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Judge David Barron, who participated in this court’s March 25, 2016 Judgment in the
above-referenced case, has advised me that, during the time this case was pending, he would have
been required to recuse under Canon 3C(1)(c) of the Code of Conduct for United States Judges
and 28 U.S.C. § 455(b)(4) due to a financial interest in Wells Fargo Bank, N.A., a party to this
case. The judge was unaware of this conflict until this month. Upon learning of the issue, Judge
Barron directed that I notify the parties of his recusal and invite them to respond to the disclosure
if they wish to do so.
Advisory Opinion No. 71 (“Disqualification After Oral Argument”), issued by the Judicial
Conference’s Committee on Codes of Conduct, provides the following guidance for addressing a
disqualification that is not discovered until after a judge’s participation in the case:
In accordance with Advisory Opinion No. 71, I am disclosing the conflict for your
consideration. Should you wish to respond, please file your response with the Clerk's office by
June 8, 2018. Any response will be publicly docketed, absent a motion to seal, and will be
considered by the court without participation by Judge Barron.
Sincerely,
cc:
Paul Laurenton Muckle, Jennifer Kay Zalnasky, Martha Coakley, Cynthia A. Young,
Case:Case:
15-1195
15-1195
Document:
Document:
00117291449
34 Page:Page:
1 Date
1 Filed:
Date Filed:
03/25/2016
05/18/2018
Entry Entry
ID: 5987277
ID: 6171183
PAUL L. MUCKLE,
Plaintiff, Appellant,
v.
Defendants, Appellees.
__________________
Before
JUDGMENT
Appellant Paul Muckle, proceeding pro se, appeals from the district court's dismissal of his
amended complaint for failure to state a claim. Having carefully examined the amended complaint
and the appellant's arguments on appeal, we affirm the judgment of dismissal.
By the Court:
cc:
Paul Laurenton Muckle
Jennifer Kay Zalnasky
Martha Coakley
Dina Michael Chaitowitz
Case: 15-1195 Document: 00117291450 Page: 1 Date Filed: 05/18/2018 Entry ID: 6171183
The Committee does advise that a judge should disclose to the parties the facts
bearing on disqualification as soon as those facts are learned, even though that may
occur after entry of the decision. The parties may then determine what relief they may
seek and a court (without the disqualified judge) will decide the legal consequence, if
any, arising from the participation of the disqualified judge in the entered decision.
Similar considerations would apply when a judgment is entered in a district court by a
judge and it is later learned that the judge was disqualified.
The Committee notes that recusal decisions are also governed by the recusal
statutes, 28 U.S.C. §§ 455 and 144, and the case law interpreting them. Although the
Committee on Codes of Conduct is not authorized to render advisory opinions
Case: 15-1195 Document: 00117291450 Page: 2 Date Filed: 05/18/2018 Entry ID: 6171183
interpreting §§ 455 and 144, Canon 3C of the Code of Conduct for United States
Judges closely tracks the language of § 455, and the Committee is authorized to
provide advice regarding the application of the Code.
June 2009