Selkridge v. United Omaha Life

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit

2-24-2004

Selkridge v. United Omaha Life
Precedential or Non-Precedential: Precedential

Docket No. 03-1146

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"Selkridge v. United Omaha Life" (2004). 2004 Decisions. Paper 942.
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 Terry M. Halpern
PRECEDENTIAL Suite 314
9003 Havensight M all
Charlotte Amalie, St. Thomas, USVI
UNITED STATES 00802
COURT OF APPEALS Attorneys for Appellant
FOR THE THIRD CIRCUIT
Charles E. Engeman
Simone R.D. Francis (Argued)
NOS. 03-1146 and 03-1147 Ogletree, Deakins, Nash, Smoak &
Stewart
1336 Beltjen Road, Suite 202
MARGARITA SELKRIDGE Charlotte Amalie, St. Thomas, USVI
Appellant 00802
Attorneys for Appellee
v.

UNITED OF OMAHA LIFE
INSURANCE COMPANY OPINION OF THE COURT

On Appeal From the District Court
of the Virgin Islands STAPLETON, Circuit Judge:
(D.C. Civil Action No. 01-cv-00143)
District Judge: Hon. Thomas K. Moore Margarita Selkridge (“Selkridge”) filed
a lawsuit against United of Omaha Life
Insurance Company (“Omaha”) on several
Argued December 8, 2003 state-law theories alleging that she had
been wrongfully denied benefits under her
BEFORE: NYGAARD, BECKER and disability plan. (“Selkridge I.”) After the
STAPLETON, Circuit Judges District Court granted summary judgment
on all of those theories in favor of the sole
(Opinion Filed February 24, 2004) defendant, Selkridge chose not to appeal
that decision. Instead, she filed a new
lawsuit that asserted a claim “arising
under” the Employee Retirement Income
Lee J. Rohn Security Act (“ERISA”) for the wrongful
K. Glenda Cameron (Argued) denial of benefits. (“Selkridge II.”) The
1101 King Street, Suite 2 District Court granted summary judgment
Christiansted, St. Croix, USVI 00820 on res judicata grounds. Selkridge also
and eventually filed a Fed. R. Civ. P. 60(b)
motion seeking to amend the judgment in Selkridge then filed Selkridge I, a diversity
Selkridge I to indicate that the grant of action in the District Court of the Virgin
summary judgment was without prejudice Islands against Omaha alleging breach of
to filing a new lawsuit. The District Court contract, bad faith, fraud, intentional
denied the Rule 60(b) motion because it infliction of emotional distress, and
sought to utilize that Rule as a substitute negligent infliction of emotional distress.
for an appeal.
Omaha moved for summary judgment
Selkridge appeals the grant of summary on all claims Selkridge had alleged against
judgment and the denial of her Rule 60(b) it. The motion contended that all of
motion in Selkridge I and the grant of Selkridge’s claims arose “under the
summary judgment in Selkridge II. We common law of the Territory” and were
determine that we are without jurisdiction therefore “expressly preem pted by
to hear an appeal of the grant of summary ERISA.” JA at 61.
judgment in Selkridge I because an appeal
was not timely taken. While we conclude In her opposition to Omaha’s motion,
that Judge Moore should have recused Selkridge argued that summary judgment
himself before entering the order granting should be denied but went on to make the
summary judgment in Selkridge II and the following request: “[i]f this Court were to
order denying Selkridge’s Rule 60(b) find that the claims are preempted and
motion in Selkridge I, we hold that our must be converted to federal claims,
recognition of his failure to do so as plain Plaintiff respectfully requests that she be
error and our independent, plenary review given the opportunity to amend her
of those orders make further remedial Complaint accordingly to more clearly
action unnecessary. Accordingly, given state her claims as federal violation of
that our independent plenary review ERISA claims.” JA at 156-57.
convinces us that the results reached were
required as a matter of law, we will affirm The District Court held that all of
both December 23, 2002, orders. Selkridge’s claims were preempted by
ERISA and that Omaha was entitled to
I. Background summary judgment on all counts. See
Selkridge v. United of Omaha Life Ins.
Selkridge was enrolled in a group Co., 221 F. Supp. 2d 579 (D.V.I. 2002). It
insurance plan with Omaha during the did not mention the application for leave to
period in which she was employed by the amend found only in Selkridge’s brief.
Virgin Islands Telephone Company and its The Court’s February 22, 2002, order
successors. In December 1996, Selkridge read: “it is hereby ORDERED that
filed an application for long-term disability defendants’ motion for summary judgment
benefits with Omaha. Omaha denied the . . . is GRANTED. . . .” JA at 364. The
claim initially and, following an appeal, order did not expressly reserve to

2
Selkridge a right to pursue ERISA-based motion in Selkridge I were filed, one of
claims in a new action. Selkridge’s attorneys wrote a letter-to-the-
editor of an on-line publication critical of
On April 23, 2002, Selkridge filed a the District Judge presiding over the
new action, Selkridge II, in the District Selkridge matters. The content of the
Court. The complaint asserted that letter was not directly related to either
Selkridge’s claim “arises under ERISA.” Selkridge matter, but the letter prompted a
JA at 390. series of events that will be discussed in
Part III of this opinion relating to the
Omaha moved for summary judgment in propriety of the District Judge’s continuing
Selkridge II on September 23, 2002, to preside over the Selkridge matters.
arguing that Selkridge’s claim “under
ERISA” was barred by res judicata On January 9, 2003, Selkridge filed a
because it arose out of the same set of notice of appeal in Selkridge I seeking to
circumstances at issue in Selkridge I and appeal the February 22, 2002, grant of
could have been litigated in Selkridge I. summary judgment in Selkridge I, the
On October 30, 2002, eight months after December 23, 2002, denial of her Rule
the order granting summary judgment in 60(b) motion, and “the Court’s recusal of
Selkridge I, Selkridge filed a Fed. R. Civ. itself from this case and its subsequent
P. 60(b) motion in Selkridge I. That reinstatement, sua sponte.” SA. On the
motion requested that the District Court same day, Selkridge filed a notice of
“clarify” its February 22, 2002, order to appeal seeking to appeal the December 23,
state that Selkridge’s claims in Selkridge I 2002, grant of summary judgment in
were “converted to federal claims” and to Selkridge II.1
grant Selkridge “leave to amend to plead
claims under ERISA” with respect to
Selkridge I. JA at 719, 726. 1
These notices of appeal were not
included in the appendix filed by
On December 23, 2002, the District
Selkridge. Instead, the appendix included
Court granted summary judgment in
two additional notices of appeal for
Selkridge II on res judicata grounds and
Selkridge I and Selkridge II, both of which
denied the Rule 60(b) motion in Selkridge
were filed on January 13, 2003. The
I on the ground that it was an
January 13, 2003, notice of appeal for
impermissible attempt to utilize that Rule
Selkridge I was the same as the January 9,
as a substitute for an appeal. See Selkridge
2003, notice of appeal for Selkridge I. The
v. United of Omaha Life Ins. Co., 237 F.
January 13, 2003, notice of appeal for
Supp. 2d 600 (D.V.I. 2002).
Selkridge II, however, differed from the
January 9, 2003, notice of appeal for
Just before the summary judgment
Selkridge II, and failed to specify any
motion in Selkridge II and the Rule 60(b)
order being appealed from in Selkridge II.

