The Limited Power of the Federal Courts of Appeals

Full title: THE LIMITED POWER OF THE FEDERAL COURTS OF APPEALS TO ORDER

Court: United States District Court, D. Alaska

Date published: Jan 1, 1988

120 F.R.D. 267 (D. Alaska 1988)

Opinion

January 1, 1988

THE LIMITED POWER OF THE FEDERAL COURTS OF APPEALS TO ORDER A CASE REASSIGNED TO ANOTHER DISTRICT JUDGE ^_ by JACK B. WEINSTEIN ^__

_ These remarks are from an address to the Alexander Fellows of the Benjamin N. Cardozo School of Law, New York City, given on February 22, 1988.

__ Chief Judge, United States District Court, Eastern District of New York. While I take full responsibility for the views expressed in this paper, I should like to acknowledge with thanks the help of my present clerk Jonathan Wiener, and my former clerks Marie O'Connell and Anita Bernstein, who assisted with the research.

Some panels of the federal courts of appeals have recently been ordering that a case on remand be heard by a different district court judge than the one who originally decided the case. This kind of order is a matter of concern because it represents an unjustified arrogation of power by some judges of the court of appeals and is destructive of the proper relationship between the trial and intermediate appellate courts.

I have never been subject to such an order. My interest in the subject is as a Chief Judge concerned with the morale of trial judges and with the important joint work of the federal trial and appellate courts. To satisfactorily administer justice, we should have a sense of mutual respect and understanding among all judges as well as a clear delineation of roles.

The assumption of power by an appeals panel to control judge selection can only add to the burdens placed on the trial courts, while adversely and unnecessarily lowering their morale. The district courts have carefully designed plans for the division of business among their judges, and interference from above gums up the works. Trial courts operate every day, often with one judge hearing several motions and supervising more than one jury at a time. If trial judges are to decide properly, they need the power granted them by statute to organize their own assignments.

One justification relied on by appeals panels ordering reassignment is that this is a power seldom used by the courts of appeals. That excuse hardly answers the argument that the power does not exist.

There are, of course, instances in which recusal by a trial judge is desirable. This result can be obtained on motion at nisi prius, ultimately reviewable on appeal, or by mandamus with notice to the trial judge and the right to be heard.

The situation can also be handled informally by the normal give and take of peers advising each other. As chief judge or colleague I have advised judges to recuse themselves and that advice has always been followed. The chief judge of any Circuit should be aware that his or her views or the views of a panel of the court of appeals can be brought to the attention of the trial judge informally, directly or through the chief judge of the district, when the trial judge may not have seen a difficulty as clearly as the appellate judges. But then the trial judge makes the decision. If he or she refuses to act, our district court Guidelines for the Division of Business among judges provide for involuntary reassignment at the district level. See Guidelines for the Division of Business, United States District Court, Eastern District of New York, revised February 17, 1988 [see Appendix].

Only after a motion to recuse is made by a party at trial and denied, or a mandamus proceeding is brought in the court of appeals, does the appellate court have the power to order transfer of a case, on the ground that the trial court abused its discretion in failing to recuse. The original decision whether to recuse is for the district judge. The system for assigning cases to trial judges is for the district court to administer. Congress delegated that power to the district courts under 28 U.S.C. § 137. There are good policy reasons for that delegation.

I. LOCAL GUIDELINES

Our court has recently revised its guidelines for the division of business among our judges to avoid some of the problems involved in assignment on remand and other assignment choices. Guideline 50.2( l) of the Guidelines for the Division of Business in the Eastern District of New York provides that the case shall stay with the original judge on remand, except that retrials or resentencing in criminal cases are reassigned at random to another judge. In civil remands and criminal remands not requiring retrial or resentencing, the chief judge or the judge to whom the case is assigned, may decide that another judge ought to be assigned instead.

These guidelines were adopted after careful study and much discussion with the trial bar. They reflect a diligent analysis of the problems confronted by the district court. Guideline 50.2(l) of the Guidelines for the Division of Business in the Eastern District of New York now reads as follows:

(l) Appeals — Assignment on Reversal or Remand

(1) In a criminal case upon reversal of a judgment and a direction for retrial or resentence, on receipt of the mandate of the appellate court the clerk shall randomly select a different judge to preside over the case. Notwithstanding this provision the chief judge may order the case assigned to the original presiding judge to avoid placing an excessive burden on another judge.

(2) In a civil case upon reversal the case shall remain assigned to the judge who was previously assigned, unless the chief judge or his designee orders otherwise.

Revised February 17, 1988. [See Appendix p. 286.]

In accordance with present practice, the judge assigned may recuse himself or herself or ask that the chief judge of the district court, or his or her designee, assign the case to another judge. The chief judge may take the initiative to reassign. It is essential that the rule permit the chief judge discretion to avoid such problems as overloading judges and to give temporary relief to a trial judge conducting an extended trial. Reassignment will be made pursuant to a random selection procedure outlined in Guideline 50.2(b).

The guideline is neither predicated upon power granted by, nor inconsistent with, the Federal Rules of Civil or Criminal Procedure. Cf. Fed.R.Crim.P. 57; Fed.R.Civ.P. 83; N.D.Ill.R. 44; S.D.Ind.R. A-8; D.Mass.R. 8(h); D.R.I.R. 7(g); Seventh Circuit Court R. 18. It is adopted pursuant to 28 U.S.C. § 137, set out infra.

Generally, the practice in this district has been for a resentencing on remand to be by the same judge who originally sentenced the defendant. Having the judge who is most familiar with the defendant's case (and who in many cases has heard trial testimony) resentence the defendant is usually both the most efficient use of judicial resources and fair for the defendant and the government. Some concern about disparity in sentencing is alleviated in the United States District Court for the Eastern District of New York because of the practice of having a three-judge panel discuss sentencing recommendations and because of regular and extensive consultation with the Probation Department. This practice has worked well for a number of years.

Nevertheless, after consultation with the bar, the judges decided to experiment with a resentencing change that will normally send the case to a new judge after a remand for resentencing. This new practice will avoid the embarrassment of having some panels of the court of appeals require such transfers on a haphazard basis. Moreover, under the new mandatory sentencing guidelines many factual inquiries may need to be made, requiring, in effect, an extended hearing when resentencing is ordered. The defendant suffers no added risk when the resentencing is before a new judge, because, absent unusual circumstances, the sentence on remand may be no greater than the original sentence, in order to avoid chilling the exercise of the right to appeal. See Blackledge v. Perry, 417 U.S. 21, 28, 94 S.Ct. 2098, 2102, 40 L.Ed.2d 628 (1974); North Carolina v. Pearce, 395 U.S. 711, 725-26, 89 S.Ct. 2072, 2080-81, 23 L.Ed.2d 656 (1969); United States v. Whitley, 734 F.2d 994, 996-97 (4th Cir. 1984).

II. STATUTORY SCHEME

In considering the power to assign we turn first to the statutory scheme. Section 137 of Title 28 places in the district court, and particularly the Chief Judge of the district, responsibility for division of business among the district judges. It reads:

§ 137. Division of business among district judges

The business of a court having more than one judge shall be divided among the judges as provided by the rules and orders of the court.

The chief judge of the district court shall be responsible for the observance of such rules and orders, and shall divide the business and assign the cases so far as such rules and orders do not otherwise prescribe.

If the district judges in any district are unable to agree upon the adoption of rules or orders for that purpose the judicial council of the circuit shall make the necessary orders.

Judicial councils of the Circuit — not panels of appellate judges — have some administrative supervisory powers. See 28 U.S.C. § 332. But as the revisor's notes to section 137 point out, section 332 does not limit the district court's powers under section 137. The notes to section 137 read:

Section was rewritten and the practice simplified. It provided for division of business and assignment of cases by agreement of judges . . .

The revised section [137] is consistent with section 332 of this title, the last paragraph of which requires the judicial council to make all necessary orders for the effective and expeditious administration of the business of the courts within the circuit.

See Federal Civil Judicial Procedure and Rules 469 (West 1987).

Judicial councils are constituted so as to include both court of appeals and district judges. See 28 U.S.C. § 332(a)(1). It is the council, not individual appellate panels, that may "make all necessary and appropriate orders for the effective and expeditious administration of justice within its circuit." 28 U.S.C. § 332(d)(1). See generally 16 Wright, Miller, Cooper Gressman, Federal Practice and Procedure § 3939 n. 27 (1977 Supp. 1987). This supervisory authority extends to both the courts of appeals and district courts. 28 U.S.C. § 332. The judicial council may "abrogate" local rules adopted pursuant to the Federal Rules of Procedure. Fed.R.Civ.P. 83; 16 Wright, Miller, Cooper Gressman, Federal Practice and Procedure § 3939 n. 27 (Supp. 1987). This power of abrogation under Rule 83 does not extend to guidelines for the division of business adopted pursuant to section 137 of Title 28.

The general power of appellate courts to "require further proceedings . . . as may be just" does not encompass the division of business. That appellate power is contained in 28 U.S.C. § 2106, reading:

§ 2106. Determination

The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.

Appropriate proceedings may be ordered, but the statute does not authorize the appellate court to say what judge in a multijudge court shall preside — that issue is covered by section 137.

Where the court of appeals has some power over administrative matters concerning the district courts, the authority is granted by specific statute. See, e.g., 28 U.S.C. § 152 (court of appeals appoints bankruptcy judges after consideration of recommendations of judicial council); cf. 18 U.S.C. § 3165 (judicial council approval of district court speedy trial plans); 28 U.S.C. § 1863 (approval of plans for random jury selection); and 28 U.S.C. § 753 (approval of court reporter management plans).

