Davis v. Dol ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
EARL C. DAVIS,
Plaintiff,
79-¢\/-02561 (RCL)
FILE§
APR 1 z 2a2
Clerk, U.S. District & Bankruptcy
Court$ for the District of Co|uizibi:»
V.
UNITED STATES DEPARTMENT OF
LABOR, et al.,
Defendants.
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MEMORANDUM AND ORDER
Upon this Court’s Order of Feb. 24, 2012 denying plaintiffs appeal from the Magistrate
Judge’s decision, this case was closed. See Feb 24, 2012 Order [189]. Subsequently plaintiff
filed a new motion entitled "Motion Disqualification and the Court’s Reconsideration of the
Order and Memorandum Opinion Dated February 24, 2012" with the Clerk’s Office, and has
since filed Notice of Appeal to the D.C. Circuit. See generally Notice of Appeal [191]. After
such an appeal is filed, this Court no longer has jurisdiction over this case and hence cannot rule
on plaintiffs new motion. See Greater Boston Television Corp v. FCC, 463 F.2d 268, 280 n.22
(D.C. Cir. 197l) (citing Smith v. Pollz'n, l94 F.2d 349 (D.C. Cir. l952)). However, under the
procedure established in Smz``th, plaintiff s motion should be filed, and this Court may indicate
how it would rule on the motion were the case remanded to its jurisdiction, which plaintiff can
then bring to the D.C. Circuit’s attention. Id.When this case was transferred to me from Judge Kennedy in December, 201 l, I had no
recollection of having any involvement with this case over 32 years ago as an Assistant United
States Attomey. Having had no involvement since 1980, and as the available online docket only
dates from 1999, my recollection was not refreshed when the case history was reviewed after
transfer. The full hardcopy docket was not received from the clerk’s archives until after the
February 24, 2012 opinion and order were filed. However, as plaintiff correctly notes, 28 U.S.C.
§ 455(b)(3) requires that a judge disqualify himself when he participated in the proceedings as a
government employee. The statute allows no discretion in this decision, provides for no
expiration of this requirement, and disallows voluntary waiver. Therefore, were this case
remanded by the D.C. Circuit, I would disqualify myself from this case as required by statute,
my prior order and opinion would be vacated, and the case would be reassigned.
Accordingly, it is hereby
ORDERED that the Clerk’s Office shall enter plaintiffs Motion Disqualification and the
Court’s Reconsideration of the Order and Memorandum Opinion Dated February 24, 2012 on
docket; and it is further
ORDERED that the Clerk’s Office shall transmit this Memorandum and Order to the
D.C. Circuit.
so oRDERED this \‘ " day ofAprii 2012.
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RoYQ:E c. LAMBERTH
Chief Judge
United States District Court