3
II. Jurisdiction to Hear an Appeal from “A final order is one that ‘ends the
the Grant of Summary Judgment in litigation on the merits and leaves nothing
Selkridge I for the court to do but execute the
judgment.’” Welch v. Folsom, 925 F.2d
Selkridge insists that we have 666, 668 (3d Cir. 1991) (quoting Coopers
jurisdiction to review the summary & Lybrand v. Livesay, 437 U.S. 463, 467
judgment order entered in Selkridge I (1978) (internal quotations omitted)). For
under 28 U.S.C. § 1291, which authorizes purposes of appeal under 28 U.S.C. §
appeals from final decisions of the District 1291, “A summary judgment that fully
Court. We cannot agree. disposes of all claims among all parties is
final.” 15B Charles Alan Wright, Arthur
R. Miller & Edward H. Cooper, Fed. Prac.
& Proc.: Juris. 2d § 3914.28 (2d ed. 1992),
Selkridge has made a motion to
at 202; see Hampton v. Borough of Tinton
correct the appendix with respect to the
Falls Police Dept., 98 F.3d 107, 111 (3d
fact that the January 9, 2003, notices of
Cir. 1996) (“The district court granted
appeal were not included in the appendix.
summary judgment for the defendants as to
Under Fed. R. App. P. 30(a)(2), “[p]arts of
all counts of plaintiffs’ complaint. . . . The
the record may be relied on by the court or
district court’s grant of summary judgment
the parties even though not included in the
is a final order that disposed of all claims,
appendix.” While we need not necessarily
and this court therefore has jurisdiction
correct the appendix, Selkridge’s motion is
over this appeal pursuant to 28 U.S.C. §
unopposed and we will, by separate order,
1291.”). The District Court’s February 22,
grant the motion.
2002, order granted summary judgment in
Selkridge concedes that the January
favor of Omaha on all of Selkridge’s
13, 2003, notice of appeal in Selkridge II
claims on the grounds that the claims were
“does not correctly identify the District
expressly preempted by ERISA. Because
Court Order from which an appeal was
it disposed of all claims with respect to all
taken in that case.” Motion at 3. We will
parties,2 that order was a final order within
consider the January 13, 2003, Selkridge II
notice of appeal as one merely expanding
that which Selkridge sought to appeal in
2
Selkridge II–and not one intended as a That order also met the procedural
substitute for the earlier notice of requirements of Fed. R. Civ. P. 58 for an
appeal–because it provides no indication order that commences the running of the
that it was intended to change the content time for appeal. See Local Union No.
of the earlier notice of appeal. Therefore, 1992 of the Int’l Brotherhood of Electrical
as construed by this Court, Selkridge’s Workers v. The Okonite Co., F.3d ,
notices of appeal in Selkridge II seek to 2004 WL 113150, *5 (3d Cir. 2004) (order
appeal the December 23, 2002, order satisfies Rule 58’s separate document
granting summary judgment to Omaha. requirement where it (1) is self-contained

4
the meaning of 28 U.S.C. § 1291. thought that the District Court had
“overlooked” her request for automatic
Fed. R. App. P. 4(a)(1)(A) requires that conversion of her state law claims into
a notice of appeal be filed “with the ERISA claims, and had also “overlooked”
district clerk within 30 days after the Selkridge’s request for leave to amend, we
judgment or order appealed from is fail to understand how this would excuse
entered,” id., unless certain exceptions counsel from seeking reconsideration by
inapplicable here apply. Selkridge filed the District Court or appealing the District
her notice of appeal in Selkridge I on Court’s decision.
January 9, 2003–over ten months after
summary judgment had been granted in Alternatively, Selkridge argues that her
that matter. It is a well-established rule counsel reasonably viewed the February
that “[t]he time limits for filing a notice of 22, 2002, order as a partial summary
appeal are ‘mandatory and jurisdictional.’” judgment and, accordingly, not as a final
In re Rashid, 210 F.3d 201, 204 (3d Cir. order. While it is true that a grant of
2000) (quoting Krebs Chrysler-Plymouth, “partial summary judgment” under Fed. R.
Inc. v. Valley Motors, Inc., 141 F.3d 490, Civ. P. 56(d) is not a “final” judgment
495 (3d Cir. 1998)); see, e.g., Browder v. within the meaning of 28 U.S.C. § 1291
Director, Dept. of Corrections of Illinois, because it is an adjudication of less than
434 U.S. 257, 264 (1978) (same); U.S. v. the entire action, see 10B Charles Alan
Vastola, 989 F.2d 1318, 1321 (3d Cir. Wright, Arthur R. Miller & Mary Kay
1993) (same). We thus lack jurisdiction to Kane, Fed. Prac. & Proc.: Civil 3d § 2737
review the summary judgment in Selkridge (1998), at 322-25, there is simply no
I. record basis for construing the February
22, 2002, order as a grant of partial
Selkridge first argues that she “did not summary judgment. Omaha moved for
seek reconsideration or appeal the district summary judgment on all claims on the
court’s decision because she reasonably grounds that the claims were expressly
believed that the district court had preempted by ERISA. Although Omaha
overlooked her request for automatic requested that, in the alternative, it be
conversion of [plaintiff’s] claims and leave granted partial summary judgment on
to amend. . . .” Appellant’s Reply Brief at Selkridge’s state law claims should “Count
8-9 (footnote omitted). We are I [be] deemed to constitute a claim for
unpersuaded. If Selkridge’s counsel benefits under ERISA,” JA at 48, the
February 22, 2002, order in explicit terms
grants summary judgment on all claims.3
and separate from the opinion, (2) sets
forth the relief granted, and (3) omits the
3
District Court’s reasons for disposing of We also reject Selkridge’s argument
the parties’ motions as it did). that the filing of her Fed. R. Civ. P. 60(b)

