In re Apollo, 12-3033

• Decision Date: 14 August 2013
• Docket Number: No. 12-3033,12-3033
• Parties: In re: MADELINE APOLLO, Petitioner
• Court: U.S. Court of Appeals — Third Circuit

In re: MADELINE APOLLO, Petitioner

No. 12-3033

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued: January 16, 2013

Filed: August 14, 2013

NOT PRECEDENTIAL

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(No. 2-11-cv-06684)

District Judge: Honorable Petrese B. Tucker

Before: SMITH, CHAGARES, and SCIRICA, Circuit Judges.

OPINION

Frederick P. Santarelli, Esq. (ARGUED)

Timothy T. Myers, Esq.

Elliott Greenleaf & Siedzikowski

Counsel for Petitioner

Carolyn P. Short, Esq. (ARGUED)

Sara A. Begley, Esq.

Nipun J. Patel, Esq.

Brooke N. Wallace, Esq.

Reed Smith

Counsel for Respondents

PER CURIAM

Petitioner Madeline Apollo brought an action against her former employer alleging breach of contract, conspiracy, and civil rights violations. Chief Judge Petrese B. Tucker, the District Court Judge randomly assigned to the case, served on a civic board with several individuals involved in the matter, including Apollo herself. Apollo contends that the Judge abused her discretion when she determined that her service on the board did not require her recusal from Apollo's case. The Judge later dismissed five of the six counts in Apollo's complaint with prejudice. Apollo petitions this Court for a writ of mandamus that would reassign the matter to a different District Court judge and vacate the judgment of the District Court that partially granted the defendant's motion to dismiss.

For the reasons discussed below, we conclude that recusal was called for under the circumstances presented. We will therefore grant Apollo's petition for a writ of mandamus, vacate the order partially granting the motion to dismiss, and remand the matter with instructions that it be assigned to a different District Court judge.

I.

Apollo's lawsuit arose from her employment with the Pennsylvania Convention Center Authority ("PCCA"). The PCCA hired Apollo in 1991; in 1998 she became the organization's Chief Financial Officer ("CFO"). The PCCA terminated Apollo's employment on September 30, 2011. Apollo's amended complaint alleged breach ofcontract, conspiracy, and violations of her civil rights in connection with her tenure as CFO and her subsequent termination. The amended complaint named as defendants the PCCA and its President and Chief Executive Officer, Ahmeenah Young. The case was randomly assigned to a District Court judge.

The potential conflict of interest that triggered Apollo's petition for a writ of mandamus arises from the District Court Judge's service as a member of the Board of Directors for the Avenue of the Arts, Inc. ("AAI"). Apollo also serves on AAI's Board of Directors. AAI seeks to "reinvigorate" the Avenue of the Arts as a cultural center of Philadelphia and, to that end, works closely with businesses in the district. The Pennsylvania Convention Center, run by the PCCA, is a business in the district and has a designated representative on AAI's board. Apollo represents that the PCCA provides AAI with direct monetary contributions.

Apollo filed her first complaint on October 25, 2011, and an amended complaint on December 12, 2011. Both Apollo and the Judge attended an AAI board meeting on December 13, 2011. On December 14, 2011, Karen Lewis, the Executive Director of the AAI Board, sent the following email to two fellow Board members. The subject was "Madeline Apollo":

[The Judge] confidentially mentioned to me (after the Board meeting) that she had been assigned to Madeline Apollo's case — she is suing the PA Convention Center. Last year we kept Madeline on, to see where she landed — could this pose a problem for us? When we last spoke Madeline was working at the Rock School. When we phoned to get an email address, we were told she hadn't worked there since May of this year. We now have a PA Convention Center representative, Carol Hunt[,] and having Madeline on theBoard could be awkward¹ for her and Judge Tucker. What are your thoughts? We could discuss this on the call next week.

FYI — we have received a Board contribution from the PA Convention Center.

