• The Federal Circuit affirmed the district court's revocation of Klayman's ability to appear before the district court pro hac vice in perpetuity and its sanctioning of Klayman for accusing the trial judge of anti-Asian bias and “unreasonably and vexatiously multiplying the proceedings.” Baldwin Hardware Corp. v. FrankSu Enter. Corp. , 78 F.3d 550, 555 (Fed. Cir. 1996).• The Second Circuit affirmed the district court's revocation of Klayman's ability to appear before the district court pro hac vice in perpetuity and its sanctioning of Klayman for “undignified and discourteous conduct that was degrading to the [district court] and prejudicial to the administration of justice” by, among other things, making accusations of racial and political bias and acting “abusive[ly] and obnoxious[ly].”
See RSCH Rule 1.9. It is well settled that a court may not invoke its inherent powers to sanction an attorney without a specific finding of bad faith. See Enos, 79 Haw. at 458-59, 903 P.2d at 1279-80 ("holding that a necessary [condition] precedent to any sanction of attorney's fees under the court's inherent powers was the finding that the attorney's conduct `constituted or was tantamount to bad faith'" (citing Kukui Nuts, 6 Haw. App. at 436, 726 P.2d at 272 (citation omitted)); Teamsters, 948 F.2d at 1345 (stating that "this Court, in recognizing the need for restraint, has always required a particularized showing of bad faith to justify the use of the court's inherent power"); Baldwin Hardware Corp. v. Franksu Enterprise Corp., 78 F.3d 550, 562 (Fed. Cir.) (applying bad faith standard to pro hac vice revocation), cert. denied, 519 U.S. 949 (1996). However, "[t]he trial court's power to protect its pending proceedings includes the authority to dismiss an attorney who cannot, or will not, take part in them with a reasonable degree of propriety."
When applying 35 U.S.C. § 285, we follow our own law, as it is a patent statute. Pharmacia Upjohn Co. v. Mylan Pharms., Inc., 182 F.3d 1356, 1359, 51 USPQ2d 1466, 1468 (Fed. Cir. 1999); Baldwin Hardware Corp. v. Franksu Enter. Corp., 78 F.3d 550, 563, 39 USPQ2d 1090, 1099 (Fed. Cir. 1996), cert. denied Klayman Assocs., P.C. v. Baldwin Hardware Corp., 519 U.S. 949, 117 S.Ct. 360, 136 L.Ed.2d 251 (1996). With regard to 15 U.S.C. § 1117(a) and 28 U.S.C. § 1927, as neither is intimately related to patent law, we apply the law of the regional circuit, here the Eleventh Circuit. Baldwin Hardware, 78 F.3d at 563, 39 USPQ2d at 1099; see also Fiskars, Inc. v. Hunt Mfg. Co., 221 F.3d 1318, 1328, 55 USPQ2d 1569, 1577 (Fed. Cir. 2000), cert. denied, Hunt Mfg. Co. v. Fiskars, Inc., 532 U.S. 972, 121 S.Ct. 1603, 149 L.Ed.2d 469 (2001).
And in 1992, in a case in the United States District Court for the Central District of California, Mr. Klayman accused a judge of being anti-Asian and anti-semitic and having "prejudged" the case. See Baldwin Hardware Corp. v. Franksu Enter. Corp., 78 F.3d 550, 555 (Fed. Cir.), cert denied, ___ U.S. ___, 117 S.Ct. 360, 136 L.Ed.2d 251 (1996). Mr. Klayman's repeated efforts to find fault with the judges before whom he appears certainly interferes with the administration of justice.
Whatever the label, whether extra- or intrajudicial, parties seeking recusal bear a heavy burden to substantiate their claims. E.g., Baldwin Hardware Corp. v. Franksu Enterprise Corp., 78 F.3d 550, 557 (Fed. Cir.) cert. denied sub nom. Klayman Assocs., P.C. v. Baldwin Hardware Corp., 519 U.S. 949 (1996). Here, little is presented by Venezuela beyond that quoted verbatim from its motion above — in the context stated, namely, attempting to assure proper practice and orderly procedure by all parties (and by the courts, as well). Surely, such traditional and necessary pursuit cannot, per se, be ground for grant of a motion to recuse.
"To warrant recusal, bias or prejudice must be directed against a party and bias exhibited against an attorney will only merit recusal when it results in material and identifiable harm to that party's case." Baldwin Hardware Corp. v. FrankSu Enterprise Corp., 78 F.3d 550, 557-58 (Fed. Cir. 1996), cert. denied, 519 U.S. 949 (1996). "Even apparent antagonism or animosity towards counsel must be of such character and intensity as to warrant a reasonable belief that the judge might not be able to impartially consider arguments in the case before the court."
We review the district court's denial of the motion for recusal according to the law of the regional circuit-here, the Ninth Circuit. See Baldwin Hardware Corp. v. FrankSu Enterprise Corp., 78 F.3d 550, 556 (Fed. Cir. 1996) ("In reviewing [a] . . . denial of recusal, which raises substantive and procedural issues not within our exclusive jurisdiction, we are guided by the law of the regional circuit."). The Ninth Circuit reviews the denial of motions for recusal under 28 U.S.C. § 455 for abuse of discretion.
We review a district court's denial of recusal according to the law of the regional circuit. Baldwin Hardware Corp. v. FrankSu Ent't Corp., 78 F.3d 550, 556 (Fed Cir. 1996). The Third Circuit reviews a district court's "denial of a motion for recusal for abuse of discretion."
(emphasis added). However, even the cases that purport to use the clear-error framework actually apply the plain-error standard, e.g. , Diekemper , 604 F.3d at 351, or they cite to cases that apply the plain-error standard, e.g. , United States v. Smith , 210 F.3d 760, 764 (7th Cir. 2000) (citing Baldwin Hardware Corp. v. Franksu Enter. Corp. , 78 F.3d 550, 557 (Fed. Cir. 1996) (plain error); United States v. Bosch , 951 F.2d 1546, 1548 (9th Cir. 1991) (plain error); Osei–Afriyie v. Med. Coll. Penn. , 937 F.2d 876, 886 (3d Cir. 1991) (plain error)). Therefore, the proper standard of review for a § 455(b) challenge raised for the first time on appeal is plain error.
In fact, many courts apply plain error review to § 455(a) claims unchallenged at trial. See, e.g., United States v. Berger, 375 F.3d 1223, 1227 (11th Cir. 2004) (reviewing under plain error after failure to seek recusal below); United States v. Kimball, 73 F.3d 269, 273 (10th Cir. 1995) (same); United States v. Franklin, 197 F.3d 266, 270 (7th Cir. 1999) (noting the "specter of 'sand bagging'" and applying plain error review as a result); Baldwin Hardware Corp. v. FrankSu Enter. Corp., 78 F.3d 550, 557 (Fed. Cir. 1996) (applying plain error); United States v. Schreiber, 599 F.2d 534, 535 (3d Cir. 1979) (noting the concern about gaming and applying plain error standard as a result); see also Noli v. Comm'r, 860 F.2d 1521, 1527 (9th Cir. 1988). Indeed, even the government may have no faith in the waiver theory, or even waiver in timeliness's clothing.