The very well known Microsoft case in this very court made it very clear that under 28 U.S.C. Sec 455, as opposed to 28 USC Sec 144, a party may raise the issue of bias on the part of the District Court judge as long as the case is pending in the Court of Appeals.
Your question seems to assume that this case is not still pending in the court of appeals. As long as it is under reconsideration, it is still pending in the Court of Appeals.
Section 455 REQUIRES a judge him/herself to recognize even the appearance of bias to the objective observer. Robertson clearly derived his bias from extrajudicial sources, and he did it in spades. The panel that upheld Robertson aimply adopted his bias without any analysis; the SCOTUS opinion they cited does not uphold them. Therefore, as Col. Hollister claims, they ‘embraced’ his bias.
One more time for the slow reading group: “These consolidated appeals were considered on the record from the United States District Court for the District of Columbia and on the briefs filed by the parties.
See Fed. R. App. P. 34(a)(2); D.C. Cir. Rule 34(j).
It is ORDERED AND ADJUDGED that the district court’s orders filed March 5, 2009, and March 24, 2009, be AFFIRMED. The district court CORRECTLY DISMISSED the complaint
under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief could be granted. Hollister v. Soetoro, 601 F. Supp. 2d 179 (D.D.C. 2009).
Moreover, the district court DID NOT ABUSE ITS DISCRETION in determining that counsel had VIOLATED Federal Rule of Civil Procedure 11(b)(2) and in IMPOSING A REPRIMAND as the
SANCTION for his part in preparing, filing, and prosecuting a legally FRIVOLOUS complaint.
Hollister v. Soetoro, 258 F.R.D. 1 (D.D.C. 2009). Appellants have provided NO REASONABLE BASIS FOR QUESTIONING THE IMPARTIALITY OF THE DISTRICT COURT JUDGE.
(Capitalizations for emphasis, mine)
See Liteky v. United States, 510 U.S. 540 (1994).
http://www.scribd.com/doc/28745277/HOLLISTER-v-SOETORO-PER-CURIAM-JUDGMENT-filed-Lower-Court-Affirmed-Transport-Room
And what part of “Petition for Reconsideration and Suggestion for a Hearing En Banc” do YOU not understand?
This case is before the panel for reconsideration in light of their unsupported opinion that is contrary to Supreme Court precedent in many ways, AND is also before the entire panel of the court for consideration by the full court for the first time.
Such a Petiton and Suggestion is the normal course and is, as a practical matter, required before seeking Supreme Court review.