Opinion
Case No. 2:01-CV-207, (Bankruptcy Case No. GM 99-90364).
April 15, 2002
MEMORANDUM OPINION GRANTING MOTION FOR RECONSIDERATION
On March 4, 2001, this Court issued a memorandum opinion and order dismissing the appeal of appellant Allan J. Rittenhouse from an order of United States Bankruptcy Judge James D. Gregg refusing to recuse himself. The Court dismissed the appeal upon finding that it lack jurisdiction because appellant had failed to timely file notice of appeal. In moving for reconsideration, appellant points out that, whereas the Court erroneously viewed appellant's notice of appeal as having been filed when it was filed with the Clerk of the United States District Court on November 28, 2001, he had in fact timely filed his notice of appeal with the Clerk of the Bankruptcy Court on October 15, 2001.
The Court stands corrected. If follows that the Court's conclusion that it lacked jurisdiction over the appeal was erroneous and must be vacated. Appellant is entitled to reconsideration.
Yet, as explained in the Court's March 4, 2002 memorandum opinion, appellant's appeal suffers from an additional defect. Because the order appealed from is interlocutory, appellant's notice of appeal is required to be accompanied by a motion for leave to appeal prepared in accordance with the requirements of F.R.Bankr.P. 8003. F.R.Bankr.P. 8001 (b). As observed in the Court's earlier memorandum opinion, it is undisputed that appellant failed to file a motion for leave to appeal conforming to the requirements of Rule 8003(a).
Nonetheless, the Court has the discretion, pursuant to F.R.Bankr.P. 8003(c) to treat appellant's notice of appeal as a motion for leave to appeal, which it may grant or deny. Here, although appellant's appeal does not present a controlling question of law as to which there is substantial ground for difference of opinion, and although the Court remains unpersuaded that immediate appeal of Judge Gregg's decision to deny recusal will materially advance the ultimate termination of the bankruptcy litigation, the Court will pass on the merits of the appeal for the simple reason that the parties' have fully briefed the matter and any lingering question as to the propriety of Judge Gregg's continued involvement can be easily dispelled.
As the Court indicated in footnote 2 of its March 4, 2001 memorandum opinion, appellant has presented no grounds for concluding that Judge Gregg's decision not to recuse himself represents an abuse of discretion. Judge Gregg clearly an appropriately determined that the asserted evidence of bias or prejudice was not "personal" or extrajudicial and was clearly insufficient to warrant recusal.
Among the authorities cited by the bankruptcy court in support of its ruling is United States v. Howard, 218 F.3d 556, 566 (6th Cir. 2000). In Howard, the Sixth Circuit observed that, as a practical matter, extrajudicial sources are the only basis for establishing disqualifying bias or prejudice under 28 U.S.C. § 455(a). Id., citing United States v. Liteky, 510 U.S. 540, 551 (1994). Thus, a predisposition acquired by a judge during the course of prior judicial proceedings constitutes impermissible bias on when "it is so extreme as to display clear inability to render fair judgment." Howard, 218 F.3d at 566, quoting Liteky, 510 U.S. at 551.
Here, appellant Rittenhouse has made no showing that Judge Gregg was influenced by any extrajudicial source whatsoever or that he manifested a clear inability to render fair judgment. The objections raised by appellant on appeal do not undermine the integrity of the bankruptcy court's ruling in any way and do not even hint at an abuse of discretion. The bankruptcy court's ruling must therefore be affirmed. A judgment order consistent with this memorandum opinion shall issue forthwith.
JUDGMENT ORDER
In accordance with the Court's memorandum opinion of even date,
IT IS HEREBY ORDERED that the motion of appellant Allan J. Rittenhouse for reconsideration is GRANTED; and
IT IS FURTHER ORDERED that the Court's March 4, 2002 order dismissing appeal is VACATED; and
IT IS FURTHER ORDERED that the appeal of Allan J. Rittenhouse from the October 11, 2001 ruling of the bankruptcy court denying appellant's motion for recusal is DENIED; and
IT IS FURTHER ORDERED that the bankruptcy court's October 11, 2001 ruling is AFFIRMED.