UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-20612
IN RE:
CHEVRON U.S.A., INC., GULF PRODUCTION COMPANY,
GULF PIPE LINE COMPANY, GULF REFINING COMPANY,
and GULF OIL CORPORATION,
Petitioners.
Petition for Writ of Mandamus
to the United States District Court for the
Southern District of Texas
August 19, 1997
Before POLITZ, Chief Judge, SMITH and BENAVIDES, Circuit Judges.
POLITZ, Chief Judge:
Chevron U.S.A., Inc., et al., bring this, their Third Petition for Writ of
Mandamus, based upon the district judge’s denial of their motion for his
disqualification under 28 U.S.C. § 455.1 For the reasons assigned, we conclude that
the actions complained of meet the standards for recusal under § 455, but, as we
explain, we exercise our discretion and decline to issue the requested writ.
Background
1
District Judge Kenneth M. Hoyt, Southern District of Texas, presiding over proceedings
entitled Dorothy Adams, et al. v. Chevron U.S.A., Inc., et al., bearing number 96-CV-1462
on the docket of said court.
This petition for writ of mandamus arises out of an action filed by current
and former residents of Kennedy Heights, a predominantly black subdivision in
Houston, against several defendants, including Chevron and Log Development
Company. Involved is a mass tort action in which plaintiffs claim damages for
personal injuries, wrongful death, and property damage, with overtones or
implications of alleged race discrimination. On July 24, 1997 Chevron invoked
28 U.S.C. § 455 and sought the trial judge’s disqualification based upon several
statements made by the judge which Chevron viewed as demonstrating the judge’s
personal bias or prejudice against it or which created the appearance thereof. The
district judge denied the motion, referring the ruling for review by his chief district
judge who declined to perform that review, correctly deeming same to be an
appellate function. Chevron then filed the instant petition which we immediately
set for oral argument, staying further evidentiary hearings in the case pending our
ruling. The trial judge thereafter filed a supplemental order denying the recusal
motion in which he stated that he found Chevron’s submissions to be “frivolous,
speculative, and lacking virtue,” a finding with which we do not agree.
Analysis
We note at the outset that a petition for writ of mandamus is an appropriate
legal vehicle for challenging the denial of a disqualification motion, but it is relief
granted only in exceptional circumstances.2 Although section 455 speaks in
2
In re City of Houston, 745 F.2d 925 (5th Cir. 1984).
2
mandatory language,3 in actual application we have recognized that the decision to
recuse is committed to the sound discretion of the district court and typically is
reviewed for an abuse thereof.4 But, “[i]f the question of whether § 455(a) requires
disqualification is a close one, the balance tips in favor of recusal.” 5
The purpose of section 455(a), upon which Chevron principally relies, is
apparent; it seeks to protect against even the appearance of impropriety in judicial
proceedings6 and we are charged with determining “whether a reasonable and
objective person, knowing all of the facts, would harbor doubts concerning the
judge’s impartiality.”7
The Supreme Court has given substantial guidance in the proper application
to be given to section 455(a), teaching that judicial rulings and comments standing
alone rarely will suffice to disqualify a judge.8 For example, it has instructed that
“judicial remarks during the course of a trial that are critical or disapproving of, or
even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias
3
Section 455(a) requires that any judge “shall disqualify himself in any
proceeding in which his impartiality might reasonably be questioned.” Section
455(b)(1) provides that the judge “shall also disqualify himself . . . [w]here he has
a personal bias or prejudice concerning a party. . . .”
4
In re City of Houston.
5
Nichols v. Alley, 71 F.3d 347, 352 (10th Cir. 1995) (per curiam) (granting
mandamus) (citing United States v. Dandy, 998 F.2d 1344, 1349 (6th Cir. 1993)).
6
United States v. Jordan, 49 F.3d 152 (5th Cir. 1995).
7
Id. at 155 (citing Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847
(1988)).
8
Liteky v. United States, 510 U.S. 540 (1994).
