Ninth Circuit Finds Recusal Unnecessary under Rule of Necessity Where Vexatious Litigant Sued Entire Ninth Circuit

Per Ignacio v. Judges of U.S. Court of Appeals for Ninth Circuit, 453 F.3d 1160 (9th Cir. July 12, 2006):

In a typical situation we would be disqualified from hearing this appeal. See 28 U.S.C. § 455(b)(5)(i) (providing that a federal judge "shall" disqualify him or herself when "a party to the proceeding"). There is, however, an exception to disqualification--the "rule of necessity." [FN1] Pursuant to the rule of necessity, a judge is not disqualified to try a case because of a personal interest in the matter at issue if "the case cannot be heard otherwise." United States v. Will, 449 U.S. 200, 213 (1980) (holding that the rule of necessity is an exception to the recusal requirements of 28 U.S.C. § 455).

FN1. The rule of necessity is an ancient law that was part of the English common law and that has been traced back to 1430. See Dimes v. Grand Junction Canal Co., 10 Eng. Rep. 301, 313 (1852). The rule has been applied numerous times in state and federal courts in this country. See Atkins v. United States, 214 Ct.Cl. 186, 556 F.2d 1028, 1036-38 (1977) (setting forth the history of the rule of necessity in this country).

The question here is whether the rule of necessity applies when a plaintiff, like Ignacio, has sued all the members of the Ninth Circuit, thereby making it impossible for the circuit to convene a three-member panel consisting of Ninth Circuit judges that are not a party to this suit. For the reasons set forth below, we hold that the rule of necessity applies when, like here, a litigant indiscriminately sues all the judges of the Ninth Circuit.

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The rule of necessity allows a judge, normally disqualified, to hear a case when "the case cannot be heard otherwise." Will, 449 U.S. at 213, 101 S.Ct. 471. The case cannot be heard otherwise, when as pointed out by our sister circuits, a plaintiff has named all of the judges in a circuit as defendants. Thus, an underlying legal maxim for the rule of necessity is that "where all are disqualified, none are disqualified." Pilla v. American Bar Ass'n., 542 F.2d 56, 59 (8th Cir.1976) (internal citations omitted); see also Chad M. Oldfather, Defining Judicial Inactivism: Models of Adjudication and the Duty to Decide; 94 Geo. L.J. 121, 128 n. 18 (2005). This maxim applies here. Ignacio has sued the judges of the Ninth Circuit--he has indiscriminately sued all. If all the judges of the Ninth Circuit are disqualified as a result of Ignacio's complaint, he has eliminated the proper legal forum charged with reviewing the dismissal of his action. As this goes to the very purpose of the rule of necessity--not permitting a litigant to "destroy the only tribunal with power in the premises," see Brinkley v. Hassig, 83 F.2d 351, 357 (10th Cir.1936)--we hold that the rule should be extended to circumstances like this where a litigant has named uncritically all the judges of this circuit.

To hold otherwise would allow and possibly encourage plaintiffs to impede the administration of justice by suing wholesale all the judges in a district or circuit until their case is transferred. See Andersen v. Roszkowski, 681 F.Supp. 1284, 1289 (N.D.Ill.1988). Furthermore, we reject the contention that the ability to bring in judges from other circuits to hear the case precludes the application of the rule of necessity as this would be the pragmatic equivalent of having the case transferred out of circuit. As with the Tenth Circuit, we have reservations about giving litigants a veto right over sitting judges by providing them an improper means for getting their case transferred out of the circuit. See Switzer, 198 F.3d at 1258 (citing United States v. Cooley, 1 F.3d 985, 993 (10th Cir.1993)).