Summary
finding timely a recusal motion filed three weeks after filing of § 2255 petition
Summary of this case from United States v. MosesOpinion
00 Civ. 1686 (RWS).
October 18, 2004
ROBIN C. SMITH, ESQ., Attorneys for Petitioner, Brooklyn, NY.
HONORABLE DAVID N. KELLEY, United States Attorney for the Southern District of New York, Attorneys for Respondent, New York, NY, By: RITA M. GLAVIN, Assistant US Attorney Of Counsel.
OPINION
By letter dated September 28, 2004, Steven Hoffenberg ("Hoffenberg") has applied for a certificate of appealability from the opinion and order of this Court denying Hoffenberg's motion for recusal. See Hoffenberg v. United States, ___ F. Supp. 2d ___, No. 00 Civ. 1686 (RWS), 2004 WL 1924531 (S.D.N.Y. Aug. 27, 2004) (the "August Opinion"). Hoffenberg's letter was deemed treatable as a motion to be taken on submission on October 13, 2004. The government has submitted opposition to Hoffenberg's motion, which is denied for the reasons set forth below.
Discussion
An order denying a motion for recusal is not a final order.See Dubnoff v. Goldstein, 385 F.2d 717, 721 (2d Cir. 1967) ("A determination of a District Judge not to disqualify himself is ordinarily reviewable only upon appeal from a final decision on the cause in which the application by affidavit was filed.");Rosen v. Sugarman, 357 F.2d 794, 796 (2d Cir. 1966) (Friendly, J.) ("[S]ince we conclude that we have power to issue mandamus, which is better adapted to prompt disposition of such claims, we are content to . . . join other courts of appeals in holding that an order denying an application for disqualification of a judge is not a final decision appealable under 28 U.S.C. § 1291.");compare United States v. Yonkers Bd. of Educ., 946 F.2d 180, 183 (2d Cir. 1991) (explaining that "ordinarily an order denying a motion to recuse is not appealable as a final judgment" but concluding that such an order is appealable as a final order where judgment had been entered years before the motion for recusal was made).
The hearing of an appeal on an interlocutory order is a discretionary matter, see, e.g., Ferraro v. Sec'y of U.S. Dep't of Health Human Servs., 780 F. Supp. 978, 979 (E.D.N.Y. 1992), and an interlocutory order may only be appealed if it satisfies the terms of 28 U.S.C. § 1292(b), which provides:
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.28 U.S.C. § 1292(b) (emphasis in original). Although Hoffenberg has not indicated the rule or statutory provision pursuant to which he seeks a certificate of appealability, Section 1292(b) appears to be uniquely applicable under the circumstances presented here, and is assumed to represent the basis for Hoffenberg's request. This Court May Rule on Hoffenberg's Motion for a Certificate of Appealability
As an order on a motion for recusal is not a final order, the provisions of 28 U.S.C. § 2253, which governs the issuance of certificates of appealability in habeas cases such as this where a final order has been entered, have no application.
As is evident from the language of Section 1292(b), an application for permissive appeal from an interlocutory order may only be made upon issuance of a certification of appealability by the district court. See 16 Charles Alan Wright Arthur R. Miller, Federal Practice Procedure § 3929 (2d ed. 1996 Supp. 2004) ("Participation of the district court in certifying permissive interlocutory appeals is the indispensable first step of [a] § 1292(b) appeal."); see also Fed.R.App.P. 5(a)(3) ("If a party cannot petition for appeal unless the district court first enters an order granting permission to do so or stating that the necessary conditions are met, the district court may amend its order, either on its own or in response to a party's motion, to include the required permission or statement. In that event, the time to petition runs from entry of the amended order.").
Notwithstanding the indispensability of certification, on October 1, 2004 Hoffenberg filed a notice of appeal from the August Opinion and on October 8, 2004 a second notice of appeal, designated a notice of interlocutory appeal, was filed by Hoffenberg. Although the parties have not addressed whether jurisdiction exists to entertain Hoffenberg's motion, in light of the filing of these notices of appeal this Court is duty-bound to inquire into its own jurisdiction.
