El Fenix De Puerto Rico v. the M/Y Johanny

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1493
EL FENIX DE PUERTO RICO,

Plaintiff, Appellant,

v.

THE M/Y JOHANNY, ETC., ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Raymond L. Acosta, U.S. District Judge]

Before

Selya, Circuit Judge,

Bownes, Senior Circuit Judge,

and Cyr, Circuit Judge.

Fernando D. Castro, with whom Calvesbert & Brown was on

brief for appellant.
Jorge Calero Blanco, with whom Ada Pilar Martin and Ledesma,

Palou & Miranda were on brief for appellees.

September 26, 1994

CYR, Circuit Judge. In this case we must decide
CYR, Circuit Judge.

whether a recusal order under 28 U.S.C. 455(a) may be set aside

on reconsideration by the judge who entered it. As we conclude

that it was improper for the recused judge to revisit the recusal

order in these circumstances, we leave appellant's substantive

challenges to the district court judgment for consideration on

remand.

I

BACKGROUND1
BACKGROUND

A. The Underlying Action

Appellee Aurelio Varona Perez ("Varona") purchased the

M/Y JOHANNY, a 43-foot Wellcraft "San Remo" twin-diesel motor

yacht, in October 1987. Appellant El Fenix de Puerto Rico ("El

Fenix") later issued an "all-risk" marine insurance policy on the

JOHANNY in the total amount of $340,000. No claims were made on

the policy until after the JOHANNY's final voyage two years

later.

In the wake of Hurricane Hugo, which struck Puerto Rico

in September 1989, Varona noticed a slight "vibration" in the

JOHANNY. On November 14, 1989, Varona and his brother, a profes-

sional marine mechanic, set off from the Cangrejos Yacht Club in

1The material facts underlying the merits dispute are
recited in the light most favorable to the judgment. See Pinto

v. M/S FERNWOOD, 507 F.2d 1327, 1329 (1st Cir. 1974) ("In review-

ing the judgment of the trial court sitting in admiralty without
a jury, . . . [t]he evidence must be viewed in the light most
favorable to the prevailing party below . . . .").

2

San Juan for the port of Fajardo, Puerto Rico, to have the boat

drydocked for repair. Prior to departing San Juan Harbor,

Varona's brother inspected the JOHANNY's underwater running gear,

and, finding nothing amiss, concluded that it was safe to pro-

ceed.

Approximately one hour into the voyage, however, Varona

noticed that the JOHANNY was riding abnormally low in the water.

Upon investigation, Varona's brother discovered two to three feet

of water in the engine compartment. Varona issued Mayday calls,

but was unable to contact either the United States Coast Guard or

his yacht club in San Juan. The source of the leak was not

located and, within thirty minutes after discovery of the flood-

ing, the two engines stopped simultaneously, apparently as a

result of the rising water.

With the JOHANNY rapidly taking on water, Varona and

his brother disembarked into a small dinghy, intending to return

to San Juan, summon assistance and attempt to salvage the JOH-

ANNY. The outboard motor on the dinghy malfunctioned, however,

and since it would operate only intermittently it took almost

three hours to reach the nearest point of land, where Varona

reported the incident to the Puerto Rico Maritime Police. The

following day he informed his insurance broker. Neither Varona

nor his brother saw the JOHANNY sink, and marine salvage survey-

ors have never been able to locate her.

In due course, El Fenix initiated this admiralty

action, alleging that Varona had scuttled the vessel, and demand-

3

ing damages and a judicial declaration disallowing coverage under

the marine insurance policy. Varona counterclaimed for a decla-

ration of coverage. During the four-day bench trial, Varona and

his brother testified to the events of November 14, 1989, as

related above, and proffered opinions to the effect that the

incursion of sea water into the engine compartment could have

resulted from the failure of a stuffing-box, a perforation in the

hull, or any number of other possible breaches. El Fenix coun-

tered with the deposition of Dr. Carlos V. Wheeler, a marine

engineer, for the purpose of undermining the technical plausibil-

ity of the Varonas' accounts of the flooding of the vessel. El

Fenix also presented the expert testimony of Arturo A. Vaello,

Jr., a marine surveyor, who opined that the JOHANNY had been

scuttled. Vaello's opinion was based largely on perceived

irregularities in the manner in which Varona had pursued the

insurance claim.

