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# In the United States Court of Federal Claims

No. 11

- 236 C

(Filed: February 10, 2014 )

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RCFC 60(b)(6) Mo tion to Vacate Prior Rulings ; Effect of Judge’s Disqualification Under 28 U.S.C. § 455(a)

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DEMODULATION, INC.

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Plaintiff

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v. *

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THE UNITED STATES, *

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Defendant. *

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B e n j a m in D

. Ligh t

, Law Office of Sean R. Cal l agy, LLC

, Paramus, Ne w J er s e y
, f or Pl a inti ff.

G a r y L

. Hausk e n , Assistant Director

, with whom were Stuart F. Delery , Assistant Attorney General, John Fargo , Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Washington, D.C. , for Defendant.

AMENDED OPINI ON AND ORDER

WHEELER, Judge.

The Court vacates its February 7, 2014 order (Dkt. No. 47) and substitutes the

f ollowing amended opinion and order.

On December 20, 2013 , Plaintiff Demodulation, Inc. (“Demodulation”) filed a

motion to vacate Judge Susan G. Braden’s prior substantive rulings in this case and to compel discovery. (Dkt. No. 42). Judge Braden disqualified h erself from this case in August 2013, but had issued rulings on July 12, 2013 on the parties’ cross

- motions for partial summary judgment, and on February 29, 2012 on Defendant’s motion to dismiss.

Demodulation’s motion to vacate has been fully briefed, and on February 4, 2014, the2

Court heard oral argument on th is motion. For the reasons set forth below, the motion to vacate is granted. 1

Background

Demodulation filed its initial complaint on April 14, 2011 , and the Clerk’s Office randomly assigned this case to Judge Braden . In t he complaint , Demodulation identified

Clarence “ Bud” Albright, former Undersecretary of Energy, as a potential fact witness

. Compl. ¶ 25. Over the course of the next 27 months, Judge Braden managed the case,

and issued the two above noted opinions on substantive motions. On August 1, 2013

, Judge Braden issued a notice of intent to disqualify herself pursuant to Canon 3(D) of the Code of Conduct for United States Judges and 28 U.S.C. § 455(a)

.

In the notice, Judge Braden informed the parties that she intended to disqualify

herself from the case unless waivers were provided by both parties. Waivers were not

re ceived on behalf of all parties, and o n August 26, 2013, Judge Braden issued an order disqualifying herself

. (Dkt. No. 30). T he Clerk’s Office reassigned the case to Judge

Thomas C. Wheeler.

On December 20, 2013, Demodulation filed a motion pursuant to Rule 60( b ) (6) of

the Rules of the Court of Federal Claims (“RCFC”) to vacate the following two

substantive o pinions that Judge Braden had issued prior to her disqualification :

 On February 29, 2012, Judge Braden issued an opinion and order granting in part

and denying in part the Government’ s mot ion to dismiss

, and granting

Demodulation’s cross­ motion to amen d (Dkt

. No . 15).

 On July 12, 2013, Judge B raden entered an opinion and order granting the Government’s motion for partial summary j udgment and denying Demodulation’s

c ross

- motion (Dkt . No. 29).

Discussion

A. Standard of Review

Under RCFC 60(b)(6) the C ourt may vacate an order or judgment for any reason that justifies relief. RCFC 60(b)(6) and its counterpart F ederal R ule of C ivil P rocedure 60(b)(6) provide courts with authority “adequate to enable them to vacate judgments

1 This order address es only the motion to vacate. The motion to compel discovery will be resolved in a

s eparate order.3

whenever such action is appropriate to accomplish justice.” Klapprott v. United States

, 335 U.S. 601, 614

– 15 (1949).

The circumstances that mandate disqualification of federal judges are defined in

28 U.S.C. § 455

, 2 but the statute does not prescribe a specific remedy. Rather, when deciding whether to vacate a judgment or order for violation of § 455(a), a court should consider: (1) “the risk of injustice to the parties in the particular case”; (2) “the risk that the denial of relief will produce injustice in other cases”; and (3) “the risk of undermining the public’ s confidence in the judicial process.” Liljeberg v. Health Servs. Acquisition Corp. , 486 U.S. 847, 864 (1988). The appearance of partiality carries the risk of undermining the public’s confidence in the judicial process. Shell Oil Co. v. United

States , 672 F.3d 1283, 1294 (Fed. Cir. 2012) ( finding that judge’s failure to recuse

himself from entire action on grounds of financial interest was not harmless error because

of the risk of undermining the public’s confidence in the judicial process).

B. Analysis

Nothing in the limited facts available to the Court suggests that Judge Braden’s

association with Mr. Albright influenced her rulings in the two substantive orders that she

issued prior to disqualification

. The Court will not assess whether Judge Braden ’s recusal was warranted in the circumstances presented

. Rather, the Court will assume that Judge Braden held some concern about the appearance of partiality towards the

Defendant

. The Court approaches Judge Braden’s two substantive rulings through the same paradigm to determine whether Judge Braden’s relations hip with Mr. Albright might create the appearance of partiality

.

Upon full consideration of the parties’ positions, t he Court concludes that if the

orders of the now

- recused judge were allowed to stand, Plaintiff could one day wonder

whether the outcome o f the case was influenced by a judge who later recused herself

from the case. Given the Federal Circuit’s strict application of disqualification requirements in Shell Oil

, supra
, Plaintiff’s counsel raises the specter of incurring the time and expense to pursue this case to completion, only t o have the appellate court rule that the case must begin anew. Thus , the safest course is to vacate Judge Brad en’s

substantive orders because “justice must satisfy the appearance of justice.” Liljeberg

, 486 U.S. at 864. So that no questions remain about the appearance of Judge Braden’s partiality, as unlikely as that possibility seems, the Court chooses to start with a clean

slate. Accordingly, Plaintiff’s motion to vacate is GRANTED. As the Court discussed

with c ounsel at the close of oral argument, Plaintiff shall file forthwith its third amended

2 Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. 28 U.S.C. § 455

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complaint, after which Defendant shall respond to the complaint with an answer or motion as it deems appropriate.

IT IS SO ORDERED.

s/ Thomas C. Wheeler

THOMAS C. WHEELER Judge