      In the United States Court of Federal Claims
                                    No. 11-236C

                              (Filed: February 10, 2014)

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                                    *
DEMODULATION, INC.,                 *
                                    *
                    Plaintiff,      *
                                              RCFC 60(b)(6) Motion to Vacate
                                    *
                                              Prior Rulings; Effect of Judge’s
v.                                  *
                                              Disqualification Under 28 U.S.C. §
                                    *
                                              455(a).
THE UNITED STATES,                  *
                                    *
                    Defendant.      *
                                    *
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Benjamin D. Light, Law Office of Sean R. Callagy, LLC, Paramus, New Jersey, for
Plaintiff.

Gary L. Hausken, 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 OPINION AND ORDER

WHEELER, Judge.

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

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Court heard oral argument on this 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 the 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
received on behalf of all parties, and on August 26, 2013, Judge Braden issued an order
disqualifying herself. (Dkt. No. 30). The 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 opinions 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 motion to dismiss, and granting
      Demodulation’s cross­motion to amend (Dkt. No. 15).

     On July 12, 2013, Judge Braden entered an opinion and order granting the
      Government’s motion for partial summary judgment and denying Demodulation’s
      cross-motion (Dkt. No. 29).

                                            Discussion

    A. Standard of Review

          Under RCFC 60(b)(6) the Court may vacate an order or judgment for any reason
that justifies relief. RCFC 60(b)(6) and its counterpart Federal Rule of Civil Procedure
60(b)(6) provide courts with authority “adequate to enable them to vacate judgments


1
  This order addresses only the motion to vacate. The motion to compel discovery will be resolved in a
separate order.
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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 relationship with Mr. Albright
might create the appearance of partiality.

        Upon full consideration of the parties’ positions, the Court concludes that if the
orders of the now-recused judge were allowed to stand, Plaintiff could one day wonder
whether the outcome of 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 to have the appellate court rule
that the case must begin anew. Thus, the safest course is to vacate Judge Braden’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 counsel 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




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