[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
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U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 02-15362 JUNE 17, 2003
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 02-01057 CV-S-S
IN RE:
BELLSOUTH CORPORATION,
Petitioner.
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No. 02-15445
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D. C. Docket No. 02-01057 CV-S-S
IN RE:
TERRY PRICE,
LEHR, MIDDLEBROOKS, PRICE & PROCTOR, P.C.,
Petitioners.
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Appeals from the United States District Court
for the Northern District of Alabama
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(June 17, 2003)
Before TJOFLAT, ANDERSON and CUDAHY*, Circuit Judges.
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*Honorable Richard D. Cudahy, United States Circuit Judge for the Seventh Circuit, sitting by
designation.
ANDERSON, Circuit Judge:
In these consolidated cases, we are called upon to consider the appropriate
course of action where a party is accused of contriving to engineer the recusal of a
district judge by hiring a close relative of the judge as counsel. Petitioners seek a
writ of mandamus compelling the district court to vacate its order disqualifying
attorney Terry Price (“Price”) and his law firm, Lehr Middlebrooks Price & Proctor
(“LMPP”), from representing BellSouth in a putative class-action race
discrimination suit, Jenkins v. BellSouth Corp.
For the reasons that follow, we cannot conclude that Petitioners have met the
heavy burden of showing entitlement to the extraordinary remedy of mandamus.
However, our consideration of this matter reveals that the issues involved are
difficult, sensitive, and important.
I. BACKGROUND
A. The Law Governing Judicial Recusal
A federal judge must disqualify himself from consideration of a case if a
person within the third degree of relationship “[i]s acting as a lawyer in the
proceeding(.)” 28 U.S.C. § 455(b)(5)(ii); McCuin v. Texas Power & Light Co.,
714 F.2d 1255, 1260 (5th Cir. 1983). Further, a judge must recuse if such a family
member “[i]s known by the judge to have an interest that could be substantially
2
affected by the outcome of the proceeding.” 28 U.S.C. § 455(b)(5)(iii). That a
relative within the proscribed proximity stands to benefit financially as a partner in
a participating firm – even if the relative is not himself involved – is sufficient to
require recusal. Potashnick v. Port City Const. Co., 609 F.2d 1101, 1113 (5th Cir.
1980).1 In this case, petitioner Price is the nephew of Chief Judge U.W. Clemon
of the Northern District of Alabama, and is a full partner in LMPP. There is thus
no dispute that, under Sections 455(b)(5)(ii) and 455(b)(5)(iii), Judge Clemon may
not hear cases in which Price or LMPP is acting as a lawyer or a firm in which he
is a full partner is a participant.
B. History of Recusal Concerns in the Northern District
It has long been a matter of concern that parties in the Northern District of
Alabama might be taking strategic advantage of the recusal statute to, in effect,
“judge-shop.” See Robinson v. Boeing Co., 79 F.3d 1053, 1055-56 (11th Cir.
1996) (discussing district court's suspicion “that in this district the choice of
lawyers may sometimes be motivated by a desire to disqualify the trial judge to
whom the case has been randomly assigned.”). In particular, it is well-
documented that Judge Clemon has been forced to relinquish numerous cases
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all of the decisions of the former Fifth Circuit handed down as of
the close of business on September 30, 1981.
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because of the participation of Price and/or a firm in which he is a partner.
Such was the case in Robinson. There, the defendant in a putative class-
action employment discrimination case assigned to Judge Clemon sought
permission to add as additional trial counsel the firm of Constangy, Brooks &
Smith (“Constangy”), in which Price was then a partner. The motion for leave to
add counsel was transferred to a different district judge, who denied it. The court
found that, because Judge Clemon had been overseeing the case for fifteen
months, the disruption occasioned by Price's appearance – and the judge's
resulting recusal – could not be tolerated absent any indication of “an overriding
need” for the Constangy firm's services. The court observed that no amount of
scrutiny would ever yield “a confession or