Institute of Cetacean Research v. Sea Shepherd Conservation Society

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
INSTITUTE OF CETACEAN RESEARCH, No. 12-35266
a Japanese research foundation;
KYODO SENPAKU KAISHA, LTD., a D.C. No.
Japanese corporation; TOMOYUKI 2:11-cv-02043-
OGAWA, an individual; TOSHIYUKI RAJ
MIURA, an individual,
Plaintiffs-Appellants,
OPINION
v.
SEA SHEPHERD CONSERVATION
SOCIETY, an Oregon nonprofit
corporation; PAUL WATSON, an
individual,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Argued and Submitted
October 9, 2012—Seattle, Washington
Filed February 25, 2013
Before: Alex Kozinski, Chief Judge, A. Wallace Tashima
and Milan D. Smith, Jr., Circuit Judges.
2 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD
Opinion by Chief Judge Kozinski;
Partial Concurrence and Partial Dissent
by Judge Milan D. Smith, Jr.
SUMMARY*
Maritime Law
The panel reversed the district court’s orders denying a
preliminary injunction and dismissing certain claims in an
action under the Alien Tort Statute brought against
environmental activists by Japanese researchers who hunt
whales in the Southern Ocean pursuant to a permit issued
under the International Convention for the Regulation of
Whaling, art. VIII.
The panel held that the whalers stated claims for piracy,
defined under the United Nations Convention on the Law of
the Sea and the High Seas Convention as “illegal acts of
violence or detention, or any act of depredation, committed
for private ends by the crew or the passengers of a private
ship . . . and directed . . . on the high seas, against another
ship . . . or against persons or property on board such ship.”
The panel held that “private ends” are not limited to those
pursued for financial enrichment and that “violence” extends
to malicious acts against inanimate objects.
Reversing the denial of the whalers’ motion for a
preliminary injunction, the panel held that they were likely to
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 3
succeed on the merits of their claims under three international
agreements: the Convention for the Suppression of Unlawful
Acts Against the Safety of Maritime Navigation, the United
Nations Convention on the Law of the Sea, and the
Convention on the International Regulations for Preventing
Collisions at Sea. The panel held that there was a likelihood
of irreparable harm, and the balance of the equities and the
public interest favored the whalers. The panel held that the
district court abused its discretion in deferring to the
judgment of an Australian court because the United States
does not recognize Australia’s claims of sovereignty over
Antarctic waters. In addition, the unclean hands doctrine did
not apply. The panel remanded the case with instructions that
it be transferred to another district judge.
Concurring in part and dissenting in part, Judge Smith
concurred in both the reasoning and the judgment of the panel
opinion, reversing the district court’s dismissal of the
whalers’ piracy claims, and its failure to grant them a
preliminary injunction. He dissented from the majority’s
decision to reassign the case to a different district judge.
COUNSEL
Martha Christie Helmer, John Neupert (argued) and James L.
Phillips, Miller Nash, LLP, Portland Oregon, for Appellants.
Rachel Eve Buker, Daniel P. Harris (argued) and Charles
Philip Moure, Harris & Moure, PLLC, Seattle, Washington,
for Appellees.
4 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD
OPINION
KOZINSKI, Chief Judge:
You don’t need a peg leg or an eye patch. When you ram
ships; hurl glass containers of acid; drag metal-reinforced
ropes in the water to damage propellers and rudders; launch
smoke bombs and flares with hooks; and point high-powered
lasers at other ships, you are, without a doubt, a pirate, no
matter how high-minded you believe your purpose to be.
Plaintiffs-Appellants (collectively, “Cetacean”) are
Japanese researchers who hunt whales in the Southern Ocean.
The United States, Japan and many other nations are
signatories to the International Convention for the Regulation
of Whaling art. VIII, Dec. 2, 1946, 62 Stat. 1716,
161 U.N.T.S. 74, which authorizes whale hunting when
conducted in compliance with a research permit issued by a
signatory. Cetacean has such a permit from Japan.
Nonetheless, it has been hounded on the high seas for years
by a group calling itself Sea Shepherd Conservation Society
and its eccentric founder, Paul Watson (collectively “Sea
Shepherd”). Sea Shepherd’s tactics include all of those listed
in the previous paragraph.
