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How Appealing, reported: “The Center for Public Integrity today has a report that begins, ‘A federal appeals court has withdrawn a three-judge panel’s 2007 dismissal of a Pennsylvania man’s lawsuit against Exxon Mobil Corp.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.

On being a dummkopf

As my name implies (assuming you know a bit of German), I can be thick-headed. Dumb, if you will. My terminal stupidity broke out again last Spring, and this post is about my mistake. As I have said earlier, this blog allows me to own up to big blunders. Hopefully, such public admissions by a senior district judge serve an educational purpose for less experienced judges and others.  Or maybe I’m just a narcissist and a masochist. Anyway, here is the background.

A law student was terminated from the University of Nebraska College of Law. He sued claiming, among other things, that he was discharged because he subscribed to the Muslim faith and because he was an Arab. There was a fair amount of publicity surrounding the case. The defendants were the College of Law, various individuals at the law college, the Board of Regents, and the University of Nebraska.

I held a hearing on a request for a temporary restraining order. The parties adduced evidence and argument. I then denied the motion, and referred the case to Magistrate Judge Zwart for further progression. With that, I forgot about it as the excellent lawyers for both sides prepared to get the case ready for a jury trial.  In the interim, my son, Keller, and I were talking about the end of his post-doctoral fellowship in Australia and the possibility that he might come back the States. It is then that I made a bone-headed mistake by contacting a senior University administrator (who was not a named defendant) about my son’s job search.

Here is I how I described my error, and the subsequent recusal decision, in an order I issued soon after I awoke from my brain-dead slumber:

Following the institution of this lawsuit, a personal matter arose last week involving one of
my adult children and that matter causes me to recuse myself from this case. My son, a graduate
of the University of Nebraska, is completing his post-doctoral studies in Australia in the field of
biology. He is seeking positions with American universities. In that connection, last week, I wrote
an official of the University of Nebraska requesting help in my son’s job search.  Although my
motivation was innocent, I realized over the weekend that my contact with a party, while I was the judge assigned to this case, was improper. I apologize to the parties for my mistake.

IT IS ORDERED that I recuse myself from this case and the Clerk shall refer this matter to
the Chief Judge for reassignment.

AL-TURK v, UNIVERSITY OF NEBRASKA COLLEGE OF LAW, et. al, No. 8:13CV74 (D. Neb., April 8, 2013) (Filing no. 36.)

So, what is the lessons learned from this fiasco. While the life of a federal trial judge is chaotic, the judge must constantly be aware of what is on his or her plate. A good heart but an empty head is no excuse. Trial judges screw up all the time. Admit your mistakes and do so in honest terms. Move on. Old dogs must constantly relearn old tricks. Kopf is a dummkopf.

By the way, Keller stayed in Australia. His university got additional funding, the powers that be hired him to continue his research, and I pine over the continued inability to see my first grandson, Fletcher, more often. Oh, well.


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