5
 We thus conclude that we lack February 22, 2002, order in Selkridge I.
jurisdiction to review the District Court’s
III. Summary Judgment in Selkridge II
and the Rule 60(b) Motion in Selkridge I:
The Recusal Issue
motion and her subsequent timely appeal
of the denial of that motion entitles her to
Selkridge insists that the summary
a review of the underlying grant of
judgment order in Selkridge II and the
summary judgment on February 22, 2002.
refusal to vacate the judgment in Selkridge
Fed. R. App. P. 4(a)(4)(A) provides a
I must be vacated because Judge Moore’s
limited exception to the time limits for
impartiality when he rendered those
filing a notice of appeal outlined in Fed R.
decisions would be questioned by a
App. P. 4(a)(1)(A).
reasonable person aware of the relevant
If a party timely files in the
facts.
district court any of the
following motions under the
A. Background
F e d e r a l R u l e s o f C i v il
Procedure, the time to file an
On September 3, 2002, Lee J. Rohn,
appeal runs for all parties from
one of Selkridge’s attorneys, wrote a
the entry of the order disposing
l e t te r - to - t h e -e d itor of a n onlin e
of the last such remaining
publication, the St. Croix Source,
motion: . . . (vi) for relief
regarding United States District Judge
under Rule 60 if the motion is
Thomas K. Moore’s performance of his
filed no later than 10 days after
official duties and the fact that Judge
the judgment is entered.
Moore was not being reappointed 4 by
Id. This provision of Fed. R. A pp. P.
President George W. Bush.5 Attorney
4(a)(4)(A), clarifying the relationship
between the time limits for filing a Fed. R.
Civ. P. 60 motion and an appeal under 4
Judges sitting in the District Court of
Fed. R. App. P. 4, makes clear the limited the Virgin Islands are appointed for 10-
circumstances under which an appeal from year terms pursuant to the Revised Organic
a Fed. R. Civ. P. 60(b) motion may address Act of 1954. See 48 U.S.C. 1614(a).
the underlying judgment. See United
5
States v. Fiorelli, 337 F.3d 282, 288 n.3 We take judicial notice of the
(3d Cir. 2003). Selkridge filed her Rule existence of a letter-to-the-editor by
60(b) motion eight months after summary Attorney Rohn published in the St. Croix
judgment was entered on February 22, Source. See, e.g., Ieradi v. Mylan
2002. That motion did not toll the time for Laboratories, Inc., 230 F.3d 594, 598 n.2
appeal of that order because it was not (3d Cir. 2000) (appellate court may take
filed within ten days after summary judicial notice of the existence of a
judgment was entered. newspaper article); Peters v. Delaware

6
Rohn suggested that “[t]he failure of Judge On September 9, 2002, Judge Moore
Tom Moore to be recommended for began issuing sua sponte recusal orders in
reappointment has much less to do with numerous cases involving Attorney Rohn. 8
politics and more to do with the allegations A total of 19 recusal orders were issued
of inappropriate behavior while he was on between September 9, 2002, and October
the bench.” See Lee J. Rohn, Lawyer: 7, 2002, in Judge Moore cases involving
Judge’s Non-Reappointment Not Politics,
St. Croix Source (Sept. 3, 2002). 6
Attorney Rohn then listed in a cursory
fashion seve ral allega tions of
“inappropriate behavior” by Judge Moore.7 were coerced and harassed and
subjected to ex parte instructions
and conversations by Judge M oore
River Port Authority of Pennsylvania and while in jury deliberations; jurors
New Jersey, 16 F.3d 1346, 1356 n.12 (3d complaints of being castigated after
Cir. 1994) (same). reaching a verdict because it was
contrary to what Judge Moore
6
The full text of the letter can be found would have decided; keeping the
in United States v. Roebuck, 289 F. Supp. court house o p e n la te to
2d 678, 684-85 (D.V.I. 2003) (appendix). accommodate the filing of a
petition to keep poor housing out of
7
Wrote Attorney Rohn: a neighborhood that Judge Moore
Judge Moore’s problems lie in the lived in, and then granting the
a l l eg ations of inappropria te motion despite a conflict that
behavior while he was on the requ ire d r e cusal; repeatedly
bench. These include, but are not imposing sanctions without notice
limited to, repeatedly being and a proper ability to respond;
reversed by the Third Circuit [and] being vindictive against
[Court of Appeals], repeated litigants who took a position
disagreements with the judges of contrary to his.
the Third Circuit, rude behavior Id. (alterations in original).
toward attorneys practicing before
8
him, including, but not limited to, We take judicial notice of the
refusing to grant a trial continuance existence of the judicial orders set forth
to a seven months pregnant infra in which Judge Moore recused
attorney desp ite a m edical himself from a large number of Attorney
necessity; ordering attorneys to be Rohn’s cases, and in which Judge Brotman
in his court despite the fact that indicated that nearly all of Attorney
they were also supposed to be Rohn’s cases were being reassigned to him
before the Third Circuit at the same for “mediation and/or settlement
time; complaints by jurors that they discussions.”

7
Attorney Rohn. 9 Virtually all of these cases were then
reassigned to Judge Brotman for purposes
of mediation and settlement negotiations.10
9
See Antonie, et al. v. VI Port
Authority, et al., V.I. Civ. No. 2001-63 Sept. 10, 2002); Souder v. Withers, Civ
(recusal order dated Sept. 9, 2002); No. 2000-91 (recusal order dated Sept. 20,
Bolinger v. Virgin Islands Telephone 2002); Anderson v. Government of the
Corp., et al., V.I. Civ. No. 2002-49 Virgin Islands, et al., V.I. Civ. No. 2001-
(recusal order dated Sept. 9, 2002); Gore, 149 (recusal order dated Sept. 26, 2002);
et al. v. Prosser, et al., V.I. Civ. No. 2001- Airo v. Sugar Bay Club, et al., V.I. Civ.
003 (recusal order dated Sept. 9, 2002); No. 2000-134 (recusal order dated Oct. 1,
Hendricks v. Belardo, V.I. Civ. No. 1999- 2002); Derr v. BCM/CHI Frenchmen’s
033 (recusal order dated Sept. 9, 2002); Reef, Inc., V.I. Civ. No. 2001-148 (recusal
Jones v. Daily News Publishing Co., et al., order dated Oct. 7, 2002).
V.I. Civ. No. 1999-138 (recusal order
10
dated Sept. 9, 2002); Lang v. United See Antonie, et al. v. VI Port
States, V.I. Civ. No. 2000-100 (recusal Authority, et al., V.I. Civ. No. 2001-63
order dated Sept. 9, 2002); Matheson v. (reassignment notice dated Dec. 3, 2002);
Virgin Islands Community Bank, et al., Bolinger v. Virgin Islands Telephone
V.I. Civ. No. 2000-80 (recusal order dated Corp., et al., V.I. Civ. No. 2002-49
Sept. 9, 2002); Nyfield v. Virgin Islands (reassignment notice dated Dec. 3, 2002);
Telephone Corp., et al., V.I. Civ. No. Gore, et al. v. Prosser, et al., V.I. Civ. No.
2001-53 (Sept. 9, 2002); Sweeney v. Virgin 2001-003 (reassignment notice dated Dec.
Islands Telephone Corp., et al., V.I. Civ. 3, 2002); Jones v. Daily News Publishing
No. 2001-53 (recusal order dated Sept. 9, Co., et al., V.I. Civ. No. 1999-138
2002); Williams v. Kmart Corp., V.I. Civ. (reassignment notice dated Dec. 3, 2002);
No. 1999-102 (recusal order dated Sept. 9, Lang v. United States, V.I. Civ. No. 2000-
2002); Ch apa rro v. Inno vative 100 (reassignment notice dated Dec. 3,
Communications Corp., V.I. Civ. No. 2002); Matheson v. Virgin Islands
1999-190 (recusal order dated Sept. 10, Community Bank, et al., V.I. Civ. No.
2002); Island Management Group v. Bank 2000-80 (reassignment notice dated Dec.
of Nova Scotia, et al., V.I. Civ. No. 1999- 3, 2002); Nyfield v. Virgin Islands
104 (recusal order dated Sept. 10, 2002); Telephone Corp., et al., V.I. Civ. No.
Martin v. Virgin Islands Telephone Corp., 2001-53 (reassignment notice dated Dec.
et al., V.I. Civ. No. 1999-202 (recusal 3, 2002); Sweeney v. Virgin Islands
order dated Sept. 10, 2002); Trantham v. Telephone Corp., et al., V.I. Civ. No.
Ford, et al., V.I. Civ. No. 1998-140 2001-53 (reassignment notice dated Dec.
(recusal order dated Sept. 10, 2002); 3, 2002); Chaparro v. Innovative
VECC, et al. v. The Bank of Nova Scotia, Communications Corp., V.I. Civ. No.
V.I. Civ. No. 2002-72 (recusal order dated 1999-190 (reassignment notice dated Dec.

