Billedeaux, Matter of, 92-3502

• Decision Date: 27 August 1992
• Docket Number: No. 92-3502,92-3502
• Citation: 972 F.2d 104
• Parties: In the Matter of Clinton J. BILLEDEAUX, Sr., Petitioner.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 104

972 F.2d 104

61 USLW 2183

In the Matter of Clinton J. BILLEDEAUX, Sr., Petitioner.

No. 92-3502.

United States Court of Appeals Fifth Circuit.

Aug. 27, 1992.

Russell E. Bergstrom, Hugh B. Exnicios, Exnicios Legal Center, Metairie, La., Samuel R. Exnicios, Exnicios & Nungesser, New Orleans, La., for appellant.

Charles A. Cerise, Jr., John Duplantier, Gelpi, Sullivan, Carroll & Laborde, New Orleans, La., for appellee.

Petition for Writ of Mandamus and/or Prohibition to the United States District Court for the Eastern District of Louisiana.

Before SMITH, EMILIO M. GARZA, and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Clinton Billedeaux, the plaintiff in a maritime lawsuit pending in the United States District Court for the Eastern District of Louisiana styled Billedeaux v. Tidex, Inc., No. 91-0134, seeks to disqualify the district judge in that suit, the Honorable Edith Brown Clement, on the ground that her husband, Rutledge Clement, is a partner in the law firm of Phelps, Dunbar, Marks, Claverie & Sims ("Phelps, Dunbar"), which, according to Billedeaux, "has actively represented defendant Tidex, Inc., in many other cases." Judge Clement denied Billedeaux's motion for recusal; accordingly, Billedeaux pursues the matter by petition for writ of mandamus or prohibition.

I.

Billedeaux cites a few additional facts and allegations in support of his petition. These include the fact that before her recent elevation to the bench, Judge Clement was a partner in the law firm of Jones, Walker, Waechter, Poitevent, Carrere & Denegre, which, according to Billedeaux, is "a firm well known for its maritime defense practice." Billedeaux asserts that Phelps, Dunbar represents Tidex, Inc. ("Tidex"), though of course not in the instant matter, and receives fees therefrom. Billedeaux says that "[t]his fact may well impact on Judge Clement's rulings and decision in the instant matter, which is scheduled for a bench trial...." From this, Billedeaux surmises that "the economic ties her husband's firm has to Tidex raises [sic] the possibility of partiality, thus falling within the parameters of 28 U.S.C. § 455(b)(1)."

To this, Billedeaux adds that "[b]ecause defendant Tidex is represented in many cases by the Phelps-Dunbar law firm, a portion of Judge Clement's family income comes directly from Tidex. Further, it appears that Phelps-Dunbar was under consideration by Tidex for referral of this claim for defense...."

II.

Billedeaux bases his request for disqualification only upon 28 U.S.C. § 455(a) and (b)(1). ¹ These provisions read as follows:

(a) Any ... judge ... shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding....

"The very purpose of § 455(a) is to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible." Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 865, 108 S.Ct. 2194, 2205, 100 L.Ed.2d 855 (1988). A party proceeding under this section "must show that, if a reasonable man knew of all the circumstances, he would harbor doubts about the judge's impartiality." Chitimacha Tribe v. Harry L. Laws Co., 690 F.2d 1157, 1165 (5th Cir.1982) (citations omitted), cert. denied, 464 U.S. 814, 104 S.Ct. 69, 78 L.Ed.2d 83 (1983). Thus, "the view of the average, reasonable person is the standard for analysis...." In re Faulkner, 856 F.2d 716, 720 (5th Cir.1988) (per curiam). Since a motion to disqualify is "committed to the sound discretion of the district judge," Chitimacha Tribe, 690 F.2d at 1166, we must decide here only whether Judge Clement abused her discretion. ²

III.

The particulars of the Chitimacha decision are instructive here and ultimately determine our conclusion that no abuse of discretion has been shown. There, the plaintiffs asserted that the district judge should be disqualified because he once had represented the target defendant. We noted, though, that "[t]he fact that [the judge] once represented [the defendant] in unrelated matters does not forever prevent him from sitting in a case in which [the defendant] is a party[, as t]he relationship between [the judge] and [the defendant] is too remote and too innocuous to warrant disqualification under § 455(a)...." We also emphasized that, as here, the firm in question "does not represent [the defendant] or any other party in this case." Id.

There is no assertion that Judge Clement ever represented Tidex; nor is there an averment that her husband has handled matters for that client. The claim, instead, is that her husband is a partner in a firm that has represented Tidex on various occasions and that, as a result of that relationship, she and her husband benefit from fees from that client and that, accordingly, her impartiality might reasonably be questioned.

A similar argument was made in Chitimacha Tribe: The plaintiffs asserted that the judge was receiving payments from his former firm, which at times still represented the defendant and thus might suffer financially if the judge were to rule adversely to the defendant. We held that "[a]t best, this speculation is remote and unrealistic [and] does not justify disqualification." Id. at 1167.

Here, as well, there is no reason to conclude or speculate that any action Judge Clement might take in the case sub judice would affect Phelps, Dunbar or Judge Clement's husband. A "remote, contingent, or speculative" interest is not one "which reasonably brings into question a judge's partiality." In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1313 (2d Cir.1988), cert. denied, 490 U.S. 1102, 109 S.Ct. 2458, 104 L.Ed.2d 1012 (1989). Thus, any interest of Judge Clement's is too remote and speculative to support or suggest recusal.

IV.

Chitimacha Tribe is binding precedent in this circuit; its facts are so closely analogous to those in the case sub judice that we believe recusal here was not called for. ³ Even if we did not have Chitimacha Tribe to guide us, however, we would conclude that Judge Clement is not disqualified. The proper test, as we have stated, is whether "a reasonable person, knowing all the circumstances," would believe it improper for the judge to sit in the case in question. Liljeberg, 486 U.S. at 861, 108 S.Ct. at 2203.

If a reasonable person knew all the relevant facts, he or she would know that any interest that could be attributed to Judge Clement in the fate of her husband's law firm's sometime client is so remote and speculative as to dispel any perception of impropriety. Thus, there was ample reason for Judge Clement to conclude that there was no reason to grant the motion for recusal.

V.

Finally, even if we were not convinced that, on a de novo basis, the decision was correct, we could not conclude that Judge Clement abused her discretion in so deciding. In reviewing a district court's denial of a motion to recuse, "we ask only whether [the judge] has abused that discretion." Chitimacha Tribe, 690 F.2d at 1166. ⁴ Certainly, in regard to an interest that is, at best, theoretical, Judge Clement was well within her discretion in refusing to step aside. ⁵

The petition for writ of mandamus and/or prohibition is DENIED.

DeMOSS, Circuit Judge, dissenting:

I do not share the view of my colleagues on this panel that Chitimacha Tribe is determinative of this case. Rather, I think the later cases of Health Services Acquisition Corp. v. Liljeberg, 796 F.2d 796 (5th Cir.1986); the Supreme Court Decision in the same case, Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988); and In re Faulkner, 856 F.2d 716 (5th Cir.1988) establish the following principles:

A. The very purpose of § 455(a) is to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible. Liljeberg, 486 U.S. at 865, 108 S.Ct. at 2205;

B. Scienter is not an element of a violation of § 455(a). Liljeberg, 486 U.S. at 859, 108...