IN RE: WALTER LEROY MOODY, JR. No. 90-6177 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Mandamus To The United States Court Of Appeals For The Eleventh Circuit Brief For The United States In Opposition ORDER BELOW The order of the court of appeals (Pet. App. 13) denying petitioner's application is not reported. JURISDICTION The order of the court of appeals was entered on November 1, 1990. The petition for a writ of mandamus was filed in this Court on November 8, 1990. On November 9, 1990, Justice Kennedy denied petitioner's application for a stay of proceedings in the district court. The jurisdiction of this Court is invoked under 28 U.S.C. 1651. QUESTION PRESENTED Whether the chief judge of the court of appeals, notwithstanding his voluntary recusal from deciding the merits of an earlier case involving petitioner, may discharge his administrative responsibilities by designating a district judge to preside over petitioner's trial. STATEMENT The indictment in this case was returned on July 10, 1990, in the Middle District of Georgia. The indictment charges petitioner with conspiring to obstruct justice and commit other offenses (18 U.S.C. 371), obstructing justice (18 U.S.C. 1503), obstructing a criminal investigation (18 U.S.C. 1510(a)), suborning perjury (18 U.S.C. 1622), bribing a witness (18 U.S.C. 201(c)(2)), and tampering with a witness (18 U.S.C. 1512(b)). These charges arise from petitioner's efforts to procure false testimony during federal court proceedings to set aside his 1972 pipe-bombing conviction and during a subsequent federal grand jury investigation. At the time of the indictment, petitioner was widely reported to be a suspect in the December 16, 1989, mail-bombing murder of the Honorable Robert Vance, a circuit judge on the United States Court of Appeals for the Eleventh Circuit. /1/ On October 4, 1990, Chief Judge Wilbur D. Owens, Jr., of the Middle District of Georgia, recused himself and requested that the Chief Judge of the Eleventh Circuit designate a judge from outside the Middle District to hear the case. Pet. App. 17. On October 9, 1990, Chief Judge Tjoflat of the Eleventh Circuit entered an order, pursuant to 28 U.S.C. 292(b), designating Judge Anthony A. Alaimo of the Southern District of Georgia to preside over the case. Pet. App. 18. Petitioner subsequently filed an application with the Eleventh Circuit seeking to vacate Chief Judge Tjoflat's appointment of Judge Alaimo, claiming that Chief Judge Tjoflat was disqualified from making such a designation by virtue of an earlier recusal order. That earlier recusal order was entered on February 27, 1990, by the Eleventh Circuit judges on their own initiative in a civil proceeding involving press access to search warrants in the Judge Vance murder investigation. The Eleventh Circuit judges voluntarily recused themselves "from participating in this case and in any other cases relating to the investigation of the murder of the Honorable Robert S. Vance in which (petitioner) is a party." Pet. App. 15-16. /2/ On November 1, 1990, the court of appeals (Tjoflat, C.J., Clark and Cox, JJ.) denied petitioner's application to vacate the designation of Judge Alaimo and to issue a certificate of necessity to the Chief Justice of the United States. Pet. App. 13. /3/ Petitioner now asks this Court to issue a writ of mandamus directing that Chief Judge Tjoflat vacate the designation of Judge Alaimo and issue a certificate of necessity to the Chief Justice. ARGUMENT Petitioner is not entitled to an extraordinary writ of mandamus, as he has failed to show that Chief Judge Tjoflat lacked the authority to designate a trial judge in this case. The recusal order upon which petitioner relies (see Pet. 9-10) provided simply that Chief Judge Tjoflat and his fellow Eleventh Circuit judges would recuse themselves from "cases relating to the investigation of the murder of the Honorable Robert S. Vance in which (petitioner) is a party." Pet. App. 15-16. Chief Judge Tjoflat reasonably could have construed that order not to apply to cases such as this one that do not involve the murder of Judge Vance. Even if the prior recusal order were applicable to all cases involving petitioner rather than simply those cases related to the Judge Vance murder, Chief Judge Tjoflat still could perform the ministerial act of assigning the case to a trial judge. It is well established that even a federal judge who is legally obligated to recuse himself from a given case can still perform "ministerial duties such as assigning (the) case to another judge." In re Cement Antitrust Litigation, 673 F.2d 1020, 1024-1025 (9th Cir. 1982); see also Stringer v. United States, 233 F.2d 947, 948 (9th Cir. 1956) ("This is not to suggest that a trial judge after disqualifying himself cannot with propriety carry on the mechanical duties of transferring the case to another judge or other essential ministerial duties short of disqualification."). The cases relied upon by petitioner (Pet. 9-11) are not to the contrary; indeed, the court in Moody v. Simmons, 858 F.2d 137, 143 (3d Cir. 1988), approvingly cited both Cement Antitrust Litigation and Stringer in stating that a recused judge could "perform() ministerial duties necessary to transfer the case to another judge (including the entering of 'housekeeping' orders)." In each of the cases relied upon by petitioner, the actions at issue went beyond mere "ministerial" orders that properly could be taken by a recused judge. See Moody, 858 F.2d at 143 (orders converting Chapter 11 bankruptcy case to Chapter 7, disqualifying and impugning counsel, and vacating a contingent fee agreement were "too substantial to be considered mere 'housekeeping'"); New York City Development Corp. v. Hart, 796 F.2d 976, 978-979 (7th Cir. 1986) (orders went to substantive merits of lawsuit as they involved denial of preliminary injunction and refusal to dismiss case); Arnold v. Eastern Airlines, Inc., 712 F.2d 899, 903-904 (4th Cir. 1983) (en banc) (noting that participation of recused court of appeals judge in voting on whether to grant en banc rehearing would affect the "determination of (the) cause from which he was barred"). Accordingly, there is no merit to petitioner's claim that Chief Judge Tjoflat should have been required to present a certificate of necessity to the Chief Justice pursuant to 28 U.S.C. 292(d) seeking designation of a district judge to preside over trial in this case. Subsection (b) of 28 U.S.C. 292 expressly authorized Chief Judge Tjoflat to "designate and assign temporarily any district judge of the circuit to hold a district court in any district within the circuit." Since Judge Alaimo is a district judge within the Eleventh Circuit and was designated temporarily to sit in another district there, Chief Judge Tjoflat was not required to invoke subsection (d) by asking that the Chief Justice designate a district judge from outside the Eleventh Circuit to preside over this case. CONCLUSION The petition for a writ of mandamus should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General SEAN CONNELLY Attorney DECEMBER 1990 /1/ Petitioner was subsequently indicted in the Northern District of Georgia on a 70-count indictment charging him with the murder of Judge Vance and related offenses. United States v. Moody, No. 1:90-CR-383 (N.D. Ga.). /2/ Following the recusal of the Eleventh Circuit judges, the case was assigned to a special panel of Fourth Circuit judges, which decided it by unpublished opinion. Moody v. United States, Nos. 90-8177, 90-8376 (11th Cir. June 28, 1990). /3/ Petitioner also filed a motion in the district court asking that Judge Alaimo recuse himself pursuant to 28 U.S.C. 144 and 455. On November 19, 1990, Judge Alaimo denied that motion. Petitioner has noted an appeal from that order.