This statutory scheme is better understood in light of the history of the relationship between the federal district and appellate courts. It is to this history that I now turn.

III. HISTORICAL BACKGROUND

Control over the conduct of individual judges has been a subject of interest since at least as early as Roman times. The Leges Visigothorum, a code of law used in the Roman empire during the seventh century, noted what constituted judicial misconduct: for example, the refusal to hear a case, prejudicial delay, the rendering of a decision contrary to received law, and receiving bribes. Roman law had a quasi-tort cause of action called the actio in indicem qui litem suam facit, permitting a litigant to sue a judge for false judgment. This action was seldom if ever used. It appears that the action would have been brought before a royal court. As a procedural safeguard, the accused judge could escape liability through oath taking, and the aggrieved litigant had to produce witnesses. See generally Hoeflich, Regulation of Judicial Misconduct from Late Antiquity to the Early Middle Ages, 2 Law Hist. Rev. 79 (1984).

Under English common law, some judges held office during good behavior by patent of the King, and were subject to the control of the King's Bench, a court independent of the monarch from at least the sixteenth century on. Raoul Berger writes:

By virtue of its 'general Superintendency over all inferior Courts,' King's Bench would punish judges of lesser courts by Attachment for Contempt 'for acting unjustly, oppressively, or irregularly,' 'for any practice contrary to the plain rules of natural Justice . . . as for denying a Defendant a Copy of the Declaration against him . . . or for compelling a Defendant to give exorbitant bail' and 'putting the Subject to unnecessary Vexation by colour of a judicial Proceeding wholly unwarranted by Law.' . . . '[T]he Court of King's Bench, by the Plenitude of its Power, exercises a Superintendency over all inferior Courts, and may grant an Attachment against the Judges of such Courts for oppressive, unjust or irregular Practice, contrary to the obvious Rules of Natural Justice.'

Berger, Impeachment of Judges and "Good Behavior" Tenure, 79 Yale L.J. 1475, 1503 n. 142 (1970) (first two ellipses in original) (citations omitted). In addition, it appears that the King's Bench could use its writ of scire facias (a proceeding to declare a forfeiture of the patent, comparable to an order to show cause to repeal a judicial commission) to discipline judges. See id. at 1479-81; see also Ervin, Separation of Powers: Judicial Independence, 35 Law Contemp.Probs. 108, 110-11 (1970); Biancala, For Want of Justice: Legal Reforms of Henry II, 88 Colum. L. Rev. 433 (1988). Judge Irving Kaufman has maintained that scire facias was only used against administrative officials with life tenure, never against judges. See I. Kaufman, Chilling Judicial Independence 20-29 (1979). Berger cites in support of his argument the experience of Sir John Walter, whom Charles I asked to surrender his patent in 1628; Walter refused to do so, saying that he was entitled to a scire facias proceeding by judges: "Thus a highly placed judge affirmed that his office could be forfeited for misbehavior in a scire facias proceeding." Berger, supra at 1481. Yet there appears to be no recorded history of a judge removed by judges through scire facias. Schoenbaum, A Historical Look at Judicial Discipline, 54 Chi.-Kent L. Rev. 1, 14 (1977). See generally Shartel, Federal Judges — Appointment, Supervision Removal — Some Possibilities Under the Constitution, 28 Mich. L. Rev. 485, 723, 870 (Parts 1-3) (1930) (suggesting supervision of district judges by Chief Justice and presiding circuit judges).

In framing the United States Constitution, the members of the Constitutional Convention provided judges with tenure "during good behavior" to ensure their independence from the legislature and the executive. United States Constitution, Art. III, § 1. The drafters of the Constitution rejected many traditional controls over judges, deliberately making no provision for executive removal of the judiciary or for legislative removal by bills of attainder (legislative declaration of a person's guilt), bills of pains and penalties (declarations of guilt where the punishment was less than death), and address (legislative removal for offenses that were less than impeachable). See Cameron, The Inherent Power of a State's Highest Court to Discipline the Judiciary, 54 Chi.-Kent L. Rev. 45, 49 (1977). Debate on a motion made on the floor of the Convention to provide for removal by the President on application of the Senate and House of Representatives (a form of joint address) reveals the framers' intent not to subject judges to extrabranch control except by impeachment. Gouveneur Morris called removal by address a "contradiction in terms" since it would subject judges serving during good behavior to removal without a trial; Edmund J. Randolph "opposed the motion as weakening too much the independence of the Judges." II M. Farrand, The Records of the Federal Convention of 1787 428-29 (rev. ed. 1966). Removal by address was explicitly rejected by the framers, the motion being defeated by a vote of seven to one, with three states absent. See id. at 429. Removal upon "impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors," of course, remained. United States Constitution, Art. II, § 4; see id., Art. III, § 1.

I shall refrain from discussing the present plan for disciplining federal judges (which I consider in large part unconstitutional) because it is irrelevant to the present discussion. Responsibility for discipline is placed in the circuit judicial councils and in the United States Judicial Conference, not in the courts of appeals. See 28 U.S.C. § 372(c).

These constitutional choices made by the founding fathers show support for the concept of an independent judiciary in the United States, but they are inconclusive on the nature of that independence. Is an independent judge independent from his fellow judges or only from encroachment by the legislature and executive? Assertions in both directions exist. Because the boundaries of judicial independence have seldom needed clear delineation, the debate has been largely a rhetorical one. See e.g., Rehnquist, Political Battles for Judicial Independence, 50 Wash. L. Rev. 835, 842 (1975) ("the unwritten constitutional law surrounding Article III" supports judicial independence "even at the cost of enduring partisan judges"); Ervin, Separation of Powers: Judicial Independence, 35 Law Contemp.Probs. 108, 121 (1970) ("judicial independence was . . . a sine qua non" to the framers, who intended "that each individual judge would be free from coercion even from his own brethren."); Ziskind, Judicial Tenure in the American Constitution: English and American Precedents, 1969 Sup.Ct. Rev. 135, 153 (1969) (framers' "purpose was to create a truly independent judiciary limited only by the cumbersome process of impeachment"); Otis, A Proposed Tribunal: Is It Constitutional?, 7 U.Kan.Cty. L. Rev. 3 (1938) (impeachment the sole method of control); Note, In Defense of the Constitution's Judicial Impeachment Standard, 86 Mich. L. Rev. 420 (1987) (framers intended that impeachment be sole method, though cumbersome, in order to safeguard judicial independence); Note, Unnecessary and Improper: The Judicial Councils Reform and Judicial Conduct and Disability Act of 1980, 94 Yale L.J. 1117, 1125 nn. 52 53 (1985) (collecting sources; author favors absolute independence); but see Berger, Impeachment of Judges and "Good Behavior" Tenure, 79 Yale L.J. 1475, 1476-77 (1970) (Art. II, § 4's provision of impeachment for conviction of "high crimes and misdemeanors" is narrower than Art. III, § 1's provision of judicial tenure during "good behavior"; therefore Congress may provide for other methods of removing judges whose misbehavior is not impeachable); Shartel, Federal Judges — Appointment, Supervision, and Removal — Some Possibilities under the Constitution, 28 Mich. L. Rev. 870 (1930) (arguing that jurisdiction to discipline judges is not inconsistent with the Constitution).

Although this constitutional debate has not been resolved, the early American common law preserved a version of traditional King's Bench mandamus, an encroachment of judges upon judges. Chief Justice Marshall, the leading American proponent of judicial review, had a strong sense of hierarchy within the judiciary. To Marshall, the superior court must lead the inferior to do what it "determine[s], or at least supposes, to be consonant to right and justice." Ex Parte Crane, 30 U.S. (5 Pet.) 190, 192, 8 L.Ed. 92 (1830). Crane shows none of the hesitancy that arose in later case law, when mandamus began to be thought of as an "extraordinary remedy," a response to "usurpation." Marshall's language differs little from that of Blackstone:

[I]t is the peculiar business of the court of king's bench to superintend all other inferior tribunals, and therein to enforce the due exercise of those judicial or ministerial powers with which the crown or legislature have invested them; and this, not only by restraining their excesses, but also by quickening their negligence and obviating their denial of justice.

3 W. Blackstone, Commentaries 110, cited in Ex Parte Crane, 30 U.S. at 192.

Much of this constitutional and English history is not helpful in resolving the issue before us because the courts of appeals are a relatively late addition to our federal court structure. They were created by statute and granted limited statutory powers. Even the Supreme Court, which could justly claim to have received all the judicial power of both the King's Bench and Parliament, has been from the outset prudently modest in claiming the inherent power of procedural superintendence over other federal courts. See, e.g., The Federalist No. 81 (A. Hamilton) (distinguishing Supreme Court's judicial power under American system from Parliament's power under British system); J. Goebbel, Jr., I History of the Supreme Court of the United States: Antecedents and Beginnings to 1801, 784-93 (1971) (discussing powers of superintendence); J. Weinstein, Reform of Court Rule-Making Procedures 59, 65-75 (1977) (Supreme Court's rulemaking power exercised pursuant to statutes).