Where a notice of appeal has been filed, as a general rule, the district court is divested of "control over those aspects of the case involved in the appeal." Marrese v. Am. Academy of Orthopaedic Surgeons, 470 U.S. 373, 379 (1985) (citing Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (per curiam)). Where, however, a notice of appeal has been filed from an order that is non-appealable, jurisdiction does not rest with the Court of Appeals but remains with the district court. As the Court of Appeals for this circuit has explained,
Whether or not the filing of a notice of appeal from a non-appealable order . . . immediately divests the district court of jurisdiction to proceed as to the matters involved in the purported appeal is not answered by the [Federal Rules of Civil (or Criminal) Procedure] themselves, and the courts which have considered the question have divided. . . . District courts in this circuit have taken the position that such an attempted appeal does not deprive them of the power to proceed, Browning Debenture Holders' Committee v. DASA Corp., 454 F. Supp. 88 (S.D.N.Y. 1978); Weisman v. Darneille, 79 F.R.D. 389 (S.D.N.Y. 1978); Lowenschuss v. Kane, 392 F. Supp. 59 (S.D.N.Y. 1974), and we find this to be the preferable view. While greater certainty as to district court power results from the more rigid rule that any filing of a notice of appeal divests the district court of jurisdiction as to the matters covered by the notice, we see no efficiency to be gained by allowing a party arbitrarily to halt the district court proceedings by filing a plainly unauthorized notice which confers on this Court the power to do nothing but dismiss the appeal.Leonhard v. United States, 633 F.2d 599, 610 (2d Cir. 1980) (internal footnotes omitted); see United States v. Rodgers, 101 F.3d 247, 252 (2d Cir. 1996) (deeming the notice of appeal taken from a non-final order "premature" and a "nullity" and holding that the notice of appeal did not divest the district court of jurisdiction); In re Chateaugay Corp., 922 F.2d 86, 91 (2d Cir. 1990) (concluding that the Court of Appeals lacked jurisdiction to hear an appeal where the appeal from partial summary judgment had not been certified pursuant to Fed.R.Civ.P. 54(b)); Burger King Crop. v. Horn Hardart Co., 893 F.2d 525, 527 (2d Cir. 1990) (holding that a notice of appeal taken from a non-final judgment was "premature, and did not divest the district court of jurisdiction to amend the judgment"); see also Marshall v. Kansas City S. Ry. Co., 378 F.3d 495, 497 n. 4 (5th Cir. 2004) (noting that a previous appeal from an interlocutory appeal had been dismissed for lack of appellate jurisdiction where the district court's decision had not been certified under either 28 U.S.C. § 1292(b) or Fed.R.Civ.P. 54(b) and explaining that the plaintiffs "put the cart before the horse by filing their notice of appeal before submitting their Rule 54 motion") (emphasis in original).
For the reasons set forth above and as suggested by Hoffenberg's motion, the order and opinion from which Hoffenberg has noticed his two appeals is an interlocutory order which may only be appealed where permission has been given by the district court in the first instance. As Hoffenberg has noticed his appeals prior to receiving any such permission, the notices of appeal would appear to be premature and ineffective, and, accordingly, it would seem that this Court had not been divested of jurisdiction to consider Hoffenberg's motion for a certificate of appealability. Cf., e.g., Ore Chem. Corp. v. Stinnes Interoil, Inc., 611 F. Supp. 237, 239-40 (1985) (noting that the ultimate determination regarding appealability is for the Court of Appeals but underscoring that "a premature notice of appeal has no effect and does not divest the district court of jurisdiction") (citing Griggs, 459 U.S. at 61).
Even if jurisdiction were vested in the Court of Appeals by virtue of either of the noticed appeals, this Court retains the power to consider Hoffenberg's motion for certification. Application of the general rule by which a district court is divested of power upon the filing of a notice of appeal "must be faithful to the principle of judicial economy from which it springs," Rodgers, 101 F.3d at 251, and it is well recognized that a district court retains power to perform certain functions in aid of an appellate court's jurisdiction notwithstanding the existence of an appeal. See, e.g. Leonhard, 633 F.2d at 609-10 ("Once a proper appeal is taken, the district court may generally take action only in aid of the appeal or to correct clerical errors as allowed by the Federal Rules of Civil (or Criminal) Procedure.") (footnote omitted).
In keeping with the principle of judicial economy, where a notice of appeal from a non-final order has been filed, belated actions by the district court rendering the order appealed from final have been allowed and deemed to cure the defect of the premature notice of appeal. See Smith v. Half Hollow Hills Cent. Sch. Dist., 298 F.3d 168, 172 (2d Cir. 2002) ("We have held that a premature notice of appeal from a nonfinal order may ripen into a valid notice of appeal if a final judgment has been entered by the time the appeal is heard and the appellee suffers no prejudice.") (internal quotation marks and citations omitted);Leonhard, 633 F.2d at 611 ("In the absence of prejudice to the nonappealing party, this Court . . . has declined to dismiss premature notices of appeal where subsequent actions of the district court have imbued the order appealed from with finality."). Similarly, certification of a non-final order pursuant to Fed.R.Civ.P. 54(b) after the filing of a notice of appeal has been allowed. See, e.g., Gumer v. Shearson, Hammill Co., 516 F.2d 283, 285 (2d Cir. 1974) (declining to dismiss an appeal from an order certified under Fed.R.Civ.P. 54(b) on the grounds that the certification had been ordered by the district court while a prior, premature appeal had been pending, terming the defect "technical"); cf. Volvo N. Am. Corp. v. Men's Int'l Professional Tennis Council, 839 F.2d 69, 71 n. 2 (2d Cir. 1988) (noting that shortly after notices of appeal had been filed the district court declined to enter judgment pursuant to Fed.R.Civ.P. 54(b) and commenting that a Rule 54(b) certification "at this juncture would apparently be honored in this circuit," but cautioning that "[w]e do not mean to imply by this comment that a post-appeal request for Rule 54(b) certification is generally sound practice").