Cetacean sued under the Alien Tort Statute, 28 U.S.C.
§ 1350, for injunctive and declaratory relief. The statute
provides a cause of action for “a tort . . . committed in
violation of the law of nations or a treaty of the United
States.” 28 U.S.C. § 1350. Cetacean argues that Sea
Shepherd’s acts amount to piracy and violate international
agreements regulating conduct on the high seas. The district
court denied Cetacean’s request for a preliminary injunction
and dismissed its piracy claims. We have jurisdiction over
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 5
the order denying the injunction pursuant to 28 U.S.C.
§ 1292(a). We also have jurisdiction to review the dismissal
of the piracy claims because the district court’s reasoning for
dismissing them is “inextricably intertwined with” its reasons
for denying the preliminary injunction. Smith v. Arthur
Andersen LLP, 421 F.3d 989, 998 (9th Cir. 2005) (internal
quotation marks omitted).
I. DISMISSAL OF THE PIRACY CLAIMS
We review the district court’s dismissal of Cetacean’s
piracy claims de novo. Manzarek v. St. Paul Fire & Marine
Ins. Co., 519 F.3d 1025, 1030 (9th Cir. 2008). “[T]he
definition of piracy under the law of nations . . . [is] spelled
out in the UNCLOS, as well as the High Seas Convention,”
which provide almost identical definitions. United States v.
Dire, 680 F.3d 446, 469 (4th Cir. 2012); see United Nations
Convention on the Law of the Sea (“UNCLOS”), art. 101,
Dec. 10, 1982, 1833 U.N.T.S. 397; Convention on the High
Seas, art. 15, Apr. 29, 1958, 13 U.S.T. 2312, 450 U.N.T.S.
82. The UNCLOS defines “piracy” as “illegal acts of
violence or detention, or any act of depredation, committed
for private ends by the crew or the passengers of a private
ship . . . and directed . . . on the high seas, against another
ship . . . or against persons or property on board such ship.”
UNCLOS art. 101 (emphasis added); see also Convention on
the High Seas art. 15.
The district court’s analysis turns on an erroneous
interpretation of “private ends” and “violence.” The district
court construed “private ends” as limited to those pursued for
“financial enrichment.” But the common understanding of
“private” is far broader. The term is normally used as an
antonym to “public” (e.g., private attorney general) and often
6 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD
refers to matters of a personal nature that are not necessarily
connected to finance (e.g., private property, private entrance,
private understanding and invasion of privacy). See
Webster’s New Int’l Dictionary 1969 (2d. ed. 1939) (defining
“private” to mean “[b]elonging to, or concerning, an
individual person, company, or interest”).
We give words their ordinary meaning unless the context
requires otherwise. See Leocal v. Ashcroft, 543 U.S. 1, 8–9
(2004); Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 69 (2012). The context
here is provided by the rich history of piracy law, which
defines acts taken for private ends as those not taken on
behalf of a state. See Douglas Guilfoyle, Piracy Off Somalia:
UN Security Council Resolution 1816 and IMO Regional
Counter-Piracy Efforts, 57 Int’l & Comp. L. Q. 690, 693
(2008) (discussing the High Seas Convention); Michael
Bahar, Attaining Optimal Deterrence at Sea: A Legal and
Strategic Theory for Naval Anti-Piracy Operations, 40 Vand.
J. Transnat’l L. 1, 32 (2007); see also Harmony v. United
States, 43 U.S. (2 How.) 210, 232 (1844) (“The law looks to
[piracy] as an act of hostility . . . being committed by a vessel
not commissioned and engaged in lawful warfare.”). Belgian
courts, perhaps the only ones to have previously considered
the issue, have held that environmental activism qualifies as
a private end. See Cour de Cassation [Cass.] [Court of
Cassation] Castle John v. NV Mabeco, Dec. 19, 1986, 77
I.L.R. 537 (Belg.). This interpretation is “entitled to
considerable weight.” Abbott v. Abbott, 130 S. Ct. 1983,
1993 (2010) (internal quotation marks omitted). We
conclude that “private ends” include those pursued on
personal, moral or philosophical grounds, such as Sea
Shepherd’s professed environmental goals. That the
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 7
perpetrators believe themselves to be serving the public good
does not render their ends public.
