*2 then assigned to another judge, but he was WELLFORD, Circuit Judge. position never in a handle of the Petitioner Aetna Casualty & Surety Co. Later, cases. then Chief Judge (Aetna) seeks a writ of ordering Lively of this court reassigned the consol- Chief Judge Thomas Hull of the Eastern idated cases Eugene Siler, Jr., E. District Tennessee to recuse himself from Kentucky. Aetna from cases, a series of asserting that the then try moved cases, the seven con- required recusal is by 28 U.S.C. We solidated, in 1988. April Jn must first determine whether the extraordi- despite the reassignment of Hull— cases nary writ of mandamus is available by Chief of this circuit— controversy of this kind. denied Aetna’s motion on a finding based Both of these that “several eases involved bankers banks are involved bond claims arising from this action and the failures of the consolidation would not appropriate.” American Bank County & Bank of County arising Roane out of defal- promptly Aetna sought clarification of by cations members family. Butcher these orders denying consolidation of the After a hearing on January seven cases for trial reassignment Hull entered 1990 order de- three eases by Judge Hull to himself. nying Aetna’s motion for recusal in these cases, each the seven FDIC sought to cases. Subsequently, however, Judge Hull hold Aetna liable on its bond furnished recused the C & C-Roane respect with to the failures of different case. operated banks and/or by controlled Butcher family. April 24, 1989, On
I. MANDAMUS JURISDICTION Hull entered the following order in the are reassigned faced three cases reassigned now him- whether self: disqualified should be from further participation in the case of In an Order September 11, 1986, dated Aetna, FDIC v. CIV-1-85-797. This case this Court indicated that the presiding involves a against claim the bankers blan- judges in Southern, Northeastern, ket by Aetna, bond issued which claim is and Northern Divisions of this district based fraudulent losses at the former disqualified had trying themselves from UAB-Chattanooga Bank. We also must group cases, of seven including the decide whether previous- the orders three indicated above. ly by Judge entered Hull in the UAB-Chat- The undersigned reason that the dis- tanooga and C & C-Roane bond claim law- qualified himself was seven suits vacated. Aetna also trial, been questions raised of propriety as to a De- in four of Morton, 14, 1989, cember order entered another Lewis, King & Krieg, for whom his
Eastern District of Judge, Tennessee works, daughter were participating Jordan, Honorable Leon in the UAB-Knox- case. appears It now that the cases ease, bond ville which case was not together, will be tried and can be apparently assigned by later Judge Hull. individually. tried This Court has no dis- problem facing us arises out of a qualification for trying these three cases separate series of actions filed Morton, Aet- Lewis, because the law firm (ii) lawyer pro- participating acting Is Krieg is
King & ceeding; These cases are some cases. three (iii) cases on the docket to have an oldest Is known substantially af- that could be District of Tennessee and need Eastern *3 proceed- of the Therefore, fected the outcome above-styled tried. to be ing.... pretried be United States cases will Murrian, P. and set Magistrate Robert added). (emphasis 28 U.S.C. § date, separately. set for a trial each to be out in motion for recu- pointed Aetna its pretry Magistrate Murrian will then “each of the seven cases involves sal that that are related cases the other four legal issues virtually parties identical and Eugene assigned to the Honorable still highly similar factual issues. each and appro- set for an They will also be Siler. suit, in its case, brought the FDIC trial date. priate to recov- corporate capacity, Aetna penalty under a Bankers er the full bond added).1 (emphasis J/A 14-15 Bond, Form No. is- Blanket Standard set for trial in Knox- one case was After by Aetna to an insured Tennessee sued commence by Magistrate Murrian to ville had been the re- bank of which May of Aetna in in claimed, moreover, that Aetna ceiver.” in Judge Hull CIV-3-85- moved to recuse Judge Hull’s firm with which the law Adams, involving Joseph H. a case “actively rep- daughter had been associated Butcher, Wayne Angel as Jr., F. and Jacob at the time in Novem- resented” the FDIC The motion was defendants. party third it had Siler of 1988 that moved ber 3 C of the on 28 U.S.C. Canon based § of these sev- “to continue the consolidation Conduct, Fifth and the of Judicial Code complained trial.” Aetna en cases for First, in process clause. Amendment due Judge Hull prior it no notice that received recusal, Aetna asserted the motion picture and that his or- would reenter disqualified partici- Judge