3
or partiality challenge.”9 Such remarks will require disqualification, however, “if
they reveal such a high degree of favoritism or antagonism as to make fair
judgment impossible.”10
Bringing to our attention several comments made on the record by the trial
judge,11 Chevron contends that he should be disqualified for expressing personal
views about race, based on an extrajudicial source, reflecting a pronounced bias
against Chevron. Alternatively, Chevron submits that even if the judge is not
actually biased, the statements have created such an appearance of prejudice or bias
that public confidence in the judiciary generally, and in the outcome of the instant
litigation in particular, will be sorely impaired. We perforce agree with Chevron
that the challenged statements and comments are unfortunate, grossly
inappropriate, and deserving of close and careful scrutiny and most serious
consideration.12
9
Id. at 555.
10
Id.
11
It is undisputed that although the statements were on the record, none was
made in the presence of the jury, and all were made in sidebar or conference
discussions. Some comments were quoted, however, in the local press. Counsel’s
assurances and the record satisfy us that the trial court took quick and effective
steps to learn if any juror had become aware of same and was adversely affected
thereby. That consequence apparently has not happened to date. This does not end
the inquiry, of course, as statements made outside the jury's hearing may still
satisfy the standards of § 455(a).
12
The objectionable statements include a comment by the court in its rejection
of a writing indicating a greater incidence of lupus amongst black persons, which
Chevron’s counsel was planning to use in the cross-examination of plaintiffs’
expert, that the writing was of little or no value “because white people wrote it.”
In lecturing counsel who said “black race” in his questioning, that there was “but
4
We are not persuaded from our review of the filings before us, specifically
the relevant excerpting of the trial court’s comments which counsel have quoted,
together with the representations of counsel in oral argument, that counsel have
carried their burden of demonstrating that the district judge has a personal bias or
prejudice for or against any party in the subject litigation. From the comments and
actions counsel have underscored in briefs and oral argument we are not persuaded
that the judge has displayed a deep-seated favoritism toward the plaintiff, nor has
he formed actual opinions based upon an extrajudicial source that disadvantage
one race . . . [only] genetic differences,” the judge pronounced: “I don’t care what
the literature says” and proceeded to make a patently offensive comparison of
ethnic differences:
Why do you think Chinese people are short? Because there is so damn much
wind over there they need to be short. Why are they so tall in Africa?
Because they need to be tall. It’s environmental. I mean, you don’t jump up
and get a banana off the tree if you’re only 4 feet. If you’re 7 foot tall and
you standing in China, then you’re going to get blown away when that
Siberian wind comes through.
Those comments were followed by a reference to the ultimate wisdom of the Deity
and these remarks:
I think He knew that people in China didn’t need to be tall and that people
in Africa did. I think He knew that people in Africa needed to have this stuff
in their skin because, if they didn’t, they wouldn’t have survived in the
jungle. I think He knew that the people in Europe, Great Britain, didn’t need
it because, if they had that stuff in their skin, they would have died, but,
because they don’t have the pigmentation, they can live in Europe. Because
I have the pigmentation, I can’t live in Europe.
Further, in another conference the judge informed counsel: “I would not want to
be an
employee of Chevron U.S.A. if Chevron loses this case, because I would feel, as
a black person, that something bad could happen to me real fast.” When counsel
for Chevron indicated his distress at this comment the judge continued: “I am
distressed that we live in a country [where] this kind of stuff happens.”
5
Chevron. We reach a different conclusion, however, as relates to the charge of an
appearance of partiality.
Chevron’s alternative argument that a reasonable and objective person,
knowing all of the facts, would harbor doubts concerning the judge’s impartiality
is persuasive. This standard applies if a judge's statements “reveal an opinion that
derives from an extrajudicial source.”13 The quoted statements qualify as such.
While one may argue to the contrary, we must conclude that a reasonable
person could believe that some of the judge’s rulings might be impacted by beliefs
or feelings, conscious or unconscious, underlying the quoted statements. Despite
the assurances of counsel present when the statements were made that they were
made either in jest or purposely were outrageous or sarcastic14 and used by the
judge to emphasize his point in explaining his position, and that no harm was
intended, we must consider more. Regardless of intent, it is totally unacceptable
for a federal judge SS irrespective of the judge’s color SS to make racially
insensitive statements or even casual comments of same during the course of
judicial proceedings.15 Such are not to be tolerated in any litigation and most
13
Liteky, 510 U.S. at 555.