8
In addition, at least twelve other Judge sponte recusal orders were issued by Judge
Moore cases involving Attorney Rohn Moore in these cases.12 It is in this last
were reassigned to Judge Brotman for
settlement purposes11 although no sua
2001-154 (reassignment notice dated Dec.
5, 2002); Selkridge v. United Omaha Life
3, 2002); Airo v. Sugar Bay Club, et al., Ins. Co., V.I. Civ. No. 2002-73
V.I. Civ. No. 2000-134 (reassignment (reassignment notice dated Dec. 5, 2002);
notice dated Dec. 5, 2002); Anderson v. Sexton, et al. v. Equivest St. Thomas, et al.,
Government of the Virgin Islands, et al., V.I. Civ. No. 2002-96 (reassignment
V.I. Civ. No. 2001-149 (reassignment notice dated Dec. 5, 2002); Collins v.
notice dated Dec. 5, 2002); Derr v. Castle Acquisitions, V.I. Civ. No. 99-212
BCM/CHI Frenchmen’s Reef, Inc., V.I. (reassignment notice dated Dec. 20, 2002);
Civ. No. 2001-148 (reassignment notice Domino Oil v. Phoenix Assurance Co. of
dated Dec. 5, 2002); VECC, et al. v. The New York, V.I. Civ. No. 1996-99
Bank of Nova Scotia, V.I. Civ. No. 2002- (reassignment notice dated Dec. 20, 2002);
72 (reassignment notice dated Dec. 5, Soltau v. CTF St. Thomas Corp., V.I. Civ.
2002); Martin v. Virgin Islands Telephone No. 1998-143 (reassignment notice dated
Corp., et al., V.I. Civ. No. 1999-202 Dec. 20, 2002); Smith v. Elias, et al., V.I.
(reassignment notice dated Dec. 12, 2002); Civ. No. 02-14 (scheduling order for a
Souder v. Withers, Civ. No. 2000-91 status hearing and settlement discussions
(reassignment notice dated Dec. 20, 2002); dated Dec. 23, 2002); Khan v. Soleiman, et
see also Trantham v. Ford, et al., V.I. Civ. al., V.I. Civ. No. 2000-223 (reassignment
No. 1998-140 (order from Magistrate notice dated Jan. 14, 2003).
Judge Jeffrey L. Resnick dated Dec. 4,
12
2002, directing the parties to discuss Selkridge included in her appendix
settlement with Judge Brotman). an “Affidavit of Lee J. Rohn in Support of
Motion for Judicial Recusal.” SA at 31-
11
See Donastorg, Jr. v. Innovative 33. According to the Affidavit:
Communications Corp., V.I. Civ. No. Magistrate Judge Barnard said
2002-97 (reassignment notice dated Dec. that Judge Moore was upset with
3, 2002); Dabrowski v. Emerald Beach me for having written the letter
C o rp ., V .I. C iv. N o. 2001- 121 criticizing his judicial
(reassignment notice dated Dec. 5, 2002); performance and temperament.
Greene v. Honda Motor Co., Ltd., et al., Magistrate Judge Barnard further
V.I. Civ. No. 2002-159 (reassignment stated that he had been instructed
notice dated Dec. 5, 2002); Konikoff v. Judge Barnard [sic] to prepare
Peninsular and Oriental Steam Navigation recusal Orders for every case in
Co., et al., V.I. Civ. No. 1999-224 which I was attorney of record.
(reassignment notice dated Dec. 5, 2002); SA at 32. The affidavit does not make
Mahoney v. Bulhof, et al., V.I. Civ. No. clear as to who instructed M agistrate

9
group of matters, where no recusal order December 23, 2002, Judge Moore had
by Judge Moore had been issued but the already granted summary judgment in
case had nonetheless been reassigned to Selkridge II on all claims in favor of
Judge Brotman for settlement negotiations, Omaha, and had denied Selkridge’s Rule
that Selkridge II landed.13 60(b) motion in Selkridge I.

Selkridge was notified on December 9, Also on December 23, 2002, Magistrate
2002, by Judge Brotman that her matter Judge Geoffrey W. Barnard wrote to Judge
had been reassigned to Judge Brotman for Brotman by letter, a copy of which was
settlement negotiations.14 In an order sent to the parties. The letter read, in part:
dated December 23, 2002, and filed on “This is to confirm our discussion earlier
December 27, 2002, Judge Brotman regarding the above-referenced cases.
scheduled a conference for a “status These cases were inadvertently categorized
hearing and settlement discussions” for as cases from which Judge Moore recused
Selkridge II. JA at 764. Apparently himself. However, Judge Moore has
unbeknownst to Judge Brotman, by way of confirmed that he will continue to preside
a memorandum opinion and orders dated over these cases.” JA at 766. Judge
December 20, 2002, and filed on Brotman then notified the parties that his
previous scheduling order was vacated, in
light of Judge Moore’s December 20,
Judge Barnard to prepare recusal orders in 2002, opinion.
all of Attorney Rohn’s cases. In any case,
we cannot consider the affidavit, which Two published opinions from the
purports to have been prepared for the District Court of the Virgin Islands,
United States v. Roebuck, V.I. Crim. No. written after the orders being appealed
02-171 case. The affidavit is outside of from in this case were filed, purport to
the record for Selkridge I and Selkridge II, address Judge Moore’s recusals (or
and Selkridge suggests no theory under withholding of recusals) with respect to
which we may consider the affidavit. Attorney Rohn’s cases. See United States
13
v. Roebuck, 271 F. Supp. 2d 712 (D.V.I.
Neither a recusal order nor a 2003); United States v. Roebuck, 289 F.
reassignment notice was issued with Supp. 2d 678 (D.V.I. 2003). 15
respect to Selkridge I. The case was not
reassigned for settlement purposes because
final judgment had been entered and only
15
a Fed. R. Civ. P. 60(b) motion was “[W]e recognize that we have the
pending. power to take judicial notice of subsequent
developments in related proceedings since
14
See Selkridge v. United Omaha Life the appeal in each case was filed.”
Ins. Co., V.I. Civ. No. 2002-73 Federal Ins. Co. v. Richard I. Rubin &
(reassignment notice dated Dec. 5, 2002). Co., Inc., 12 F.3d 1270, 1284 (3d Cir.

