BREAKING NEWS: First Circuit Judge DAVID BARRON - RECUSES From $42B Lawsuit HARIHAR v. US BANK Et Al

Case: 17-1381 Document: 00117291463 Page: 1 Date Filed: 05/18/2018 Entry ID: 6171187
OFFICE OF THE CLERK

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
MARGARET CARTER JOHN JOSEPH MOAKLEY
CLERK UNITED STATES COURTHOUSE
1 COURTHOUSE WAY, SUITE 2500
BOSTON, MA 02210
(617) 748-9057
May 18, 2018
Re: Harrihar v. US Bank, N.A., et al

Appeal No. 17-1381
Dear Mr. Harrihar and Counsel:
Judge David Barron, who participated in this court’s June 5, 2017, July 31, 2017, August
8, 2017, March 14, 2018, April 4, 2018 and April 11, 2018 Orders, as well as the January 17, 2018
Judgment, in the above-referenced case, has advised me that, during the time this case was
pending, he would have been required to recuse under Canon 3C(1)(c) of the Code of Conduct for
United States Judges and 28 U.S.C. § 455(b)(4) due to a financial interest in Wells Fargo Bank,
N.A., a party to this case. The judge was unaware of this conflict until this month. Upon learning
of the issue, Judge Barron directed that I notify the parties of his recusal and invite them to respond
to the disclosure if they wish to do so.
Advisory Opinion No. 71 (“Disqualification After Oral Argument”), issued by the Judicial
Conference’s Committee on Codes of Conduct, provides the following guidance for addressing a
disqualification that is not discovered until after a judge’s participation in the case:
[A] judge should disclose to the parties the facts bearing on

disqualification as soon as those facts are learned, even though that
may occur after entry of the decision. The parties may then
determine what relief they may seek and a court (without the
disqualified judge) will decide the legal consequence, if any, arising
from the participation of the disqualified judge in the entered
decision.
In accordance with Advisory Opinion No. 71, I am disclosing the conflict for your
consideration. Should you wish to respond, please file your response with the Clerk's office by
June 8, 2018. Any response will be publicly docketed, absent a motion to seal, and will be
considered by the court without participation by Judge Barron.
Sincerely,
/s/ Margaret Carter, Clerk
Enclosures Orders dated June 5, 2017, July 31, 2017, August 8, 2017, March 14, 2018, April 4,
2018 and April 11, 2018; Judgment dated January 17, 2018; and Advisory Opinion No. 71
cc:
Mohan A. Harihar, David E. Fialkow, Jesse Mohan Boodoo, Kurt R. McHugh, Kevin Patrick
Polansky, Matthew T. Murphy, Jeffrey B. Loeb, David Glod
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United States Court of Appeals

For the First Circuit
_____________________
No. 17-1381
MOHAN A. HARIHAR,
Plaintiff, Appellant,
v.
US BANK NA; RMBS CMLTI 2006 AR-1; COMMONWEALTH OF MASSACHUSETTS;

HARMON LAW OFFICES, P.C.; NELSON MULLINS RILEY & SCARBOROUGH, LLP;
PETER HALEY; MARY DAHER; KEN DAHER; DAHER COMPANIES; JEFFREY
PERKINS; ISABELLE PERKINS; WELLS FARGO BANK, N.A.; KURT MCHUGH;
MARTHA COAKLEY; K&L GATES LLP,
Defendants, Appellees,
DAVID E. FIALKOW, Esq.; JEFFREY PATTERSON, Esq.,
Defendants.
__________________
Before
Torruella, Kayatta and Barron,

Circuit Judges.
__________________
ORDER OF COURT
Entered: June 5, 2017
The appellant's motions for appointment of counsel, for a stay, and for entry of default are
denied. The defendants' request for costs and fees incurred in opposing the motion for entry of
default is denied.
By the Court:

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cc: Mohan A. Harihar

David E. Fialkow
Jesse Mohan Boodoo
Kurt R. McHugh
Kevin Patrick Polansky
Matthew T. Murphy
Jeffrey B. Loeb
David Glod
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_____________________
No. 17-1381
MOHAN A. HARIHAR,
v.

