Andrade v. Chojnacki
| Decision Date | 14 July 2003 |
| Docket Number | No. 01-50154.,01-50154. |
| Parties | Isabel G. ANDRADE; et al., Plaintiffs, Stephen E. Thompson, as administrator for the following estates: Estate of Chanel Andrade, Estate of Crystal Barrios, Estate of Isaiah Barrios, Estate of Dayland Lord Little, Estate of Kara Brittani (Pages) Little, Estate of Abigail Martinez, Estate of Audrey Martinez, Estate of Joseph Martinez, Estate of Melissa Morrison, Estate of Mayanah Schneider, Estate of Aisha Gyarfas Summers, Estate of Startle Summers, Estate of Hollywood Sylvia, Estate of Rachel Sylvia; Daniel Martinez, Sr.; Thomas Barrios; Misty Dawn Ferguson; Stanley Sylvia; Norman Washington Allison; Adeline Sylvia Black; Lowess Esmerella Blake; Robert Theophilus Blake; Debborah Brown, et al., Plaintiffs-Appellants, v. Phillip J. CHOJNACKI; et al., Defendants, United States of America, Defendant-Appellee. Jean Holub, Co-Administrator & Legal Representative of Estates of Bobbie Lane Koresh, Star Hadassah Howell & Cyrus Ben Joseph Howell, Minors, Deceased, Plaintiff-Appellant, v. Janet Reno, Attorney General; et al., Defendants, Janet Reno, Attorney General; Phillip J. Chojnacki; Jeffrey J. Jamar; Robert Ricks; Richard (Dick) Rogers; Defendants-Appellees. Misty Dawn Ferguson; et al., Plaintiffs, Misty Dawn Ferguson; Robert Theophilus Blake; Lowess Esmerella Blake; Debborah K. Brown, Sherry H. Burgo; et al., Plaintiffs-Appellants, v. Janet Reno, Attorney General; et al., Defendants, Janet Reno, Attorney General; William S. Sessions; Lawrence A. Potts; Daniel M. Hartnett; Edward Daniel Conroy; David C. Troy; Phillip J. Chojnacki; Charles A. Sarabyn; Peter B. Mastin; Ted Royster; James Cavanaugh; Earl K. Dunagan; Darrel Dyer; William Buford; Davy Aguilera; Jeffrey J. Jamar; Robert A. (Bob) Ricks; Oliver B. Revell; Richard (Dick) Rogers; Lon T. Horiuchi; Byron Sage; Stephen E. Higgins; United States of America, Defendants-Appellees. Debborah Brown, Robyn Bunds, Individually and on behalf of minor child Shaun Wisdom Howell Koresh; Sherry Houtman Burgo; Clive Doyle; Katherine Farris; et al., Plaintiffs-Appellants, v. United States of America; et al., Defendants, United States of America; Janet Reno, Attorney General; William S. Sessions; Lawrence Potts; Stephen Higgins; Daniel Hartnett; Daniel Conroy; David C. Troy; Phillip Chojnacki; Charles (Chuck) Sarabyn; Peter Mastin; Ted Royster; James Cavanaugh; Earl Dunagan; Darrel Dyer; William Buford; Davy Aguilera; Jeffrey Jamar; Robert Ricks; Oliver Revell; Richard (Dick) Rogers; Lon T. Horiuchi; Byron Sage; Timothy Gaborie; John McGaw; William T. Johnston, Defendants-Appellees. James Loye Riddle; et al., Plaintiffs, Myrtle Ann Riddle, Plaintiff-Appellant, v. Janet Reno, Attorney General; et al., Defendants, Janet Reno, Attorney General; Webster L. Hubbell; William S. Sessions; Lawrence A. Potts; Stephen E. Higgins, Director, ATF; Daniel Conroy; David C. Troy; Phillip J. Chojnacki; Charles A. Sarabyn; Peter B. Mastin; Ted Royster; James Cavanaugh; Earl K. Dunagan; Darrel Dyer; William Buford; Davy Aguilera; Jeffrey Jamar; Robert A. (Bob) Ricks; Oliver B. Revell; Richard Rogers; Lon T. Horiuchi; Byron Sage; United States of America, Defendants-Appellees. Oliver Gyarfas, Individually and as Administrator of the Estate of Aisha Gyafas Summers Deceased and of the Estate of Startle Summers Deceased; Elizabeth Gyarfas, Individually and as Administrator of the Estate of Aisha Gyarfas Summers Deceased and of the Estate of Startle Summers Deceased, Plaintiffs-Appellants, v. United States of America, Defendant-Appellee. Jean Holub, Co-Administrators and Legal Representatives of the Estates of Bobbie Layne Koresh, Star Hadassah Howell and Cyrus Ben Joseph Howell, Minor Children Deceased; Bobby Wayne Howell, Co-Administrators and Legal Representatives of the Estates of Bobbie Layne Koresh, Star Hadassah Howell and Cyrus Ben Joseph Howell, Minor Children Deceased, Plaintiffs-Appellants, v. United States of America, Defendant-Appellee. Debborah Brown; Sherry Houtman Burgo; Clive Doyle; Tillie Friesen; Floyd Houtman, Jr.; et al., Plaintiffs-Appellants, v. United States of America, Defendant-Appellee. Stanley Sylvia; et al., Plaintiffs, Stanley Sylvia; Norman Washington Allison; Lucille Maynard; Adeline Sylvia Black; Lowess Esmerella Blake; et al., Plaintiffs-Appellants, v. United States of America, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Michael A. Caddell (argued), Cynthia B. Chapman, James Martin Juranek, Jr., Caddell & Chapman, Houston, TX, for Thompson, Martinez, Barrios, Ferguson and Sylvia.
