On November 13, 2013, the US Court of Appeals for the Second Circuit issued an opinion in In re Reassignment of Cases, holding that it had the authority to disqualify a district judge under 28 U.S.C. § 455(a) to avoid not only actual partiality, but also an appearance of partiality.

Judge Shira Scheindlin of the US District Court for the Southern District of New York presided over two related cases (Ligon v. City of New York and Floyd v. City of New York) questioning the constitutionality of the New York City Police Department's (NYPD) stop-and-frisk practice. Judge Scheindlin first granted the Ligon plaintiffs' motion for a preliminary injunction, but stayed remedies pending a determination in the Floyd case. Following a nine week trial in Floyd, Judge Scheindlin held that the City of New York had violated the plaintiffs' Fourth and Fourteenth Amendment rights. Judge Scheindlin ordered the City to perform remedial measures in both cases to bring the NYPD's use of stop-and-frisk into compliance with the Constitution. The defendants in both cases appealed and moved in the district court to stay the ordered remedies pending the appeals. Judge Scheindlin denied the motions to stay, and the City then sought the stay from the Second Circuit. On October 31, 2013, the Second Circuit granted the stay. The court also concluded that, in the interest and appearance of fair and impartial administration of justice, the cases should be reassigned to a different district court judge to be chosen at random.

The Second Circuit issued the November 13, 2013 decision to clarify the reasoning behind its October 31, 2013 order.

The Second Circuit based its determination on 28 U.S.C. § 455(a), which provides that "[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

The court first ruled that the appearance of partiality stemmed from comments made by Judge Scheindlin in a prior case, captioned Daniels v. City of New York. There, the City had entered into a settlement agreement requiring it to, among other things, establish policies that prohibited racial profiling. Judge Scheindlin heard argument on a motion to extend the settlement period, despite the fact that the City had already substantially complied with the relief required by the settlement. During the hearing, Judge Scheindlin observed that the plaintiffs were seeking information beyond what was required under the settlement agreement. However, she suggested that the plaintiffs bring a new suit alleging that the City had violated its written profiling policies, mark the cases as related and seek the additional information in this way. She could then accept the new case as a related case under SDNY Local Rule 13.

The Second Circuit found that a reasonable observer viewing the colloquy between the court and attorneys on this issue could conclude that the appearance of impartiality had been compromised because Judge Scheindlin:

Next, the court addressed certain interviews Judge Scheindlin gave to several high profile media sources during the Floyd litigation. The articles containing those interviews implied that the judge was aligned with plaintiffs and included Judge Scheindlin's description of herself as a jurist skeptical of law enforcement, in contrast to some of her colleagues. However, Judge Scheindlin did not herself reference the Floyd or Ligon cases in her media interviews.

In evaluating the articles and Judge Scheindlin's statements, the court noted that the question is not how a judge intends remarks to be understood, but whether, as a result of the comments, the appearance of impartiality might reasonably be questioned. In light of the heightened and sensitive public scrutiny of these cases, these types of interviews might lead a reasonable observer to question the judge's impartiality. Moreover, because sitting judges rarely give interviews to the news media, a judge's public statements are more likely to be viewed by a reasonable person as evidence of partiality.

Finally, the Second Circuit was clear that it was not finding that Judge Scheindlin engaged in misconduct or that she violated any ethical duty. The court emphasized that reassigning a case to a different district judge was not entirely unusual in the Second Circuit or other circuit courts. Although reassignment of the case was not suggested by either party or the judge herself, the Second Circuit held that there was no barrier to it raising the issue.

Counsel should be wary of communications made by judges who appear to be partial to their cause. Judges must not only be impartial, their conduct must not even create an appearance of partiality. An appellate court considering reassignment will carefully scrutinize any communications made by a district judge with counsel and to the media.