parties have consented to its filing, but a court of appeals may prohibit the filing of or may strike an amicus brief that would result in a judge's disqualification.

In short, if an amicus brief would create a recusal, the court can strike it.

The Fifth Circuit relied on this rule in Texas v. United States, the challenge to the Affordable Care Act. On April 1, 2019, Children's Partnership and First Focus filed an amicus brief. They were represented by Stuart Delery of Gibson, Dunn & Crutcher. On April 8, 2019, the docket reflected a one-line, unsigned order:

COURT ORDER striking AMICUS BRIEF filed by First Focus and Children's Partnership.

No explanation was given. But the conventional wisdom was that the brief was struck to avoid Judge Jim Ho's recusal. (Ho had worked at Gibson, and his wife is currently a partner there). That strike also led some to speculate that Judge Ho might be on the three-judge panel. Ultimately, he was not on that panel. And he eventually recused from the en banc court, even though the Gibson brief was struck. (My uninformed speculation: Judge Ho recused based on his work on the original ACA challenge as Texas Solicitor General.)

Judge Andrew Brasher, a new member of the Eleventh Circuit chose a different approach. Today he recused from en banc consideration of Florida's felon disenfranchise case. There was no conflict with any of the parties. Rather, he identified a conflict because the Alabama Attorney General, his former employer, filed an amicus brief. He explained:

Before joining the bench last year as a district judge, I worked as a lawyer at the State of Alabama Attorney General's Office. Upon being nominated and confirmed to the position of district judge, I conferred with staff at the Committee on Codes of Conduct for the Judicial Conference of the United States about recusal-related issues. They recommended that I adopt a general policy of recusing from cases in which lawyers from the Alabama Attorney General's Office represent a party for about two years. This policy would avoid any appearance of partiality by allowing a reasonable time period between when I worked with these lawyers as a colleague and when I might rule in one of their cases as a judge.

Other judges may reasonably choose different policies or different time periods. Some judges may not feel the need for a blanket recusal policy at all. But I thought the suggestion was a good idea, it was consistent with the recusal policies of other members of the district court on which I served, and I adopted the policy as a district judge.

I intend to continue following this recusal policy as a member of this court. In this case, lawyers from the Alabama Attorney General's Office filed an amicus brief. Whether and how a judge's recusal policies should apply to amicus participation is an unsettled area. But, with some exceptions that do not apply here, my policies apply to amici in the same way they apply to parties. For that reason, I am recusing myself from this matter.

Brasher could have asked the clerk to strike the Alabama amicus brief. But he instead chose to recuse. I appreciate this clarity. Judge Brasher explained, with candor, why he was stepping down. Far too often recusal orders are void of reasoning. I agree with his rationale.

As an ethical matter, I think it better for the judge to step down than to strike the unwitting amicus brief. FRAP 29(a)(2) permits that resolution, but it is eminently unfair to the parties. Put yourselves in the shoes of the attorney who spent time and money writing a brief, only for it to be invalidated. However, this practice sends a clear signal to the market: clients who agree with Judge Ho's general jurisprudence may be hesitant to hire Gibson Dunn to file an amicus brief for the Fifth Circuit, lest their brief force a recusal. For similar reasons, the Alabama Attorney General, may be hesitant to file amicus briefs in Eleventh Circuit. For the next two years, Judge Brasher will be recused from any case in which the Alabama Attorney General's office is a party, or serves as an amicus. I suspect we will see multi-state coalitions file in the Eleventh Circuit, with Alabama left off the signature block.

There is a unique situation where FRAP 29(a)(2) makes eminent sense: parties may deliberately try to force a specific judge to recuse by hiring her former firm to file an amicus brief. I think this possibility is rare, because most firms would not knowingly take a client who is trying to force the disqualification of their former colleague.

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  1. “Indeed, most clerks will screen cases, to avoid assigning a matter to a judge that would create a potential recusal.”

    In my experience, that is not correct. Most districts randomly assign judges and promptly docket notice of that random assignment. A process where the Court staff invisibly and silently does a conflict check would both add delay and give reason to worry that the process is being manipulated and make it challenging to know whether an assignment was truly random.

    1. Do you practice in federal court?

      When appearing every party has to file a Rule 7.1 statement as to law firms and corporate affiliates and parents. In this way a case can be assigned to a non-conflicted judge.

      1. I’m a journalist covering federal courts. In my home district (Massachusetts), court staff does a random assignment within a few business hours of docketing, which does not address conflicts (and so recusals can happen in the following days). I believe a similar process happens in most other districts I’m familiar with (e.g. SDNY, D.D.C., N.D.Cal., C.D.Cal.). With eyes on Portland lately, it’s interesting to see that Oregon automatically assigns a case upon filing of the lead document without requiring a manual clerk step.

