UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-30687
REPUBLIC OF PANAMA, Plaintiff,
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.
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.
Appeal from the United States District Court
for the Eastern District of Louisiana
September 5, 2001
ON PETITION FOR REHEARING EN BANC
(Opinion May 14, 2001, 5th Cir., 2001, 250 F.3d 315)
Before EMILIO M. GARZA, STEWART and PARKER, Circuit Judges.
PER CURIAM:
Treating the Petition for Rehearing En Banc as a Petition for
Panel Rehearing, the Petition for Panel Rehearing is DENIED. The
Court having been polled at the request of one of the members of
the court and a majority of the judges who are in regular active
service not having voted in favor1 (FED.R.APP.P and 5TH CIR.R. 35),
the Petition for Rehearing En Banc is DENIED.
1
Judge Barksdale and Judge Benavides did not participate in
the consideration of the petition for rehearing en banc.
2
JACQUES L. WIENER and ROBERT M. PARKER, Circuit Judges, joined by
CAROLYN DINEEN KING, PATRICK E. HIGGINBOTHAM, W. EUGENE DAVIS and
JAMES L. DENNIS, Circuit Judges, dissenting from the Court’s denial
of the Petition for Rehearing En Banc:
The panel opinion for this case marks the first time in the
history of American jurisprudence that an appellate court has
reversed a trial judge’s discretionary refusal to recuse himself ——
and has ordered the judge recused —— based solely on the fact that
many years earlier, while he was a practicing attorney, he had been
linked (erroneously at that) with one view of a legal issue that
was then pending in state court and only recently resurfaced in a
case pending before him in federal court.2 The Petition for
Rehearing En Banc challenges the panel’s holding that a federal
district judge (“the Judge”) abused his discretion by refusing to
recuse himself pursuant to 28 U.S.C. § 455(a), simply because he
had been mistakenly identified, years before he became a judge, as
having an “association with the legal position” now being espoused
by one of the parties in a case pending before him.
The Petition for Panel Rehearing challenged the panel’s
holding that under those circumstances the Judge abused his
discretion by not recusing himself pursuant to 28 U.S.C. § 455(a).
We respectfully but vigorously dissent from the refusal of a
majority of the active judges of this court to rehear this matter
en banc. We would have granted rehearing en banc, not merely
because we view the panel opinion3 as wrongly decided, but
2
Republic of Panama I, 217 F.3d at 347.
3
The panel opinion in this matter, Republic of Panama v.
American Tobacco Co., Inc., 250 F.3d 315 (5th Cir. 2001)(“Republic
of Panama II”), followed, as it had to, the earlier panel decision
in a companion case, Republic of Panama v. American Tobacco Co.,
3
primarily because the nature of the error committed in pronouncing
that result dangerously erodes the discretion that Congress has
assigned to federal judges in matters of recusal while opening a
new, broad avenue for litigants to avoid appearing before a judge
they perceive to be unfairly disinclined to favor their side of a
case.
FACTS AND PROCEDURAL HISTORY
In October 1998, the Republic of Panama filed suit alleging
that the defendant tobacco companies conspired to conceal the
addictiveness and health risks of tobacco and seeking compensation
for health costs for diseases caused by smoking. Republic of
Panama I, 217 F.3d at 344. The defendant tobacco companies removed
the case to federal court. Id. at 345. In 1999, the tobacco
companies sought to recuse the Judge, who had been assigned to the
case. Id. The Judge exercised the discretion vested in him by
statute, explaining in detail why he was denying the motion to
recuse himself and remanding the action to state court. Id. On
appeal, a panel of this court held that the Judge had abused his
discretion, reversed his order denying recusal, vacated his order
remanding the case to state court, and remanded the action to the
district court for reassignment to a different judge. Republic of
Panama II, 250 F.3d at 316.
The motion to recuse was based solely on the fact that the
Judge had been listed —— erroneously —— as the president of a
Inc., 217 F.3d 343 (5th Cir. 2000)(“Republic of Panama I”). Both
of these cases involve identical facts and decisions regarding the
recusal issue at both the trial and appellate level. We
acknowledge that the panel in Republic of Panama II was constrained
by precedent and was not free to correct what we view as the error
of Republic of Panama I.
4
specialized bar association (the Louisiana Trial Lawyer’s
Association (“LTLA”)) on that organization’s motion seeking
permission to file an amicus curiae brief in similar state court
tobacco litigation some nine years earlier. The Judge’s name did
not appear on the amicus brief itself.