IV. MODERN JUDICIAL SUPERVISION: THE RISE OF COMITY BETWEEN COURTS

A. Creation of the Court of Appeals

Hierarchy in the lower federal courts as we know it is a relatively recent phenomenon. The Judiciary Act of 1789 created two sets of trial courts of original jurisdiction, not a two tiered court system under the Supreme Court. Both district and circuit courts were originally trial courts with extremely limited jurisdiction when compared with the modern district courts. Originally the district courts were specialty courts, hearing admiralty and certain minor civil and criminal cases. Thirteen districts were established, coterminous with the new states, and permanent resident judges were appointed. The three circuit courts exercised original jurisdiction in cases resting on diversity of citizenship. The circuit courts were staffed by Supreme Court justices "riding circuit" sitting with district judges of that circuit.

Additionally, the circuit courts had a limited appellate jurisdiction over district court decisions in admiralty and civil cases. Professors Frankfurter and Landis, in their classic study of the federal judicial system, concluded that

[t]he volume of th[e] [circuit courts'] appellate business with their original jurisdiction [while] not disclosed by available data. . . . could not have been very considerable if later figures are a dependable guide to the earlier period. The district and circuit courts were in practice two nisi prius courts dealing with different items of litigation.

F. Frankfurter and J. Landis, The Business of the Supreme Court 12-13 nn. 35-36 (1928). Because federal jurisdiction was so narrow, these courts were able to manage their small caseloads with little centralization.

The expansion of federal court jurisdiction during the nineteenth century strained this court system and led to the authorization of general federal question jurisdiction in 1875. See Act of March 3, 1875, 18 Stat. 470. In 1891, Congress created a court system at the intermediate appellate level to alleviate the burdens on the Supreme Court. See Circuit Court of Appeals Act, Mar. 3, 1891, ch. 317, 26 Stat. 826.

Congress has followed the constitutional scheme of federal jurisdiction, which accords the Supreme Court constitutional status, with inferior courts to be created by Congress as needed. Both district and intermediate appellate courts are similar statutory creations. The federal court system does not preserve, in this relationship, the hierarchical authority of royal or superior courts over courts with more limited charters. In the system of seventeenth century England, lower courts were satellites, regional offices of a superior court. In the United States, the courts of appeals were established after many working years without them; no denigration of the general administrative power of the district courts to control themselves was accomplished by creation of the intermediate federal appellate system.

The need for intermediate appellate review in the federal courts was clear in 1891. With circuit and district courts both maintaining original jurisdiction, the limited right of appeal in most cases led only to the Supreme Court. The legislative history of the Circuit Court of Appeals Act asserted that the proposed bill "destroys the 'judicial despotism' of the present system by creating an intermediate appellate court. . . ." H.R. Rep. No. 942, 50th Cong., 1st Sess. at 4 (1888). An intermediate court "simplifies the whole judicial establishment by modelling the system largely after the systems in the [state courts]." Id. Another goal of the legislation was to "relieve the Supreme Court of very considerable unimportant litigation." Id. at 3.

The structure of the Circuit Court of Appeals Act shows that it was designed to create appellate courts of limited jurisdiction apart from the dual trial court system, thus rearranging the jurisdiction of the lower courts. The bill first divested the existing circuit courts of their appellate jurisdiction. Ch. 517, § 4, 26 Stat. 826, 827. Later it gave the new circuit courts of appeals the power to review final judgments and certain interlocutory orders of the district courts. See ch. 517, § 6, 26 Stat. 826, 828, codified at 28 U.S.C. §§ 1291, 1292. The original jurisdiction of the circuit courts remained until its abolition in 1911, which ended the system of two sets of federal trial courts. See Act of Mar. 3, 1911, 36 Stat. 1087.

The Circuit Court of Appeals Act preserved the power of the federal courts to issue writs in aid of their jurisdiction. Ch. 517, § 12, 26 Stat. 826, 829. The All Writs Act authorizes the modern use of mandamus and prohibition by the courts of appeals. See 28 U.S.C. § 1651. Proper use of this power requires an accurate sense of the boundaries of that jurisdiction: to review errors of law.

Limited authority to control assignment of cases, administrative control of judges, or control over judicial conflict outside the boundaries of the rule of law in a particular case, exists only 1) in the district court sitting as a body, 2) to a limited degree in the judicial council of the circuit as provided by specific statute, 3) to a limited degree in the court of appeals as a body as provided by specific statute, 4) in the Judicial Conference of the United States as provided by statute, and 5) possibly in the Supreme Court as successor to the Court of Kings Bench. It does not exist in an appellate panel which is reviewing a specific case only for specific errors of law in the particular case by a particular federal judge.

B. The Scope of Mandamus

Case law since the creation of the courts of appeals has recognized the evolution of the federal court system from the Blackstone-Marshall hierarchy to a structure with more evenly allocated powers. Mandamus is now an extraordinary writ available to "all courts established by Act of Congress." See All Writs Act, 28 U.S.C. § 1651 (authority to grant writs only when "necessary or appropriate"). A judge may be controlled by another judge, or panel, only under extraordinary and constrained conditions. In contrast, a judgment, a matter of law, is subject to an appellate court's decision to "affirm, modify, vacate, set aside or reverse." See 28 U.S.C. § 2106.

Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967), illustrates this evolved view of mandamus. In Will the district court had, apparently intentionally, disregarded discovery rules for a criminal case. See 389 U.S. at 100-01, 88 S.Ct. at 276. Nevertheless, the Supreme Court disapproved of the court of appeals' summary issuance of mandamus because the practice was isolated, not a persistent problem; the apparent lapse of the district judge was insufficiently extraordinary. The Court emphasized that mandamus is limited to situations where a judge has intentionally exceeded, or refused to exercise, the authority within his discretion. See 389 U.S. 102-05, 88 S.Ct. at 277-79 (rejecting mandamus where judge has not pursued "a deliberate policy in open defiance of the federal rules").

Will came after what had been the major precedent on mandamus, La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957). There the Supreme Court approved of mandamus against a district judge whose practice it had been to refer antitrust cases to a master, in derogation of Federal Rule of Civil Procedure 53(b), which provides that in nonjury cases some "exceptional condition" must require the reference. Issuance of the writ was justified where the orders of reference "amounted to little less than an abdication of the judicial function depriving the parties of a trial before the court on the basic issues involved in the litigation." 352 U.S. at 256, 77 S.Ct. at 313. The Court declared that appellate courts have general supervisory powers to facilitate judicial administration. See 352 U.S. at 259-60, 77 S.Ct. at 315; see also Schlagenhauf v. Holder, 379 U.S. 104, 110-12, 85 S.Ct. 234, 238-39, 13 L.Ed.2d 152 (1964) (court of appeals should have decided all issues raised on mandamus concerning novel question of district court's power under Federal Rule of Civil Procedure 35 to order examinations of a defendant).

Will explicitly distinguished La Buy, limiting it to deliberate and persistent breaches of procedure. See Will v. United States, 389 U.S. at 102-05, 88 S.Ct. at 277-79. The four dissenters in La Buy maintained that the majority erroneously read the All Writs Act as conferring on appellate courts a source of independent appellate power; the Will court suggested that there was no such power. See La Buy v. Howes Leather Co., 352 U.S. at 263, 77 S.Ct. at 317 (Brennan, J., dissenting); Will v. United States, 389 U.S. at 98, 88 S.Ct. at 275. It could therefore be argued that Will has overruled the assertion in La Buy "that supervisory control of the District Courts by the Courts of Appeals is necessary to proper judicial administration in the federal system." 352 U.S. at 259-60, 77 S.Ct. at 315. In a later case, then-Justice Rehnquist, writing for the Court, stated that although the respondent had probably satisfied the standard for review on appeal, it could not meet its burden of showing a "clear and indisputable" right to issuance of the writ of mandamus because the inaction complained of was within the district court's discretion. See Will v. Calvert Fire Insurance Co., 437 U.S. 655, 665-66 n. 7, 98 S.Ct. 2552, 2558-59 n. 7, 57 L.Ed.2d 504 (1978).

Courts of appeals have, nevertheless, tended in recent years to use mandamus more freely than Supreme Court precedents have approved, with no interference from the Supreme Court and little objection from academic commentators. See e.g., Fullerton, Exploring the Far Reaches of Mandamus, 49 Brooklyn L. Rev. 1131 (1983); Ward, Can the Federal Courts Keep Order in Their Own House? 1980 Brigham Young L. Rev. 233; Note, Supervisory and Advisory Mandamus Under the All Writs Act, 86 Harv. L. Rev. 595, 598 (1973) (finding endorsement of limited use of "advisory" mandamus in La Buy's "supervisory" mandamus). Supervisory mandamus has been used in a variety of circumstances. See, e.g., In re Virginia Electric Power Co., 539 F.2d 357 (4th Cir. 1976) (mandamus to offer guidance to district judges on when not to recuse under 28 U.S.C. § 455); Sanders v. Russell, 401 F.2d 241 (5th Cir. 1968) (writ issued to void local rule on pro hac vice appearances); Rapp v. Van Dusen, 350 F.2d 806 (3d Cir. 1965) (disqualifying district judge). As will be pointed out below, there is little warrant for much of this action by appellate panels given the explicit power of the district courts, Circuit Councils and United States Judicial Conference to supervise.