Ramsey Clark (argued), Lawrence W. Schilling, New York City, for Allison, Black, Lowess and Robert Blake and Brown.
Mark Bernard Stern (argued), Charles Wylie Scarborough, U.S. Dept. of Justice, Civ. Div.-App. Staff, Washington, DC, for Defendant-Appellee.
Appeals from the United States District Court for the Western District of Texas.
Before JONES, WIENER, and DeMOSS, Circuit Judges.
Appellants, some of the survivors and estates of Branch Davidians who died during the 1993 conflict at Mount Carmel near Waco, Texas, attempted to prove at trial that the United States government should be held liable under the Federal Tort Claims Act ("FTCA") for deaths and injuries of Branch Davidian sect members during the siege of their compound outside Waco, Texas on April 19, 1993. The court, after a month-long trial, rejected their case. The court found that the government's planning of the siege — i.e. the decisions to use tear gas against the Davidians; to insert the tear gas by means of military tanks; and to omit specific planning for the possibility that a fire would erupt — is within the "discretionary function exception" to the government's waiver of immunity. The court also found that the use of tear gas was not negligent. Further, even if the United States was negligent by causing damage to the compound before the fires broke out, thus either blocking escape routes or enabling the fires to speed faster, such negligence did not legally cause the plaintiffs' injuries because some of the Davidians started the fires. The court found that the FBI's decision not initially to allow fire trucks on the property was reasonable because of the risk of injury or death to firefighters who might encounter hostile gunfire from the Davidian compound.
All of these findings and conclusions, and other claims that the court earlier dismissed, were the subject of intense and provocative dispute before the trial court, as they have more generally been to the public ever since that shameful day in American law enforcement. None of the substantive issues are raised in this appeal, however. Instead, Appellants' only serious contention is that Judge Smith — on account of his relationships with defendants, defense counsel, and court staff; prior judicial determinations; and comments during Appellants' trial — should have recused himself from hearing their claims. We conclude that Appellants' allegations do not reflect conduct that would cause a reasonable observer to question Judge Smith's impartiality; they do not necessitate vacatur under the law of judicial recusal and the correct standards of review. This court AFFIRMS the take-nothing judgment.
In the wake of the bloody warrant service, siege, and conflagration of the Branch Davidian compound at Mount Carmel in the spring of 1993, four lawsuits were tried by Judge Smith. One was the criminal prosecution of eleven surviving Davidians for the events surrounding the deaths of four ATF agents (Branch). Two were civil actions. One was brought by an ATF undercover agent against fellow federal employees and a psychiatrist. The other was brought by federal agents (or their estates) against a reporter, media organizations, and an ambulance service, asserting that the defendants had caused their injuries by alerting Davidians of the impending raid (Risenhoover). The fourth is the instant suit, a set of civil actions brought by surviving Davidians and estates of the deceased against the federal government and various other parties.
This suit did not, however, originate in Judge Smith's court. The plaintiffs instead filed suit in Houston, in the Southern District of Texas. The defendants' motion to transfer to Judge Smith's court in the Waco Division of the Western District of Texas was granted. In addition to finding Waco the most convenient forum, the transferring judge dismissed the plaintiffs' allegations of bias. She wrote at the time:
In effect, Plaintiffs' argument is a collateral motion for recusal, and this Court declines to render a formal ruling on that issue. The merits should be heard upon motion in the Western District of Texas. Plaintiffs' evidence of bias based solely on Judge Smith's prior rulings, [sic] does not create a basis for denial of transfer in this case.
Andrade v. Chojnacki, 934 F.Supp. 817, 835 (S.D.Tex.1996).
The plaintiffs continued their efforts to avoid Judge Smith's court even after the transfer back to Waco. On the day following Judge Smith's consolidation of their suits, plaintiffs filed a "Motion to Transfer to San Antonio Division or, Alternatively, to Recuse Judge Walter S. Smith, Jr." (hereinafter "First Motion to Recuse"). Judge Smith held a hearing on the motion on June 7, 1996, and denied it eight months later. The plaintiffs then unsuccessfully petitioned this court for a writ of mandamus seeking recusal or transfer to a different venue.
Judge Smith prepared the case for trial. He issued a Memorandum Opinion and Order which dismissed a number of the plaintiffs' claims, narrowing the issues for trial down to several FTCA claims against the United States. Andrade v. Chojnacki, 65 F.Supp.2d 431 (W.D.Tex.1999). He scheduled discovery and submission of a joint pre-trial order, and set trial to begin in October 1999. The trial was later re-scheduled for the following summer. Upon pl...
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