Almost a decade prior to his appointment to the federal trial
bench, the Judge had served a one-year term as president of the
LTLA, from approximately October 1989 - October 1990. In April
1991, some six months after his term as president had expired, LTLA
filed the subject motion seeking permission to file an amicus brief
in the appeal of a tobacco products liability case in the Supreme
Court of Louisiana. Despite his being president no longer, the
Judge’s name was mistakenly listed as President of the LTLA on the
“Motion for Leave to File Amicus Curiae Brief” which was filed
simultaneously with the filing of the association’s amicus brief.
The Judge signed neither the motion nor the brief, either as
counsel or as an officer of the putative amicus association.
Listed among the counsel on this motion, however, was Michael St.
Martin, who is also counsel for the plaintiff in the present
action. The amicus brief itself was not signed by Mr. St. Martin
(or by the Judge) but by another attorney; neither did the brief or
the motion list the Judge as counsel.
Although they were not identical to the allegations in the
present case, the LTLA’s 1991 amicus brief did contain allegations
similar to those in the current litigation, including, inter alia,
that smoking is addictive and that it causes cancer, and that the
defendant tobacco companies knew or should have known about the
health dangers of smoking. The amicus brief argued that the
tobacco companies should be held liable because they were negligent
in producing their product.
5
In denying the tobacco defendants’ recusal motion in the
present case, the Judge specifically informed the parties that,
even though his name had been listed on the motion seeking
permission to file the amicus brief in state court years ago, it
had been placed on the motion by mistake; his term as president of
LTLA had ended months before by the time the brief was filed. The
Judge further informed the parties that he had nothing to do with
the research, writing, signing, or approval of the brief; and that
neither as a practicing attorney nor in any other capacity had he
ever participated in any tobacco litigation. And the Judge also
explained that the decision to file an amicus brief and the
determination of the contents of the brief were exclusively
governed by the LTLA Amicus Committee, not the president or
executive committee of the association.
DISCUSSION
We review the denial of a motion to recuse for abuse of
discretion. Trevino v. Johnson, 168 F.3d 173, 178 (5th Cir. 1999).
A judge should recuse himself “in any proceeding in which his
impartiality might reasonably be questioned.” 28 U.S.C. § 455(a).
“In order to determine whether a court’s impartiality is reasonably
in question, the objective inquiry is whether a well-informed,
thoughtful and objective observer would question the court’s
impartiality.” Trust Co. v. N.N.P., 104 F.3d 1478, 1491 (5th Cir.
1997). The purpose of § 455(a) is to avoid even an appearance of
partiality. United States v. Jordan, 49 F.3d 152, 155 (5th Cir.
1995).
We are firmly convinced that no reasonable person, aware of
all the facts, would question any judge’s impartiality based on
circumstances as attenuated as those presented by this case: (1)
6
The Judge’s name was listed, erroneously and without his knowledge,
on a motion to file an amicus curiae brief —— not even the brief
itself; (2) the motion and brief were filed on behalf of an
association of which the future judge was a past president; (3) the
motion was filed in a state court proceeding seven years before the
Judge took the bench and eight years before the present lawsuit was
filed; (4) the motion related to a legal issue in which the Judge
had never been involved as a practicing attorney or otherwise; and
(5) it was filed by lawyers for the association with whom the Judge
has never been a partner or an associate.
On appeal, the tobacco companies urged a panel of this court
to adopt the rule that any judge who had a “pre-judicial
association with the position” —— not with the parties, not with
the lawyers, but with a “position” —— can never fairly decide a
case that raises questions pertaining to that “position.” In
buying into that proposition, the panel clearly called into
question the oath we take when we become federal judges. If we
should embark on such a perilous course, we will launch a cottage
industry in which investigators will comb the contents of speeches
made, articles written, and pleadings and briefs filed by a judge
prior to his taking of that oath, looking for some trace of
evidence suggesting that, prior to his judgeship, the judge held
views on legal questions that can be used to disqualify him from
hearing cases that implicate such matters. Nothing —— not the
statute, not our jurisprudence, not the public policy underlying
the concept of recusal —— supports the panel’s decision to require
the Judge’s recusal under such attenuated circumstances.
Republic of Panama I correctly notes that this record includes
no evidence of actual bias on the part of the Judge. Republic of
Panama I, 217 F.3d at 347. It nevertheless concludes that nothing
7
more than the mere listing of the Judge’s name on a motion to file
an amicus brief that years earlier had asserted allegations against
tobacco companies similar to those asserted by the plaintiffs in
this case, could lead a reasonable person to doubt the Judge’s
impartiality. Id.
The panel’s analysis of Republic of Panama I relies on but a
single case, Bradshaw v. McCotter, 785 F.2d 1327 (5th Cir. 1986).