The district court’s interpretation of “violence” was
equally off-base. Citing no precedent, it held that Sea
Shepherd’s conduct is not violent because it targets ships and
equipment rather than people. This runs afoul of the
UNCLOS itself, which prohibits “violence . . . against
another ship” and “violence . . . against persons or property.”
UNCLOS art. 101. Reading “violence” as extending to
malicious acts against inanimate objects also comports with
the commonsense understanding of the term, see Webster’s
New Int’l Dictionary 2846, as when a man violently pounds
a table with his fist. Ramming ships, fouling propellers and
hurling fiery and acid-filled projectiles easily qualify as
violent activities, even if they could somehow be directed
only at inanimate objects.
Regardless, Sea Shepherd’s acts fit even the district
court’s constricted definition. The projectiles directly
endanger Cetacean’s crew, as the district court itself
recognized. And damaging Cetacean’s ships could cause
them to sink or become stranded in glacier-filled, Antarctic
waters, jeopardizing the safety of the crew.
The activities that Cetacean alleges Sea Shepherd has
engaged in are clear instances of violent acts for private ends,
the very embodiment of piracy. The district court erred in
dismissing Cetacean’s piracy claims.
II. PRELIMINARY INJUNCTION
“A plaintiff seeking a preliminary injunction must
establish [1] that he is likely to succeed on the merits, [2] that
8 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD
he is likely to suffer irreparable harm in the absence of
preliminary relief, [3] that the balance of equities tips in his
favor, and [4] that an injunction is in the public interest.”
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20
(2008). We review the district court’s denial of the
preliminary injunction for abuse of discretion. Harris v. Bd.
of Supervisors, L.A. Cnty., 366 F.3d 754, 760 (9th Cir. 2004).
“A district court would necessarily abuse its discretion if it
based its ruling on an erroneous view of the law or on a
clearly erroneous assessment of the evidence.” Cooter &
Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990).
A. Likelihood of Success
Cetacean sought its injunction pursuant to three
international agreements: the Convention for the Suppression
of Unlawful Acts Against the Safety of Maritime Navigation
(“SUA Convention”), art. 3, Mar. 10, 1988, S. Treaty Doc.
No. 101-1, 1678 U.N.T.S. 222, the UNCLOS and the
Convention on the International Regulations for Preventing
Collisions at Sea (“COLREGS”), Oct. 20, 1972, 28 U.S.T.
3459, 1050 U.N.T.S. 18.
1. The SUA Convention
The SUA Convention prohibits acts that endanger, or
attempt to endanger, the safe navigation of a ship. SUA
Convention art. 3. Cetacean presented uncontradicted
evidence that Sea Shepherd’s tactics could seriously impair
its ability to navigate. The district court nonetheless
concluded that, since Sea Shepherd has not yet disabled any
of Cetacean’s ships, it’s unlikely it would succeed in the
future. This was clear error. The district court overlooked
the actual language of the Convention, which prohibits
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 9
“endager[ing]” safe navigation. Id. This requires only that
Sea Shepherd create dangerous conditions, regardless of
whether the harmful consequences ever come about. See
Webster’s New Int’l Dictionary 843. As to whether Sea
Shepherd’s tactics actually are dangerous, the record
discloses that it has rammed and sunk several other whaling
vessels in the past. See Appendix.
The district court also erred by failing to recognize that
Sea Shepherd, at the very least, attempted to endanger the
navigation of Cetacean’s ships. An attempt is sufficient to
invoke the SUA Convention, even if unsuccessful. Sea
Shepherd’s repeated claims that its efforts are merely
“symbolic” and “employed so as to ensure maximum safety”
are disingenuous. How else can it explain that it has switched
to metal-reinforced prop-fouling ropes? Reinforced ropes
carry the same symbolic meaning as normal ropes, but they
are far more destructive. Nor does symbolism require Sea
Shepherd to bring its ships dangerously close to Cetacean’s.