10
 In United States v. Roebuck, 271 F.
Supp. 2d 712 (D.V.I. 2003), Judge
Brotman, presiding over a motion to quash
1993). We take judicial notice of these
subpoenas to compel the testimony of four
published opinions to the extent that they
federal judges at an evidentiary hearing on
discuss Selkridge I and Selkridge II, and to
a motion to recuse Judge Moore from
the extent they discuss whether Judge
presiding over that case, noted that:
Moore recused himself from Attorney
Rohn’s cases. With respect to United
Shortly after Judge Moore had
States v. Roebuck, 289 F. Supp. 2d 678
recused himself from all of Attorney
(D.V.I. 2003) (Moore, J.), we take judicial
Rohn’s cases, he withdrew his
notice of the public statements made by
recusal in some cases, including the
Judge M oore in that opinion.
matters of Selkridge v. United of
We recognize that “[a] court may
Omaha Life Insurance Company,
take judicial notice of an adjudicative fact
V.I. Civil Action Nos. 2001-143 and
if that fact is not subject to reasonable
2002-73, without giving a reason for
dispute” and “[a] judicially noticed fact
this decision. (See Selkridge v.
must either be generally known within the
United of Omaha Life Ins. Co., 237
jurisdiction of the trial court, or be capable
F. Supp. 2d 600 (D.V.I. Dec. 20,
of accurate and ready determination by
2002) (M oore, J.)).
resort to sources whose accuracy cannot
reasonably be questioned.” Werner v.
Id. at 715. Thus, there is a published
Werner, 267 F.3d 288, 295 (3d Cir. 2001).
opinion of the District Court representing
With respect to both published
that Judge Moore recused himself in
Roebuck opinions, we do not take judicial
Selkridge I and Selkridge II, and then
notice for “the truth of the facts recited
“withdrew” that recusal.
therein, but for the existence of the
opinion, which is not subject to reasonable
Judge Moore, in later proceedings in
dispute over its authenticity.” Southern
Roebuck, indicated that he “never recused
Cross Overseas Agencies, Inc. v. Wah
[himself] from Selkridge” and commented
Kwong Shipping Group Ltd., 181 F.3d
on his reason for recusing himself in many
410, 426 (3d Cir. 1999). For example, to
of Attorney Rohn’s cases:
the extent Judge Moore expressed that he
was “initially upset at the viciousness of
First, I entered no blanket order of
the letter [by Attorney Rohn],” Roebuck,
recusal from all of Lee Rohn’s cases
289 F. Supp. 2d at 682, we do not purport
to be taking judicial notice of the fact that
Judge Moore was actually upset at
Attorney Rohn. We take judicial notice public statement indicating that he was
for the more limited purpose of “initially upset at the viciousness” of
recognizing that Judge Moore made a Attorney Rohn’s letter.

11
. . . . Second, I entered recusal reflect, and, as the saying goes, time
orders in only some, but not all, of heals all wounds. I have concluded
Attorney Rohn’s then-pending cases. that this was just Lee Rohn being
Third, I have not made any rulings in Lee Rohn and doing what Lee Rohn
any of those cases from which I have thinks she must do to win.
recused myself. The Selkridge matter
is one of those in which I have never United States v. Roebuck, 289 F. Supp. 2d
entered an order of recusal. Thus, 678, 681-82 (D.V.I. 2003) (footnotes
Attorney Rohn’s claim that I omitted). Thus, while Judge M oore
deliberately “unrecused” myself just characterized the group of cases referred to
to be able to rule against her client is Judge Brotman as the “Rohn recusal
paten tly false. Although th e cases,” there were some of these cases,
mag istrate judg e inad verte ntly including Selkridge II, in which Judge
included Selkridge among those Moore maintains that he did not recuse
cases sent to the judge who had been himself.
designated to oversee the Rohn
r e cusal cases for settleme nt B. Standard of Review
negotiations, the fact remains that I
never recused myself from Selkridge. Where a motion for disqualification was
I ruled on the facts and law that I made in the District Court, we review the
believe governed the decision of the denial of such a motion for abuse of
case. I understand my rulings are on discretion. See, e.g., General Motors
appeal, and, as always, the Court of Corp. v. New A.C. Chevrolet, Inc., 263
Appeals will have the last word if it F.3d 296, 336 n.25 (3d Cir. 2001);
disagrees with my decision. S ec ur ac om m Co nsu lting , In c . v.
Securacom Inc., 224 F.3d 273, 278 (3d
I did recuse myself from some of Cir. 2000). However, Selkridge made no
Attorney Rohn’s then-pending cases motion in the District Court for Judge
because her personal attack in the St. Moore’s recusal from Selkridge I or
Thomas Source stung when I first Selkridge II at any time after the events at
read it. I reiterate that these recusal issue here took place.
orders had absolutely nothing to do
with any antipathy or prejudice Where a party has not requested that the
against any of her clients or any district judge recuse himself or herself
concern that I could not be fair and during proceedings in the district court, we
impartial in handling their cases. review a recusal argument made on appeal
Several months have now gone by
and although I was initially upset at
the viciousness of the letter, the
passage of time has allowed me to

12
for plain error. 16 See, e.g., Osei-Afriyie by 1979). 17
Osei-Afriyie v. Medical College of
Pennsylvania, 937 F.2d 876, 881 (3d Cir.
1991); United States v. Dalfonso, 707 F.2d 17
Selkridge maintains that her counsel
757, 760 (3d Cir. 1983); United States v.
had no fair opportunity to move for recusal
Schreiber, 599 F.2d 534, 535 (3d Cir.
in the District Court. Counsel was aware
that Judge Moore had recused himself in
19 of her cases and that he had transferred
these cases and another group of cases in
which no recusal orders had been issued to
16
We recognize that the Second Judge Brotman for settlement discussions.
Circuit has, in the civil context, reviewed Counsel may well have expected Judge
a party’s argument made for the first time Moore to recuse in this other group of
on appeal–that the trial judge should have cases (as he had done with the other 19
recused himself or h erself–under cases) if they did not settle. Moreover,
fundamental error analysis. See Taylor v. based on Judge Brotman’s December 9th
Vermont Dept. of Educ., 313 F.3d 768, 795 order, counsel may well have anticipated
(2d Cir. 2002) (“In the civil context, that, at a minimum, Judge Moore would
however, we reverse only if there has been take no further action in these cases unless
fundamental error. Fundamental error is and until settlement discussions proved
more egregious than the plain error that unfruitful. Judge Moore’s December 23rd
can excuse a procedural default in a final judgment, accordingly, may have
criminal trial, and is so serious and come as a surprise. Finally, when the final
flagrant that it goes to the very integrity of judgment was received, it was apparent
the proceeding.”) (internal quotations, from the surrounding circumstances that
citations, and alterations omitted). As Fed. Judge Moore must have considered the
R. Crim. P. 52(b), upon which plain error recusal issue. At that point, counsel may
analysis is based, does not apply in the well have considered a motion in the
civil setting, Taylor suggests that District Court to be pointless. An
fundamental error analysis should be argument in favor of applying an abuse of
applied. Nonetheless, this Court has discretion standard of review has some
applied plain error analysis, in the civil appeal in this context. See United States v.
context, to a party’s argument for the first Antar, 53 F.3d 568, 573 n.6 (3d Cir. 1995)
time on appeal that the trial judge should (expressing doubt as to whether the plain
have recused himself or herself. See error standard of review applies where
Osei-Afriyie by Osei-Afriyie v. Medical statement at issue was made by district
College of Pennsylvania, 937 F.2d 876, judge after conviction, and counsel may
881 (3d Cir. 1991). Accordingly, we are have reasonably thought that making a
bound to apply plain error analysis. recusal motion was pointless; nonetheless,
plain error standard of review applied