In Bradshaw, a criminal defendant argued that a judge on the Texas
Court of Criminal Appeals should have been disqualified because at
the time of the defendant’s conviction the future Judge’s name was
listed on a brief as State Prosecuting Attorney in the defendant’s
appeal. Id. at 1328. The judge in Bradshaw explained that in fact
he had not participated in the prosecution of the case at all, and
that his name had appeared on the brief simply as a matter of
courtesy and protocol. We held that whether the judge actually
participated in the prosecution was immaterial because the listing
of his name on the brief undermined the appearance of impartiality.
Id. at 1329.
Yet, when carefully read, the opinion in Bradshaw makes
pellucid that it does not present a “somewhat similar fact
situation” to that in Republic of Panama I. Republic of Panama I,
217 F.3d at 347. The recusal ordered in Bradshaw was directed at
a judge who was not just correctly listed on the State’s brief as
prosecuting attorney (albeit he did not personally participate in
the prosecution), but who was in fact scheduled to hear the appeal
of the very same case of the very same criminal defendant.
Bradshaw does not deal with a mere amicus; it is not a civil case;
it does not involve a union, trade association, or bar association;
8
it correctly identified the judge as the prosecuting attorney; and
it implicated a substantive pleading —— the appellate brief —— not,
as here, a non-substantive, procedural motion. Because Bradshaw
neither presents nor answers the questions raised by the instant
case, it affords no support for the panel’s decision to require the
Judge’s recusal under the present circumstances.
Although Bradshaw offers no map out of the present situation,
we are not here navigating uncharted waters. In an earlier en banc
decision, this court held that a district judge who, before ever
becoming a judge, served as president of a racially segregated bar
association, was not thereby disqualified from hearing plaintiffs’
claims of racial discrimination in the administration of the
Alabama State Bar examination. Parrish v. Bd. of Comm’rs of the
Ala. State Bar, 524 F.2d 98 (5th Cir. 1975). Even though that
future judge had actually taken steps to change the bar’s
segregation policy, he was faulted by those who sought his recusal
for the failure of his effort to obtain membership for African-
American lawyers during his term of leadership. Id. at 101. We
held in Parrish that the allegation concerning the judge’s “past
activities in the Montgomery [Alabama] Bar Association [] is
essentially an allegation based on the judge’s background and
states no specific facts that would suggest he would be anything
but impartial in the deciding the case before him.” Id.
The facts in Parrish more closely parallel those presented in
this case than do the facts in the Bradshaw decision relied on by
the Republic of Panama I panel. Even if the views expressed in the
amicus brief ten years earlier had been firmly held by the Judge at
the time that the brief was written (note that nothing other than
9
his membership in the amicus association and his prior presidency
of it can be cited as evidence that in fact he held those views),
this would not be grounds for forced recusal under the
jurisprudence of this or any other circuit. More to the point,
that is not the question presented by the record in this case,
which does not indicate that the Judge ever expressed any anti-
tobacco sentiments, either publicly or privately, much less that he
ever participated in any tobacco litigation whatsoever, whether as
a party or as counsel. His only “taint” was his connection to a
bar association that advocated, solely as a friend of the court, a
similar position on similar litigation in state court almost a
decade earlier. Such an attenuated nexus is woefully insufficient
to underpin this court’s interference with the Judge’s decision,
which was well within his discretion.
Equally important in sorting out this issue is the position
taken by the United States Supreme Court. 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 public
statements he had made prior to his appointment to the bench. As
a Department of Justice lawyer, he had testified as an expert
witness before the Senate Judiciary Committee’s Subcommittee on
Constitutional Rights regarding the statutory and constitutional
law dealing with the authority of the executive branch to gather
information. Notably, then-attorney Rehnquist’s remarks included
a reference to the very case involved (Laird), which then was
pending in the D.C. Circuit. Id. at 825-27. The respondents
contended that the Justice should disqualify himself because he had
previously expressed a public view concerning what the law is or
ought to be in the matters presented in the Laird litigation. Id.
10
at 824-25. In declining to recuse, Justice Rehnquist stated:
Proof that a Justice’s mind at the time he
joined the court was a complete tabula rasa in
the area of constitutional adjudication would
be evidence of lack of qualification, not lack
of bias. . . .
The oath prescribed by 28 U.S.C. § 453 which
is taken by each person upon becoming a member
of the federal judiciary requires that he
“administer justice without respect to
persons, and do equal right to the poor and to
the rich,” that he “faithfully and impartially
discharge and perform all the duties incumbent
upon (him) . . . agreeably to the Constitution
and laws of the United States.” Every
litigant is entitled to have his case heard by
a judge mindful of this oath. But neither the
oath, the disqualification statute, nor the
practice of the former Justices of this Court
guarantee a litigant that each judge will
start off from dead center in his willingness
or ability to reconcile the opposing arguments
of counsel with his understanding of the
Constitution and the law. That being the
case, it is not a ground for disqualification
that a judge has prior to his nomination
expressed his then understanding of the
meaning of some particular provision of the
Constitution.