        Rule 7.1 only applies to corporate parties (you said “every party”), but anyhow: in the jurisdictions I am familiar with, a Rule 7.1 statement does not trigger recusal prior to initial judge assignment (even though it theoretically could do so). And again, as a policy matter I wouldn’t favor a “silent” recusal prior to initial assignment. I’d much rather see the assignment and the explicit recusal (which might or might not come with a statement explaining why…here that choice is up to the judge).

      2. Do you practice in federal court?

        When appearing every party has to file a Rule 7.1 statement as to law firms and corporate affiliates and parents. In this way a case can be assigned to a non-conflicted judge.

        Um, do you?

        While the plaintiff’s counsel appears at the filing of the complaint, thus triggering the obligation for its 7.1 statement, the vast majority of cases are assigned to a judge long before defendant’s counsel appears and files its 7.1 statement.

    2. “and give reason to worry that the process is being manipulated”

      The process is known to have been manipulated at times. For instance, during the Clinton administration, Chief Judge Norma Holloway Johnson diverted all Clinton related litigation to a particular clique of judges who called themselves “the Magnificent Seven”.

  2. What an incredible “own goal” Alabama committed. By filing its amicus brief, Alabama probably cost its side the case. The 11th Circuit is only 6-to-5 Republican among active judges, once Brasher recused. And the 5 Democratic active judges will be buttressed by senior judges who sat on the 3-judge panel and support the panel’s ruling mandating enfranchisement of felons who haven’t paid their fines and fees.

    1. Actually, there was no need to recuse. Judge Brasher didn’t work on this case while in the Alabama AG’s office, so there was no need to recuse. Judges often hear cases where amicus briefs are filed by the AG’s office that formerly employed them — and Brasher hadn’t even worked in the AG’s office for a while. Judge Pryor also is a former Alabama AG, and of course, he doesn’t recuse himself from such cases.

      1. “Actually, there was no need to recuse.”

        Agreed. Brief struck so its as it was never filed. Plus, its an amicus brief, Alabama is not a party.

  3. clients who agree with Judge Ho’s general jurisprudence may be hesitant to hire Gibson Dunn to file an amicus brief for the Fifth Circuit,

    I suspect clients care a hell of a lot more about likely results than about a judge’s jurisprudence.

    And of course, clients who don’t want Ho on the case now have an incentive to hire Gibson Dunn, so from the firm’s point of view it balances, doesn’t it?

  4. I don’t understand why a law firm would file an amicus brief if it knows (as it should) that it would disqualify the judge, who was a former firm partner. Unless he left on less than amicable terms? I see a lot going on here behind the scenes.

    1. It’s actually no that clear that he’d have to recuse himself. Judge Ho left more than 2 years ago which is a standard that is generally accepted (though not required as far as I know) as the length of time after leaving a firm before a judge can sit on case where that firm is counsel of record. There is another consideration based on what if any he still receives from the firm as leaving compensation and whether it is fixed or profit dependent.

      When there is a relative in the office it is a bunch of factors including closeness, the interest the relative has in the result, whether the relative is counsel of record, etc. It isn’t automatic. The fact that it was an amicus brief and not for party lessens the impropriety. I’m assuming his wife didn’t author the brief which lowers than impropriety. Given that it is an amicus it was almost certainly paid either by a flat fee or hourly and not contigent based. Even as a partner then there isn’t much of an interest in the “result” of the case. I’m not saying that recusal definitely would not be appropriate, but it also isn’t clearly mandated or appropriate. It is possible, though I think unlikely, that a decision to sit would run afoul of the ethics rules but it still might be prudent not to sit. All this results in the fact that a Judge can make his or her own mind up on this and there is reasonable disagreement. The firm should know that this dilemma would occur but that doesn’t mean they should know he’d recuse because that isn’t obvious.

      As for the 11th Cir one and the Alabama Attorney General that is potentially a decision that a politician (which Attorneys General are even if also lawyers) made without a complete understanding of the legal consequences. They also may have known and still felt it necessary to file the brief for one reason or another.

      As for why a firm would file a brief in general case it is because they want to get paid. They don’t make money by not taking clients. If a former partner is a judge and has to recuse then so what? The only way there would be an issue is if they truly felt that it would hurt the client’s case in which case their own ethics rules may kick in. But I don’t see why a firm would refuse a client just to be nice to a former colleague.

      1. If a former partner is a judge and has to recuse then so what?

        Shouldn’t the firm at least tell the client about the risk before agreeing to file the brief?

        Seems like ordinary common sense ethics.

  5. Striking an amicus seems the more appropriate decision because it’s much easier to find an amicus that raises a conflict.

