UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-30687
Summary Calendar
REPUBLIC OF PANAMA, Plaintiff-Appellee,
v.
THE AMERICAN TOBACCO COMPANY, INC. ET AL., Defendants,
FORTUNE BRANDS, INC., formerly known as American Brands Inc.;
R.J. REYNOLDS TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO
CORPORATION, Individually and as successor by merger to The
American Tobacco Company; BATUS, INC.; BATUS HOLDINGS, INC.; PHILIP
MORRIS INCORPORATED; PHILIP MORRIS COMPANIES, INC.; LORILLARD
TOBACCO CO.; LIGGETT GROUP INC.; THE TOBACCO INSTITUTE, INC.;
QUAGLINO TOBACCO AND CANDY COMPANY, INC.; J&R VENDING SERVICES,
INC., Defendants-Appellants.
SAO PAULO STATE, of the Federative Republic of Brazil,
Plaintiff-Appellee,
v.
THE AMERICAN TOBACCO COMPANY, INC. ET AL., Defendants,
FORTUNE BRANDS, INC., formerly known as American Brands Inc.;
R.J. REYNOLDS TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO
CORPORATION, Individually and as successor by merger to The
American Tobacco Company; BATUS, INC.; BATUS HOLDINGS, INC.; PHILIP
MORRIS INCORPORATED; PHILIP MORRIS COMPANIES, INC.; LORILLARD
TOBACCO CO.; LIGGETT GROUP INC.; THE TOBACCO INSTITUTE, INC.;
QUAGLINO TOBACCO AND CANDY COMPANY, INC.; J&R VENDING SERVICES,
INC., Defendants-Appellants.
Appeals from the United States District Court
for the Eastern District of Louisiana
May 14, 2001
Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.
PER CURIAM:
In light of our prior decision in Republic of Panama v. The
American Tobacco Co., 217 F.3d 343 (5th Cir. 2000), the district
court’s order denying recusal is REVERSED. The district court’s
orders remanding this action to state court and denying Appellants’
renewed request and motion for stay are VACATED. We REMAND this
action to the district court for reassignment by the Chief Judge of
the district court to a different judge for further proceedings.
Reversed in part and vacated in part; remanded for further
proceedings consistent with this opinion.
ROBERT M. PARKER, Circuit Judge, concurring specially:
While I agree with my colleagues that we are bound by
precedent, I write separately because I believe that Republic of
Panama was wrongly decided. In that decision, a panel of this
court held that the district judge abused his discretion by not
recusing himself because the judge’s name was listed along with
Appellee’s counsel on a motion for leave to file an amicus brief in
an unrelated action asserting allegations similar to Appellee’s.
Such facts do not establish that a reasonable person aware of
all the facts would reasonably question the judge’s impartiality
2
under 28 U.S.C. § 455(a). See Chitimacha Tribe of Louisiana v.
Harry L. Laws Co., 690 F.2d 1157, 1165 (5th Cir. 1982), cert.
denied, 464 U.S. 814 (1983). The district judge’s name was
erroneously listed on the motion for leave to file an amicus brief
on behalf of the Louisiana Trial Lawyers’ Association (“LTLA”), a
voluntary bar organization that routinely expresses legal
viewpoints to courts through amicus briefs. The district judge did
not participate directly in the researching, writing, or approval
of the brief itself, and his name does not appear on the brief.
Moreover, the motion and brief were filed more than ten years ago
in an unrelated action in Louisiana Supreme Court before the
judge’s appointment to the federal judiciary. These facts are
simply too tenuous to support any reasonable basis for questioning
the judge’s impartiality, and even if these facts clearly raise the
issue of impartiality, it is error to conclude that the judge
abused his sound discretion in denying the motion for recusal.
Republic of Panama incorrectly relied on Bradshaw v. McCotter,
785 F.2d 1327 (5th Cir.), rev’d, 796 F.2d 100 (5th Cir. 1986), as
presenting a “somewhat similar” factual situation. In Bradshaw, we
held that a judge of the Texas Court of Criminal Appeals should
have disqualified himself because at the time of the defendant’s
conviction the judge’s name was listed as a prosecuting attorney on
a brief opposing the defendant’s appeal, even though the listing
was simply a matter of courtesy and protocol. Notwithstanding the
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irrelevance of whether the judge actually participated in the
preparation of the brief, Bradshaw is distinguishable from Republic
of Panama and this action because in Bradshaw the judge, before
taking the bench, was listed as the prosecuting attorney in the
same case on appeal before him. In Republic of Panama and this
action, the district judge was merely listed as the president of
the LTLA on a motion for leave to file an amicus brief in an
unrelated action before a different court more than ten years ago.
While Republic of Panama notes that there are no decisions
precisely on point, relevant decisions confirm that the district
judge’s denial of Appellants’ motion for recusal was not improper.
In Laird v. Tatum, 409 U.S. 824 (1972) (Rehnquist, J., mem.), then-
Associate Justice Rehnquist decided not to disqualify himself on
the basis of his public statements on the constitutionality of
governmental surveillance, which was contrary to the arguments of
the parties seeking his disqualification. As a Department of
Justice lawyer, Justice Rehnquist had testified as an expert
witness before the Senate and publicly stated his views on the
constitutionality of governmental surveillance of civilian
political activity. He testified that the arguments of the parties
seeking disqualification, whose appeal was before the court of
appeals during the testimony, lacked merit. Framing the issue as
whether disqualification is proper if a judge, “who[,] prior to
taking that office[,] has expressed a public view as to what the
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law is or ought to be should later sit as a judge in a case raising
that particular question,” id. at 830, Justice Rehnquist analyzed
the practices of prior justices, who did not disqualify themselves
in cases in which they, prior to taking the bench, previously
expressed a viewpoint of the controlling law, and concluded that
such public statements could not rationally be the basis for
disqualification. Id. at 835-36; see also United States v.