13
 Under the plain error standard of the forfeited error [is] within the sound
review, a District Court’s order may be discretion of the court of appeals, and the
reversed only when “[t]here [was] an court should not exercise that discretion
‘error’ that is ‘plain’ and that ‘affect[s] unless the error seriously affect[s] the
substantial rights.’ ” Antar, 53 F.3d at 573 fairness, integrity or public reputation of
(quoting United States v. Olano, 507 U.S. judicial proceedings.” Olano, 507 U.S. at
725, 732 (1993)) (alterations in original). 732 (second alteration in original and
Normally, the requirement that the error internal quotations omitted).
“affect substantial rights” is not satisfied
absent an affirmative showing “that the C. The Law of Recusal
error [was] prejudicial. It must have
affected the outcome of the district court Section 455(a) of Title 28, United States
proceedings.” Olano, 507 U.S. at 734. Code, requires that:
There is at least one situation, however, in
which prejudice may be presumed without Any justice, judge, or magistrate
affirmative evidence that the alleged error judge of the United States shall
affected the outcome. As we held in disqualify himself in any proceeding
United States v. Antar, 53 F.3d 568, 573- in which his impartiality might
79 (3d Cir. 1995) (applying plain error reasonably be questioned.
review where a trial judge’s failure to
recuse was first raised on appeal), 28 U.S.C. § 455(a); see Alexander v.
prejudice will be presumed and plain error Primerica Holdings, Inc., 10 F.3d 155, 162
review is appropriate where a district (3d Cir. 1993) (“Whenever a judge’s
judge allegedly failed to recuse despite an impartiality ‘m ight reason ab ly be
appearance of partiality. Because “the questioned’ in a proceeding, 28 U.S.C. §
touchstone of recusal is the integrity of the 455(a) commands the judge to disqualify
judiciary . . . prejudice is presumed” once himself sua sponte in that proceeding.”).
“the appearance of partiality is shown.”
Id. at 573 n.7. “A party seeking recusal need not show
actual bias on the part of the court, only
Even where the error is plain and affects the possibility of bias. . . . Under § 455(a),
substantial rights, the decision to “correct if a reasonable man, were he to know all
the circumstances, would harbor doubts
about the judge’s impartiality under the
applicable standard, then the judge must
where parties both conceded it would
recuse.” In re Prudential Ins. Co. of
apply). Nevertheless, since it is clear that
America Sales Practices Litigation, 148
we may review for plain error and since
F.3d 283, 343 (3d Cir. 1998) (internal
we believe that standard is satisfied here,
quotations omitted); see Massachusetts
we proceed hereafter with plain error
School of Law at Andover, Inc. v.
review.

14
American Bar Ass’n, 107 F.3d 1026, 1042 If it were the case that Judge Moore had
(3d Cir. 1997) (“The standard for recusal recused himself in Selkridge I and
is whether an objective observer Selkridge II and then unrecused himself,
reasonably might question the judge’s our task would be an easy one. “Once a
impartiality.”) judge has disqualified himself, he or she
may enter no further orders in the case.
Generally, “beliefs or opinions which His power is limited to performing
merit recusal must involve an extrajudicial ministerial duties necessary to transfer the
factor.” Antar, 53 F.3d at 574. case to another judge (including the
“[O]pinions formed by the judge on the entering of ‘housekeeping’ orders).”
basis of facts introduced or events Moody v. Simmons, 858 F.2d 137, 143 (3d
occurring in the course of the current Cir. 1988) (citations omitted). But the
proceedings, or of prior proceedings, do dockets in these cases do not reflect that
not constitute a basis for a bias or partiality such a recusal order was entered in either
motion unless they display a deep-seated of them, and we will analyze the recusal
favoritism or antagonism that would make issue on the assumption that there were no
fair judgment impossible.” Liteky v. such recusals.18
United States, 510 U.S. 540, 555 (1994).
D. Section 455(a) Analysis
There is no dispute here that the source
of Judge Moore’s alleged bias involved an We agree with Omaha that the fact that
extrajudicial factor. The basis for one of Selkridge’s attorneys wrote a letter-
Selkridge’s concern that Judge Moore had to-the-editor of a newspaper regarding
become biased against her was a letter Judge Moore is, alone, of little probative
written by her counsel to a local value with respect to whether a reasonable
newspaper decrying Judge Moore’s person, knowing all of the circumstances,
performance as a judge, and Judge w o u l d q u e s t i o n Ju d g e M o o r e ’ s
Moore’s reactio ns to th at letter. impartiality. As the Court of Appeals for
Accordingly, a significant extrajudicial the Second Circuit explained with regard
factor is present and we review Judge to a letter sent by a litigant to a judge that
Moore’s lack of recusal under the questioned the judge’s motivations and
objective standard of whether a intentions, “[t]his letter may very well
“reasonable man, were he to know all the establish [the litigant]’s feelings toward
circumstances, would harbor doubts about
the judge’s impartiality” under § 455(a).
Antar, 53 F.3d at 574 (quoting In re 18
As we note hereafter, this does not
Larson, 43 F.3d 410, 415 (8th Cir. 1994)
mean that the existence of ambiguity on
(quoting Potashnick v. Port City Constr.
the public record regarding whether
Co., 609 F.2d 1101, 1111 (5th Cir.
recusals occurred is irrelevant to our
1980))).
analysis of the recusal issue.

15
[the judge], but has no tendency to show Moore should have recused himself was
the latter’s feelings toward [the litigant]. . the letter written by Selkridge’s counsel
. .” King v. United States, 576 F.2d 432, taking issue with Judge Moore’s
437 (2d Cir. 1978); see United States v. performance, there would be little basis for
Wolfson, 558 F.2d 59, 61-62 (2d Cir. arguing that he should have recused. It is
1977) (litigant’s letter to newspaper his reaction to counsel’s letter that raises
(which was never published), copied to the the difficult issues here presented.
judge, which accused the judge of
participating in a “scheme to frame” the We first address the circumstances
litigant, “only establish[ed] [the litigant]’s under which the December 23, 2002,
feelings towards [the judge], not the orders were entered by Judge M oore. A
reverse”); see also United States v. letter written by Attorney Rohn and
Helmsley, 760 F. Supp. 338, 342 directly challenging the competence of
(S.D.N.Y. 1991) (“Where the issue is not Judge Moore had been published on
hostility displayed by the judge, but September 3rd. Commencing six days
hostility displayed toward the judge, the later, and continuing over a period of a
Second Circuit has found that hostile month, Judge M oore recused himself in 19
attacks even by a criminal defendant, cases involving Attorney Rohn. Almost
much less by the defendant's lawyer, are all of these cases were reassigned to Judge
not a sufficient basis for recusal.”). Brotman, a visiting judge, for settlement
discussions only, presumably so that
Were the rule otherwise, “those litigants permanent reassignment would be required
fortunate enough to have easy access to the in only those that did not settle. These
media could make charges against a recusals and reassignments were made sua
judge’s impartiality that would effectively sponte and without explanation. In
veto t h e assignment of judges. addition, prior to December 23rd, at least
Judge-shopping would then become an twelve more cases of Judge Moore’s
additional and potent tactical weapon in involving Attorney Rohn were transferred
the skilled practitioner’s arsenal.” In re from Judge Moore to Judge Brotman for
Drexel Burnham Lambert Inc., 861 F.2d settlement negotiations, raising the
1307, 1309 (2d Cir. 1988). We therefore possibility that Judge Moore was
agree with Judge Moore’s view of recusal considering recusal in such of these cases
law, expressed in United States v. as did not settle. Again, the reassignments
Roebuck, 289 F. Supp. 2d 678 (D.V.I. came sua sponte and without explanation.
2003), that “an attorney [may not] be
allowed to use her calculated personal Because these extraordinary activities in
attack on a sitting judge as a technique to Judge Moore’s cases involving Attorney
prevent that judge from presiding over any Rohn followed almost immediately on the
of her cases. . . .” Id. at 682. If the only heels of such a critical publication and
basis for Selkridge’s argument that Judge because no alternative explanation was

