The Center for Public Integrity’s breathless revelations are like the Seinfeld show–they are all about nothing

I don’t trust the Center for Public Integrity’s treatment of federal judges. Running headlines like “federal judges plead guilty” when it was discovered that there was a tiny fraction of federal appellate cases where judges or their spouses had a financial interest (stock) in an appellate party and the judges mistakenly failed to recuse, is not serious investigative reporting.

Yesterday, Howard Bashman, at How Appealing, reported: “The Center for Public Integrity today has a report that begins, ‘A federal appeals court has withdrawn a three-judge panel’s 2007 dismissal of a Pennsylvania man’s lawsuit against Exxon Mobil Corp. after a Center for Public Integrity investigation found that the wife of one of the judges owned up to $100,000 worth of stock in the oil company at the time of the panel’s decision.'”

Turns out that it was the Clerk’s error that the judge sat. The judge had given the proper recusal information to the Clerk for the automatic screening, but the Clerk failed to enter the information and hence the problem.  The judge has now recused himself, as he must, and the Fifth Circuit will probably proceed with a “do over.”

It occurred to me that it would be good to know what the case was about in order to understand why the judge may have overlooked his wife’s interest.  Turns out it was a frivolous pro se case* originated by this silly complaint: tilli-v-exxonmobil-original-complaint-p1-normal   tilli-v-exxonmobil-original-complaint-p2-normalNo wonder the judge did not tumble to the problem. This case must be one many frivolous pro se cases that get pitched every day of the year by the Fifth Circuit based upon screening panel memos from the staff law clerks. While the error should not have occurred and the judge probably feels horrible, the Center’s publicity blast is all about nothing. My advice, when you see a report about federal judges from the Center for Public Integrity, is this: Be skeptical–do your own due diligence.


*Tilli is apparently quit the litigator. He sued Exon Mobil, for example, in the Third Circuit. See Tilli v. Exxon-Mobil Oil Corp., et al., No. 09-1301, at *1 (E.D. Pa. April 3, 2009), aff’d, No. 09-2279 (3d Cir. Sept. 17, 2009). This suit was dismissed by the district court without prejudice for the following reasons: (1) Plaintiff failed to satisfy the requirements for in forma pauperis status; (2) Plaintiff neglected to satisfactorily state grounds for the court’s jurisdiction; and (3) Plaintiff failed to support his claim for damages. Id. The Third Circuit subsequently affirmed. Id.

PS See my financial disclosure form for 2013 here, at our public website. I have made all my reports available to the public going back to 2008.

5 responses

  1. Redo?! By my count three votes to affirm minus one vote to affirm still equals two votes to affirm. Someday Justice Roberts should commission a study to quantify the value of “preserving appearances” in these instances versus the costs of undertaking the charades. I, for one, would not be shocked if the public did not care in the slightest if the Fifth Circuit convened a new panel for this one. Nor need the slope to kangaroo tribunal be that slippery–appellate courts do, after all, have some experience distinguishing between when a do over is needed and when it it is not (harmless appellate error?).

    On the other hand, if Mr. Tilli had been awarded his $4 million, the market reaction upon Exxon stock could well have been swift. Revenues this past quarter barely topped $100 billion. So a presumption of bad faith is probably compelled. I guess I’ve contradicted myself.

    Anyhow, I missed the resurrection of the blog in March but thanks so much Judge for bringing it back – it’s a tremendous read! Even if you don’t make any non-investment income off it….

  2. Julian,

    Thanks for your kind words. As for my lack of non-investment income (assets), as I have said before, I have reason to believe I was the poorest person appointed to the bench by Bush 41. My wife, Joan, goes completely batshit when I say that–she quit reading this rag long ago, so I’m safe.

    All the best.


  3. I am amazed that you would think that a judge should feel “terrible” about a seemingly harmless error like this, but no one feels angry about judges intentionally deciding a case in which they were parties.

  4. I once represented some plaintiffs who sued CPI for libel due to its shoddy “journalism”. We lost the case on summary judgment when the Court (D.D.C.) found that our clients were public figures, and that we had not established the nigh-on-impossible “actual malice” standard. However the Court concluded as follows:

    “For all of these reasons, the Court concludes as a matter of law that defendants did not publish the CPI article with actual malice. This is not to say that defendants or the article are without fault. Defendants likely should have researched certain points more carefully before leveling allegations as serious as drug trafficking and organized crime connections against plaintiffs. The fact that certain of defendants’ sources had no information to provide should have given defendants pause. They might have painted a fuller portrait of the backdrop to the allegations for the reader. . . . As for the defendants’ suggestion, which surfaces in several of the depositions in this case, that further research was not pursued because of time pressures and a desire to beat their competitors to a breaking story, that is no excuse for less than thorough reporting. Nonetheless, these lapses in ethics and judgment amount at most to negligence or bad journalism, not actual malice.”

    Ever since that experience, I’ve never bothered to listen to anything CPI “reported”.

    Entire decision available at


  5. Tobias,

    Thank you for telling us of your experience with CPI. it provides an additional cautionary tale. Moreover, the opinion is a fun and interesting read what with the involvement of Russian oligarchs.

    All the best.


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