The district court’s conclusion that Cetacean wasn’t likely to
succeed on its SUA Convention claims rested on an
implausible determination of the facts and an erroneous
application of law; it was an abuse of discretion. United
States v. Hinkson, 585 F.3d 1247, 1251 (9th Cir. 2009) (en
banc).
2. The UNCLOS
For the reasons explained above, Part I, supra, the district
court erred in its assessment of Cetacean’s UNCLOS piracy
claims, and consequently abused its discretion in assessing
the likelihood of success on these claims. See Cooter & Gell,
496 U.S. at 405.
10 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD
3. The COLREGS
The district court did find that Cetacean is likely to
succeed on the merits of its claims under the COLREGS. The
COLREGS state obligatory and universal norms for
navigating ships so as to avoid collision. Crowley Marine
Services, Inc. v. Maritrans, Inc., 530 F.3d 1169, 1172–73 (9th
Cir. 2008). Sea Shepherd deliberately navigates its ships
dangerously close to Cetacean’s ships. The district court’s
finding that this is likely a violation of the COLREGS is
adequately supported by the record. See Hinkson, 585 F.3d
at 1251.
B. LIKELIHOOD OF IRREPARABLE HARM
The district court determined that “injury is possible, but
not likely,” even though it found that the projectiles Sea
Shepherd launches at Cetacean’s ships “are an obvious hazard
to anyone who [sic] they might hit” and that Sea Shepherd
navigates its ships “in such a way that a collision is highly
likely.” Sea Shepherd itself adorns the hulls of its ships with
the names and national flags of the numerous whaling vessels
it has rammed and sunk. See Appendix. The district court’s
observation that Cetacean hasn’t yet suffered these injuries is
beside the point. See Helling v. McKinney, 509 U.S. 25, 33
(1993). Cetacean’s uncontradicted evidence is that Sea
Shepherd’s tactics could immobilize Cetacean’s ships in
treacherous Antarctic waters, and this is confirmed by
common sense: A dangerous act, if committed often enough,
will inevitably lead to harm, which could easily be
irreparable. Harris, 366 F.3d at 766.
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 11
C. BALANCE OF EQUITIES
The district court correctly found that the balance of
equities favors Cetacean. As it noted, “[a]bsent an injunction,
the whalers will continue to be the victims of Sea Shepherd’s
harassment,” but “Sea Shepherd . . . points to no hardship that
it will suffer if the court imposes an injunction.”
D. PUBLIC INTEREST
“The public interest inquiry primarily addresses impact on
non-parties rather than parties.” Bernhardt v. L.A. Cnty.,
339 F.3d 920, 931 (9th Cir. 2003) (internal quotation marks
omitted). This is particularly the case where “the impact of
an injunction reaches beyond the parties, carrying with it a
potential for public consequences.” Stormans, Inc. v.
Selecky, 586 F.3d 1109, 1139 (9th Cir. 2009). The primary
public interests at issue here are the health of the marine
ecosystem, Winter, 555 U.S. at 25–26; see also Earth Island
Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1177 (9th Cir.
2006), and the safety of international waterways.
Where a valid law speaks to the proper level of deference
to a particular public interest, it controls. See Golden Gate
Rest. Ass’n v. City & Cnty. of S.F., 512 F.3d 1112, 1126–27
(9th Cir. 2008). Our laws defining the public interest in
regards to whaling are the Whaling Convention Act and the
Marine Mammal Protection Act, both of which permit
whaling pursuant to scientific permits issued under the
Whaling Convention. 16 U.S.C. § 1372; 16 U.S.C. § 916c.
Cetacean’s activities are covered by such a permit and thus
are consistent with congressional policy as to the marine
ecosystem.
12 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD
Our laws also reflect a strong public interest in safe
navigation on the high seas. As already discussed, Sea
Shepherd’s activities clearly violate the UNCLOS, the SUA
Convention and the COLREGS. See Part II.A, supra. As
such, they are at loggerheads with the public interest of the
United States and all other seafaring nations in safe
navigation of the high seas.