Hull was gave explanation why as to he was der no to consol- respect to its motion pating with longer disqualified. no the follow- Aetna relied on idate for trial. daugh- Hull’s Aetna asserted ing parts of 455: § in associated with the firm ter had been judge, magistrate of (a) justice, or Any years prior to 1988 and question for five shall himself the United participated for the FDIC “had as counsel impartiali- in his proceeding which in one occasion in a consolidated on at least reasonably questioned. might ty partic- It claims that case.” disqualify himself in the (b) also He shall in ipation in the consolidated cases following circumstances: 455(a), fashion also a violation of he, individually or (4) He knows reasonably “impartiality might because fiduciary, spouse or minor or his 455(b)(4) and questioned,” also household, residing in his has a child (5)(ii), daughter had been a because his subject matter in interest in the financial proceeding in participant because proceed- in controversy or (and firm her interest FDIC’s could be any other interest that ing, or party) sub- being prevailing “could be substantially by the outcome affected stantially by his actions. Fur- affected” proceeding; thermore, Aetna claims that (5) person with- has an interest the outcome spouse, He or his he relationship proceedings degree of the consolidated in the third ownership company them, such a had an spouse or the either of fidelity coverage similar bond which has person: reassigned Judge Hull or to Dis- actually an order in thus entered (J/A 134). Judge Jordan. trict impacted all seven which of 1989 reassigned specifically faith and asserted bad 2. Aetna counterclaimed here himself. We are concerned three to dealings law. under Tennessee with Aetna and there adversary are claims I went I, ahead and decided as Chief pending with respect interpretation District, I decided that we provisions.3 these policy were going called Judge Siler —I said, I “I try can these three cases position FDIC took the in response that here and I’ll take those you, off of Aetna’s motion for recusal dilatory you, other you can stay on four purpose, and noted as July 18,1989, “the them because the Morton is still firm recent transfer from employment” from involved them”; and at that time controversy by the Judge’s believe my daughter was working still daughter.4 them; so anyway, that’s what I did. *4 Finally, on October Judge Hull, “for the convenience of the court” assigned After that happened, my
CIV-3-85-1242 Judge daughter, Leon Jordan for it is June the ’89, trial. 30th of hearing At a on that’s when the Aetna she motion to resigned recuse, and she and her record husband reflects the moved following pertinent to Nashville. time, After that by (Janu- comments I didn’t ary 1990) see conflict. on recusal reason of his daughter’s position represent- with a firm (Emphasis added.) ing FDIC: Judge Hull denied Aetna’s motion for It was then that it came—it did come recusal two CIV-1-85-797 and my attention as the Chief of the CIV-3-85-1243, and Aetna then pe- filed a District the cases weren’t being tition for mandamus. mean, tried. I these were the oldest In a response to petition Aetna’s got cases we’ve in the Eastern District of mandamus, Judge Hull’s takes brief
Tennessee, and there wasn’t hap- much position that In re City Detroit, 828 of pening them, I, on so I took a look at (6th Cir.1987) F.2d 1160 precludes manda- them in my position as Chief to mus in this situation. He also takes the see what I could do with them. thenWe position in his brief that appeal after the got meantime assigned them (or cases) case involved has been decided Siler. believe even before that adequate remedy rather than the ex- time at one time it looked like Ken Porter traordinary process of mandamus. His going was become the and he counsel at argument, however, oral indi- didn’t, I, so I even had—I think I had cated that he quarrel had no align- with our assigned them to him for a while ... ing this court with all other circuits in meantime, But really Siler which have a contrary position. taken Fi- didn’t the time to come over here nally, joins he taking FDIC in position try these. It was after them looking motion to disqualify timely is not over I became convinced they purposes but filed for of delay.5 together shouldn’t be tried anyway that Initially panel of this court denied the they’re separate, they’re separate people, petition for mandamus and declined “to they’re FDIC representing, —the depart from our longstanding rule that bank representing. may matters of recusal be addressed fol-
lowing
judgment”,
final
but this court then
contention,
In connection with the latter
Aet-
appears
daughter
FDIC cases.”
ap-
It
that the
na
maintained furthermore that
peared
deposition
Sneed,
at the
of
A.
