Anthony Rorrer, a firefighter for the City of Stow, Ohio, was allegedly terminated because of a non-work-related accident that left Rorrer totally blind in his right eye and therefore with the disability of monocular vision. Rorrer brought suit in the U.S. District Court for the Northern District of Ohio under the Americans with Disabilities Act (“ADA”), but, following discovery, the district court granted summary judgment to Stow on all counts in Rorrer’s complaint. Earlier this week, in Rorrer v. City of Stow (6th Cir., Case No. 13-3272, Feb. 26, 2014) (PDF), a panel of the Sixth Circuit partially reversed the district court and also remanded to a different district judge for trial on the merits.
Remand to a new district judge is an unusual event, and the Rorrer opinion — written by Judge Donald, and joined in full by Judge Clay and District Judge Samuel H. Mays, Jr. of the Western District of Tennessee – suggests that the Sixth Circuit panel felt it important to “preserve ‘the appearance of justice.’” Even though it reversed on the issue of discrimination under the ADA, the panel did affirm the original judge’s grant of summary judgment against Rorrer regarding his retaliation claims against Stow. But in his appeal, Rorrer had alleged bias by the original judge based upon certain adverse discovery rulings. The panel affirmed the substance of at least some of those rulings on appeal. Yet, it expressed concern that certain of those rulings — in particular, rulings that lacked “any explanation or apparent rationale” and that later served as justification for striking certain declarations submitted by Rorrer on summary judgment — could potentially “raise the possibility of bias or the appearance or lack of impartiality.” The panel’s concern appears to have been amplified by the original judge’s statement that, should a reviewing court find that Rorrer’s declarations generated a genuine issue of material fact (and were therefore relevant at the summary judgment stage), the declarations should still be stricken for untimeliness. The panel found that statement “problematic” in light of the lower court’s discovery rulings and so remanded to a different judge for trial.
Along with the Second Circuit’s highly publicized removal of Southern District of New York District Judge Scheindlin last year in the New York City stop-and-frisk cases, Rorrer serves as a reminder that the standard imposed by 28 U.S.C. § 455(a) is a strict one: it is designed not only to avoid actual partiality but also the mere appearance of partiality.