The district court also considered the interest in keeping
U.S. courts out of the international political controversy
surrounding whaling. But enjoining piracy sends no message
about whaling; it sends the message that we will not tolerate
piracy. This is hardly a controversial view, as evidenced by
a joint statement from the United States, Australia, the
Netherlands and New Zealand condemning dangerous
activities in the Southern Ocean. Joint Statement on Whaling
and Safety at Sea from the Governments of Australia, the
Netherlands, New Zealand, and the United States: Call for
Responsible Behavior in the Southern Ocean Whale
Sanctuary (Dec. 13, 2011), available at
http://www.state.gov/r/pa/prs/ps/2011/12/178704.htm.
Refusing the injunction sends the far more troublesome
message that we condone violent vigilantism by U.S.
nationals in international waters.
The district court also rejected Cetacean’s claims on
international comity grounds. While there is a public interest
in maintaining harmonious international relations, it’s not a
factor here. An Australian court has entered default judgment
against Cetacean, purporting to enjoin it from whaling in
Antarctic coastal waters over which Australia claims
sovereignty. The district court’s deference to Australia’s
judgment in that case was an abuse of discretion. Asvesta v.
Petroutsas, 580 F.3d 1000, 1009 (9th Cir. 2009). To begin,
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 13
the district court misunderstood the Australian judgment,
which addressed the legality of Cetacean’s activities, not Sea
Shepherd’s. Whatever the status of Cetacean’s whaling under
Australian law, it gives Sea Shepherd no license to engage in
piracy. It is for Australia, not Sea Shepherd, to police
Australia’s court orders.
Additionally, comity applies only if the foreign court has
competent jurisdiction. Id. at 1011. But the United States
doesn’t recognize Australia’s claims of sovereignty over
Antarctic waters. See Note from U.S. Deputy Representative
to the United Nations, to Secretary-General of the United
Nations (Dec. 3, 2004); Note from Embassy of the United
States, to Australian Department of Foreign Affairs and Trade
(Mar. 31, 1995). By according comity to Australia’s
judgment, we would implicitly recognize Australia’s
jurisdiction, in contravention of the stated position of our
government. The conduct of foreign affairs is within the
exclusive province of the Executive, see United States v.
Hooker, 607 F.2d 286, 289 (9th Cir. 1979), and we must defer
to its views, see Willams v. Suffolk Ins. Co., 38 U.S. (13 Pet.)
415, 420 (1839); cf. Mingtai Fire Ins. Co. v. United Parcel
Serv., 177 F.3d 1142, 1147 (9th Cir. 1999).
E. UNCLEAN HANDS
An injunction is an equitable remedy. Winter, 555 U.S.
at 32. While the Winter factors “are pertinent in assessing the
propriety of any injunctive relief,” id., traditional equitable
considerations such as laches, duress and unclean hands may
militate against issuing an injunction that otherwise meets
Winter’s requirements. Here, however, the district court
abused its discretion in denying the injunction based on
14 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD
unclean hands. Seller Agency Council, Inc. v. Kennedy Ctr.
for Real Estate Educ., Inc., 621 F.3d 981, 986 (9th Cir. 2010).
The district court held that Cetacean’s hands are unclean
because, “[i]n flouting the Australian injunction, the whalers
demonstrate their disrespect for a judgment of a domestic
court.” Because neither the United States nor Japan
recognizes Australia’s jurisdiction over any portion of the
Southern Ocean, Cetacean owes no respect to the Australian
order. Moreover, the unclean hands doctrine requires that the
plaintiff have “dirtied [his hands] in acquiring the right he
now asserts, or that the manner of dirtying renders inequitable
the assertion of such rights against the defendant.” Republic
Molding Corp. v. B.W. Photo Utils., 319 F.2d 347, 349 (9th
Cir. 1963). Cetacean has done nothing to acquire the rights
to safe navigation and protection from pirate attacks; they
flow automatically from customary international law and
treaties. Nor is there anything remotely inequitable in
seeking to navigate the sea lanes without interference from
pirates.
* * *
The district court’s orders denying Cetacean’s preliminary
injunction and dismissing its piracy claims are REVERSED.