Alabama, 828 F.2d 1532, 1542 (11th Cir. 1987) (rejecting, in an
action challenging segregation in education, disqualification of a
district judge on the basis of his background as a civil rights
lawyer representing black plaintiffs and stating “[a] judge is not
required to recuse himself merely because he holds and has
expressed certain views on a general subject.”), cert. denied, 487
U.S. 1210 (1988); Shaw v. Martin, 733 F.2d 304, 325 (4th Cir.)
(“One who has voted as a legislator in favor of a statute
permitting the death penalty in a proper case cannot thereafter be
presumed disqualified to hear capital cases as a judge or
predisposed to give a death sentence in any particular case.”),
icert. denied, 469 U.S. 873 (1984). While Laird was decided prior
to the amendment of § 4551 to include subsection (a),2 Justice
1
Before the 1974 amendment, § 455 stated:
Any justice or judge of the United States shall
disqualify himself in any case in which he has a
substantial interest, has been of counsel, is or has been
a material witness, or is so related to or connected with
5
Rehnquist’s analysis is important because the motion seeking
disqualification based on his prior public statements was not
pursuant to any specific provision of § 455 at the time, but on the
discretionary portion of the statute, see Tatum, 409 U.S. at 830,
which was similar to the “catchall” provision of § 455(a).
Similarly, in Schurz Communications, Inc. v. FCC, 982 F.2d
1057 (7th Cir. 1993) (Posner, J.), Judge Posner denied a motion for
disqualification based on an affidavit he submitted as an expert
witness on antitrust law prior to becoming a circuit judge. In
rejecting the motion, Judge Posner stated “[t]he affidavit repeated
views about antitrust policy that I had stated in many different
fora over a period of years, and the movants do not and could not
argue that a judge should disqualify himself because he has views
on a case.” Id. at 1062 (citing 13A CHARLES ALAN WRIGHT ET AL., FEDERAL
PRACTICE AND PROCEDURE § 3542 at 568-70 (1st ed. 1975)).
Finally, Cipollone v. Liggett Group, Inc., 802 F.2d 658 (3d
Cir. 1986), is also important. In Cipollone, the husband of a
deceased cigarette smoker brought a products liability action
any party or his attorney as to render it improper, in
his opinion, for him to sit on the trial, appeal, or
other proceeding therein.
28 U.S.C. § 455 (1970), amended by 28 U.S.C. § 455(a) - (f) (2000).
2
The 1974 amendment created § 455(a), which states that
“Any justice, judge, or magistrate of the United States shall
disqualify himself in any proceeding in which his impartiality
might reasonably be questioned.”
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against cigarette manufacturers alleging that his wife’s injury and
death were cigarette-induced. A panel of the Third Circuit held
that some of the plaintiff’s claims were federally preempted. The
plaintiff then moved to vacate the judgment because a member of the
panel should have recused himself due to an appearance of
partiality. The plaintiff alleged that such appearance of
partiality arose because the judge, while in private practice,
represented The American Tobacco Company, which was not a defendant
in the plaintiff’s action, in a similar products liability action
The court denied the motion because The American Tobacco Company
was not a defendant, the issue of preemption was not raised in the
prior litigation involving the judge, and even if The American
Tobacco Company were a defendant no reasonable person could
question the judge’s impartiality because his representation ended
more than five years before he took the bench. Id. at 658-59.
In light of these decisions, I am convinced that Republic of
Panama is erroneous because it requires recusal on the basis of a
judge’s public statements on the law made prior to becoming a
judge, which I believe is unreasonable under § 455(a). In
denouncing such “public statement disqualification,” Justice
Rehnquist aptly observed that
[i]t would not be merely unusual, but extraordinary, if
[judges] had not at least given opinions as to [legal]
issues in their previous careers. Proof that a [judge’s]
mind at the time he joined the [c]ourt was a complete
tabula rasa . . . would be evidence of lack of
7
qualification, not lack of bias.
Laird, 409 U.S. at 835; cf. Liteky v. United States, 510 U.S. 540,
554 (1994) (Scalia, J.) (“[S]ome opinions [of a judge] acquired
outside the context of judicial proceedings (for example, the
judge’s view of the law acquired in scholarly reading) will not
suffice [for recusal]”) (emphasis omitted); Cipollone, 802 F.2d at
660 (“If Judges could be disqualified because their background in
the practice of law gave them knowledge of the legal issues which
might be presented in cases coming before them, then only the
least-informed and worst-prepared lawyers could ever be appointed
to the bench.”). Before taking the bench, we judges solemnly swear
or affirm to “faithfully and impartially discharge and perform all
the duties,” 28 U.S.C. § 653, regardless of our background. To
conclude that the district judge abused his discretion in this
action would penalize judges for their background and undermine the
oath. Thus, I believe we should reconsider Republic of Panama en
banc.
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