Id., 409 U.S. at 835; 838-39.
In addition to repudiating clear direction from both our own
en banc court and the Supreme Court, the panel opinion disregards
the unanimous voices of other U.S. Courts of Appeals that have
addressed the issue. For example, in Schurz Communications v. FCC,
982 F.2d 1057 (7th Cir. 1992), Judge Richard Posner denied a
recusal motion that was based on an affidavit he had submitted as
an expert witness fifteen years earlier in an antitrust case
involving the identical question presented in the case in which his
11
disqualification was being sought. Judge Posner reasoned that if
28 U.S.C. § 455(a) were interpreted to require recusal in such a
situation,
I would be eternally disqualified from
participating in antitrust or regulatory
cases, because when I was a law professor I
acted frequently as a consultant and
occasionally an as expert witness in
regulatory and antitrust matters that
presented the same types of issues, often in
the same industry, as do cases that come
before this court. No decision supports such
an interpretation.
* * *
The 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 1061-62.
Similarly, in a much more closely analogous case, Cipollone v.
Liggett, 802 F.2d 658 (3rd Cir. 1986), the district judge had,
while in private practice, represented a tobacco company in a case
involving a products liability claim like the one currently pending
before him as a judge. The Third Circuit affirmed the district
court’s decision not to recuse himself, stating:
[P]rior knowledge about legal issues is not a
ground for recusal of a Judge. . . .If Judges
could be disqualified because their knowledge
of legal issues which might be presented in
cases coming before them, then only the least-
informed and worst-prepared lawyers could be
appointed to the bench.
12
Id. at 659-60. See also United States v. Payne, 944 F.2d 1458 (9th
Cir. 1991)(rejecting the notion that generalized policy views,
expertise on and exposure to a subject necessitates recusal);
United States v. Alabama, 828 F.2d 1532 (11th Cir. 1987)(holding
that district judge’s background representing plaintiffs in civil
rights actions does not warrant disqualification in a school
desegregation case brought by United States against Alabama);
Rosquist v. Soo Line Railroad, 692 F.2d 1107 (7th Cir.
1982)(affirming a denial of recusal and holding that a judge is not
required to recuse himself merely because he holds and had
expressed certain views on a subject.)
In the instant litigation, the defendant tobacco companies
imply that the fact that, in the old state case, the name of one of
today’s opposing counsel was listed as counsel for the amicus
association on the same pleading (motion for permission to file an
amicus brief) as was the name of the Judge (erroneously) as
president of the client association —— thereby evidencing that they
belonged to the same bar association —— requires recusal. This
argument is so lacking in merit that it needs no further comment.
Another concern raised by the tobacco defendants is that the Judge
“appeared” to have been involved in litigation against the same
tobacco companies. This too is feckless, as we have long rejected
this “identity of parties” argument. For example, in Chitamacha
Tribe of Louisiana v. Harry L. Laws Co., Inc., 690 F.2d 1157 (5th
13
Cir. 1982), the presiding judge had, during his law practice prior
to assuming the bench some six years earlier, represented Texaco,
currently a defendant in the case before him, on an unrelated
matter. Id. at 1166. Other defendants in the case were related to
partners in the judge’s former law firm. Id. at 1167. We agreed
with the Judge that his recusal was not required, declaring his
connection with Texaco too remote and innocuous to warrant
disqualification. If direct representation of a party (not an
amicus) six years earlier is too remote, surely mere membership in
and past presidency of a bar association whose only nexus with the
appeal then pending before the state supreme court was the filing
of an amicus brief eight years earlier, relating to a common —— but
non-represented —— party, cannot require reversal of the Judge’s
exercise of discretion not to recuse himself.
We can perceive no legitimate basis for disturbing the Judge’s
exercise of discretion in this case and would affirm his denial of
the recusal motion. We are satisfied that this issue cuts across
ideology, politics, and judicial philosophy, and that it has the
potential for undermining the independence of the federal
judiciary. No existing jurisprudence supports, much less requires,
recusal of a judge who, years before taking the judicial oath, had
expressed an opinion on an issue of law, or had represented the
same or a related party, or had belonged to and held office in an
14
organization that advocated a particular view of public policy or
legal interpretation. Never before has any court accepted “issue
recusal” as a ground for reversing a judge who in his own exercise
of discretion, concluded that his recusal was not required. The
panel decision that this court has refused to rehear en banc sets
an alarming precedent by doing precisely that, and trivializes our
oath in the process. For these reasons we are constrained to
dissent from the refusal of a majority of the judges of this court
to vote to rehear this case en banc.
15