Defendants.
__________________
Before

Circuit Judges.
__________________
ORDER OF COURT
Entered: July 31, 2017
The appellant's motion to reconsider the court's order dated June 5, 2017, is denied: the
appellant has not established an entitlement to any of the relief previously sought.
The motion to supplement the record is denied: the appellant has not identified a proper
basis for this relief. See Fed. R. App. P. 10(e) (record may be supplemented "[i]f anything material
to either party is omitted from or misstated in the record by error or accident"). In any event, to
the extent relevant, the court can take judicial notice of proceedings in other courts. See Kowalski
v. Gagne, 914 F.2d 299, 305 (1st Cir. 1990).
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The appellant's "Motion to Find Judicial Order (Document No. 146) Issued Without
Jurisdiction" is denied. We deny the appellant's "Motion to Suspend Deadline to File Brief" as
moot in view of the disposition above. To the extent that the motion requests an extension of time
to file the appellant brief, we grant that request. The appellant's brief is now due on August 14,
2017.
By the Court:

David E. Fialkow
Jesse Mohan Boodoo
Kurt R. McHugh
Matthew T. Murphy
Jeffrey B. Loeb
David Glod
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_____________________
No. 17-1381
MOHAN A. HARIHAR,
Plaintiff - Appellant,
v.

Defendants - Appellees,
Defendants.
__________________
ORDER OF COURT
Entered: August 8, 2017
Appellant's motion to disqualify Judges Torruella, Kayatta, and Barron is denied as

frivolous. His requests for other forms of relief are likewise denied as frivolous. Appellant should
refrain from filing further motions, and instead should put all his arguments and requests for relief
in his appellate brief, which is currently due on August 14, 2017.
By the Court:
cc:
Mohan A. Harihar, David E. Fialkow, Jesse Mohan Boodoo, Kurt R. McHugh, Kevin Patrick
Polansky, Matthew T. Murphy, Jeffrey B. Loeb, David Glod
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_____________________
No. 17-1381
MOHAN A. HARIHAR,
v.

Defendants.
__________________
Before

Circuit Judges.
__________________
JUDGMENT
Entered: January 17, 2018
Mohan A. Harihar ("Harihar") appeals from the district court's decisions dismissing his
foreclosure-related claims. The appellees have moved for summary disposition on the grounds
that Harihar has not presented a substantial question for review in his opening brief. We grant the
appellees' motions for summary disposition and affirm the judgment of the district court.
We bypass the jurisdictional issue raised by the appellees regarding the scope of the appeal.
See United States v. Kar, 851 F.3d 59, 64 n.5 (1st Cir.) (noting that "[t]he defects in the notice of
appeal do not bear upon Article III subject matter jurisdiction"), cert. denied, 138 S. Ct. 161 (2017).
Harihar has offered no argument in his opening brief to suggest reversible error in the district
court's two decisions granting the defendants' motions to dismiss. Harihar has thus waived any
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challenge to the district court's disposition of the merits of his claims. See Best Auto Repair Shop,
Inc. v. Universal Ins. Grp., 875 F.3d 733, 737 (1st Cir. 2017) (affirming merits decision on waiver
grounds where appellants failed to address the decision in opening brief).
We have reviewed the other claims of error identified in Harihar's opening brief and
conclude that they lack merit. Accordingly, we affirm the judgment of the district court in all
respects. See 1st Cir. Loc. R. 27.0(c).
Harihar's pending Demand for Entry of Default Judgment is denied. We deny Harihar's
remaining pending motions as repetitive of previous requests for relief that the court has already
denied, or as moot. The appellees' and Defendants Jeffrey S. Patterson and David E. Fialkow's
requests for attorney's fees and other relief is denied.
Affirmed.
By the Court:

David E. Fialkow
Jesse Mohan Boodoo
Kurt R. McHugh
Matthew T. Murphy
Jeffrey B. Loeb
David Glod
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_____________________
No. 17-1381
MOHAN A. HARIHAR,
v.
US BANK N.A.; RMBS CMLTI 2006 AR-1; COMMONWEALTH OF MASSACHUSETTS;