C. Orders of Reassignment on Appeal

While mandamus may lie to correct error in a case of disqualification, the power asserted by some panels of court of appeals judges to reverse a district court decision with an order that the case be assigned to another district judge is without statutory basis. For examples of such assertions of inherent power on appeal, see, e.g., Sobel v. Yeshiva University, 839 F.2d 18 (2d Cir. 1988); Outley v. City of New York, 837 F.2d 587 (2d Cir. 1988); United States v. Pugliese, 805 F.2d 1117 (2d Cir. 1986); United States v. Sears, Roebuck Co., 785 F.2d 777 (9th Cir.), mandamus denied sub nom. In re Real, 479 U.S. 982, 107 S.Ct. 604, 93 L.Ed.2d 604 (1986); United States v. Ritter, 273 F.2d 30 (10th Cir. 1959), cert. denied, 362 U.S. 950, 80 S.Ct. 863, 4 L.Ed.2d 869 (1960).

Most recently, the Second Circuit issued four such orders to reassign for sentencing. See United States v. Stratton, 820 F.2d 562 (2d Cir. 1987); United States v. Louis, 814 F.2d 852 (2d Cir. 1987); United States v. Pugliese, 805 F.2d 1117 (2d Cir. 1986); United States v. Diaz, 797 F.2d 99 (2d Cir. 1986). Other precedents exist in that circuit. See United States v. Robin, 545 F.2d 775 (2d Cir. 1976), reh'g denied, 553 F.2d 8 (2d Cir. 1977) (en banc); United States v. Rosner, 485 F.2d 1213, 1231 (2d Cir. 1973), cert. denied, 417 U.S. 950, 94 S.Ct. 3080, 41 L.Ed.2d 672 (1974); United States v. Brown, 470 F.2d 285, 288-89 (2d Cir. 1972).

Earlier cases seem to have recognized the lack of power to order reassignment, since most panels confined their remarks on reassignment to "recommendations" to the district court on how it should exercise its statutory authority to divide its business. See 28 U.S.C. § 137; United States v. Clark, 475 F.2d 240, 251 (2d Cir. 1973) ("a hearing before another member of the court is advisable"); United States v. Brown, 470 F.2d 285, 288-89 (2d Cir. 1972) ("we think it best that further proceedings be assigned to a different judge"); United States v. Bryan, 393 F.2d 90, 91 (2d Cir. 1968) (assumes trial judge "will act pursuant to our views regarding the preferred practice" of a new trial before another judge); United States v. Mitchell, 354 F.2d 767, 769 (2d Cir. 1966) (chief judge, "in the interest of sound judicial administration, would be wise to re-assign the case to another judge for re-trial").

United States v. Yagid, 528 F.2d 962 (2d Cir. 1976), demonstrates the dangers that can arise from the interference with normal case assignments at the trial level by an appellate panel. Yagid, one of three defendants jointly tried and convicted, appealed and obtained an order for a new trial because of Jencks Act violations by the prosecution. See United States v. Badalamente, et al., 507 F.2d 12 (2d Cir. 1974), cert. denied, 421 U.S. 911, 95 S.Ct. 1565, 43 L.Ed.2d 776 (1975). The appellate panel, in the course of its opinion declining to rule on Yagid's other claim, stated:

Because it is possible that at the new trial the district judge who presided at the original trial may be required to testify concerning certain aspects of the suppression, we will not consider Yagid's other claims of reversible error. This is so because on retrial, another district judge should preside and he will not be bound by the rulings of the original trial judge . . .

507 F.2d at 15 (emphasis added). On remand, the indictment had to be dismissed without prejudice for failure to retry the defendant within 90 days of his successful appeal. This failure occurred at least in part because of confusion in the district court over how the reassignment of the case should proceed. See United States v. Yagid, 528 F.2d at 963-65. The appellate panel's response was to chide the district court for not reading "should" as "must": "Such suggestions contained in appellate opinions should not be deemed merely precatory because they are not 'ordered,' especially when a retrial is mandated." 528 F.2d at 965 (footnote omitted). In support of this reading the panel cited, inter alia, a case from the previous year in which an appellate panel found it "advisable" that a new suppression hearing be held before another judge although it gave no opinion as to who should preside at the retrial. See Yagid, 528 F.2d at 965 n. 5; United States v. Clark, 475 F.2d 240, 251 (2d Cir. 1973).

Courts more recently have used 28 U.S.C. § 2106, a catchall grant of authority to issue orders in aid of jurisdiction, to make reassignment an element of the mandate. This power can be explained and justified in a more principled fashion than the courts have used: Reassignment should be a device of the appellate court that meshes with the district judge's duty of recusal. Self-recusal is impractical in the event of systemic and deliberate repeated errors of law. There the court of appeals need not await action by the district judge, but may proceed by extraordinary writ of mandamus, after notice is given to the district judge. Reassignment to avoid bias, however, is a question that statutorily falls first on the district judge.

D. Statutes Dealing With Recusal in Individual Cases

Both sections 144 and 455 of Title 28, dealing with disqualification, are obviously designed to permit a district judge to pass upon the matter, before his or her decision is reviewed on appeal. Section 144 reads:

§ 144. Bias or prejudice of judge

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

And section 455 reads in part:

§ 455. Disqualification of justice, judge, or magistrate

(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

It appears to be a violation of these statutory provisions for the court of appeals to reassign for bias if the district judge has not first passed on the matter. See, e.g. United States v. Haldeman, 559 F.2d 31, 131 n. 287 (D.C. Cir. 1976) ("involved judge has the prerogative, if indeed not the duty," to decide bias question), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977); Berger v. United States, 255 U.S. 22, 36, 41 S.Ct. 230, 234, 65 L.Ed. 481 (1921) (challenged judge "had a lawful right to pass upon the sufficiency of the affidavit" of bias). Cf. Stempel, Rehnquist, Recusal and Reform, 53 Brooklyn L. Rev. 589, 632-39 (1987).

Where disciplinary action against a judge is required, the judicial council may have power to act under 28 U.S.C. § 372(c) (assuming that this provision is constitutional). The judicial council of the various circuits are subject to detailed rules controlling the exercise of this power. Rule 0.24 of the Second Circuit provided from the outset, for example, that adoption of these disciplinary rules "shall not be construed as indicating any views with respect to the constitutionality of Title 28 U.S.C. § 372(c) or of any action taken thereunder." 16 Wright, Miller Cooper, Federal Practice and Procedure § 3939, Supp. at 237 (Supp. 1987). See also Note, Unnecessary and Improper: The Judicial Councils Reform and Judicial Conduct and Disability Act of 1980, 94 Yale L.J. 1117, 1124-25 (1985) (questioning authority of judicial council to control district judges); Ervin, Separation of Powers: Judicial Independence, 35 Law Contemp. Probs. 108 (1970) (discussing original bill).

E. Extraordinary Writ Jurisdiction to Remedy Repeated Errors of Law

The appellate courts' function is to remedy errors of law. Courts without effective appellate review may practice "judicial despotism," as the 50th Congress' report put it. H.R. Rep. No. 942, 50th Cong., 1st Sess. 4 (1888). Not far from the power to review judgments is the power to decide, after repeated misapplication of the law by the district judge, that correction of the error requires reassignment. It is repeated and systematic errors of law that create the appellate grounds for reassignment through extraordinary writs. See, e.g., Will v. United States, 389 U.S. 90, 102-05, 88 S.Ct. 269, 277-78, 19 L.Ed.2d 305 (1967).

This practice, predicated upon the All Writs Act, 28 U.S.C. § 1651, requires at least a motion to recuse below, or in the case of mandamus or prohibition, notice to the trial judge. See Fed.R.App.P. 21; see also Rapp v. Van Dusen, 350 F.2d 806, 812 (3rd Cir. 1965). The reassignment order in Sobel v. Yeshiva University, 839 F.2d 18 (2nd Cir. 1988), and other recent court of appeals cases violate this norm where neither a motion to recuse nor mandamus was utilized.

F. Conflict of Interest or Bias

The distinction between erroneous application of the law and bias parallels the distinction between appeal and mandamus. In the federal courts the question of bias is explicitly left up to the individual judge to decide in the first instance. Review exists because of the obvious danger that an interested judge will conceal or deny his or her bias, but the system requires that each judge first be given the opportunity to determine his or her own capacity. Congress maintained the present system despite a 1961 recommendation from the Judicial Conference of the United States that the trial judge not pass first on the question of recusal. See 13A Wright Miller, Federal Practice and Procedure § 3551 n. 10 (2d ed. 1984).

The recusal statutes instruct the judicial officer on the circumstances which require disqualification. See 28 U.S.C. § 455. A party who believes that the judge has not recused himself when he should have may file an affidavit stating the facts and the reasons for the belief that bias or prejudice exists. See 28 U.S.C. § 144. Both statutes suggest that the question of recusal lies initially in the district court's domain. They do not set forth bias as a ground for appellate review of the judgment; rather, they force the litigant to put the question of bias to the district judge and then appeal. See United States v. Olander, 584 F.2d 876, 883 (9th Cir. 1978); United States v. Mitchell, 377 F.Supp. 1312 (D.D.C. 1974), aff'd, 559 F.2d 31 (D.C. Cir. 1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977).

Denial of the motion is not a final order appealable as of right. See 13A Wright Miller, Federal Practice and Procedure § 3553 at 659 (2d ed. 1984). For the court of appeals to have jurisdiction, there must be a judgment to be appealed. Certification for interlocutory appeal under 28 U.S.C. § 1292(b) is unusual because rarely does a judge's refusal to disqualify raise "a controlling question of law as to which there is substantial ground for difference of opinion." Increasingly the courts of appeals have had recourse to their mandamus power to order the disqualification of a judge who has wrongfully refused to recuse himself if the petitioner has "satisfied the burden of establishing that its right [to the writ] is clear and indisputable." In re IBM Corporation, 618 F.2d 923, 926-27 n. 3 (2d Cir. 1980).