  6. No explanation was given. But the conventional wisdom was that the brief was struck to avoid Judge Jim Ho’s recusal. (Ho had worked at Gibson, and his wife is currently a partner there). That strike also led some to speculate that Judge Ho might be on the three-judge panel. Ultimately, he was not on that panel. And he eventually recused from the en banc court, even though the Gibson brief was struck. (My uninformed speculation: Judge Ho recused based on his work on the original ACA challenge as Texas Solicitor General.)

    Why is the Gibson brief not sufficient for a recusal, even if it was struck? The facts remain that (1) Gibson has a professional interest in the outcome of the case, and (2) the judge’s wife is a partner at Gibson. There is obviously a conflict of interest whether or not the brief is struck.

    (Imagine that a particular law firm has 100% of its amicus briefs formally struck from the cases in which they are filed, and also that 100% of such cases ultimately rule in favor of the side supported by the struck brief. What would that firm be able to charge for its services?)

    1. Why is the Gibson brief not sufficient for a recusal, even if it was struck? The facts remain that (1) Gibson has a professional interest in the outcome of the case, and (2) the judge’s wife is a partner at Gibson. There is obviously a conflict of interest whether or not the brief is struck.

      Why does Gibson have a professional interest in the outcome of the case? They’re presumably not being paid on contingency to file the amicus brief.

      1. For the exact reason I stated above:

        Imagine that a particular law firm has 100% of its amicus briefs formally struck from the cases in which they are filed, and also that 100% of such cases ultimately rule in favor of the side supported by the struck brief. What would that firm be able to charge for its services?

        If your amicus briefs succeed, nobody cares whether or not they get struck from the record before succeeding. In this case, we have a corrupted judge, and all the striking is doing is obfuscating the corruption from the record.

  7. It seems that some parties may try to influence the outcome by filing briefs with known conflicts to eliminate a specific judge thought unfavorable to their case.

    1. There are two ways this might happen:

      1. A case is pending before Judge Red. Facebook has an interest in the case, and files an amicus brief written by their in-house counsel. Judge Red has no relationship whatever with the lawyers, but his wife is an executive at Facebook.

      2. A case is pending before Judge Red. Facebook has an interest in the case, and retains a law firm to file an amicus brief. Judge Red has close relationships with many high-level people in that law firm, including his wife.

      In scenario (1), Judge Red has a conflict of interest regardless of whether Facebook actually files a brief. In scenario (2), the conflict of interest is created ex nihilo by the law firm’s act of filing the brief.

      I’m saying that striking the brief does not solve the conflict in either case. Judge Red should recuse, always. But scenario (2) is open to manipulation by the law firm. The right approach, as far as I see, is that Judge Red still has to recuse — he still has a significant conflict of interest! — but the law firm should be subject to stiff penalties for filing an improper brief.

  8. It seems to me that the standards for finding a conflict based on an amicus brief should be much more relaxed than for parties, unless it’s the rare situation where the amicus has interests that will be immediately and directly affected by the outcome (i.e., the amicus has a case pending in district court where the same issue is dispositive). It just seems so implausible that the fact that a judge would be swayed by the fact that someone working for his former employer filed an amicus.

  9. I renew my objection to the whole practice of amicus briefs. I do not see any value, they are just going to be repetative at best.

    Parties should be heard, not special interests or ego driven professors.

    1. You are overstating your case, but there’s truth to it.

      Sometimes an amicus brief really does help the Court. Such as when a group that is really expert on a particular issue provides information that the litigants did not provide. An example is the Association of Editorial Cartoonists’ brief in Hustler v. Falwell, with its appendix of all the great political cartoons over 200 years that could have been actionable as intentional infliction of emotional distress.

      But most of the time, parties who file amicus briefs are not, in fact, “friends” of the Court. They are either doing it to get around page or word limits, or to fundraise (“we filed a Supreme Court brief”).

      Posner tried to wage a campaign against useless amicus briefs. But he got nowhere. The practice is too entrenched.

      1. All fair points.

        Too much garbage to pick thru to find the gems.

  10. “There is a unique situation where FRAP 29(a)(2) makes eminent sense: parties may deliberately try to force a specific judge to recuse by hiring her former firm to file an amicus brief. I think this possibility is rare, because most firms would not knowingly take a client who is trying to force the disqualification of their former colleague.”

    This seems incredibly naive. Firms are, overwhelmingly, in desperate need of business and billable hours. They would rarely even consider such a thing. All this does is end up further incentivizing Presidents to only appoint people who are public sector lifers.

  11. Put yourselves in the shoes of the attorney who spent time and money writing a brief, only for it to be invalidated.

    Bear in mind, ANYONE who spends money on an amicus brief knows that the possibility that leave will be denied, or that leave will be granted and the brief ignored, exists. They have already signed up for that gamble.

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