Mackie
"past
relationship”
business
with
Butch-
Jacob
examiner,
senior
never
was
counsel
er because of financial
interests
banks
other
record in
seven FDIC cases.
might give
personal knowledge
him
formerly
contested facts in the
5.Judge
response
filed
memo
inis
cases.
alleging
daughter
error
that his
"left that
1989,”
response
4. Attached
firm”
[the
to the FDIC
Morton
"in
firm]
rath-
a letter
7, 1989,
July
from that
dated
stating
er than June
30th.
daughter
assigned
"had never been
of discretion
4)there
no “abuse
banc,
this matter en
hear
decided
Judge.” Id. at
part of the
of CIV-1-85-797.6
stayed trial
underlying
short,
all the
we dealt with
opinion
curiam
per
In a
elimi-
and first
City Cleveland
issues in
a mandamus
considered
this court
panel of
disqualifica-
underlying bases for
nated the
anti
longstanding
by a
petition
are faced with
merits.
on the
tion
involving its motion
trust case
involving
situation
v.
judge. City
Cleveland
the district
(b).7
455(a)
City
Cleveland
Cir.),
both
(6th
cert.
F.2d 572
Krupansky,
our
bar to
seem to constitute
would not
834, 101 S.Ct.
denied,
U.S.
petition
mandamus
controversy
consideration
(1980),
held that
L.Ed.2d
circumstances.
under these
in a mandamus
reviewed
us
“may not be
Dis
Albert
proceeding.
case in our
recent
next and most
Cir.1960),
(6th
Court,
F.2d 61
trict
[283
respect
to consider
judge was
(1961)].
It
be reviewed
L.Ed.2d 706
Detroit,
F.2d 1160
In re
case has
the antitrust
appeal after
Cir.1987).
*5
Board
v. Kalamazoo
decided. Oliver
been
judge to
trial
refusal of a
Because the
Cir.1974),
(6th
Education,
F.2d 178
508
of
ordinarily sub-
is not
disqualify himself
1950,44
denied,
963
S.Ct.
[95
cert.
mandamus, and
of
way
ject to review
(1975).”
F.2d at 575.
619
L.Ed.2d 449]
judge
that the
we are satisfied
because
underly-
involved
City
Cleveland
his discretion
did not abuse
in this case
of
to
motion
the
discovery dispute, and
ing
petition.
deny
shall
the
... we
peti-
filed with
was
Detroit,
(emphasis
1161
at
828 F.2d
City of
seeking to
mandamus
tion for
added).
judicial
of
unlawful abuse
judge “cease
v. United States District
In Albert
City
dis-
permit
power and
Cir.1960),
(6th
Court,
F.2d 61
283
an un-
deem
573. We
Id. at
covery_”
5
U.S.
365
in-
discovery which
dispute about
derlying
(1961),
case relied
706
L.Ed.2d
discretionary action
essentially
volves
De
City
City
Cleveland
both
of
of
be
the court to
part of
under the circum
troit,
held
dispute about whether
character
disqualification
where
that case
stances of
disqualified
should be
trial
sought:
the district
was
of
interest.
of
We
or conflicts
a conflict
of
compel
lie
does not
Mandamus
City
Cleveland
distinguish
might well
of
court to reverse
an inferior
judge of
basis alone.
on this
inapplicable
and hold
of a
in the exercise
by him
decision made
holding
City
Cleveland’s
addition,
of
Flip
parte
Ex
jurisdiction.
legitimate
petition for
not entertain
that it would
or
24 L.Ed.
1876, 94 U.S.
pin,
motion
in connection
mandamus
according to
compel him to decide
considered dic-
might be
disqualification
own,
but his
any judgment
of
dictates
ruled:
first
court had
tum because
1795, Dali.