At the conclusion of the trial, the presiding judge

explicitly credited the Varonas' testimony and rejected the

expert testimony presented by El Fenix. The court held that the

loss of the JOHANNY had been accidental, and found El Fenix

liable under its marine insurance policy.

B. The Recusal Order

On February 9, 1993, the first day of trial, El Fenix

witness Arturo Vaello spotted one Bob Fisher in the gallery of

the courtroom. Vaello knew Fisher to be a local yachtsman well

versed in maritime matters. In casual conversation following

4

Vaello's testimony on the second day of trial, Fisher told Vaello

that the presiding judge had "asked him to sit through the trial

and listen to the evidence presented by the parties." Vaello

reported this conversation to El Fenix's counsel the same day.

On March 1, 1993, nearly three weeks after the Vaello-

Fisher conversation allegedly occurred, and after judgment had

entered in favor of Varona on February 19, El Fenix moved, inter

alia, for a new trial or to alter and amend the judgment. See

Fed. R. Civ. P. 59(a), (e). Although El Fenix conceded that it

had "no specific knowledge" that the presiding judge was not

impartial, it hypothesized that the judge might have consulted

with Fisher in arriving at a judgment in the case. It contended

that the Vaello affidavit gave rise "to the possibility of an

'appearance' of partiality" that might require disqualification

under 28 U.S.C. 455(a) ("Any justice, judge or magistrate of

the United States shall disqualify himself in any proceeding in

which his impartiality might reasonably be questioned."). The

motion was accompanied by a request that El Fenix be allowed to

depose Fisher.

On March 11, 1993, notwithstanding a finding that the

judgment had been based exclusively on the evidence, the presid-

ing judge disqualified himself from further participation in the

case and vacated the judgment previously entered, based simply on

the fact that his impartiality had been challenged. The recusal

order stated in pertinent part:

[T]he Court invited both Mr. and Mrs. Bob
Fisher, long time personal friends, to attend

5

a public trial. [The invitation] was prompted
by the fact that the Fishers are both boat
aficionados and Mr. Fisher, who is currently
retired, would enjoy the trial. To conclude

from the presence of Mr. and Mrs. Fisher that

the Court somehow surreptitiously connived to

seek the opinion of a non-witness to make its

decision is a strained conclusion to say the

least. Plaintiff's argument on this issue has

the tenor of a dubious strategy influenced by

an unfavorable result.

The Court's decision in this action,
stated for the record at the conclusion of
the evidence, was based exclusively on the
evidence presented by both parties and in
great part based on specific credibility
determinations.

Nevertheless, given the fact that the

impartiality of this judge has been put at

issue by plaintiff, I hereby DISQUALIFY my-

self from further participating in this case.
It is further ORDERED that the Judgment is-
sued [previously in this matter] is hereby
VACATED AND SET ASIDE.

(Emphasis added).

Varona promptly moved for reconsideration of the

recusal order on grounds that (1) the El Fenix motion had been

untimely, in that possible grounds for disqualification must be

presented at the earliest possible juncture; and (2) the presid-

ing judge had erred in recusing himself under 28 U.S.C. 455(a)

because the request to depose Fisher, paired with El Fenix's

highly tenuous and speculative allegations, did not place the

court's impartiality in objectively reasonable question. On

April 20, 1993, the recused judge entered a one-page reconsidera-

tion order vacating the recusal order and reinstating the

judgment "based on the arguments presented" in the motion for

reconsideration.

6

7

II

DISCUSSION

El Fenix first attacks the reconsideration order as an

abuse of discretion.2 Cf. Norfolk v. United States Army Corps

of Eng'rs, 968 F.2d 1438, 1460 (1st Cir. 1992) (denial of 455-

(a) motion reviewed for "abuse of discretion").

As a threshold matter, we note that El Fenix has never

asserted, either before the district court or on appeal, that a

sufficient factual basis existed for finding that the impartiali-

ty of the presiding judge was placed in objectively reasonable

question simply by extending Fisher an invitation to witness the

2The challenge to the reconsideration order is accompanied
by two lackluster procedural claims. First, El Fenix argues that
the recusal order was interlocutory, in that it "determin[ed] the
rights and liabilities of the parties to [an] admiralty case[],"
and, therefore, that it had to be appealed directly to this court

pursuant to 28 U.S.C. 1292(a)(3). This claim is without merit:

As is the case with interlocutory appeals
generally, 1292(a)(3) does not compel [an

appeal by a] party with a claim coming within
its terms . . . .

