In a motion today, Judge Scheindlin, represented by NYU Law professor Bert Neuborne, asked the Second Circuit for leave to file a motion to be restored to the stop-and-frisk case. The motion argues that Judge Scheindlin was “blind-sided” by the Second Circuit’s decision to remove her and that she should have had an opportunity to respond:
[G]iven the sua sponte nature of the order of removal, and the failure of any party to have sought disqualification, or asserted an alleged violation of the Code of Conduct for United States Judges, during the more than five years that the Floyd case was before the District Court, the District Judge was completely blind-sided by the Motion Panel’s sua sponte order finding that her behavior had “run afoul” of the Code of Conduct for United States Judges. . . . With respect, the Motion Panel’s failure to have provided the District Judge with notice and an opportunity to defend herself was not merely a breach of the norms of collegiality and mutual respect that should characterize interactions between District and Circuit judges, it is an affront to the values underlying the Fifth Amendment’s guaranty of procedural due process of law.
The motion also argues that the grounds for removal were improper. In particular, it argues that a complete reading of the 2007 transcript the Second Circuit cited — in which Judge Scheindlin suggested that attorneys file a new stop-and-frisk case and mark it as related to a prior one that had been before Judge Scheindlin — shows her conduct was perfectly proper:
The District Judge’s observation that she would accept a new case that would enable consideration of the newly discovered evidence applied clearly established principles designed to achieve judicial economy. Such a colloquy concerning a judicially efficient means of dealing with newly discovered evidence is indistinguishable from suggestions routinely made by district judges that pleadings be amended in order to permit the efficient consideration of additional issues relevant to the underlying dispute . . . . The District Court’s recognition that judicial economy would be served by the invocation of the related case doctrine . . . is analogous to the decision of the Motion Panel to issue an order retaining jurisdiction over the appeal herein in the name of judicial economy.
Our prior posts on the case are here.