16
given for them, we believe they would have serious reason to question
suggest to a reasonable person that Judge whether prior rulings in the case
Moore was sufficiently upset by the letter were based on im partial
that he considered himself unable to be considerations or on the judge's
objective in her cases. Moreover, in the stated goal. The fact that the judge’s
absence of an alternative explanation motivation came to light only after
suggesting a contrary conclusion, we the conclusion of the trial would be
believe a reasonable person would of no moment.
question Judge M oore’s ability to be
objective at that point in time in all of Antar, 53 F.3d at 576. Based on Antar, we
Attorney Rohn’s cases. conclude that we must consider
developments between December 23,
Further, because the ultimate issue here 2002, and the submission of this direct
is whether the public can have confidence appeal.
in the integrity of the court’s judgments,
we are called to consider statements of the This conclusion is, of course, important
court following December 23, 2002, to the because Judge Moore, after December 23,
extent they bear upon that issue. In United 2002, had occasion to comment on the
States v. Antar, 53 F.3d 568 (3d Cir. extraordinary activity in Attorney Rohn’s
1995), the defendant challenged the cases prior to that date. Writing 14 months
validity of his conviction on the ground after the publication of Rohn’s letter and
that the trial judge was biased and should 11 months after December 23, 2002, Judge
not have presided over his trial. The Moore acknowledged that he had “entered
principal basis for the charge of bias was a recusal orders in . . . some, but not all, of
statement made by the judge at the Attorney Rohn’s . . . pending cases”
conclusion of the trial. We there rejected because he was “stung” by “her personal
the idea that we should look only at the attack” and “upset at the viciousness” of
appearance of matters at the time of trial: her “scurrilous article.” He reported,
however, that “the passage of time [had]
We reject the implications of the allowed [him] to reflect, and . . . [had]
government’s argument–that because heal[ed] all wounds.” Roebuck, 289 F.
the statement occurred after the trial, Supp. 2d at 682. Judge Moore thus
it cannot form the basis of an confirmed that he was sufficiently upset
allegation of bias during the trial. with Attorney Rohn in the Fall of 2002
Suppose, for instance, that at that he recused in some of her cases.
sentencing the district judge informs While he insisted that he did not recuse in
a defendant that throughout the trial all of Attorney Rohn’s cases, he offered no
his object had been to see the explanation for why he believed he could
defendant behind bars. A reasonable be objective in some of her cases even
observer in such a scenario would though he could not be in others. As a

17
result, we believe that Judge Moore’s E. Holding
opinion served to reinforce the conclusion
that a reasonable person would have Judge Moore’s reaction to Attorney
reached viewing matters as of December Rohn’s intemperate public criticism is
23rd – that there was reason to “harbor certainly understandable. Moreover, his
doubts about the judge’s impartiality” sensitivity to the possible impact of that
when he was deliberating over the motions reaction on his ability to judge fairly cases
pending in Selkridge I and Selkridge II and in which she was counsel is commendable.
writing his December 23, 2002, opinion. We further agree with Judge Moore that
the passage of time does, indeed, heal
Nor is the appearance of impropriety wounds, and we do not mean to suggest
assuaged by the co nflict in th e that it is not presently appropriate for him
subsequently developed record over to sit on cases involving Attorney Rohn. 19
whether Judge Moore did at one point
recuse in the Selkridge cases. We accept We do hold, however, that a trial judge
for present purposes that Judge Brotman cannot, without explanation, recuse
was mistaken in his belief that Judge himself in a substantial number of cases
Moore had recused himself in all of and, at substantially the same time, decline
Attorney Rohn’s cases. Nevertheless, to recuse himself in another group of cases
there is a conflict in the public record that that appears indistinguishable for purposes
the litigants have no means of resolving of recusal. From an appearance
and that conflict casts a shadow on Judge perspective, that is precisely what Judge
Moore’s impartiality in the Selkridge Moore did here, and he committed plain
cases. error in doing so.

Viewing the record as a whole, given F. The Remedy
the appearance that Judge Moore’s
impartiality was compromised, we “Although § 455 defines the
conclude that it was error for Judge Moore c i r c u m s ta n c e s that m a n d a te
to enter the December 23rd orders in disqualification of federal judges, it neither
Selkridge I and Selkridge II, and that this prescribes nor prohibits any particular
error was plain. Further, because this error remedy for a violation of that duty.
compromised the integrity of the [Rather,] Congress has wisely delegated to
proceedings, “prejudice is presumed.”
Antar, 53 F.3d at 573. Finally, we exercise
our discretion to review this claim of error 19
In particular, we, of course, express
because it “seriously affect[ed] the . . .
no opinion on the propriety of Judge
integrity [and] public reputation of judicial
Moore’s refusal to recuse himself in
proceedings.” Olano, 507 U.S. at 732
United States v. Roebuck, 289 F. Supp. 2d
(internal quotations omitted).
678 (D.V.I. 2003).

18
the judiciary the task of fashioning Corp., 335 F.3d 476, 485-86 (5th Cir.
remedies that will best serve the purpose 2003); In re Continental Airlines Corp.,
of the legislation.” Liljeberg v. Health 901 F.2d 1259, 1263 (5th Cir. 1990);
Services Acquisition Corp., 486 U.S. 847, Parker v. Connors Steel Co., 855 F.2d
862 (1988). 1510, 1525-27 (11th Cir. 1988).