The preliminary injunction we issued on December 17, 2012,
Inst. of Cetacean Research v. Sea Shepherd Conservation
Soc’y, 702 F.3d 573 (9th Cir. 2012), will remain in effect
until further order of this court. The district judge’s
numerous, serious and obvious errors identified in our
opinion raise doubts as to whether he will be perceived as
impartial in presiding over this high-profile case. The
appearance of justice would be served if the case were
transferred to another district judge, drawn at random, and we
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 15
so order in accordance with the standing orders of the
Western District of Washington. The panel retains
jurisdiction over any further appeals or writs involving this
case.
16 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD
Appendix
ER 279
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 17
ER 281
18 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD
M. SMITH, Circuit Judge, concurring in part and dissenting
in part:
I concur in both the reasoning and the judgment of the
panel opinion, reversing the district court’s dismissal of
Cetacean’s piracy claims, and its failure to grant Cetacean a
preliminary injunction. Even if one believes it is barbaric to
harvest whales for any purpose at the beginning of the 21st
century, as practiced by Cetacean, it is clearly permitted
under international law. See International Convention for the
Regulation of Whaling art. VIII, Dec. 2, 1946, 62 Stat. 1716,
161 U.N.T.S. 74. Sea Shepherd’s piracy is not. See Maj. Op.
at 5–14.
However, I respectfully dissent from the majority’s
decision to reassign this case to a different district judge.
“We remand to a different judge only in unusual
circumstances or when required to preserve the interests of
justice.” United States v. Wolf Child, 699 F.3d 1082, 1102
(9th Cir. 2012) (citing United States v. Quach, 302 F.3d 1096,
1103 (9th Cir. 2002)). Specifically, we employ a three-factor
test to determine whether to remand a case to a different
district judge:
(1) whether the original judge would
reasonably be expected upon remand to have
substantial difficulty in putting out of his or
her mind previously expressed views or
findings determined to be erroneous or based
on evidence that must be rejected, (2) whether
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 19
reassignment is advisable to preserve the
appearance of justice, and (3) whether
reassignment would entail waste and
duplication out of proportion to any gain in
preserving the appearance of fairness.
Id.; see also Wyler Summit P’ship v. Turner Broad. Sys., Inc.,
235 F.3d 1184, 1196 (9th Cir. 2000).
Applying these factors, I see no basis for reassigning this
case. Our panel opinion is well-articulated, succinct, and
absolutely clear as to what is required of the district judge on
remand. Importantly, it leaves no room for any district judge
to “have substantial difficulty . . . putting out of his or her
mind previously expressed views.” Wolf Child, 699 F.3d at
1102. The Sea Shepherds are pirates. Period. No district
judge could fail to grasp the clarity and firmness of our
opinion.
Moreover, the “appearance of justice” does not require
reassignment. We have previously reserved reassignment for
only the most egregious cases.1 While the district judge
1
See, e.g., United States v. Working, 287 F.3d 801, 809–10 (9th Cir.
2002) (reassigning to different district judge where district court sentenced
defendant to one day in jail following conviction for assault with the intent
to commit first degree murder); Quach, 302 F.3d at 1103–04 (reassigning
where district court previously suggested that the defendant was
“fortunate” not to receive the death penalty, and where the court indicated
that had the government moved for a downward departure, it would have
denied the motion); United Nat. Ins. Co. v. R&D Latex Corp., 141 F.3d
916, 919–20 (reassigning where district judge had “twice granted
summary judgment” to a party without articulating any reasons); cf. Wyler
Summit Partnership, 235 F.3d at 1196 (refusing to remand to a different
district judge even though district judge “adopted verbatim” one party’s
clearly biased proposed order); United States v. Waknine, 543 F.3d 546,
20 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD
clearly erred in finding for the Sea Shepherds, there is
absolutely no evidence in this record to suggest that he did so
for an improper purpose, such as bias or prejudice.
Finally, because I do not believe “preserving the
appearance of fairness” requires reassignment, the majority’s
decision will necessarily “entail waste and duplication out of
proportion” to any benefits. Wolf Child, 699 F.3d at 1102.
District judges, like circuit judges, occasionally make
mistakes. Where, as here, there is no reason to suspect that
the district judge will repeat those mistakes on remand,
reassignment is inappropriate.
I respectfully dissent from the majority’s decision to
reassign this case to a different district judge.
560 (9th Cir. 2008) (refusing to reassign to a different district judge
despite commission of significant procedural errors).