Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-10272

Summary Calendar

RAY N. JACKSON, 

 Plaintiff-Appellant

v. 

Dr. JAMES ROACH, Secretary, Department of the Air Force, 

 Defendant-Appellee

Appeal from the United States District Court

for the Northern District of Texas

No. 7:02-CV-111

Before JONES, Chief Judge, and DAVIS and WIENER, Circuit Judges.

PER CURIAM:*

Appellant Ray Jackson appeals a dismissal and summary judgment

rejecting his discrimination claims against his employer, the United States Air

Force. Jackson was removed from his position as an electronics mechanic by the

Air Force. Jackson appealed his removal through administrative procedures and

alleged that the Air Force discriminated against him on the basis of race,

United States Court of Appeals

Fifth Circuit

F I L E D

February 9, 2010

Charles R. Fulbruge III

Clerk

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No. 09-10272

2

reprisal, and for being a whistle-blower. The Merits Systems Protection Board

reversed his removal and ordered reinstatement, but found no discrimination on

the grounds alleged by Jackson. Jackson then filed two suits in the United

States district court, one for the enforcement of his job reinstatement and

another on discrimination claims. 

The two suits were consolidated and the district court heard two separate

motions to dismiss. The Air Force moved to dismiss the enforcement claims for

lack of subject matter jurisdiction. The Air Force filed a motion to dismiss, or in

the alternative, motion for summary judgement (“Defendant’s Motion”) as to the

discrimination claims. The district court issued an order dismissing the

enforcement claims for lack of subject matter jurisdiction and granted summary

judgement as to all but two of Jackson’s discrimination claims. The order stated

that these rulings had been made “for reasons that will follow by separate

Memorandum Opinion.” However, before a memorandum opinion was issued,

the case was reassigned to a second judge. The second judge reconsidered all

aspects of the defendant’s motions, vacated portions of the previous judge’s

order, and granted the Defendant’s Motion in its entirety. 

Jackson now appeals the final order, alleging 1) the district court erred in

granting the Defendant’s Motion “sua sponte” and contrary to the previous

judge’s order and 2) the newly assigned judge should have recused himself from

the case because he had once been an employee of the U.S. Attorney’s Office that

is currently handling this case. We affirm

Fed. R. Civ. 54(b) states: “any order or other decision, however

designated, that adjudicates fewer than all the claims or the rights and

liabilities of fewer than all the parties does not end the action as to any of the

claims or parties and may be revised at any time before the entry of a judgment

adjudicating all the claims and all the parties’ rights and liabilities.” The order

by the first judge was not a final judgment and thus, could be revised by the

second judge. In addition, the denial of a motion for summary judgment is an

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interlocutory order, which the trial court may reconsider and reverse for any

reason it deems sufficient, even in the absence of new evidence or an

intervening change in or clarification of the substantive law. Lavespere v.

Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 185 (5th Cir. 1990). It was

within the newly assigned judge’s power to consider the Defendant’s Motion sua

sponte and vacate the first judge’s order. The court did not abuse its discretion.

Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858, 862 (5th Cir. 1970); see also

Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)

(citation omitted)(“The revisitation by the court of [an] earlier order . . . was not

error because . . . a court may correct its own errors. The fact that [the judge]

was not correcting his own error, but that of another judge who initially had

been in charge of the case, is no moment.”). Because Jackson had raised no

contention concerning the merits of the judgment, any such argument is waived.

Jackson’s recusal claim is raised for the first time on appeal. Appellant

argues that because of the “new trial judge’s virtually immediate and

preemptory ruling dismissing the case,” he had “no warning” that such a motion

to recuse was called for. Appellant argues that the judge demonstrated a “clear

appearance of impropriety” because the judge “summarily dismissed the case”

and is a former employee of the U.S. Attorney’s Office that handled Jackson’s

case. Jackson had ample time to raise the recusal issue to the district court. His

case was assigned to the new judge over a month before the judge entered a final

order. In addition, Jackson filed a motion seeking reconsideration of the district

court’s final order as well as an amended motion. These motions were not

denied until seven months later. Jackson failed to seek recusal at any point

during this time. On appeal, he offers no explanation for his failure to seek

recusal earlier, and he has not alleged exceptional circumstances why this court

should consider the recusal issue for the first time on appeal. See Clay v. Allen,

242 F.3d 679, 681 (5th Cir. 2001). For the foregoing reasons, the district court’s

judgment is AFFIRMED. 

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