9 James W. Moore & Bernard J. Ward, Moore's Federal Practice

110.19[3] (2d ed. 1994) (citing cases) (emphasis added).
Similarly unavailing is the El Fenix argument that adminis-
trative assignment of this case to another judge following the
recusal order deprived the recused judge of "plenary authority"
to take further action in the case. As a general matter, federal
district judges have plenary authority to reconsider orders.
See, e.g., McIsaac v. Didriksen Fishing Corp., 809 F.2d 129, 135

(1st Cir. 1987). In any event, the relevant docket entries
reflect that the case had been referred back to the recused judge
prior to entry of the reconsideration order. Thus, it is the
trial judge's reconsideration of the recusal order, not the
administrative assignment of the case, which is at issue here.

8

trial, nor by Fisher's attendance as a spectator.3 Furthermore,

El Fenix challenges none of the findings underlying the recusal

order, most notably that the "Court's decision . . . was based

exclusively on the evidence presented by both parties . . . ."

Consequently, nothing in the district court record provided

sufficient grounds for recusal. See, e.g., In re United States,

666 F.2d 690, 695 (1st Cir. 1981) ("[A] charge of partiality

[under 28 U.S.C. 455(a)] must be supported by a factual basis

[and] a judge considering whether to disqualify himself must

ignore rumors, innuendos, and erroneous information . . . .")

(emphasis added). We think it clear, therefore, that the

motion for disqualification under 28 U.S.C. 455(a) should have

been denied. First, the district court did not adhere to the

impartiality test required under section 455(a). See Home

Placement Serv., Inc. v. Providence Journal Co., 739 F.2d 671,

675 (1st Cir. 1984) (describing 455(a) test as whether a

reasonable person, "were he to know all the circumstances, would

harbor doubts about the judge's impartiality") (emphasis added),

cert. denied, 469 U.S. 1191 (1985); see also Ricci v. Key Bancsh-

ares of Maine, Inc., 111 F.R.D. 369, 373-75 (D. Me. 1986) (Ald-

rich, J.) (discussing appropriate level of knowledge to impute to

3The recusal regimen under 28 U.S.C. 455(a) in this
circuit requires the presiding judge to determine "whether the
charge of lack of impartiality is grounded on facts that would
create a reasonable doubt concerning the judge's impartiality . .
. in the mind of the reasonable [person]." United States v.

Cowden, 545 F.2d 257, 265 (1st Cir. 1976), cert. denied, 430 U.S.

909 (1977), quoted in United States v. Arache, 946 F.2d 129, 140

(1st Cir. 1991).

9

"reasonable person"). Second, the utter absence of a sufficient

factual basis for recusal under subsection 455(a) completely

undermined the recusal order. Further, as the district court was

in a position to debunk the innuendo underlying El Fenix's

motion, and did just that in its recusal order, we are left to

conclude, as the recusal order itself acknowledges, see supra pp.

5-6, that the only reason for the recusal was that El Fenix had

broached a possible appearance of partiality.

No permissible reading of subsection 455(a) would

suggest that Congress intended to allow a litigant to compel dis-

qualification simply on unfounded innuendo concerning the possi-

ble partiality of the presiding judge.4 Indeed, "[a] trial

judge must hear cases unless some reasonable factual basis to

doubt the impartiality of the tribunal is shown by some kind of

probative evidence." Blizard v. Frechette, 601 F.2d 1217, 1221

(1st Cir. 1979) (emphasis added); see also United States v.

Alabama, 828 F.2d 1532, 1541 (11th Cir. 1987) (noting that

following enactment of current version of 455 in 1974, courts

should scrutinize factual accuracy of recusal motion and accompa-

4El Fenix did intimate, however, apparently as a predicate
for its deposition request, that there may have been grounds for
mandatory disqualification under 28 U.S.C. 455(b)(1), which
requires recusal where the judge has "personal knowledge of
disputed evidentiary facts." El Fenix requested that it be
permitted to depose Fisher to determine whether he had consulted
with the presiding judge relating to evidentiary matters at issue
during trial. See, e.g., United States v. Alabama, 828 F.2d

1532, 1543-46 (11th Cir. 1987) (holding recusal mandatory under
455(b)(1) where trial judge's activities had involved him in
"disputed evidentiary facts"), cert. denied, 487 U.S. 1210

(1988). Of course, the deposition request appeared to have been
mooted by the recusal order.

