applying Liljeberg, disqualified judge's orders on substantive motions affecting outcome of case must be vacated, but “ministerial” order reassigning case to another judge remains valid “because even a judge who has recused himself ought to be permitted to perform the duties necessary to transfer the case to another judge”
How later courts described this case
- applying Liljeberg, disqualified judge's orders on substantive motions affecting outcome of case must be vacated, but “ministerial” order reassigning case to another judge remains valid “because even a judge who has recused himself ought to be permitted to perform the duties necessary to transfer the case to another judge”
- finding that disqualification of judge proper because judge's daughter had personally participated as a lawyer in the case
- recusal was required because, inter alia, the judge’s daughter had been employed by a firm that represented a party in that very case and she had participated in depositions therein, even though she had since resigned from the firm and her now-former firm was not involved in all the consolidated cases
- “A decision on the merits of any important issue in any of the [consolidated cases], moreover, could or might constitute the law of the case in all of them, or involve collateral estoppel, or might be highly persuasive precedent.”
Written by the judges who cited it.
The opinion
KENNEDY, Circuit Judge,
concurring separately, with whom KEITH, NATHANIEL R. JONES, KRUPANSKY, RYAN, BOGGS and ALAN E. NORRIS, Circuit Judges, join.
I concur that mandamus is an appropriate remedy when a judge who is clearly disqualified denies a motion for disqualification. I write separately because I view the grounds requiring disqualification somewhat differently. Here Judge Hull’s need to recuse himself was clear, his daughter was a lawyer in the consolidated proceedings. 28 U.S.C. § 455 provides in relevant part:
(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(5) He or his spouse, or a person within the third degree of relationship to either them, or the spouse of such a person:
(ii) Is acting as a lawyer in the proceeding; ...
It is true that the firm for which Hull-Welsch worked did not and does not represent the FDIC in the UAB-Chattanooga or C & C Roane matters. However, the con *1147 solidation of the cases, even if only for pretrial purposes, necessarily involves the entanglement of certain aspects of the Chattanooga and Roane matters with the cases in which Hull-Welsch’s firm represented the FDIC.
The fact that Hull-Welsch’s role in the cases was minimal is not dispositive, for the statute requires disqualification where she “[i]s acting as a lawyer in the proceeding” and does not indicate that minimal involvement would render disqualification unnecessary. 1 See Union Carbide Corp. v. United States Cutting Serv., Inc., 782 F.2d 710 , 714 (7th Cir.1986) (“Congress replaced [the previously existing standard with] a flat prohibition. Although the prohibition results in recusal in cases where the interest is too small to sway even the most mercenary judge, occasional silly results may be an acceptable price to pay for a rule that both is straightforward in application and spares the judge from having to make decisions under an uncertain standard apt to be misunderstood”). Thus it is clear that a violation of section 455(b)(5) would exist if Hull-Welsch had continued her employment at Morton, Lewis.
Respondent argues that HullWelsch’s resignation from the law firm “cured” any section 455(b)(5) violation. I do not believe that the problem can be cured in such a manner. The depositions taken in the consolidated action are a part of the proceedings in each case even when the cases are no longer consolidated. A party should not be required to object to questions in depositions asked by members of the judge’s family. Whether the depositions will be used or not, it is there to be used. Whether it will be important or not, it is there to become important. The statute contemplates a bright line test — if a person within the third degree of relationship to the judge or the judge’s spouse is acting as a lawyer in the proceeding, the judge is disqualified.
Section 455(f) is the only statutory provision permitting a trial judge to cure a disqualification. This section, enacted in 1988, provides:
Notwithstanding the preceding provisions of this section, if any justice, judge, magistrate, or bankruptcy judge to whom a matter has been assigned would be disqualified, after substantial judicial time has been devoted to the matter, because of the appearance or discovery, after the matter was assigned to him or her, that he or she individually or as a fiduciary, or his or her spouse or minor child residing in his or her household, has a financial interest in a party (other than an interest that could be substantially affected by the outcome), disqualification is not required if the justice, judge, magistrate, bankruptcy judge, spouse or minor child, as the case may be, divests himself or herself of the interest that provides the grounds for the disqualification.
28 U.S.C. § 455 (f). Respondents do not contend that the employment of Hull-Welsch is covered by this provision. Hull-Welsch did not divest herself of a financial interest, but rather discontinued her employment. Further, the fact that Hull-Welsch worked for Martin, Lewis and that this firm was involved in the proceedings was not discovered “after substantial judicial time ha[d] been devoted to the matter” but rather was known at the outset of the proceedings when the judge initially re-cused himself. In fact, the existence of section 455(f) suggests that Congress intended to exclude the types of cure not permitted by this provision, for Congress had the opportunity to enact a broader amendment than it devised with section 455(f). Petitioner argues that section 455(f) was intended to apply to class action *1148 suits, and the legislative history seems to so suggest. See H.R. Doc. No. 889, 100th Cong., 2d Sess. 68-69 (1988). However, we need not determine whether this provision applies to cases other than class action suits because it has not been alleged in the present case that any of the possible grounds requiring recusal were discovered after substantial judicial time had been devoted to the matter.
At least where a lawyer has appeared at a deposition or made some other formal appearance in a proceeding, I would hold that such lawyer is a lawyer in the proceeding and a judge related within the third degree is disqualified.
I would find it unnecessary to reach the question of whether any other relationships required disqualification. Moody v. Simmons, 858 F.2d 137, 142 (3d Cir.1988), cert. denied, 489 U.S. 1078 , 109 S.Ct. 1529 , 103 L.Ed.2d 835 (1989).
. Respondent FDIC contends that Hull-Welsch's only involvement with any of the seven cases was to attend one day of a five-day deposition of Mackie Sneed, an FDIC examiner. The FDIC contends that Sneed was principally deposed about his involvement in joint examinations of C & C-Knoxville and C & C-Washington in an attempt to develop evidence related to the legally insufficient defenses of regulatory neglect and implicit misrepresentations subsequently stricken by Judge Siler. Judge Hull speaks of his daughter’s “extremely limited presence in one or two depositions.”