By Gerald L. Maatman Jr. and Howard M. Wexler

There are stunners and there are non-stunners. This is a stunner…

In one of the most highly controversial class actions currently working its way through the federal court system, the U.S. Court of Appeals for the Second Circuit issued a pair of decisions (here and here) on November 13, 2013, rejecting what it termed an “unprecedented  motion” filed U.S. District Court Judge Shira A. Scheindlin – the federal judge who had been handling the trial court proceedings in the class action in the U.S. District Court for the Southern District of New York – to appear on her own behalf in order to seek reconsideration of the Second Circuit’s decision to reassign the case of Floyd v. City of New York – a class action challenging the NYPD’s “stop and frisk” policies – to a different judge given the appearance of partiality.

Though Floyd is a civil rights and not a workplace class action, the Second Circuit’s rulings underscore how class action litigation is not for the faint of heart.


Following a nine-week trial, Judge Scheindlin found that the City of New York (“the City”)  violated the Fourth and Fourteenth Amendments in connection with its “stop-and-frisk” policy in that it unlawfully targeted racially defined groups. Id. at 3. Pending an appeal the City moved to stay Judge Scheindlin’s ruling and, after extended oral argument, the Second Circuit granted the motion to stay the case during the appeal and also decided to reassign the case to a different district court judge “based on the record of the proceedings in the District Court and Judge Scheindlin’s participation in media interviews.” Id.

On November 8, 2013 Judge Scheindlin, through counsel she hired herself, filed a motion seeking permission for counsel to appear on her behalf and to argue against the Second Circuit’s decision to reassign the case. Id. at 3-4. If that has ever happened before, we are unaware of any federal judge doing so.

The Court’s Decision

In a strongly worded decision the Second Circuit dismissed Judge Scheindlin’s request, finding that no “procedural basis” exists that allows her to intervene and challenge the decision to reassign the Floyd case. Id. at 4. The Second Circuit held that there is “no precedent suggesting a district court judge has standing before an appellate court to protest reassignment of a case.” Id. at 6. As a district judge has “no legal interest in a case or its outcome” the Second Circuit held that Judge Scheindlin has not suffered any “legal injury by reassignment” that would entitle her to intervene. Id. at 7. Finally, while the Second Circuit was clear that it had not made a determination that Judge Scheindlin violated the Code of Conduct for United States Judges, it nonetheless held that based on her prior conduct “the appearance of her impartiality might be reasonably questioned” which is a strong enough reason to reassign the case to a different judge. Id. at 6-7. 

In an 87-page companion decision the Second Circuit explained in painstaking detail why its decision to reassign the case from Judge Scheindlin was proper given the appearance of impartiality.

Implications For Employers

The twists and turns in this hotly contested civil rights class action continue as it is now not only plaintiffs versus the City, but also district court judge v. appellate court judges. Although it does not specifically pertain to employment law, the lessons and procedural mechanisms in play in this case are important for all class action practitioners to follow. Stay tuned!