Defendants request that this case be reassigned to another judge. We grant the
request.
A number of aspects of this case inform our decision. First, the appearance of
justice is compromised. The district court’s view of the history of this litigation, as
outlined in the order from which defendants appeal, reflects a fundamental
misunderstanding of the import of certain key events in the case. Although the issues
raised by the motion to vacate the consent decree have nothing to do with defendants’
compliance or noncompliance with it, the district court thought it important to recount its version of the compliance history in great detail. It quotes at length from the decree itself, Judge Nixon’s 2001 order finding noncompliance, and Judge Nixon’s October
2004 order finding noncompliance. It also relies on Judge Nixon’s comments regarding
compliance in his February 2006 recusal order. Yet nowhere does the court mention that
Judge Nixon subsequently set aside the October 2004 order, that the parties jointly
requested that the order be set aside, that the findings and conclusions of that order had
been placed in jeopardy by the issues concerning ex parte communication by the court
with the special master (communication that arguably formed a basis for the order), or
that no ruling on plaintiffs’ 2004 motion for further relief has ever been made.
Additionally, the order reflects no recognition that, despite an effort at disclaimer, Judge
Nixon’s comments about compliance in the recusal order were largely a restatement of
his views expressed in the order that had been set aside. Instead, the district court’s
order simply treats the findings of the October 2004 order as unquestioned fact. The
district court also quotes at length from the report of the monitors it appointed. Although
this report has never acquired any evidentiary status in the case, has never been found
accurate, and has never been subjected to any adversarial process, and although
defendants’ objections to it remain pending, the report too is treated as unquestioned
fact. Even more seriously, the historical recitation regarding compliance is not included
merely as background. The court uses it as a part of its analysis of why plaintiffs have
privately enforceable claims under § 1396a(a)(43). For example, the court notes that
“[p]laintiffs’ outreach claims under Section 1396a(a)(43) are enforceable because more
than half of the 500,000 plus class members have been effectively denied outreach
services rendering their rights to EPSDT service worthless.” John B., 661 F. Supp.2d at
893 (M.D. Tenn. 2009). The opinion also contains a number of other inaccuracies
relating to defendants’ perceived lack of cooperation with the court, including its
references to defendants’ failure to prepare the IWP or IAP and defendants’ failure to
respond to the remedial plan prepared by the special master and attached by Judge Nixon
to the October 2004 order.
Beyond the order from which defendants now appeal, the orders issued by the
district court relating to discovery contain increasingly accusatory language directed atthe defendants. While discovery orders often require that a court make findings about a party’s cooperation or lack of cooperation during the discovery process and may
involve imposition of sanctions, such orders should issue in an atmosphere where all
parties are assured that the court has not formed preconceived opinions detrimental to
either side. The district court’s skewed view of the actual state of the record with regard
to defendants’ noncompliance with the consent decree creates an appearance that its
judgment could be flawed with respect to defendants’ compliance with discovery.
Second, the history of the case reveals an alarming lack of timely progress
toward resolving plaintiffs’ August 2004 motion for further relief and no progress at all
toward the ultimate resolution of this case filed in 1998. Defendants’ November 2006
motion to vacate the consent decree had been pending almost three years before a ruling.
Meanwhile, extensive discovery with no predictable conclusion has been ongoing, and
discovery skirmishes have consumed the district court’s time. The overall picture is one
of a case without direction or deadlines for resolution of primary issues. We are quite
aware that defense counsel have pursued a strategy of contention that contributessubstantially to the complexity of this litigation and creates challenges for the court. At the same time, complexity has in recent years also been a product of the scope of
discovery sought by plaintiffs and permitted by the district court. And responsibility for
moving a case forward lies primarily with the presiding judicial officer, rather than the
parties.
Third, we have found it necessary to intervene in the case to an unusual extent.
In June 2008, we granted a partial writ of mandamus—an extraordinary remedy required
to curb discovery extraordinary in its intrusiveness. The ruling on the motion to vacate
occurred only after another petition for writ of mandamus produced a directive to the
district court to respond as to why the writ should not be granted. And in February of
this year, we stayed all proceedings in the district court pending resolution of this appeal,
following more discovery disputes and unproductive turmoil in the district court.
In reassigning this case, we are mindful that such reassignments are rare and
should be made reluctantly. Solomon v. United States, 467 F.3d 928, 935 (6th Cir.2006). And we recognize the factors that govern whether such a request should be
granted: “(1)whether the original judge would reasonably be expected to have substantial
difficulty in putting out of his or her mind previously expressed views or findings,
(2) whether reassignment is advisable to preserve the appearance of justice, and
(3) whether reassignment would entail waste and duplication out of proportion to any
gain in preserving the appearance of fairness.” Id.
The first factor may well favor reassignment, given that the district court appears
to have held its misconceptions about the record for some time, but the second factor
quite clearly supports reassignment. And the case management difficulties we have
previously noted mean that a reassignment could hardly result in waste and duplication
that outweigh any gain. In fact, reassignment provides an opportunity to reduce waste
and move the case toward definitive resolution of the primary issues, as well as to
enhance the appearance of fairness.
We are mindful that as appellate judges, we cannot manage litigation as trial
judges do. But despite our recognition of our role, there are occasions when we must
intervene. The plaintiff class is certainly not benefitting from the pace of this litigation.
Nor are the taxpayers of the State of Tennessee, who have borne the costs of a special
master, monitors, implementation of the consent decree, attorneys’ fees for plaintiffs,
and fees and expenses of defense counsel. Public-interest concerns are present for all
parties. This situation combines serious management failures, fundamental misunderstandings that potentially prejudice defendants, and a developing adversarial relationship between the judge and the defendants. Here, the unusual decision to
reassign the case is justified.
We direct that the case be reassigned promptly to a judicial officer who can give
it the attention it requires. We are aware of a vacancy in the district court. If the need
to reassign the case within the district poses a hardship, the chief judge of the district
court may ask the chief judge of our court to make an appropriate designation. Upon
reassignment, the new judge should undertake to resolve the issues identified by this
opinion and also develop a schedule for determining any further relief to which theplaintiffs are entitled. Of necessity, the latter determination will require a review of the scope of current discovery and likely an insistence that the parties make choices about
discovery priorities in order to meet the court’s deadlines. Going forward, resolution of
key issues should govern progress in the case.
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