Roberts on Disgorgement en banc Petition: “I Recuse”

July 20, 2005 3:52 pm by Gene Borio

Updated with Comments of Richard Daynard

President Bush’s Supreme Court nominee, Judge John G. Roberts of the Court of Appeals for the DC Circuit, did not take part in April’s decision which denied the DOJ’s petition for an en banc hearing of the disgorgement issue. The DOJ had asked that the full Court rehear the argument that a 3-judge panel (Judges Tatel, Sentelle and Williams) had ruled on last Feb. 4.

The Court’s April 19, 2005 decision was 3 in favor, 3 opposed and 3 not participating. The tie vote meant that the Panel’s decision disallowing disgorgement as a remedy stands.

It is not entirely clear why Judge Roberts did not participate. Court of Appeals clerk Mark Langer said that while only the Judge’s chambers may comment on non-participation, in “99.9%” of the instances, it is because the judge has chosen to recuse him or herself.

Richard Daynard of the Tobacco Products Liability Project wrote in an email that he does not consider non-participation an important [bias] issue.

“[Roberts’] non-participation most likely means either that he’s holding some tobacco industry stock, or that his wife works for a law firm that represents a tobacco company. If this remains true, he won’t be able to participate in cases directly affecting the tobacco industry before the Supreme Court as well.”

–For the petition: Judges Edwards, Rogers, and Tatel

–Against the Petition: Judges Ginsburg, Sentelle, Randolph

–Not Participating: Judges Henderson, Garland, and Roberts

Judge Williams, who was part of the 3-judge panel, is a Senior Judge, and as such, is not allowed by law to vote on petitions for en banc hearings, according to Mr. Langer.

While a recusal could occur because of relatively minor investment or law firm issues, tobacco control advocate Bill Godshall has surmised a political motivation. Judge Roberts, knowing a potential Supreme Court nomination was possible, may have recused himself to avoid the taint of openly siding with tobacco, while his non-participation had exactly the same outcome: ie, a tie vote upheld the ruling against disgorgement.

Following is the text of the CADC Order Denying DOJ Petition for En Banc Rehearing of Disgorgement Decision, April 19,2005


United States Court of Appeals


No. 04-5252

September Term, 2004


Filed On: April 19, 2005 [889872]

United States of America,


Philip Morris USA Inc., et al., f/k/a Philip Morris Incorporated,


Pharmacia Corporation and Pfizer Inc.,


BEFORE: Ginsburg, Chief Judge, and Edwards,** Sentelle, Henderson,*
Randolph, Rogers,** Tatel,** Garland,* and Roberts,* Circuit


The petition of the United States of America for rehearing en banc and the response thereto have been circulated to the full court. The taking of a vote was requested. Thereafter, a majority of the judges of the court in regular, active service did not vote in favor of the petition. Upon consideration of the foregoing, it is

ORDERED that the petition be denied.

Per Curiam


Mark J. Langer, Clerk


Nancy G. Dunn

Deputy Clerk

* Circuit Judges Henderson, Garland, and Roberts did not participate in this matter.


United States Court of Appeals


No. 04-5252 September Term, 2004

** Circuit Judges Edwards, Rogers, and Tatel would grant the petition for rehearing en

2 Responses to “Roberts on Disgorgement en banc Petition: “I Recuse””

  1. tobacco observer Says:

    Since, for example, the largest defendant in this case, Altria Group, is a member of the Dow Jones 20, and the S&P 500, pretty much anyone who owns any index fund or large mutual fund is likely to own some interest in this company (or other tobacco companies) and need to recuse themself.

    I think its a bit silly to surmise that Roberts didn’t vote here, just because maybe there would be an opening on the SCOTUS, and just maybe he would be nominated, and just maybe voting on this largely technical disgorgement issue might be seen as pro-tobacco. Remember, the decision itself really had nothing to do with tobacco, or even with business, it had to do with applicability of an obscure corner of the civil RICO act.

    Apart from an anti-tobacco activist like the one making that accusation, who would even care? The Supreme Court candidates can expect to be grilled on his/her views on abortion, social policy, religious issues, and all sorts of the other hot-topic issues, but on his opinions regarding disgorgement in civil RICO cases? That’s a pretty obscure and dry subject. I doubt the public, or the Senate is really going to care.

    More to the point, Roberts is an openly conservative Republican Federal appellate judge in the Washington DC district. As such he necessarily gets involved in numerous highly controversial, highly politicized cases. . .that’s his job. My read is that Roberts was legitimately suprised by being nominated to the Supreme Court, but even if he wasn’t, thinking he deliberately ducked THIS issue (several months before there was any opening) just because he thought it could hurt him later in confirmation hearings really doesn’t really add up.

  2. krueger Says:

    “disgorgement in civil RICO cases? That’s a pretty obscure and dry subject.”

    You might think so. But it seems to have gotten Big Tobacco’s attention. Perhaps it’s not without interest at times. Big Tobacco’s consigliori managed to stay awake for it.

    Whether it will become an issue for Roberts’s confirmation seems unlikely. Not that it’s irrelevant or invalid or off the table; just that other issues will likely get the time and attention.

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