Lawrence,
3
v.
discretion
broad
court had
1) the district
to control the exercise
1 L.Ed.
unexcep-
(surely an
matters
discovery
v. Ruben
discretion. Gottlieb
of his
holding);
tional
Cir., 1958,
779. This
F.2d
stein,
really
available as
extraordi
is not
reserved for
2)
remedy is
mandamus
Albert)-,
(citing
used
appeal”
may
It
not be
nary
causes.
“substitute
appeal.
substitute
an “extraordi-
did
3) the case
may
seen
Albert,
at 62. It
be
of man-
the use
justifying
nary situation”
prece-
doubtful
is somewhat
Albert itself
damus;
men-
was not
disqualification statute
hearing
entered
7.
en banc
The order
6.
City
analyzed
Cleveland.
in CIV-1-
order
tioned or
days
Hull’s last
two
April of 1990.
85-797
dent for non-review of
peti-
the mandamus
One may observe
City
Detroit
tion in the instant case.
does not categorically state that mandamus
is never available in
reviewing
Gottlieb decision
cited
refusal to
Albert indi-
disqualify.
cated that
we would
stated instead
not direct
by manda-
“[t]his
court
mus a
has not
sympathetic
been
court’s
consideration of
the no-
tion that
whether or
review
grant
not to
a new
ques-
trial or to
direct a
tions
remittitur.
through
obtained
mandamus
...” 828 F.2d at
Again,
1165.
this court’s
authority
While
Court has
analysis in City Detroit did not
foreclose
proceeding
require
a Dis-
mandamus;
it merely
trict
indicated that
ruling
make a
in a cause
not “sympathetic”
pending
him,
peti-
before
such
we will not under-
tions, that they “ordinarily”
take
would not
mandamus to direct
him what
granted, and
Supreme
ruling
make,
authority
Court
particularly where the
on the
seemed
ruling is one which
inconsistent. addresses itself to
Detroit also stated that
the discretion of the
this court had
District Judge. Ex
“refused to allow immediate
Parte Park
82, 85,
&
review of deni-
Tilford, 245 U.S.
judicial
als of
15[15],
S.Ct.
62 L.Ed.
motions” be-
[1917];
Jewell
cause
judgment
“final
Davies,
rule.”
[1951],
Cir.
Id. at
In City
panel
Detroit
felt
constrained to follow City
Cleveland,
opinion
The Court is of the
that the
like City
Cleveland nonetheless
Writ of
Mandamus
not to be
used as a
went on to consider and to rule on the
for an appeal
substitute
...
merits of
petition,
finding no abuse of
Rubenstein,
Gottlieb v.
*6
1142
Services,
petition for mandamus
great
detail
controversy in ASC
the instant
(1977).8
by party that
unsuccessful-
110,
112
instituted
Morgan, 557
F.2d
Inc. v.
disqualify the district
ly
counterclaims
a motion
filed
too,
“claims
It,
involved
In re
See
dollars;”
whether
under 28 U.S.C.
§
of millions
Corp., 618 F.2d
Machines
be involved
Int’l Business
relative could
close
Judge’s
partici-
Cir.1980).
through
(2d
his interest
923
firm;
Judge’s
and whether
pating law
authority,
paradé of
Following this same
might
impartiality
reason-
appearance
following
obser-
made
the Ninth Circuit
Mor-
held
The court
questioned.
ably be
vation:
in error
gan
that the
general
necessary to
not
create
It is
himself and
manda-
disqualifying
not
of all
appeal
immediate
permitting
rule
noted that
The court
recusal.
ordered
mus
to resolve
in order
decisions
recusal
from
disqualification
455
Firestone
See
situations.
exceptional
144.9 We
28 U.S.C.
under
that involved
Risjord,
U.S.
Co. v.