The limited scope of review afforded the court of appeals requires it to decide whether the judge abused his discretion by not recusing himself. See, e.g., Johnson v. Trueblood, 629 F.2d 287, 290 (3d Cir. 1980), cert. denied, 450 U.S. 999, 101 S.Ct. 1704, 68 L.Ed.2d 200 (1981); United States v. Haldeman, 559 F.2d 31, 139 n. 359 (D.C. Cir. 1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977). On a motion for recusal, the standard for determining "impartiality" is whether it might "reasonably be questioned." 28 U.S.C. § 455(a). One court recently articulated this standard as being "whether an objective, disinterested observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt that justice would be done in the case." Pepsico, Inc. v. McMillen, 764 F.2d 458, 460 (7th Cir. 1985) (deciding request for mandamus). See also United States v. Carmichael, 726 F.2d 158 (4th Cir. 1984); United States v. Nelson, 718 F.2d 315 (9th Cir. 1983); In re IBM, 618 F.2d 923, 929 (2d Cir. 1980) ("section sets up an objective standard for recusal, creating the so-called 'appearance of justice' rule").

The recusal statutes are not to be abused by parties making motions for tactical reasons which would result in wasted judicial resources. In New York City Housing Development Corporation v. Hart, 796 F.2d 976 (7th Cir. 1986), the Seventh Circuit found a district court judge's recusal unwarranted by statute, declared the judge qualified to hear the case and left the question of his reassignment to the case in "the sound discretion of the Executive Committee of the District court." Id. at 981. In Hart, the district court judge had originally denied the disqualification motion because he believed it had been made solely for tactical reasons. 796 F.2d at 978.

Hart emphasizes the importance of not transferring cases from one judge to another without good cause. As the appeals court noted, sanctioning a practice of "ready recusal, coupled with a rule that requires the judge to whom the case is reassigned to revisit all of the rulings after the filing of the motion to disqualify, would multiply the work of judges who already have much to do." 796 F.2d at 981. In United States v. Murray, 762 F.2d 1013 (Table) (6th Cir. 1985) (unpublished opinion available on Westlaw), the court of appeals, affirming the denial of a recusal motion which challenged the judge who ruled on the suppression motion on the ground that he had earlier authorized the wiretap, stated: "The frequent recusal of judges in such situations could lead to serious procedural headaches for the federal court system. Such a practice might even encourage an unjust form of judge-shopping." See also In re IBM Corporation, 618 F.2d 923, 934 (2d Cir. 1980) (refusing to order disqualification because it "would result in the waste . . . [of] the past decade . . . of judicial time and energy. . . .").

A busy district court cannot accept unwarranted recusals or changes in judges' assignments; they place extra burdens on the other judges and waste scarce judicial resources. "The district judge is, of course, obligated not to recuse himself without reason just as he is obligated to recuse himself when there is reason." Suson v. Zenith Radio Corporation, 763 F.2d 304, 308-09 n. 2 (7th Cir. 1985).

The existence of the recusal statutes indicates why decisions such as United States v. Diaz, 797 F.2d 99 (2d Cir. 1986), are inappropriate. In Diaz the trial judge was not asked to recuse himself. On the basis of the trial judge's apparently having written a letter to a senator about the violent-felon sentencing statute, the appellate court ordered reassignment. Reassignment was ordered by the panel without any judgment, erroneous or not, by the district judge on the point of bias. As a result, the trial judge was not given the opportunity of providing the record needed for a proper decision on the issue of bias.

One panel went even further in United States v. Pugliese, 805 F.2d 1117 (2d Cir. 1986), in which it held that although the sentencing judge's denial of defendant's motion of recusal was proper, reassignment on resentencing was required since certain of the judge's statements at sentencing concerning the presentence report "call into question [the] sentencing judge's impartiality, and thus cast doubt on the fair and impartial administration of justice. . . ." 805 F.2d at 1124. Apparently the panel applied a lesser and more vague standard to the remand for resentencing before a different judge than it did to the motion for recusal. Recusal was not required because the challenged statement concerned matters that the sentencing judge learned of in his judicial capacity, but resentencing before another judge was ordered by the court of appeals panel, despite the fact that this change was contrary to the then Eastern District practice.

United States v. Robin, 545 F.2d 775 (2d Cir. 1976), reh'g denied, 553 F.2d 8 (2d Cir. 1977) (en banc), further illustrates the treatment of the recusal statutes on remand. In Robin, the court of appeals, recognizing that "an erroneous impression may have been left as to our reasons for such directions in a few cases," 553 F.2d at 9, set forth "guidelines" for determining when reassignment is desirable. Id. at 11. The principal factors the court of appeals found relevant to reassignment for resentencing in a case where recusal is not required by 28 U.S.C. § 144 are:

(1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.

United States v. Robin, 553 F.2d at 10 (2d Cir. 1977) (en banc). The judges of the Eastern District of New York have given careful consideration to these suggested "guidelines." Since they can be taken to apply to almost any case of resentencing on remand, the Eastern District's own Guidelines were changed to require resentencing by another judge as the norm. See Guidelines for the Division of Business, Eastern District of New York, Guideline 50.2(1) (revised Feb. 17, 1988).

The suggestion by the court of appeals in Robin that a new judge would be unaware of "previously expressed views or findings" on the "mind" of another judge of the district court strains credulity. Most matters of interest in administering the court are shared. And, of course, all judges read the opinions of the courts of appeals, so they all would be aware of any fact relied upon by the court of appeals as a basis for suggesting reassignment.

The federal system assumes that district judges are capable of understanding and executing a mandate even when they disagree with it. What a judge would "have substantial difficulty in putting out of his or her mind," Robin, 553 F.2d at 10, is a question normally best posed by a litigant, who has a stake in the problem of bias, and can move for recusal. It is better answered in the first instance by the trial judge — the person who knows the limits of his or her own objectivity. The effect on the other judicial business of the court of any transfer from one judge to another can be determined most readily by those responsible for the business of the court, at the trial, not the appellate, level.

Yet several Circuits continue to intrude on the assignment of district judges even in the absence of motions for recusal in the trial court. In United States v. Sears, 785 F.2d 777 (9th Cir.), mandamus denied sub nom. In re Real, 479 U.S. 982, 107 S.Ct. 604, 93 L.Ed.2d 604 (1986), the Court of Appeals for the Ninth Circuit addressed the problem of the recusal statutes and assumed that it had the power to order reassignment without notice to the district judge:

We are not acting under the disqualification statutes, which a party must first invoke before the district court. Instead, this court is being asked in the first instance to exercise its inherent power to administer the system of appeals and remands by ordering a case reassigned on remand. The basis for the reassignment is not actual bias on the part of the judge, but rather a belief that the healthy administration of the judicial and appellate processes, as well as the appearance of justice, will best be served by such reassignment. We do not believe that the statutory provisions concerning disqualification are either exhaustive or the exclusive method whereby a judge may be removed from hearing a case.

785 F.2d at 780. See also, United States v. Jacobs, 855 F.2d 652 (9th Cir. 1988); Brown v. Baden, 815 F.2d 575, 576 (9th Cir.), cert. denied, ___ U.S. ___, 108 S.Ct. 450, 98 L.Ed.2d 390 (1987); Antron v. Union Pac. R.R. Co., 813 F.2d 917, 921 (9th Cir. 1987). Although the Ninth Circuit may have been correct in stating that the recusal statutes are not the only way to disqualify a judge, it has made no adequate argument based on its statutory or historical authority to defend its acting outside those statutes.

Pressing further, the Second Circuit has taken upon itself the occasional role of ordering reassignments even when there is not the slightest evidence of any bias or error by the trial judge. In United States v. Corsentino, 685 F.2d 48 (2d Cir. 1982), the appellate court granted a motion to vacate a sentence and ordered resentencing before another judge, although "the need for resentencing was caused entirely by the prosecutor [who violated the plea agreement] and is not attributable to the sentencing judge." 685 F.2d at 52. See also United States v. Chitty, 760 F.2d 425, 432 (2d Cir.), cert. denied, 474 U.S. 945, 106 S.Ct. 310, 88 L.Ed.2d 287 (1985) (ordering remand to another judge, because of prosecutor's remarks, even "though obviously not the fault of" the judge); United States v. Carbone, 739 F.2d 45 (2d Cir. 1984) (rule 35 motion predicated on prosecutor's violation of plea agreement to be heard by another judge).

The trial court is sensitive to the need to reassign some Rule 35 motions for resentencing, depending on their basis. See United States v. Stolon, 561 F.Supp. 63, 64-66 (E.D.N.Y. 1983). A rule which would require automatic reassignment of Rule 35 motions does not serve the interests of judicial economy and will often be contrary to the interests of justice. But the decision should be made in the first instance at the trial, not the appellate level. See United States v. Arnett, 628 F.2d 1162, 1165 (9th Cir. 1979) ("remand to a new judge is reserved for 'unusual circumstances'"). Cf. Koller v. Richardson-Merrell, 737 F.2d 1038, 1067 (D.C. Cir. 1984) (Richey, J., concurring) ("even the suggestion of remanding the case to another judge is inappropriate"), vacated on other grounds, 472 U.S. 424, 105 S.Ct. 2757, 86 L.Ed.2d 340 (1985); Nobel v. Morchesky, 697 F.2d 97, 103 n. 11 (3d Cir. 1982) ("mandatory reassignments should be made infrequently and with the greatest reluctance").

