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Case: 15-1195 Document: 00117291448 Page: 1 Date Filed: 05/18/2018 Entry ID: 6171183

OFFICE OF THE CLERK


UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
MARGARET CARTER JOHN JOSEPH MOAKLEY
CLERK UNITED STATES COURTHOUSE
1 COURTHOUSE WAY, SUITE 2500
BOSTON, MA 02210
(617) 748-9057

May 18, 2018

Re: Muckle v. Wells Fargo Bank, et al


Appeal No. 15-1195

Dear Mr. Muckle and Counsel:

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:

[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.

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,

/s/ Margaret Carter, Clerk

Enclosures Judgment dated March 25, 2016


Advisory Opinion No. 71

cc:
Paul Laurenton Muckle, Jennifer Kay Zalnasky, Martha Coakley, Cynthia A. Young,
Case:Case:
15-1195
15-1195
Document:
Document:
00117291449
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1 Date
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Date Filed:
03/25/2016
05/18/2018
Entry Entry
ID: 5987277
ID: 6171183

United States Court of Appeals


For the First Circuit
_____________________
No. 15-1195

PAUL L. MUCKLE,

Plaintiff, Appellant,

v.

WELLS FARGO BANK; PREMERE ASSET SERVICES; U.S. BANK NATIONAL


ASSOCIATION; S.G. MORTGAGE; SEAN R. HIGGINS; NELSON, MULLINS, RILEY &
SCARBOROUGH, LLP; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.;
PAUL J. MULLIGAN; MICHAEL MYLETT; BOSTON POLICE; CITY OF BOSTON;
SUFFOLK COUNTY DISTRICT ATTORNEY'S OFFICE; SPENCER LORD; MATHEW
FITZGERALD; JANINE D'AMICO; DAVID MCGOWAN; COMMONWEALTH OF
MASSACHUSETTS; MICHAEL SCHAFF; BROCKTON POLICE; CITY OF BROCKTON;
U.S. MARSHALS SERVICE; MATHEW DUMAS; JONATHAN LEMAY; JUDGE
DOUGLAS P. WOODLOCK; JUDGE ANNETTE FORDE; JUDGE WILBUR P. EDWARDS,

Defendants, Appellees.

__________________

Before

Howard, Chief Judge,


Thompson and Barron, Circuit Judges.
__________________

JUDGMENT

Entered: March 25, 2016

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.

Affirmed. See 1st Cir. Loc. R. 27.0(c).

By the Court:

/s/ Margaret Carter, Clerk


Case:Case:
15-1195
15-1195
Document:
Document:
00117291449
34 Page:Page:
2 Date
2 Filed:
Date Filed:
03/25/2016
05/18/2018
Entry Entry
ID: 5987277
ID: 6171183

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

Guide to Judiciary Policy, Vol. 2B, Ch. 2 Page 102

Committee on Codes of Conduct Advisory Opinion


No. 71: Disqualification After Oral Argument
This opinion considers the recusal obligations of the remaining judges on a
panel when one judge must recuse after the matter has been argued. Inquiries have
raised two questions regarding this situation: (1) whether a decision that has been
entered must be vacated, and the case submitted to a new panel, when it is discovered
after entry of the decision that one of the judges who participated in it was disqualified;
and (2) whether, after a panel has conferred but has not reached a decision, a judge
finds that he or she is disqualified, the other judges are also disqualified or may proceed
to decide the case?

The first question encompasses areas beyond this Committee’s authority.


Determination of what circumstances may taint a decision already entered is a judicial
function, not that of a committee established to advise on ethical standards of the
conduct of judges.

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 second question, because it concerns the appearance of impropriety and


Canon 3C of the Code of Conduct for United States Judges, is within the Committee’s
purview. Canon 3C(1) provides that “[a] judge shall disqualify himself or herself in a
proceeding in which the judge’s impartiality might reasonably be questioned . . . .” The
Committee is of the opinion that the remaining two judges on the panel are not
disqualified merely because they conferred with the disqualified judge. Numerous
situations arise in which a judge becomes aware of an important fact and yet must
proceed to decide without regard to that fact (e.g., inadmissible evidence in a trial).
Those who might believe that the disqualified judge exerted influence on the other two,
and those who might believe the disqualified judge would attempt to influence his
colleagues on the new panel, are unlikely to be satisfied regardless of what is done.
Canon 3C looks to disqualification when the impartiality of the two remaining panel
members can “reasonably be questioned.” The Committee believes that no reasonable
basis exists for questioning the impartiality of the remaining panel members when the
third judge recuses, whether that recusal occurs after oral argument or after conference
on the case.

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

Guide to Judiciary Policy, Vol. 2B, Ch. 2 Page 103

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