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

                                    (Filed: February 7, 2014)

*************************************
                                    *
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.      *
                                    *
*************************************

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.

                                    OPINION AND ORDER

WHEELER, Judge.

        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
Court heard oral argument on this motion. For the reasons set forth below, the motion to
vacate is granted.1
1
  This order addresses only the motion to vacate. The motion to compel discovery will be resolved in a
separate order.
                                                  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) because she had a
professional relationship with Mr. Albright. In her notice to the parties, Judge Braden
described her relationship with Mr. Albright as follows:

             From approximately 1995 to 2000, I served as an outside
             General Counsel to Gulf States Steel in Gadsden, Alabama.
             I seem to recall that I came to know Bud Albright during
             that time period, because I associate him with Alabama
             politics. Mr. Albright’s web bio indicates that he was Vice
             President for Reliant Energy from 1997 to 2003, where he
             was responsible for Washington operations. In the 1998-
             1999 period, I was active in forming an alliance of
             companies to have Congress enact a $1 billion federal loan
             guarantee program to restructure the steel and small oil and
             gas producers. It is possible that Reliant was involved in that
             effort, but I don’t remember. Since I was active in
             Republican politics for over 20 years, particularly in the
             RNC, it is possible that our paths crossed over the years.
             The last time I saw him was at the Meridian International
             Center Ball last October, when we exchanged greetings.

(Notice Concerning Waiver of Judicial Disqualification, Aug. 1, 2013 (Dkt. No. 42 at
A1)).

       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 randomly reassigned the case to
Judge Thomas C. Wheeler.




                                            2
       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
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
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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issued prior to disqualification. However, Judge Braden’s relationship with Mr. Albright
must have been significant enough in her mind that she recused herself under § 455(a).
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
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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