The rationale of permitting a district court to certify partial judgments or make final non-final orders notwithstanding the existence of a pending appeal in the name of efficiency and expedition appears to apply with equal force in the context of certificates of appealability issued under Section 1292(b). Cf., e.g., In re Jartran, Inc., 886 F.2d 859, 861 (7th Cir. 1989) ("We conclude that the [district court's] order was not final and that the original notice of appeal therefore did not transfer jurisdiction to this court; the district court retained jurisdiction and certified the order for interlocutory appeal after we had held oral argument in this court. We now have jurisdiction on an interlocutory basis."). Consequently, even if Hoffenberg's appeals are proper and the Court of Appeals is vested with jurisdiction as to the subject matter of his appeals, Hoffenberg's motion for a certificate of appealability may be considered and decided by this Court in aid of the appellate jurisdiction of the Court of Appeals and in the interest of judicial economy.
Hoffenberg's Motion for a Certificate of Appealability Is Denied
In accordance with Section 1292(b), a litigant seeking a certificate of appealability for an interlocutory order must show that (1) the order "involves a controlling question of law," as to which (2) "there is substantial ground for difference of opinion," and that (3) "an immediate appeal from the order may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b); see also Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21, 23-24 (2d Cir. 1990) ("Although the resolution of an issue need not necessarily terminate an action in order to be `controlling,' it is clear that a question of law is `controlling' if reversal of the district court's order would terminate the action.").
As the Court of Appeals for the Second Circuit has explained,
It is a basic tenet of federal law to delay appellate review until a final judgment has been entered. Section 1292(b)'s legislative history reveals that although that law was designed as a means to make an interlocutory appeal available, it is a rare exception to the final judgment rule that generally prohibits piecemeal appeals. The use of § 1292(b) is reserved for those cases where an intermediate appeal may avoid protracted litigation.Koehler v. Bank of Bermuda Ltd., 101 F.3d 863, 865-66 (2d Cir. 1996) (citations omitted). "Section 1292(b) certification should be `strictly limited because only exceptional circumstances will justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.'" In re WorldCom Inc. Sec. Litig., No. 02 Civ. 3288, 2003 WL 22953644, at *4 (S.D.N.Y. Dec. 16, 2003) (quoting Flor v. BOT Fin. Corp., 79 F.3d 281, 284 (2d Cir. 1996)), aff'd sub nom. California Public Employees' Retirement Sys. v. WorldCom, Inc., 368 F.3d 86 (2d Cir. 2004), petition for cert. filed, 73 U.S.L.W. 3169 (U.S. Sept. 13, 2004) (No. 04-366). District courts "have `independent and unreviewable authority to deny certification.'"DGM Inv., Inc. v. New York Futures Exchange, Inc., 288 F. Supp. 2d 519, 527 (S.D.N.Y. 2003) (quoting Ryan, Beck Co., LLC v. Fakih, 275 F. Supp. 2d 393, 396 (E.D.N.Y. 2003) (citations omitted)) (internal quotation marks omitted).
Hoffenberg's motion fails to set forth any basis for issuance of a certificate of appealability here. Hoffenberg primarily reiterates his earlier allegations, refuted in the August Opinion, see Hoffenberg, 2004 WL 1924531, at *7, that in 1976, prior to taking the bench, I acted as counsel to my wife in her capacity as Owner/Assistant Publisher of the New York Post (the "Post") in negotiating the sale of the Post to Rupert Murdoch, and argues that the Post constitutes a matter in controversy in Hoffenberg's criminal prosecution in the mid-1990's and that, by implication, recusal is warranted. This argument was rejected in the August Opinion. See id. at *7-8. Hoffenberg's new contention that "there is no Second Circuit case law that stands for the proposition that if the representation by the Judge was remote, recusal is not warranted" (Letter of Robin C. Smith, Esq., to the Court, dated September 29, 2004), ignores the facts set forth in the August Opinion in response to Hoffenberg's allegations of representation and the conclusions reached therein as to the matter in controversy in Hoffenberg's criminal prosecution.
As this appears to be the sole argument advanced in support of Hoffenberg's motion for a certificate of appealability, Hoffenberg has not identified any "controlling question of law" as to which "there is substantial ground for difference of opinion," much less demonstrated that "an immediate appeal from the order may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b). Accordingly, Hoffenberg's motion for a certificate of appealability is denied.
Conclusion
For the reasons set forth above, Hoffenberg's motion is denied. The government is directed to respond to Hoffenberg's petition to vacate his criminal conviction, brought pursuant to 28 U.S.C. § 2255 and filed on June 21, 2000, within sixty (60) days of issuance of the mandate of the Court of Appeals.
It is so ordered.