In Liljeberg, the Supreme Court Compared with situations like the one
approved the vacatur of a final judgment before us in In re School Asbestos
entered by a district judge who should Litigation, determining the appropriate
have disqualified himself. It explained, remedy is not a complex matter. The letter
however, that this remedy would not be came late in the litigation, and only the
required in all such cases. It suggested final decisions currently before us on
that, in deciding whether to vacate such a direct appeal could possibly have been
final judgment, a court should “consider affected. Moreover, both of those
the risk of injustice to the parties in the decisions are subject to plenary review by
particular case, the risk that the denial of this court, one because it is a summary
relief will produce injustice in other cases, judgment and the other because it is based
and the risk of undermining the public’s on the District Court’s resolution of a pure
confidence in the judicial process.” Id. at issue of law.
864. With respect to the second factor, the
Court concluded that vacating the In this context, we have two choices:
judgment would help prevent injustice in (1) we can vacate the orders before us and
other cases “by encouraging a judge or remand with instructions that the cases be
litigant to more carefully examine possible assigned to a new district judge for
grounds for disqualification and to resolution of the pending motions and
promptly disclose them when discovered.” possible further proceedings; or (2) we can
Id. at 868. independently review the record and
determine whether the res judicata and
The Liljeberg Court expressly noted that Rule 60(b) issues were correctly decided
“[a]s in other areas of the law, there is . . . as a matter of law and remand only in the
room for harmless error” in § 455(a) event they were not, reasoning that, if
analysis, id. at 862, and we have heretofore impartial decision makers of this court, in
read that case as approving harmless error addition to finding a violation of § 455(a),
analysis when applied with sensitivity not independently approve the orders at issue,
only to the interests of the parties, but also any error is harmless and Omaha is fairly
to the interests of other litigants and to the entitled to its judgments. Where, as here,
public’s interest in the integrity of the it appears clear that the failure to recuse
court system. See In re School Asbestos did not affect the dispositions of the
Litigation, 977 F.2d 764, 785-88 (3d Cir. plaintiff’s claims and a remand,
1992); see also Patterson v. Mobil Oil accordingly, would only prolong the

19
litigations, we conclude that the second IV. Summary Judgment in Selkridge II:
approach is the appropriate one. The Merits

As we explain hereafter, any trial judge The District Court granted summary
presented with this record would be judgment for Omaha in Selkridge II based
required as a matter of law to enter on claim preclusion. For claim preclusion
summary judgment in Selkridge II and to to apply, there must have been “[1] a final
decline to vacate the judgment in Selkridge judgment on the merits in [2] a prior suit
I. As a result, we perceive no unfairness to involving the same parties or their privies,
Selkridge from declining to vacate the and [3] a subsequent suit based on the
judgments against her, and it seems same cause of action.” General Elec. Co.
apparent to us that a contrary decision v. Deutz AG, 270 F.3d 144, 158 (3d Cir.
wo uld serve only to impose an 2001). “If these three factors are present,
unnecessary, additional litigation burden a claim that was or could have been raised
on Omaha and the District Court. previously must be dismissed as
Moreover, in these circumstances, we precluded.” CoreStates Bank, N.A. v.
believe our determination that a violation Huls America, Inc., 176 F.3d 187, 194 (3d
of § 455(a) occurred will provide virtually Cir. 1999). Selkridge argues only that the
the same encouragement to other judges ERISA claim in Selkridge II is not subject
and litigants as would a remand. Finally, to claim preclusion because the decision in
we conclude (1) that our independent Selkridge I was neither final nor on the
review and determination of the relevant
legal issues will provide as much
legitimacy to these particular final
before the compromised judge is presumed
judgments as they would have following a
for the purpose of determining whether
remand, reexamination by another District
appellate review is permissible in the
Judge, and a subsequent appellate
absence of a motion to recuse. If a
affirmance; and (2) that our finding of
contrary result had been reached in Antar,
plain error on Judge Moore’s part
there would have been no appellate review
constitutes a corrective process sufficient
and the District Court’s judgment would
to assure continuing confidence in the
have remained in place despite the fact that
judicial process.20
its integrity had been impaired, a result
that no appellate court could sanction in
good conscience. Our “harmless error”
20
Our use of “harmless error” analysis analysis, on the other hand, accepts the
in determining the appropriate remedy is presumption of prejudice at the trial level,
not in tension with the Court’s holding in but takes into account the fact that plain
Antar that prejudice is presumed once an error review makes further, curative
appearance of impartiality is shown. proceedings possible in the Court of
Under Antar, an effect on the proceedings Appeals.

20
merits. cla i m s plaintif f s pr e sente d w e re
preempted.”).
Selkridge asserted only state law claims
in her complaint in Selkridge I, and Omaha Accordingly, the District Court had no
asserted an affirmative defense of ERISA choice but to dismiss Selkridge II because
preemption as to all of those claims. The the claim in that lawsuit could have been
District Court sustained that defense and raised in Selkridge I.
entered a final judgment on every claim
asserted. That final judgment determined V. The Rule 60(b) Motion in Selkridge I:
that there could be no recovery on any The Merits
claim.
Rule 60(b) provides:
As Selkridge stresses, an argument can
be made that the District Court abused its On motion and upon such terms as
discretion by failing to provide an are just, the court may relieve a party
opportunity to amend.21 But that is an or a party’s legal representative from
argument that should have been advanced a final jud gm ent, o rde r, or
in a timely appeal and does not render the proceedin g for the fo llowing
District Court’s summary judgment reasons: (1) mistake, inadvertence,
anything other than a final judgment on the surprise, or excusable neglect; (2)
merits. Stewart v. U.S. Bancorp, 297 F.3d newly discovered evidence which by
953, 959 (9th Cir. 2002) (where due diligence could not have been
defendants brought motion to dismiss discovered in time to move for a new
based upon all of plaintiffs’ claims being trial under Rule 59(b); (3) fraud
preempted by ERISA, “[p]laintiffs were on (whether heretofore denominated
notice that their claims were preempted by intrinsic or extrinsic),
ERISA, and they did not seek leave to m i s r e p re s e n t a ti o n , o r o t h e r
amend or dismiss ‘without prejudice.’ . . . misconduct of an adverse party; (4)
Absent a request from plaintiffs to amend, the judgment is void; (5) the
the district court had no other alternative judgment has be en sa tisfied,
but to dismiss the case, finding the only released, or discharged, or a prior
judgment upon which it is based has
been reversed or otherwise vacated,
21 or it is no longer equitable that the
But see Ramsgate Court Townhouse
judgment should have prospective
Ass’n v. West Chester Borough, 313 F.3d
application; or (6) any other reason
157, 161 (3d Cir. 2002) (District Court did
justifying relief from the operation of
not abuse its discretion in failing to
the judgment.
address a request for permission to amend
the complaint contained in a brief but
Selkridge urges that the District Court
never made the subject of a motion).

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committed reversible error by failing to
vacate the summary judgment in Selkridge
I pursuant to the residual provision of Rule
60(b)(6). Her argument is that the District
Court committed legal error in entering
that summary judgment. Even if that were
true, however, it would not, as a matter of
law, justify relief under Rule 60(b)(6).
As we held in Martinez-McBean v.
Government of Virgin Islands, 562 F.2d,
908, 912 (3d Cir. 1977), “[L]egal error
does not by itself warrant the application
of Rule 60(b). The correction of legal
errors committed by the district courts is
the function of the Courts of Appeals.
Since legal error can usually be corrected
on appeal, that factor without more does
not justify the granting of relief under Rule
60(b)(6). We know of no authority to the
contrary.” See also Morris v. Horn, 187
F.3d 333, 343-44 (3d Cir. 1999) (“What
[Appellant] is attempting to raise as a Rule
60(b) motion is in fact what he should
have brought as an appeal.”).
VI. Conclusion
For the foregoing reasons, we will
dismiss the appeal from the February 22,
2002, grant of summary judgment in
Selkridge I, No. 03-1146, for lack of
jurisdiction and will affirm the District
Court’s orders entered on December 23,
2002, in Selkridge I (No. 03-1146) and
Selkridge II (No. 03-1147).

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