Defendants.
__________________
Before
Howard, Chief Judge,

Torruella, Lynch, Thompson,
Kayatta and Barron, Circuit Judges.
__________________
ORDER OF COURT
Entered: March 14, 2018
Pursuant to First Circuit Internal Operating Procedure X(C), the petition for rehearing en
banc has also been treated as a petition for rehearing before the original panel. The petition for
rehearing having been denied by the panel of judges who decided the case and the petition for
rehearing en banc having been submitted to the active judges of this court and a majority of the
judges not having voted that the case be heard en banc, it is ordered that the petition for rehearing
and petition for rehearing en banc be denied.
 Judge Lynch is recused from this matter and did not participate in its determination.
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The Motion Requesting MA AGO Clarification Regarding Filed Criminal Complaints,

which we construe as a request for an order from this court, is denied.
By the Court:

David E. Fialkow
Jesse Mohan Boodoo
Kurt R. McHugh
Matthew T. Murphy
Jeffrey B. Loeb
David Glod
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_____________________
No. 17-1381
MOHAN A. HARIHAR,
v.

Defendants.
__________________
Before

Circuit Judges.
__________________
ORDER OF COURT
Entered: April 4, 2018
Regardless of how we might construe the plaintiff-appellant's "Emergency Response," the

motion does not establish entitlement to any relief from this court, and is therefore denied.
By the Court:

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David E. Fialkow
Jesse Mohan Boodoo
Kurt R. McHugh
Matthew T. Murphy
Jeffrey B. Loeb
David Glod
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_____________________
No. 17-1381
MOHAN A. HARIHAR,
Plaintiff - Appellant,
v.

Defendants - Appellees,
Defendants.
__________________
Before

Circuit Judges.
__________________
ORDER OF COURT
Entered: April 11, 2018
Appellant has filed a series of motions and notices. Because mandate issued in this case
on March 23, 2018, we construe these filings as motions to recall mandate, and deny them. See
Kashner Davidson Securities Corp. v. Mscisz, 601 F.3d 19, 22 (1st Cir. 2010) (mandate will be
recalled "in only the most extraordinary circumstances") (footnote omitted).
No further filings from appellant will be accepted in this appeal.
By the Court:

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David E. Fialkow
Jesse Mohan Boodoo
Kurt R. McHugh
Matthew T. Murphy
Jeffrey B. Loeb
David Glod
Guide to Judiciary Policy, Vol. 2B, Ch. 2 Page 102
Committee on Codes of Conduct Advisory Opinion

No. 71: Disqualification After Oral Argument
This opinion considers the recusal obligations of the remaining judges on a
panel when one judge must recuse after the matter has been argued. Inquiries have
raised two questions regarding this situation: (1) whether a decision that has been
entered must be vacated, and the case submitted to a new panel, when it is discovered
after entry of the decision that one of the judges who participated in it was disqualified;
and (2) whether, after a panel has conferred but has not reached a decision, a judge
finds that he or she is disqualified, the other judges are also disqualified or may proceed
to decide the case?
The first question encompasses areas beyond this Committee’s authority.

Determination of what circumstances may taint a decision already entered is a judicial
function, not that of a committee established to advise on ethical standards of the
conduct of judges.
The Committee does advise that a judge should disclose to the parties the facts
bearing on disqualification as soon as those facts are learned, even though that may
occur after entry of the decision. The parties may then determine what relief they may
seek and a court (without the disqualified judge) will decide the legal consequence, if
any, arising from the participation of the disqualified judge in the entered decision.
Similar considerations would apply when a judgment is entered in a district court by a
judge and it is later learned that the judge was disqualified.
The second question, because it concerns the appearance of impropriety and

Canon 3C of the Code of Conduct for United States Judges, is within the Committee’s
purview. Canon 3C(1) provides that “[a] judge shall disqualify himself or herself in a
proceeding in which the judge’s impartiality might reasonably be questioned . . . .” The
Committee is of the opinion that the remaining two judges on the panel are not
disqualified merely because they conferred with the disqualified judge. Numerous
situations arise in which a judge becomes aware of an important fact and yet must
proceed to decide without regard to that fact (e.g., inadmissible evidence in a trial).
Those who might believe that the disqualified judge exerted influence on the other two,
and those who might believe the disqualified judge would attempt to influence his
colleagues on the new panel, are unlikely to be satisfied regardless of what is done.
Canon 3C looks to disqualification when the impartiality of the two remaining panel
members can “reasonably be questioned.” The Committee believes that no reasonable
basis exists for questioning the impartiality of the remaining panel members when the
third judge recuses, whether that recusal occurs after oral argument or after conference
on the case.
The Committee notes that recusal decisions are also governed by the recusal
statutes, 28 U.S.C. §§ 455 and 144, and the case law interpreting them. Although the
Committee on Codes of Conduct is not authorized to render advisory opinions
Guide to Judiciary Policy, Vol. 2B, Ch. 2 Page 103
interpreting §§ 455 and 144, Canon 3C of the Code of Conduct for United States
Judges closely tracks the language of § 455, and the Committee is authorized to
provide advice regarding the application of the Code.
June 2009