10

nying affidavits), cert. denied, 487 U.S. 1210 (1988). As this

court has explained:

[D]isqualification is appropriate only if the
facts provide what an objective, knowledge-
able member of the public would find to be a
reasonable basis for doubting the judge's

impartiality. Were less required, a judge
could abdicate in difficult cases at the mere
sound of controversy, or a litigant could

avoid adverse decisions by alleging the slig-

htest of factual bases for bias. See [H.

Rep. No. 1453, 93d Cong., 2d Sess. 5 (1974),
reprinted in 1974 U.S.C.C.A.N. 6351, 6355].

This restricted mandate to disqualify is
calculated to induce a judge to tread the
narrow path between timidity and tenacity.

In re United States, 666 F.2d at 695 (emphasis in original and

emphasis added).

The proper approach under subsection 455(e) requires

the trial judge to place on the record all the facts relating to

any alleged appearance of lack of impartiality and then leave

entirely to the parties whether to waive disqualification under

section 455(a). See 28 U.S.C. 455(e) ("Where the ground for

disqualification arises only under subsection (a), waiver may be

accepted provided it is preceded by a full disclosure on the

record of the basis for disqualification."); see also Brody v.

President & Fellows of Harvard College, 664 F.2d 10, 11-12 (1st

Cir. 1981) (noting operation of 455(e) waiver provision), cert.

denied, 455 U.S. 1027 (1982).5 Absent an acceptable waiver, and

5Additionally, once all the relevant facts were set out in
the record, the district court might have considered the El Fenix
deposition request. But cf. Ricci, 111 F.R.D. at 373 n.4 (ex-

pressing reservations as to appropriateness of allowing discovery
by deposition on 455(a) motion); compare Cheeves v. Southern

Clays, Inc., 797 F. Supp. 1570, 1579-83 (M.D. Ga. 1992) (noting

11

based on the findings in the recusal order, the motion for

disqualification in this case should have been denied as

groundless. See, e.g., Blizard, 601 F.2d at 1219-22 (finding no

abuse of discretion in denial of recusal motion devoid of factual

support).6

A. The Reconsideration Order

Notwithstanding the absence of grounds for recusal

under subsection 455(a), it does not necessarily follow that it

was proper to reconsider and set aside the recusal order. As a

dearth of authority on propriety of allowing discovery in support
of 455(a) motion and concluding that such discovery is permis-
sible in limited circumstances, subject to the requirements of
Fed. R. Civ. P. 26).
Of course, had there been any substance to the hypothetical
suggestion in the El Fenix motion that Fisher might have been
consulted by the court in arriving at a decision, a different
analysis would be necessary. See 28 U.S.C. 455(b), (e) (re-

stricting waiver to grounds coming within 28 U.S.C. 455(a));
see also Liljeberg v. Health Serv. Acquisition Corp., 486 U.S.

847, 859-60 n.8 (1988) (distinguishing subsections 455(a) and
(b)).

6Furthermore, the recusal motion may have been rendered
infirm by the delay in filing. See, e.g., E. & J. Gallo Winery

v. Gallo Cattle Co., 967 F.2d 1280, 1295 (9th Cir. 1992) (reject-

ing per se timeliness rule, but finding motion untimely where

455(a) and (b)(2) challenge was made after adverse judgment and
grounds had been known to movant beforehand: "[t]o hold otherwise
would encourage parties to withhold recusal motions pending a
resolution"); see also United States v. Kelly, 519 F. Supp. 1029,

1047-1050 (D. Mass. 1981) (timing of recusal motion is relevant
to whether impartiality has "reasonably" been brought into
question; "one seeking the disqualification of the judge must do
so at the earliest moment after knowledge of the facts demon-
strating the basis for such disqualification"), mandamus denied,

In re United States, 666 F.2d at 698; see generally 7 James W.

Moore & Jo D. Lucas, Moore's Federal Practice 63.07[2.-2] (2d

ed. 1993) ("[A] litigant who is aware of a potential ground of
recusal should not be permitted to 'sandbag' that ground, hoping
for a satisfactory resolution, but retaining a ground of attack
on the judge's rulings.") (citing cases).