The recusal process was created for good reasons. Appellate circumvention of that process can only injure our ability to secure justice. I agree with Judge Richey's ringing conclusion:

The time has come to implement the mandate of Congress and remand cases to a different judge only on the basis of evidence that would require recusal under 28 U.S.C. §§ 144 and 455. Otherwise, we will be opening a 'Pandora's Box' for countless baseless attacks upon a defenseless judiciary whose independence is essential to the preservation of this republic.

Koller v. Richardson-Merrell, 737 F.2d 1038, 1067 (D.C. Cir. 1984) (Richey, J., concurring) (emphasis in original), vacated on other grounds, 472 U.S. 424, 105 S.Ct. 2757, 86 L.Ed.2d 340 (1985). I would add to Judge Richey's remarks that the evidence for recusal must first be presented on motion to the trial judge. In short, absent repeated deliberate errors warranting the issuance of an extraordinary writ, the appellate panels ought never order reassignment on remand without observing the statutory recusal process.

V. CONCLUSION

Peremptory reassignments such as those in United States v. Pugliese, United States v. Diaz, and Sobel v. Yeshiva University, where claims concerning the trial judge's impartiality are made in the first instance in or by the appellate court, distort the statutorily prescribed recusal remedy as well as the All Writs Act. Such reassignment interferes with the docket of the district court where the district judge has neither exceeded his or her authority nor refused to exercise that authority (the standard under Will v. United States), nor demonstrated an inability to execute the appellate mandate (the reasoning of Sears). It is a gratuitous gesture without authority to support it except in recent appellate decisions that themselves lack adequate legal basis. It runs the risk of masking unauthorized "[s]entence review." United States v. Robin, 545 F.2d 775, 782 (2d Cir. 1976) (Timbers, J., dissenting), reh'g. denied, 553 F.2d 8 (2d Cir. 1977) (en banc). It creates "the potential for havoc . . . upon the effective administration of justice in the trial court." Koller v. Richardson-Merrell, 737 F.2d 1038, 1067 (D.C. Cir. 1984) (Richey, J., concurring), vacated on other grounds, 472 U.S. 424, 105 S.Ct. 2757, 86 L.Ed.2d 340 (1985).

Despite the court of appeals' lack of authority to issue orders for reassignment, the judges of the district courts have generally followed the advice of the Circuits in these cases in a show of collegiality. The recent revision of Guideline 50.2( l) in the Eastern District of New York should avoid in the future the embarrassment that such unwarranted orders have caused both courts.

We need not consider at this time the limits on the powers of the Circuit judicial councils to order reassignments when the trial judge has received notice that this issue will be pursued on appeal. See, e.g., Chandler v. Judicial Council of the Tenth Circuit, 398 U.S. 74, 90 S.Ct. 1648, 26 L.Ed.2d 100 (1970); Wallace, Judicial Administration in a System of Independents: A Tribe with Only Chiefs, 1978 Brigham Young L. Rev. 39, 47; Note, Unnecessary and Improper: The Judicial Councils Reform and Judicial Conduct and Disability Act of 1980, 94 Yale L.J. 1117, 1124-25 (1985). The Circuit judicial councils have generally been quite careful and have not attempted to interfere with the assignment of trial judges. Were they to do so, the district judges, I am confident, would resent this attack on their independence. See, e.g., the article by District Judge Frank Battisti, An Independent Judiciary or and Evanescent Dream, 25 Case Western Reserve L. Rev. 711 (1975), decrying the circuit councils' attempts to remove judges outside the impeachment process.

Since the abuses to date have been by only a relatively few judges of the courts of appeals, it is my hope that neither the councils nor individual courts of appeals panels will attempt to flout the present historical and statutory scheme, but, instead, that they will leave the division of business among district courts to the judges of the district courts. For much the same reason that it would be unheard of for the Supreme Court to remand a case to the court of appeals with sua sponte instructions that certain court of appeals judges should not participate in the case, so judges of the courts of appeals should refrain from this practice when remanding to the district courts. One of the great strengths of the federal judicial system has been the strong sense of independent power and responsibility of each federal judge to protect the Constitution and laws of the United States. Any unnecessary erosion of this vital legal resource can only be deprecated and viewed with alarm.

APPENDIX GUIDELINES FOR THE DIVISION OF BUSINESS UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ADOPTED PURSUANT TO 28 U.S.C. § 137

50.1 CATEGORIES AND CLASSIFICATION OF CASES; INFORMATION ON CASES AND PARTIES

(a) Categories of cases. Cases shall be divided into the following main categories:

(1) civil

(A) regular

(B) multidistrict litigation

(2) criminal

(3) miscellaneous

(b) Information sheet. The party filing the initial paper in a civil or criminal case shall complete and attach an information sheet. The information sheet shall be placed in the case file.

(c) Disclosure of interested parties. To enable judges and magistrates to evaluate possible disqualification or recusal, counsel for a private (nongovernmental) party shall submit at the time of initial pleading a certificate identifying any corporate parent, subsidiaries, or affiliates of that party.

(d) Long Island cases.

(1) A criminal case shall be designated a "Long Island case" if the crime was allegedly committed wholly or in substantial part in Nassau or Suffolk County.

(2) A civil case shall be designated:

(A) a "Uniondale case" if the cause arose wholly or in substantial part in Nassau County, or all or most of the parties reside in that county; or

(B) a "Hauppauge case" if the cause arose wholly or in substantial part in Suffolk County, or all or most of the parties reside in that county.

(3) As provided in 50.2(f) a party may move to designate a case as a Long Island case, a Uniondale case or a Hauppauge case or to cancel such designation on the grounds that such action will serve the convenience of the parties and witnesses or is otherwise in the interests of justice.

(e) Miscellaneous cases. All matters that do not receive a civil or criminal docket number shall be given a miscellaneous docket number and assigned to the miscellaneous judge. The matter will continue to be assigned to that judge after he or she ceases to be miscellaneous judge.

50.2 ASSIGNMENT OF CASES

(a) Time of assignment. The clerk shall assign a civil case upon the filing of the initial pleading. In a criminal case after an indictment is returned or after an information (including a juvenile information under 18 U.S.C. § 5032) or a motion to transfer under 18 U.S.C. § 5032 has been filed, the United States Attorney shall refer the case to the clerk who shall then assign the case. The United States Attorney shall arrange with the judge to whom the case is assigned, or if that judge is absent or unavailable as provided in 50.5, with the miscellaneous judge, to have the defendant arraigned and a plea entered as promptly as practicable.

(b) Random selection procedure. All cases shall be randomly assigned by the clerk or his designee in public view in one of the clerk's offices in such a manner that each active judge shall receive as nearly as possible the same number of cases, except as provided in paragraph (h). Where a party or his counsel requests prior to selection that he or she be present at the selection, the clerk shall make reasonable efforts to comply with the request. In Brooklyn civil cases a magistrate shall be drawn at the same time and in the same manner as a judge. All Long Island civil cases shall be assigned to the Long Island magistrate. The parties to any Long Island case assigned to a Brooklyn judge may stipulate that the case be assigned to the Long Island magistrate for pretrial purposes.

(c) Assignment of civil cases. There shall be separate Brooklyn, Uniondale and Hauppauge civil assignment wheels. At least quarterly the Chief Judge shall fix the proportion of cases to be assigned to the Long Island courthouses so as to distribute the civil cases relatively equally among all the active judges.

(d) Assignment of criminal cases.

(1) There shall be a Brooklyn criminal and a Long Island criminal assignment wheel.

(2) There shall Brooklyn and Long Island criminal misdemeanor assignment wheels for the random assignment of these matters to a magistrate.

(e) Place of trial. Except in emergencies a case shall be tried at the place to which it has been assigned.

(f) Objection. Any objection by a party to designation of a judge or to place of trial shall be made by letter or motion to the judge assigned

(1) in a criminal case, within ten days from arraignment or from initial notice of appearance, whichever is earlier; or

(2) in a civil case, within the time allowed to respond to the complaint.

(g) Special cases.

(1) The miscellaneous judge shall send all narcotics addict commitment cases involving "eligible individuals" as defined by 28 U.S.C. § 2901(g) to the clerk for assignment as provided in paragraph (b).

(2) Pro se applications or claims by persons in custody shall be filed without prepayment of fees upon receipt, prior to decision on their in forma pauperis petitions.

(3) Multidistrict litigation is to be assigned to the judge selected by the multidistrict litigation panel and may not be reassigned except by that panel.

(h) Chief judge; senior judges; temporarily overloaded judges; notice of removal from wheel. The chief judge and each senior judge shall indicate from time to time to the clerk the percentage of a full caseload that he or she elects to have assigned. The chief judge, with the consent of a judge, may remove that judge from any wheel temporarily to reduce the number of pending cases and prevent delay in the disposition of cases by a judge who is then overburdened by cases or due to ill health. The chief judge shall return that judge to the wheel only on consent of the judge. The clerk shall upon request inform any attorney or party of the identity of judges whose names have been removed from a wheel.

(i) Visiting judge. The chief judge shall approve the assignment or transfer of cases to a visiting judge.

(j) Proceedings after assignment. All proceedings in a case after assignment shall be conducted by the assigned judge, except as provided by these guidelines.

(k) Recusal. A judge or magistrate may recuse himself or herself at any time in accordance with U.S.C. § 455. This guideline takes precedence over any other guideline.