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Case: 17-1381 Document: 00117291463 Page: 1 Date Filed: 05/18/2018 Entry ID: 6171187

OFFICE OF THE CLERK

May 18, 2018

Re: Harrihar v. US Bank, N.A., et al

Dear Mr. Harrihar and Counsel:

[A] judge should disclose to the parties the facts bearing on

/s/ Margaret Carter, Clerk

United States Court of Appeals

US BANK NA; RMBS CMLTI 2006 AR-1; COMMONWEALTH OF MASSACHUSETTS;

DAVID E. FIALKOW, Esq.; JEFFREY PATTERSON, Esq.,

Torruella, Kayatta and Barron,

Entered: June 5, 2017

/s/ Margaret Carter, Clerk

cc: Mohan A. Harihar

United States Court of Appeals

US BANK NA; RMBS CMLTI 2006 AR-1; COMMONWEALTH OF MASSACHUSETTS;

DAVID E. FIALKOW, Esq.; JEFFREY PATTERSON, Esq.,

Torruella, Kayatta and Barron,

Entered: July 31, 2017

/s/ Margaret Carter, Clerk

cc: Mohan A. Harihar

United States Court of Appeals

US BANK NA; RMBS CMLTI 2006 AR-1; COMMONWEALTH OF MASSACHUSETTS;

DAVID E. FIALKOW, Esq.; JEFFREY PATTERSON, Esq.,

Entered: August 8, 2017

Appellant's motion to disqualify Judges Torruella, Kayatta, and Barron is denied as

/s/ Margaret Carter, Clerk

United States Court of Appeals

US BANK NA; RMBS CMLTI 2006 AR-1; COMMONWEALTH OF MASSACHUSETTS;

DAVID E. FIALKOW, Esq.; JEFFREY PATTERSON, Esq.,

Torruella, Kayatta and Barron,

Entered: January 17, 2018

/s/ Margaret Carter, Clerk

cc: Mohan A. Harihar

United States Court of Appeals

US BANK N.A.; RMBS CMLTI 2006 AR-1; COMMONWEALTH OF MASSACHUSETTS;

DAVID E. FIALKOW, Esq.; JEFFREY PATTERSON, Esq.,

Howard, Chief Judge,

Entered: March 14, 2018

The Motion Requesting MA AGO Clarification Regarding Filed Criminal Complaints,

/s/ Margaret Carter, Clerk

cc: Mohan A. Harihar

United States Court of Appeals

US BANK N.A.; RMBS CMLTI 2006 AR-1; COMMONWEALTH OF MASSACHUSETTS;

DAVID E. FIALKOW, Esq.; JEFFREY PATTERSON, Esq.,

Torruella, Kayatta and Barron,

Entered: April 4, 2018

Regardless of how we might construe the plaintiff-appellant's "Emergency Response," the

/s/ Margaret Carter, Clerk

cc: Mohan A. Harihar

United States Court of Appeals

US BANK N.A.; RMBS CMLTI 2006 AR-1; COMMONWEALTH OF MASSACHUSETTS;

DAVID E. FIALKOW, Esq.; JEFFREY PATTERSON, Esq.,

Torruella, Kayatta and Barron,

Entered: April 11, 2018

No further filings from appellant will be accepted in this appeal.

/s/ Margaret Carter, Clerk

cc: Mohan A. Harihar

Guide to Judiciary Policy, Vol. 2B, Ch. 2 Page 102

Committee on Codes of Conduct Advisory Opinion

The first question encompasses areas beyond this Committee’s authority.

The second question, because it concerns the appearance of impropriety and

Guide to Judiciary Policy, Vol. 2B, Ch. 2 Page 103