12

general rule, a trial judge who has recused himself "should take

no other action in the case except the necessary ministerial acts

to have the case transferred to another judge." 13A Charles A.

Wright & Arthur R. Miller, Federal Practice & Procedure 3550

(2d ed. 1984) (citing, e.g., Moody v. Simmons, 858 F.2d 137, 143

(3d Cir. 1988) (holding that recused judge's "power is limited to

performing ministerial duties necessary to transfer the case to

another judge"), cert. denied, 489 U.S. 1078 (1989)); see also

Stringer v. United States, 233 F.2d 947, 948 (9th Cir. 1956)

(similar). Although it may be arguable that this reasoning does

not control the distinct question whether an improvident recusal

order may be revisited by the recused judge absent a proper

waiver under subsection 455(e), we are aware of no authority for

such a position. Therefore, we consider it the better part of

discretion, for now at least, not to blur the reasonably clear

line traced by the extant case law.7

Finally, we consider the status of the district court

judgment. As we have stated, see supra at pp. 5-6, the recusal

order simultaneously set aside the final judgment entered some

three weeks earlier. This ruling, too, was error.

7The values secured by 28 U.S.C. 455(a) weigh heavily in
our decision. Subsection (a) safeguards not only the litigants'
constitutional entitlement to an unbiased adjudication, see Ward

v. Monroeville, 409 U.S. 57, 62 (1972) (due process requires that

every case be heard by a "neutral and detached" judge), but the
public's perception of the integrity of the judicial process, see

H. Rep. No. 1453, 93d Cong., 2d Sess. 5 (1974), reprinted in 1974

U.S.C.C.A.N. 6351, 6355 (noting that 455(a) "is designed to
promote public confidence in the impartiality of the judicial
process").

13

First, a vacatur in these circumstances runs afoul of

the general rule that the recused judge should take no further

action except to enable administrative reassignment of the case.

See Wright & Miller, supra, at 3550. Second, the Supreme Court

has made it clear that "[s]ection 455 does not, on its own,

authorize the reopening of closed litigation," Liljeberg v.

Health Serv. Acquisition Corp., 486 U.S. 847, 863 (1988), and

relief from judgment is "neither categorically available nor

categorically unavailable for all 455(a) violations," id. at

864-65; see also Russell v. Lane, 890 F.2d 947, 948 (7th Cir.

1989) ("nothing in the language or history of [ 455(a)] suggests

that the statute affects the validity of orders the judge made

before he recused himself"); cf. Warner v. Rossignol, 538 F.2d

910, 913 n.6 (1st Cir. 1976) (approving action of district court

in referring only the damages issues in bifurcated litigation to

another judge, where, after presiding over liability phase,

district judge had recused himself under 455(a)). Both the

need for finality and a common-sense aversion to frittering

scarce judicial resources militate against an inflexible rule

invalidating all prior actions of a judge disqualified under

455(a). See United States v. Murphy, 768 F.2d 1518, 1541 (7th

Cir. 1985) (pre-Liljeberg case under 455(a), holding that an

"appearance of impropriety is not enough to poison the prior

acts" of recused judge) (emphasis added), cert. denied, 475 U.S.

1012 (1986). Thus, we vacate the portion of the recusal order

which set aside the final judgment previously entered.

14

Our holding that the recusal order disabled the trial

judge from further adjudicative responsibility in the present

case, requires reassignment to a different judge on remand. See

Liteky v. United States, 114 S. Ct. 1147, 1156-57 (1994) (noting

that 28 U.S.C. 2106 empowers an appellate court to require

reassignment to a different judge on remand to district court).8

After permitting the parties a reasonable opportunity to supple-

ment or amend their postjudgment motions and responses, the

district court should consider El Fenix's timely motion for new

trial under Rule 59 based not only on 28 U.S.C. 455(a) but on

the various substantive challenges asserted in the original

motion.

III

CONCLUSION

The reconsideration order, and the portion of the

recusal order which set aside the final judgment, are hereby

vacated. The case is remanded for reassignment and for such

further proceedings as may be required, consistent with this

opinion.

SO ORDERED.

8We in no sense suggest, however, that the mere filing of a
recusal motion under section 455 requires that the motion be
determined by another judge.

15