14
While plaintiffs’ counsel assert that the remarks were made in a joking or
flippant manner, counsel for Chevron disagree. We find it unnecessary to resolve
this dispute.
15
Needless to say, a judge is not insulated from recusal, in a racially-charged
case such as this, because he or she is black. In this regard, we note that in their initial
response to the petition, plaintiffs' counsel contended that the thrust of the disqualification
motion is that the trial judge should be disqualified in this case because he is black. Nothing
in the record supports this imputation of motive to Chevron or its counsel. We quickly
disposed of a similar charge in another case seeking recusal by mandamus:
6
decidedly are verboten in litigation in which racial or ethnic considerations are
relevant to an issue before the court. When they occur, the risk of creating a public
perception that the judge has a bias or prejudice which might affect the outcome
crosses the proscribed threshold. This is especially true in a racially-charged case
such as the instant one. Accordingly, here a reasonable person might indeed harbor
doubts about the trial judge’s impartiality and recusal would be appropriate under
the terms of § 455(a).
Reaching that conclusion does not complete our consideration of the instant
petition, for mandamus ordinarily is a discretionary remedy.16 Relative to the
specifics before us, we today hold that in a situation in which recusal is sought on
the basis of perceived bias, we have the discretion to decline to grant the writ of
mandamus. We opt to exercise that discretion.
Our examination of the course of the subject litigation reflects several facts
critical to today’s disposition. The jury was picked over 10 weeks ago and the trial
began. There already have been 31 trial days during which 58 witnesses have
testified. The trial was preceded by at least 9 pretrial conferences. It appears that
the plaintiffs are very near the completion of their case in chief. To disqualify the
In their brief the attorneys for plaintiffs state that “[t]he implicit premise of
petitioner's argument is that a judge who belongs to a racial minority group is
inherently incapable of presiding fairly in a civil rights action involving other
members of that group.” We find no justification for that statement. The [petitioner]
raises a question of substance and may well have served the court and all of the
parties by seeing that it is resolved at this time.
In re City of Houston, 745 F.2d at 926 n.2.
16
United States v. Gregory, 656 F.2d 1132 (5th Cir. Unit B Sept. 1981).
7
present judge this far into the proceedings would be unprecedented. 17
This conclusion is bolstered by our view that the continuation of these
proceedings in the district court would not be an exercise in futility. Chevron has
not begun to present its side of the case. Once the trial proceeds to final judgment,
if appropriate and called for another panel may review the record of the entire trial
to determine whether any proscribed bias requires that the final judgment be
vacated. That panel would have substantially greater information available to it.
Capsulating, we are not persuaded from our review of the filings in this court
by counsel for the parties, the quoted excerpts from the trial record, and the
representations of counsel in oral argument, that the district judge has been shown
to have a personal bias or prejudice concerning a party. Thus, we at this time deny
mandamus on the claim of personal bias or prejudice for want of a clear and strong
showing on the merits. This ruling is not intended to trigger law of the case
consequences that would bind a subsequent panel of this court.18 We conclude,
however, that a reasonable perception of bias or prejudice exists but, for the reasons
assigned, we decline to issue the requested writ.
We entrust to the district judge's discretion the proper course of action in
17
Our opinion should not be interpreted to say that recusal is never appropriate
in mid-trial; the status of a case is merely a factor we use in making our
discretionary decision.
18
See 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice and Procedure § 4478, at 798 (1981) (“Rulings that simply deny
extraordinary relief for want of a clear and strong showing on the merits, or that are
avowedly preliminary or tentative, do not trigger law of the case consequences.”)
and cases cited therein.
8
light of today’s disposition and our reasons therefor. Because of the identified
discretionary basis for our ruling, the denial of the writ necessarily is without
prejudice to petitioners.
In light of today’s ruling the pending motion for an instanter ruling or,
alternatively, for a lifting of our stay of trial proceedings is mooted and is dismissed
as such.
The petition for writ of mandamus is DENIED.
9