*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. *6 252 F.2d 779 discretion on part the of the district court. Cir.1958). It be noted no mo We construe neither City Cleveland nor of tion to recuse or was involved in City Detroit to be precisely analogous Gottlieb, which cited as its authority, Jew question the before petition us—should a Davies, ell v. (6th 192 Cir.1951), F.2d 670 for mandamus be considered by this court denied, 904, cert. 343 635, U.S. 72 S.Ct. 96 following a judge’s district grant refusal to (1952). L.Ed. 1323 The only discussion disqualification a motion based on appear- mandamus judge district ance partiality and conflict of interest? Jewell was as follows: Although might we “Mandamus, distinguish well prohibition injunction these cases for indicated, the reasons against judges are drastic and extraordi- whether, choose instead to consider if nary remedies. power do not doubt this circuit and the predecessor in a proper case to issue writs. such cited negative stand for a answer to they But have the unfortunate conse- question posed, the we should reconsider quence of making litigant, authority as incorrect and inappropri- obliged personal to obtain counsel or to ate, especially under the circumstances leave his defense to one litigants apply here. before him. These remedies should be appeal resorted to where is a clearly Other circuit universally courts have an- inadequate remedy. We are unwilling to question swered the whether mandamus utilize them as a substitute appeal. should be considered under similar circum- remedies, As extraordinary they are re- stances in a contrary fashion to City of really extraordinary served causes.” and City Cleveland In Detroit. what it Davies, 670, v. (empha- Jewell 192 F.2d 674 “a impression deemed case of first under added), (quoting sis parte Ex Fahey, 455, 332 amended,” 28 U.S.C. Seventh § 258, 1558, U.S. Circuit, 91 2041 L.Ed. considering legislative history (1947)). again, analysis Once close of our the commentary code, undertook prior cases does not lead to the fully conclusion to consider and on the merits the petition that a not lie in presented issues disqualification on under type. of this case remarkably similar circumstances to those

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. 303 F.2d 55 may first decide have been the 8. Services SCA 718, denied, amended, 9 L.Ed.2d 83 S.Ct. 372 U.S. but was 455 § issue under this closely Chandler, (1963); Family Co. Insurance 569 F.2d v. Bell followed Life Cir.1971). (10th Barrow, Cir.1978): 452 F.2d 997 (10th v. at 559. 569 mandamus but question is no There disqualifica used to force petition party to an affidavit file 144 allows 9. Section judge. See United a district tion pend- is before whom matter Cir.1959), "that the Ritter, prejudice either personal or ing bias cert. or mandamus petition leave for file adverse him or favor 4 L.Ed.2d Corp. v. (1960); Petroleum Occidental H43 would recuse himself because of daugh- his II. DISQUALIFICATION RECUSAL— employment ter’s bank, with a creditor open stated in court at a nonetheless entered an order in a case be- hearing on the disqualifica- his fore him. This action became the subject tion, indicated, as before that his daughter petition matter of a for mandamus which resigned from the law repre- had was issued appellate court, indicat- sented FDIC on June ing He required. recusal was recused himself previously on the basis of extent, then, To the prior our ease daughter’s association with the Morton authority may be deemed to hold that we firm involved as a FDIC, counsel for will not entertain or petition consider a we believe under the circumstances of this following mandamus refusal of a district record that it was appropriate him court to disqualify based on conflicts of have recused himself. He nevertheless alleged interest and appearance impro- reentered the case April cases on priety under we now § disavow such when Aetna moved to consolidate them precedent. ease hold, Instead we along trial. The same with all circumstances other circuits that that had have ruled on persuaded Judge the question, Hull to recuse will review such a petition, previously, however, prevailed and in still particular, April we will review on its merits 1989.10 A petition decision on merits of important under circumstances alleged issue involving con- in any of the seven flict of interest appearance moreover, and/or of im- could or might constitute the propriety under § law of the case in them, all or involve estoppel, collateral or might per- be highly We adopt language also this from Moody suasive precedent. Thus, even if the as our rule practice: Morton firm were not counsel of record for We ordinarily review recusal decisions FDIC in all of the seven cases for abuse of discretion. firstWe look to them, some of and was not of counsel in 455(b), provides which § the three cases reassigned by Judge Hull automatically recused the existence himself, we would find that of certain the circum- familial and/or financial rela- stances would to a tionships, indicate par- and then to the reasonable general more ty, Aetna, such as 455(a). terms of that his partiality might § implicated, and/or that ap- would ply- 455(a) Under required recusal is when a person reasonable would Aetna, harbor by virtue doubts about judge’s impartiality. order, separate faced with trials *8 Sciarra, United States v. 621, 851 F.2d in seven involving eases substantially sim- (3d Cir.1988), Wilentz, Edelstein v. ilar and similar controlling questions issues (3d Cir.1987). of law as to the interpretation of the same Simmons,

Moody v. (foot- 858 F.2d at 142 provisions blanket bond in each case. Aet- omitted). note na was substantially thus involved and in- terested Judge order, Having Hull’s join to the and had a decided clear consen- legitimate sus basis to view we can and seek clarification and should consider a petition then to for raise the following issue. court’s denial (while of motion Hull’s order of to disqualify daughter based conflict of interest his appear- was associated with Mor- the partiality ance of under 28 U.S.C. ton firm and had apparently ap- made an now pass pearance consideration deposition merits in a key witness) of a of this case. clearly also indicated that he intended Morton firm still reflected Leslie Hull second most senior out of associate more than Welsch on its letterhead as an associate in a fifteen with associated Morton in the 1989 Mar- July dated letter 1989 in the record addressed Directory. tindale-Hubbell Law adversary She counsel. was listed also as the tobe elusion, reluctant we however disposi- a trial and promptly

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.