Tire & Rubber
[449
in that close-
result reached
agree with
13,101
n.
66
S.Ct.
676
378 n.
analogous case.
ly
Ultimately,
if dis-
(1981)].
L.Ed.2d 571
the rationale
followed
circuit
Another
judge’s decision
the district
satisfied
Inc., stating “the issue
Services,
SCA
litigation will be
confident
presents
ex
judicial
party may seek a
disrupted, a
greatly
exer
suitable
traordinary situation
ap-
of mandamus
writ
In re
jurisdiction.”
of our mandamus
cise
exceptional
just such an
It is for
peals.
(1st
Cir.
States,
694
F.2d
designed.
the writ was
circumstance that
1981).
Litigation,
Antitrust
In re Cement
in a deni
suit
court followed
another
Still
Cir.1982).
(9th
To the
1020, 1025
(based in
situation
al of
Edu
Liddell Board
effect,
see
same
and actions
statements
part
out-of-court
Cir.),
cation,
clerk) holding,
judge and
of the district
S.Ct.
authority to review
deny our
do
“[w]e
Beard,
re
and (1982),
L.Ed.2d
disqualifica
question of
on mandamus
*7
Cir.1987).
(4th
818, 827
F.2d
involving
28 U.S.C.
both
tion” in a
a
agreement with
ourselves
We find
Corrugated Con
In re
and 455.
144
§§
from
another
958,
yet
a case
F.2d
conclusion
Litigation,
614
Antitrust
tainer
unanimous
(which
joined the
denied,
also
circuit
449 U.S.
cert.
Cir.),
961,
(5th
4n.
circuit)
outside
question
this
(1980).
on this
114
view
244, 66 L.Ed.2d
888, 101 S.Ct.
remedy
proper
is
moreover,
excep
“in
that “mandamus
that
noted,
That case
acted
who
orders of
type
vacate the
of
in case
tional circumstances”
Moody v.
recused.”
should have
when he
Eleventh Cir
Id.
will lie.”
writ
“the
Cir.1988),
137,
(3d
Simmons,
143
858 F.2d
follow that de
also
presumably
cuit would
1078,
1529,
denied,
Prichard,
109 S.Ct.
cert.
489 U.S.
City
v.
Bonner
cision. See
(1989). Moody, a bank
banc).
835
Cir.1981) (en
103 L.Ed.2d
At
(11th
1206
661 F.2d
or
case,
ramifications
ruptcy
also involved
Cleveland
the same time
part of a
on the
alleged conflict of interest
a different
decided,
took
Circuit
the Second
who,
indicating he
considered
court and
our
from that of
view
1962),
(10th
Chandler,
Cir.
Moody v.
(foot-
proceed him- as to a district assigned he invoke in the three tion long disposition of speed acted to who has self. primari- have discussed cases. We pending (prior span during same time the Again, a basis for daughter’s association as ly the 1989), magistrate entered the to June appear- it involves disqualification because reassigned in one of order pretrial of inter- and also conflict partiality ance of set a trial date (CIV-3-85-1242) and 455(b)(4) and This under principles Hull. est trial before for first any of the seven assertion that (b)(5)(ii). As trial date the first was company cases. with another consolidated was associated previously Hull pending on a similar claims had bond which Aetna the claim find no basis We bond, made no blanket Aetna pursuit delay in seeking to its merely Instead, emphasized in the Jan- he denial. explana- Without disqualification. February hearing “by uary disqual- notice, judge who had tion or J/A & 1st I’ll be out of Hull].” [Brandon specific reason—his for a ified himself that this circumstance believe firm in- A-133. awith law association daughter's weight to the conclusion adds issues substantial in similar terested arising recused himself.11 a common bond Hull should liability on Aetna’s he family on the record Butcher activities also stated similar out of by FDIC—sud- & over Brandon taken interest banks a one-half owned cases, al- is the carri- Hull, “evidently reentered Aetna ... denly with the association daughter’s though provid- his deny that Aetna er,” he did not sig- continued, and decided issues indemnity Hull a similar Brandon & ed pretrial (severance and import nificant cases at those involved policy to schedules). issue. and in A in SC Services indicated As disqualification Judge The last basis — acquired circumstances were there Moody, interest bank financial Hull’s initial supported which here dis- also Butcher interests —was by the the Aetna- in all to recuse himself decision hearing, at the cussed justifiable basis was no There cases. be- following colloquy occurred become 1989 for April of attorney: Aetna’s judge and tween any of the consolidated again involved in stock I held a substantial had oc- change circumstances cases; no Bank, for- which