Two potential witnesses in Apollo's case also sit on the Board — Carol Hunt, the PCCA's Director of Finance, and Michael Horsey, managing partner of Mitchell & Titus, LLP, the PCCA's outside auditor. Apollo's petition to this Court emphasizes that defendant Young selected Hunt to sit on AAI's Board. On February 10, 2012, AAI's Board offered Apollo the option to take a temporary leave of absence from the Board that would last until the expiration of her term. Apollo declined. The Judge has since taken a leave of absence from the Board.²

On February 27, 2012, Apollo filed a motion requesting that the Judge disqualify herself from the case. After a March 2012 hearing, the Judge denied the request for recusal. Apollo moved for reconsideration. The Judge denied that motion on May 29, 2012. The Judge partially granted the Pennsylvania Convention Center's motion to dismiss Apollo's amended complaint on June 20, 2012, dismissing with prejudice the counts of Apollo's complaint that alleged breach of contract, entitlement to relief based on promissory estoppel, procedural due process violations, substantive due process violations, First Amendment retaliation, and civil conspiracy in violation of 42 U.S.C. §1983. The Judge denied the motion to dismiss with respect to Apollo's equal protection claim.

Apollo now petitions this Court for a writ of mandamus that would disqualify the District Court Judge from the case. Apollo's petition alleges that the Judge's status as an AAI board member creates the appearance of partiality because, among other reasons, AAI promotes the business interests of the PCCA and the PCCA donates money to AAI. Apollo argues that the Judge's position on a board "whose mission it is to promote the interest of a Defendant" creates the appearance of bias. Apollo Reply Br. 8 (emphasis omitted). The PCCA replies that Apollo has not clearly established her right to mandamus, that the Judge's service on AAI's board would not create the appearance of partiality in the eyes of a reasonable observer, that AAI does not have a special relationship with the PCCA, that case law does not support recusal based on "coincidental" connections, and that professional interaction with potential witnesses does not mandate disqualification and would not cause a reasonable person to question the Judge's impartiality.

The District Court Judge points out that she is currently on a leave of absence from the AAI Board, that "[t]he mere existence of some degree of relationship with an involved party is an insufficient basis for recusal," that her connection to the PCCA via the AAI is too remote to trigger concerns about bias, that the AAI Board does not promote the Convention Center, and that her service on the AAI Board with Apollo and other witnesses made them "nothing more than mere acquaintances."

II.

A.

When a petition for a writ of mandamus contests a district court judge's denial of a motion for self-disqualification, we will review that decision for abuse of discretion. In re Kensington Int'l, Ltd., 368 F.3d 289, 300-01 (3d Cir. 2004). Because 28 U.S.C. § 455(a) mandates disqualification when "certain grounds are present," the district court judge only exercises discretion "to determine if the facts asserted as comprising bias, a forbidden financial interest, kinship, or the appearance of partiality bring the trial court judge within the disqualifying definition." Kensington, 368 F.3d at 301 n.12 (quotation marks omitted).

This Court has the authority to issue "all writs necessary or appropriate." 28 U.S.C. § 1651(a). A court may issue a writ only when the petitioner lacks another adequate means to obtain the relief sought and demonstrates that the right to the writ is "'clear and indisputable.'" Haines v. Liggett Grp., Inc., 975 F.2d 81, 89 (3d Cir. 1992) (quoting Kerr v. U.S. Dist. Court, 426 U.S. 394, 403 (1976)). Mandamus is the "proper means" for a Court of Appeals to a review a district court judge's denial of a motion to self-disqualify pursuant to § 455(a). Alexander v. Primerica Holdings, Inc., 10 F.3d 155, 163 (3d Cir. 1993).

B.

"Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). Section 455(a) invites an objective inquiry: "whether a reasonable person, with knowledge of all the facts, would conclude that the judge's impartialitymight reasonably be questioned." Kensington, 368 F.3d at 301. Courts will look not to "the reality of bias or prejudice" but rather to the appearance of partiality. Liteky v. United States, 510 U.S. 540, 548 (1994); see also Kensington, 368 F.3d at 302 ("A party moving for disqualification under § 455(a) need not show actual bias because § 455(a) concerns not only fairness to individual litigants, but, equally important, it concerns 'the public's confidence in the judiciary, which may be irreparably harmed if a case is allowed to proceed before a judge who appears to be tainted." (quotation marks omitted)). Section 455(a) addresses the rights of individual litigants and seeks to promote public faith in the judiciary. United States v. Kennedy, 682 F.3d 244, 258 (3d Cir. 2012) ("Because § 455(a) aims not only to protect both the rights of the individual litigants, but also to promote the public's confidence in the judiciary, our analysis focuses on upholding the appearance of justice in our courts.").

When assessing a motion for disqualification under § 455(a), it is "critically important . . . to identify the facts that might reasonably cause an objective observer to question [the district court judge's] impartiality." Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 865 (1988). In particular, we will examine the degree and scope of the district judge's association with the parties involved in the litigation before her.

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