FCBA Submits Amicus Brief on Motion for Recusal in AMP v. USPTO

By Donald Zuhn --

Last week, the Federal Circuit Bar Association (FCBA) submitted an amicus curiae brief regarding the motion for recusal filed by Plaintiffs-Appellees in Association for Molecular Pathology v. United States Patent and Trademark.  Plaintiffs-Appellees filed their motion on June 28, seeking to have Chief Judge Rader recuse himself from any involvement in the appeal (see "Appellees Move for Recusal of Chief Judge Rader in AMP v. USPTO Appeal").  Their motion is based on Chief Judge Rader's attendance at two events at which the AMP v. USPTO case was discussed and the Chief Judge's comments at these events (the two events:  a session entitled "Patenting Genes: In Search of Calmer Waters" at the Biotechnology Industry Organization (BIO) International Convention, and a panel entitled "Patent Eligible Subject Matter" at the Fordham University School of Law Eighteenth Annual Conference on International Intellectual Property Law & Policy).  Plaintiffs-Appellees contend that "Chief Judge Rader's statements in this case have created an appearance of partiality that calls into question his ability to engage in impartial legal analysis based on the record and the argument of the parties."

The FCBA begins the 14-page brief by stating that "[a]n informed and balanced set of legal rules in the area of judicial recusal are vitally important to the public interest," and, in particular, that "the continued perception of judicial impartiality and the ability of judges to participate in appropriate non-judicial discourse and legal education are both valuable and worthy of vigilant protection."  With these interests in mind, the FCBA offers its brief "solely to direct the Court to relevant sources of law, and thus to aid resolution of this important issue, which is invested with the public interest."

The brief notes that the recusal motion appears to raise an issue of first impression, namely "[w]hen should a circuit judge be recused based on prior public statements made in the course of active participation in an educational conference?"  For the FCBA, the resolution of this issue requires that § 455(a) of the Judicial Code, which provides that "[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned," and Canon 3A(6), which states that judges generally "should avoid public comment on the merits of a pending or impending action," be interpreted in harmony with Canon 4, which states that "[a] judge may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice."  In particular, the FCBA contends that:

[T]he important goal of ensuring that federal judges continue to decide cases in a manner that is, and appears to be, impartial should be harmonized with the need to foster appropriate judicial involvement in public educational activities.  Accordingly, any overbroad application of Section 455(a) and Canon 3A(6) that would chill judicial participation in extra-judicial educational activities, as encouraged by Canon 4, should be rejected.

On the subject of the involvement of judges in educational conferences, the brief asserts that "[i]f judicial participation in extra-judicial educational activities is to have real meaning, judges must be permitted to address, appropriately, the relevant and significant issues that are the subject of such educational conferences," adding that "[t]his is true even when (as will usually be the case) those general issues happen to have relevance to one or more pending cases."  The brief considers three types of educational involvement for judges: (1) teaching at law schools, where judges should not be required to "teach in an overly-cautious and reticent manner for fear that their statements will serve as grist for [recusal] motions"; (2) contributing to legal treatises or casebooks, which "necessarily comment on the state of the law"; and (3) participating in continuing legal education programs, which "in many ways are the most effective fora for the healthy exchange of ideas and concerns between judges and others involved in the legal system."  With respect to this last category, the FCBA suggests that "[i]n light of the general prohibition of Canon 3 and in order to avoid any possible claim of apparent partiality, some judges may already shy away from appropriate -- and indeed enlightening --interaction with attorneys."

The FCBA then sets forth several principles that should govern resolution of recusal issues.  First, the brief notes that "[c]ourts have . . . rejected recusal based on a judge's participation at a conference in which information germane to a pending case is discussed, even if the presentation may be described as 'one-sided.'"  With respect to a judge's comments, however, the brief states that while "the law is clear that a judge may normally express his or her opinion on a point of law, regardless of the relevance of that opinion to pending case . . . , the law is also clear that a judge cannot make public statements suggesting that he or she has pre-judged a case or otherwise is biased in favor of a litigant."  The FCBA concludes the brief by proposing that:

[I]t would be appropriate to adopt the following standard for assessing whether recusal is required based on a judge's allegedly case-related comments at a conference:  If the judge's comments can reasonably be understood as general expressions regarding the law, recusal is not warranted, even if the views expressed are also relevant to a particular pending or impending case.  Correspondingly, recusal should be considered, based on such comments, only if the objectively reasonable interpretation is that those comments constituted the expression of the judge's specific views regarding the proper disposition of a particular identifiable pending or impending case, and reflect bias or predisposition (i.e., an unwillingness to consider the case with an open mind).

Comments

[patent litigation]

This case is already shaping up to be one of the most controversial actions in patent litigation today -- in more ways than one. Its importance is virtually a guarantee that almost every single aspect will be scrutinized, contested, and debated. One hopes that this will translate into a very fair and well-considered opinion by whichever panel (SCOTUS) issues the final decision. But simultaneously one can also anticipate that all of this is going to take quite a while.
http://www.aminn.org/webcast-aipr-patent-reform-presentation-us-patent-and-trademark-office

[6]

"(i.e., an unwillingness to consider the case with an open mind)."

What about a willingness to consider the case as if the law does not apply to it? Hmmm?

[Kevin E. Noonan]

Dear 6:

Since I was in the room for at least one of these meetings, let me tell you how I interpreted the Chief Judge's comments. What I heard him say was:

"Using Section 101 the way the ACLU did in the Myriad case has no judicial standard that can be applied, or is argued to be applied. The decision they advocate rests not on patent law, but on politics, and as a judge I can't make these decisions based on politics. I need legal principles that I can apply, and the ACLU's arguments are not based on legal principles, at least not patent law principles."

Now, I want to emphasize that I am not speaking for the Chief Judge, but I find it ironic that the ACLU is crying foul in a case where they have advocated (at least in the court of public opinion) that this case is about who "owns" your DNA, since they well know that the 13th Amendment precludes any such ownership.

Thanks for the comment.

[Skeptical]

Kevin,

But your take is just not as interesting. Should we be bothered with the truth when it is wrapped in such plain paper?