was Andrew Johnson the time claimed at basis curred. of Greene C & C Bank mally [sic] needed to old and cases were to Butcher belonged County and which the chief It is commendable be tried. associates, okay, C.H. group his and a to be concerned a district associates, right; and all Butcher and his court, in his of the docket the state there, Ias understood goes the scenario were controversies FDIC-Aetna it, I did I’m sure understand until it—and hands at all times of his out properly I wanted when reason 30, 1989, earliest date and that’s another June hearing Morton are two with the here—these *9 association daughter’s have by, entry The orders involves I One them firm ended. cases that have. during April by, to the former was issued and as that directed bond Aetna’s improper. therefore 1989 were Hamilton Bank of American motion a bond other one involves County and the granted. been C & C company issued our two County; that’s of Roane 10, Bank at the remarks Judge Hull’s got. The that one I’ve our con- basis hearing confirm 1990 April of 1989. he acted in Judge existed conflict when accepting this conclusion reach We not he did realize statement Hull’s Knoxville case has already been assigned Petitioner argues Aetna that a number Judge Jordan. of orders by Judge entered Hull and an order entered Judge Jordan must be vacated in light of our writ of mandamus I trying figure out where there directing Judge Hull to recuse himself. awas conflict with the note First, petitioner contends Hull’s FDIC owned with a up bank on Washing- 24, April 1989 order directing the magis- ton County, that’s what trying I’m get trate to set UAB-Knoxville, C & C to. I can’t conflict, see how they Roane, and UAB-Chattanooga cases for they may. and Judge trial Hull’s October reassigning order the UAB-Knoxville case The bank that I have some stock in does Jordan should be vacated. Re- have an interest in that proceeding; so spondents argue that these orders were me, is for that, how does ministerial in nature and were pur- entered that, further, I that, further believe the— to Judge suant power Hull’s to control the the, the note that Jake and court’s docket prepare Sonja Butcher had an unsecured trial. See 28 U.S.C. note, and it’s not one of the—at least in Hull’s October 1989 order need this case—it’s not of the alleged one vacated, however, not because even a fraudulent transactions or embezzlement judge who has recused ought to be transactions that Jake partici- Butcher permitted perform the duties necessary pated, alleged to have participated in. to transfer the case to another judge. See How does that conflict with these In re Cement (MDL Antitrust Litigation guess my question? that’s 296), No. 1024-25 Cir. Mr. Simms: We through believe that 1981) (“[W]e refuse to construe the word your financial interest the Andrew ‘proceeding’ to include performance Johnson Bank— ministerial duties such as assigning All right. Court: judge”). another April 24, order similarly involves ministerial duties I don’t exactly understand what the con- and need not be vacated. flict is. argues Aetna also Mr. Simms: We believe that the An- 1989 order denying its motion for a drew Johnson Bank’s interest in that consolidated trial Hull’s April claim, the FDIC’s claim Mr. order granting partial FDIC sum- Butcher, is you. traceable to Mr. Butch- mary judgment must be Respon- vacated. a er is in one more of these dent FDIC argues that Liljeberg v. Health cases, and, therefore, that financial inter- Acquisition Services Corp., 486 U.S. is, you est are disqualified because is— 863-65, 2203-05, S.Ct. you have a financial interest that claim (1988),permits L.Ed.2d 855 a court apply by the parties. one of the relief retroactively in certain circum- 134, 135, 137, J/A (emphasis added). 138-39 stances. Liljeberg involved Fed.R.Civ.P. 60(b) motion arguing that judgment make no a final judgment whether to be ought conflict vacated. existed, actual Such motion does but we appear to have believe this made was but been another factor mandat- rate, case. ing anyAt pro- Liljeberg Hull when vided: in conjunction considered with the other already
