     Case: 09-10272     Document: 00511023142          Page: 1    Date Filed: 02/09/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                          February 9, 2010
                                     No. 09-10272
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk



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,



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                  No. 09-10272

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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                                 No. 09-10272

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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