(l) Appeals — Assignment on reversal or remand.

(1) In a criminal case upon reversal of a judgment and a direction for retrial or resentence, on receipt of the mandate of the appellate court the clerk shall randomly select a different judge to preside over the case. Notwithstanding this provision the chief judge may order the case assigned to the original presiding judge to avoid placing an excessive burden on another judge.

(2) In a civil case upon reversal the case shall remain assigned to the judge who was previously assigned, unless the chief judge or his designee orders otherwise.

50.3 RELATED CASES; MOTION FOR CONSOLIDATION OF CASES

(a) "Related" case defined. A case is "related" to another for purposes of this guideline when, because of the similarity of facts and legal issues or because the cases arise from the same transactions or events, a substantial saving of judicial resources is likely to result from assigning both cases to the same judge and magistrate.

(b) Civil cases. By way of illustration and not limitation, the following civil cases are "related": when a case (A) relates to property involved in an earlier pending suit, or (B) involves the same factual issue or grows out of the same transaction as does a pending suit, or (C) involves the validity or infringement of a patent already in suit in a prior case.

(c) Criminal cases. Criminal cases are "related" only when (A) a superseding indictment or information is filed, or (B) more than one indictment or information is filed against the same defendant or defendants, or (C) when an application is filed by a person in custody that relates to a prior action. Other cases will be deemed "related" only upon application by a party, upon notice, to the judge presiding over the earlier assigned case. The application will be granted if a substantial saving of judicial resources is likely to result from assigning both cases to the same judge.

(d) Designation of related case. If the party filing a case believes it to be related to a prior case, whether pending or closed, the party shall so indicate on the information sheet, specifying for each such case the title and the docket number, if any. Each attorney in a case has an ongoing duty to advise the clerk in writing upon learning of any facts indicating that his or her case may be related to any other pending case.

(e) Assignment of related case. Related cases shall be assigned by the clerk to the judge to whom was assigned the case with the lowest docket number in the series of cases. The clerk shall advise the judge of such assignment of a "related case."

(f) Case erroneously assigned as related. The designation of cases as related may be corrected sua sponte by the judge to whom they are assigned, by returning to the clerk for reassignment cases erroneously so assigned. The failure to assign related cases appropriately shall be corrected only by agreement of all of the judges to whom the related cases are assigned; if they agree, they may transfer the later-filed cases as provided in paragraph (e), and notify the clerk of that action.

(g) Credit for related case. A related case transferred or assigned to a judge shall be counted as would a newly-filed case regularly assigned. A judge shall be assigned an additional case for each case transferred from him or her under this guideline.

50.4 REASSIGNMENT OF CASES

No case shall be reassigned except in the interest of justice and the efficient disposition of the business of the court. The chief judge may at any time, with the consent of the judges involved, reassign individual cases. Reassignment of cases to accommodate changes in the complement of judges shall be made in accordance with the order of the Board of Judges.

50.5 MISCELLANEOUS JUDGE

(a) Duties and functions. A miscellaneous judge shall be designated for each session of the court to:

(1) hear and determine:

(A) matters requiring immediate action in cases already assigned to any judge of the court, if that judge is unavailable or otherwise unable to hear the matter;

(B) special proceedings which cannot be assigned in the ordinary course, including motions under Fed.R.Crim.Proc. 41 made prior to indictment;

(C) any other proceeding not part of or related to a case, including admissions to the bar and naturalization proceedings;

(D) requests to be excused from service on the grand and petit juries; and

(E) all matters relating to proceedings before the grand jury;

(2) impanel the grand jury, receive indictments, and refer criminal cases to the clerk for assignment pursuant to 50.2.

(b) Emergency matters. The miscellaneous judge shall dispose of matters under paragraph (a)(1) only to the extent necessary and shall continue the case before the assigned judge. All applications for emergency action or relief shall disclose any prior application to a judge for the same or related relief and the outcome thereof.

50.6 CALENDARS

(a) Numbers; Order of cases. The docket number of each case shall be the calendar number. No note of issue shall be required to place the case on the calendar. Each judge shall dispose of cases assigned to him or her as required by law and the efficient administration of justice.

(b) Preferences. Each judge shall schedule cases appearing on his or her docket in such order as seems just and appropriate, giving preference to the processing and disposition of the following:

(1) habeas corpus petitions and motions attacking a federal sentence;

(2) proceedings involving recalcitrant witnesses before federal courts or grand juries, under 28 U.S.C. § 1846;

(3) actions for temporary or preliminary injunctive relief; and

(4) any other action if good cause is shown.

(c) Publication of calendars. Each court day the clerk shall post on bulletin boards throughout the courthouse and provide to legal newspapers for publication copies of the judges' calendars.

50.7 CONFERENCES

The judge assigned to any case may direct the attorneys to appear to discuss the case informally, to entertain oral motions, to discuss settlement, or to set a schedule for the events in the case, including completion of discovery, pretrial and trial.

GUIDELINES FOR THE DIVISION OF BUSINESS AMONG UNITED STATES DISTRICT COURT JUDGES FOR THE EASTERN DISTRICT OF NEW YORK PURSUANT TO 28 U.S.C. § 137 COMMENTARY by PROFESSOR PETER LUSHING and LAWRENCE J. ZWEIFACH, ESQ. INTRODUCTION In 1988 the Board of Judges of the United States District Court for the Eastern District of New York, pursuant to 28 U.S.C. § 137, adopted Guidelines for the Division of Business among United States District Court Judges. The Guidelines supersede the Court's Rules for the Division of Business among District Judges. The Guidelines were adopted on February 16, 1988, effective March 31, 1988. They were preceded by publication of proposed guidelines and many conferences with members of the bar and bar association committees.

The Guidelines for the Division of Business among United States District Court Judges are in part an outgrowth of the work of the Court's Criminal Procedure Committee, which was appointed by Chief Judge Jack B. Weinstein in the Fall of 1985. Reports of the Criminal Procedure Committee appear at 111 F.R.D. 303 and 311 (1986); these reports were not themselves approved by the Board of Judges and are cited here for informational and historical purposes only. Also part of the history of the Guidelines are letters to Chief Judge Weinstein from the Criminal Procedure Committee (October 8, 1987) and from the Committee on Federal Courts, Association of the Bar of the City of New York (October 6, 1987), commenting on a May 1987 draft of proposed Guidelines, and from the Committee on Federal Courts (January 8, 1987), commenting on the reports of the Criminal Procedure Committee. The Criminal Procedure Committee reports had been well-publicized, appearing not only in Federal Rules Decisions but in the New York Law Journal as well (June 18, 1986; digest published on June 17, page 1). Comments on the reports were received from practitioners, and matters covered by the proposed Guidelines were discussed at retreats of the judges of the court held during the Judicial Conferences of the Second Circuit in 1986 and 1987 and at subsequent meetings of the Board of Judges. In short, the Guidelines are the product of a dialogue among the judges, practitioners, and bar organizations.

This Commentary was prepared by Lawrence J. Zweifach, Esq., Chairman of the Criminal Procedure Committee and Prof. Peter Lushing, the Committee Reporter, with the assistance of Douglas C. Dodge, District Executive of the Court, and has been reviewed by the Chief Judge.

50.1

(a) Rule 1 of the Rules for the Division of Business among District Judges (hereinafter "DR") categorized cases as Bankruptcy, Civil, or Criminal. With the restructuring of the bankruptcy court system in 1978, the District Court no longer sees enough original bankruptcy filings to make a separate category necessary. There are also bankruptcy court rules now. The new miscellaneous and multidistrict categories in the Guideline (hereinafter "GL") codifies existing practice.

(b) The first sentence carries over DR 1(b), except that the new category of miscellaneous cases does not require an information sheet, because many miscellaneous cases involve ministerial matters such as filing an abstract of judgment from another court. The new provision that the information sheet shall be filed codifies the existing practice of the clerk's office. The information sheet is of substantial importance, see GL 50.2(f), and the GL's reflect the fact that the sheet must be on file in order to give notice to all parties of case designations. A suggestion that the information sheet be given to defense counsel along with the indictment was rejected as unnecessary.

(c) This paragraph appears in General Civil Rule 9 and is included here as the logical location for requirements affecting the commencement of an action.

(d) Designation of Long Island criminal cases is unchanged from DR 1(c)(1). Long Island civil cases are now subdivided into the locations of the courthouses on Long Island, the Hauppauge Courthouse not being in existence when the DR's were promulgated. The criteria for discretionary designation or cancellation of designation as a Long Island case are unchanged from DR 1(c)(3). A cross-reference to a uniform procedure for objections to case designations is given.

(e) Miscellaneous matters such as non-party motions to quash subpoenas are not categorized as civil or criminal cases and are referred to the miscellaneous judge. To avoid any question on a sensitive topic, the GL makes it clear that a miscellaneous matter follows the judge, not the miscellaneous part.

50.2

(a) Unchanged from DR 2(a).

(b) DR 2(b) required the judges to determine the method of random selection of cases and provided other details on the mechanics of assignment. The GL removes some of the formal requirements as unnecessary and provides for the first time that cases shall be assigned in public view in the clerk's office. There was a widespread and deeply held feeling among criminal defense practitioners that assignment of a judge to the case was an important and sensitive step in the litigation and should therefore be performed in public. In fact it was already the practice of the clerk's office to allow counsel to attend the drawing of the judge's name from the assignment drum, but many argued that attorneys unfamiliar with with the practices of the court would not be aware of the opportunity to attend the assignment — hence this restatement of the practice. A recommendation by the Criminal Procedure Committee that the assignment be in open court was rejected as cumbersome and having no additional utility.