factors All of discussed. determining whether judgment [I]n *10 considerations in combination make it clear should be vacated for a violation Judge should mandate that 455(a), Hull appropriate is § consider the should recused himself in 1989 from injustice risk of parties the making in any decisions of the case, particular consolidated the risk that the denial of FDIC-Aetna cases. relief will produce injustice in other severance, regard to the undermining the seven
eases, the risk is pro- petition for mandamus judicial dispute. in the confidence public’s stated, purposes the GRANTED for cess. further REMANDED for the matter is at 2204. Id. at here- in accordance prompt proceedings- case, risk of undermin- In the with. judicial in the confidence ing public’s Judge Permitting significant. process is concurring KENNEDY, Judge, Circuit summary judgment order partial KEITH, separately, with whom fact that section spite of the remain KRUPANSKY, JONES, R. NATHANIEL 455(b)(5) warrants NORRIS, RYAN, E. and ALAN BOGGS public’s substantially undermine would join. Judges, Fur- Circuit judicial process.12 in the confidence ther, to consolidate his refusal ap is an I that mandamus concur public as by the perceived be for trial is judge who remedy when a propriate retain at least Judge Hull to attempt by an for dis disqualified denies a motion clearly The risk cases. original seven of the some I separately qualification. write if the orders parties were injustice to the requiring disqualification grounds view the well, for significant as intact is remain Judge Hull’s differently. Here somewhat is based Judge Hull’s clear, his himself was need to recuse presumably determination objective an in the lawyer a daughter was threat of the inherent due to codified provides in proceedings. 28 U.S.C. § Therefore, should be orders bias. part: relevant Knox- respect to the except with vacated (a) magistrate Any justice, judge, tried. Consolida- has been ville case which himself disqualify shall the United States parties, wit- the convenience tion is for impartiali- proceeding in which his nesses, require the Knoxville case To etc. reasonably questioned. ty might part of a consolidated case retried to be (b) disqualify himself He shall also parties penalize wit- tobe would following circumstances: injustice. and cause further nesses argues that petitioner Finally, in discussion with participated Hull person (5) spouse, or a with- He or his that led to Judge Jordan Siler relationship to degree in the third January reinstatement
Jordan’s them, spouse of such or the either Knoxville case.13 Re- in the date trial person: peti- correctly replies that spondent of bias for a claim recourse proper tioner’s pro- (ii) lawyer in the acting Is would be section Judge Jordan ceeding; ... seeking to 455(a) motion Therefore, Judge order Jordan’s Jordan. Hull- firm for which It true that the is not be vacated. should repre- and does not worked did not Welsch UAB-Chattanooga or in the sent the FDIC any opinion express intend to We do However, the con- consolidation, matters. C Roane or C & the merits concerning adopted this rule because posi- The Seventh Circuit that “the has held Circuit The Seventh safety greatest to consider measure of would be undesirable provides the "[i]t tion that is one system post-motion as a whole judicial orders case whether for the filing decisions taken all Id. such vacates be set aside....” Were disqualify a under justified Court, motion adopted by would Court rule Hart, Corp. 455(a).” Dev. New York 1990 order. required vacate Cir.1986). Although we ought re- to have have found re- would vacate Jordan's order 13. To 455(b), that section pursuant to § cused judgment quire of the final vacation con- objective and is determination involves judgment Such case as well. UAB-Knoxville impropriety as well as actual cerned with entered Therefore, impropriety. such appearance of 455(b) applicable to motions. equally rule
H47 solidation of the only even if acting for lawyer as a in the proceeding, the pretrial purposes, necessarily involves judge disqualified. is entanglement aspects of certain of the 455(f) Section only is the statutory provi- Chattanooga and Roane matters with sion permitting a trial to cure a dis- cases in repre- which Hull-Welsch’s firm qualification. section, This enacted in sented the FDIC. 1988, provides: Notwithstanding the preceding provi-