It will still be up to the attorney to endeavor to be informed as to when the assignment of the judge takes place. In civil actions the assignment occurs when the complaint is filed, so defendant's eventual counsel will be present at this event only by accident, as it were. But in criminal cases many defendants will have retained counsel or have been assigned the Legal Aid Society prior to indictment, and by dint of counsel's communications with the Assistant United States Attorney and the clerk's office there often can be some assurance that counsel will be aware of the impending filing of the indictment. Counsel will therefore be able to attend the drawing of the judge. This will be mostly in cases where the prosecutor does not intend to have the defendant arrested, for in arrest cases the indictment is usually sealed until the arraignment with the defendant safely in custody, an arrest warrant having been issued when the indictment was handed up to the court in camera. Meanwhile, the judge will have been drawn in secret, and the docket sheet will have been sealed.

In any event this GL should not be construed either as creating any right to be informed of the time of the drawing of the judge or as furnishing any ground for vacating a judgment, vacating an assignment, or any other remedy because of a failure to be informed of the time of the drawing.

The provision on assigning magistrates in Brooklyn civil cases is new and reflects a practice followed for over three years and which was inaugurated through the promulgation of the Standing Orders on Effective Discovery in Civil Cases (Standing Order 4 provides in part that "a magistrate shall be assigned to each case at random on a rotating basis upon the commencement of an action. . . ."). On Long Island there is at present only one magistrate.

(c) Substantially unchanged from DR 2(c). The separate wheels for civil cases reflects the assignment of judges to the several courthouses. Distribution of cases "relatively equally" is a more realistic goal than the terminology of the DR.

(d) DR's did not provide for judge assignment of criminal cases as "Long Island," although that case-designation category did in fact exist. For some time there has been more than one judge assigned to Long Island, but the DR's had not reflected that fact. As there is only one judge in Hauppauge at present, there should only be one criminal assignment wheel for all of Long Island to afford a random selection process for criminal cases, where the bar is most sensitive about judge selection. Proposals to add a category of criminal "complex" cases, or even "short," "medium," and "long" case categories, which were intended to spread the workload evenly among the judges, were rejected as an unnecessary and complicating refinement. Cf. GL 50.2(h).

(e) DR 2(c) gave the assigned judge discretion to designate the place of trial. The existence of such discretion is contrary to the purpose of geographical case designations and assignment wheels, as well as to the rationale for a proposed change in jury wheels under which Brooklyn courthouse jurors will come only from non-Long Island counties. The GL provides an exception only for emergencies, and even those exceptions may be challenged under paragraph (f).

(f) DR's regulated objections to designations and assignments in various places; e.g., DR's 1(c), 2(c), 4(b). The GL provides a single format for objection and sets short time limits, precisely measurable, for the making of objections so that the issue can be resolved before substantial expenditure of judicial energy. This provision includes objections to the designation of cases as related or to failure to so designate under 50.3.

(g) Paragraphs (1) and (2) substantially restate DR 2(d)(1) and (2) The subject matter of DR 2(d)(3) is treated in GL 50.2( l). Paragraph (3) of the GL is in accord with the Manual for Complex Litigation, Second, § 31.121, at 253 (1985).

(h) The first sentence substantially restates DR 2(f). The provisions on removal and restoration of judges to a wheel serve to regularize those practices. The last sentence affords any practitioner before the court equal access to information that often is available only to institutional litigants who are constantly in attendance at the courthouse, such as the United States Attorney and the Legal Aid Society. Many attorneys believe that the status of judges in the wheels is important and unnecessarily recondite and, as "hidden information," could be used to manipulate the assignment of judges by influencing the chosen designation of a case; the GL is intended to assuage these anxieties. A proposal to publish the status of judges in the assignment wheels in the New York Law Journal was rejected as useless, given the time lag between the change of status and the eventual publication.

(i) This regularizes and restates existing practice.

(j) This is a restatement of DR 2(g).

(k) This paragraph simply alerts the practitioner to the overriding statute. See also 28 U.S.C. § 144 (recusal on motion).

( l) DR 2(d)(3) provided for reassignment of civil and criminal cases sent back by an appellate court for retrial, unless the mandate of the appellate court directed otherwise. In fact the practice under the DR was to reassign mechanically only criminal cases, and only those to be retried. The GL draws a distinction between remand in civil and criminal cases, and provides for reassignment of civil cases on remand only in the discretion of the chief judge. Knowledge that a case would be retried by the same judge is believed to have a possible inhibiting effect on vigorous appellate advocacy. In civil litigation however this danger is thought to be outweighed by considerations of judicial economy, civil litigation often having a plethora of complex rulings and information.

In contrast, as to criminal cases the GL mandates reassignment for retrial or resentence but grants the chief judge discretion to assign the case to the original judge in the interest of substantial administrative savings. For example, if a new judge assigned to resentence were compelled to read a record of a multi-month trial, there might be good grounds for the chief judge to order assignment to the original judge.

The court considered the possibility of explicitly providing that upon stipulation of the parties a criminal case would be sent back to the original judge for retrial after reversal. It omitted such a provision in order not to put pressure on the parties to so stipulate. Upon agreement of the parties and the judge involved this result is not precluded by the Guidelines.

The United States Court of Appeals for the Second Circuit has from time to time directed that a new judge hear a matter, but the source of the court's power to do this in the absence of a recusal issue's being first raised in the court below is unstated and seems dubious. Recent examples include Sobel v. Yeshiva University, 839 F.2d 18 (1988); Outley v. City of New York, 837 F.2d 587 (1988); United States v. Pugliese, 805 F.2d 1117 (1986); and United States v. Diaz, 797 F.2d 99 (1986).

No statute authorizes an appellate court to order reassignment for bias as an original matter. 28 U.S.C. § 2106 arguably authorizes an appellate order of reassignment to correct repeated errors of law, but even then only upon notice to the district judge that a petition for mandamus is being filed. The recusal for bias statutes, 28 U.S.C. §§ 144 and 455, seemingly contemplate that the district judge pass upon the issue in the first instance. And even here the scope of appellate review is apparently limited to abuse of discretion.

It is extraordinarily wasteful for a case to be unnecessarily reassigned after remand from an appellate court. This will be especially so under the new sentencing guidelines, which will require many factual inquiries.

Channeling the bias issue before the district court in the first instance affords the judge an opportunity to make a record on the matter. Such channeling further confines the issue to the statutory criterion for bias under §§ 144 and 455 and avoids the use of vague ad hoc standards. See United States v. Pugliese, supra, where denial of a recusal motion was upheld and yet a necessary resentencing was ordered reassigned to a different judge, apparently under a broader standard than provided by the recusal statutes.

The judges of the Eastern District of New York are mindful of the criteria for reassignment set down in United States v. Robin, 553 F.2d 8, 10 (2nd Cir. 1977) (per curiam en banc). But it is also the case that any of the judges of the court will be aware of the appellate court's opinion and thus know of the facts that are not to be considered on resentence — and which the original sentencing judge was apparently deemed by the appellate court to be unable to disregard on resentence. A judge is in the best position to know whether he or she can disregard certain facts, and so the question of recusal can properly be left to that judge in the first instance.

The GL therefore effects a sensible compromise between the need for reassignment and the administrative needs of the court. Reassignment in the indicated cases shall be the rule, subject to administrative exception by the chief judge, which exception will itself be subject to overruling by the presiding judge in cases of felt bias.

50.3

(a) DR 3(a) defined "related" in general discretionary terms to be applied in the first instance by the party filing the case and furnished illustrative examples. This paragraph retains the general definition, but a party acting on its own can apply the definition to civil cases only; see paragraphs (b) and (c).

(b) These examples come from DR 3(a)(1).

(c) DR 3(a)(2) furnishes examples (A) and (B) as illustrative and not by way of limitation. The GL examples are exclusive unless the court grants an application under the discretionary standard. There was some opposition from the bar to retaining the discretionary standard as overly elastic and inviting judge-shopping. However the proposed GL permitted the prosecutor filing the indictment to designate unilaterally the case as "related" under the discretionary criteria; under the GL as promulgated the prosecutor must instead make an application to the judge presiding over the earlier assigned case. The bar was also concerned with counsel's having to oppose the designation before the very judge who might preside over the case, but the Board of Judges felt that that judge was in the best position to apply the standard, as he or she would know the particulars of the "related" case and therefore whether there would be a substantial saving of judicial resources by approving the designation.

(d) The first sentence substantially restates the first sentence of DR 3(b). The second sentence of DR 3(b) is omitted as having little or no application. The second sentence of the paragraph derives from DR 3(f).

(e) This paragraph derives from DR 4(c). The last sentence of DR 4(c) is omitted as redundant to 50.3(b)(B).

(f) This paragraph deals with sua sponte challenges to relating or failing to relate cases and substantially restates DR 4(d). Party challenges to unilateral relating or failing to relate cases must be made in accordance with GL 50.2(f).

(g) This paragraph derives from DR 4(e).

50.4

This is a substantial restatement of DR 4(a). The proposed GL granted unlimited discretion to reassign; this raised some concern among the bar so the DR criteria were restored.

50.5

50.6

111 F.R.D. 307Business Crime

50.7

This is a restatement of DR 7.