The fact that Hull-Welsch’s in role section, sions of this any if justice, judge, dispositive, was minimal is not magistrate, or bankruptcy judge requires disqualification the statute where whom a matter has been assigned acting she would lawyer as a in the proceed- “[i]s disqualified, be judicial substantial ing” and does not indicate that minimal time has been matter, devoted to the involvement would render disqualification appearance of the or discovery, unnecessary.1 Corp. See Union Carbide after the assigned matter was to him or Serv., Inc., v. United Cutting her, that he or individually she or (7th Cir.1986) (“Congress re- fiduciary, or his or her spouse or minor placed previously existing standard [the child residing household, his or her prohibition. Although flat pro- with] (other financial a party than hibition in recusal in results cases where an interest that could substantially the interest is too small sway even by outcome), affected mercenary judge, most silly occasional re- required is not justice, if the judge, mag- may sults acceptable price pay istrate, bankruptcy judge, spouse or mi- a rule that straightforward both is appli- child, nor be, divests spares cation having himself or herself of the interest make decisions under an uncertain stan- provides grounds disqualifica- for the apt misunderstood”). dard to be Thus it is tion. clear that a 455(b)(5) violation of section 455(f). would exist if Hull-Welsch U.S.C. Respondents had continued do Morton, her contend employment employment at Lewis. of Hull- Welsch is provision. covered this Hull- argues Respondent that Hull Welsch did not divest herself of a financial resignation interest, Welsch’s from the law but rather discontinued her em- 455(b)(5) “cured” section ployment. Further, violation. the fact that Hull- problem do not believe can Martin, be Welsch worked Lewis and that cured in depositions such manner. The this firm was involved in the proceedings taken the consolidated part action are a was not judi- discovered “after substantial proceedings of the in each case when even cial time devoted to the been matter” ha[d] longer the cases no are A consolidated. but rather was known at the outset of the required object not be proceedings judge initially when the re- questions depositions fact, asked members cused himself. the existence of judge’s family. of the deposi 455(f) Whether the section suggests Congress in- not, tions will be used or it is to be tended types there to exclude the of cure not not, used. important Whether will be permitted by provision, Congress important. it is there to become stat opportunity had the to enact a broader contemplates ute bright line test—if a amendment it devised than with section person degree 455(f). within the third argues relation Petitioner section ship judge’s 455(f) spouse or the apply intended to to class action Respondent attempt FDIC contends that develop Hull-Welsch's legal- evidence related to the involvement ly seven regulatory neglect insufficient defenses of day five-day deposition was to one of a attend implicit misrepresentations subsequently Sneed, Mackie an FDIC examiner. by Judge speaks stricken Siler. principally deposed contends Sneed was daughter’s “extremely presence limited joint about his involvement in C & examinations of one or depositions.” two C-Washington and C & C-Knoxville in an
suits, legislative history seems to and the H.R. No. Doc. 100th suggest.
so See (1988). However, we
Cong., 2d Sess. 68-69 provision whether this
need not determine than action
applies to cases other class alleged it has not been in the
suits because possible
present case
grounds requiring recusal were discovered judicial time de- had been substantial matter.
voted to the lawyer appeared at
At least where deposition or made some other formal proceeding, I would hold
appearance lawyer lawyer proceed-
that such is judge related within the third
ing and a
degree disqualified. unnecessary find it to reach the would relationships
question of whether other
required disqualification. Moody v. Sim
mons, (3d Cir.1988), S.Ct. (1989).
L.Ed.2d 835 EQUIPMENT
NATIONAL TRUCK
ASSOCIATION, Petitioner, HIGHWAY TRAFFIC SAFE
NATIONAL ADMINISTRATION, United States
TY Transportation,
Department and the America, Respondents.
United States
No. 89-3713. Appeals,
United States Court Circuit.
Sixth
Argued April
Decided Nov.