Southwestern Bell Telephone Co. v. Federal Communications Commission

153 F.3d 520
Court of Appeals for the Eighth Circuit·Decided June 5, 1998·No. Nos. 97-2618, 97-2661, 97-2856, 97-2866, 97-2873, 97-2875, 97-2877, 97-3012, 97-3271, 97-3272, 97-3274, 97-3477, 97-3557, 97-3720, 97-3389, 97-3576, 97-3663 and 97-4106·Published·Cited by 12 cases

Opinion

MEMORANDUM CONCERNING POTENTIAL RECUSAL AND NOTICE OF DECISION

HANSEN, Circuit Judge, in Chambers.

My son, age 23, having recently completed a major in computer science at Cornell College, has accepted a position as an entry-level computer programmer with MCI Telecommunications Corporation (MCI), one of the named intervenors in these cases, to begin work on June 8, 1998. I place this matter of record because it is the fundamental ethical duty of every judge to police his or her own disqualification status. See Tramonte v. Chrysler Corp., 136 F.3d 1025, 1031 (5th Cir.1998).1 Having considered the rele[522]*522vant facts and applicable law, I conclude that my son’s employment status with MCI neither requires nor permits me to recuse myself from these cases.

Pursuant to 28 U.S.C. § 455(b)(5) (1994), a United States judge must recuse himself if “a person within the third degree of relationship to [the judge] ... [i]s known by the judge to have an interest that could be substantially affected by the outcome of the proceeding^]” More generally, 28 U.S.C. § 455(a) requires a federal judge to disqualify himself “in any proceeding in which his impartiality might reasonably be questioned.”

Our court’s precedents make clear that “an employment relationship between a party and a judge’s son or daughter does not per se necessitate a judge’s disqualification.” In re Kansas Pub. Employees Retirement Sys., 85 F.3d 1353, 1364 (8th Cir.1996) (In re KPERS); see also Jenkins v. Arkansas Power & Light Co., 140 F.3d 1161, 1164-65 (8th Cir.1998) (quoting In re KPERS). “Rather, the determination of whether a conflict exists in a given situation is factually bound.” In re KPERS, 85 F.3d at 1364. Therefore, I look to the particular facts to help determine whether recusal is merited.

In In re KPERS, our court was faced with a district judge’s decision not to recuse himself when his daughter accepted an employment offer from a law firm which represented a party in the action before him. Noting that the judge’s daughter was not personally involved in the litigation before him, and that as a salaried associate with traditional employee benefits she could not be substantially affected by the outcome of the case, our court affirmed the district judge’s decision not to recuse himself. See 85 F.3d at 1364. In Jenkins, decided in April of this year, our court reaffirmed both the holding and the logic of In re KPERS. See 140 F.3d 1161, 1164. Our resolution of these cases accords with the decisions of our sister circuits. See, e.g., Bartholomew v. Stassi-Lampman, 95 F.3d 1156 (9th Cir.1996) (unpublished) (recu-sal not required where judge’s child is a salaried associate with law firm representing a party, as long as child does not actively participate in case); United States ex rel Weinberger v. Equifax, Inc., 557 F.2d 456, 463-64 (5th Cir.1977) (same), cert. denied, 434 U.S. 1035, 98 S.Ct. 768, 54 L.Ed.2d 782 (1978); Benko v. Judges’ Retirement Sys., No. 97-1241, 1998 WL 199798, at *4 (6th Cir. Apr. 15, 1998) (unpublished) (recusal not required where judge’s daughter was employed by the state attorney general’s office which represented a party, because daughter was not involved in litigation); In re National Union Fire Ins. Co., 839 F.2d 1226, 1229-30 (7th Cir.1988) (recusal not required where party has retained judge’s son to represent it in an unrelated matter); cf. Hunt v. American Bank & Trust Co. of Baton Rouge, 783 F.2d 1011, 1016 (11th Cir.1986) (recusal not required where judge’s law clerk has accepted offer of future employment with law firm representing a party to the case, as long as law clerk does not personally work on the ease).

Nor is recusal automatically required where the judge’s child is employed by a party to the dispute. See Datagate, Inc. v. Hewlett-Packard Co., 941 F.2d 864, 871 (9th Cir.1991), cert. denied, 503 U.S. 984, 112 S.Ct. 1667, 118 L.Ed.2d 388 (1992); Hewlett-Packard Co. v. Bausch & Lomb, Inc., 882 F.2d 1556, 1568 (Fed.Cir.1989), cert. denied, 493 U.S. 1076, 110 S.Ct. 1125, 107 L.Ed.2d 1031 (1990). Both Datagate and Bausch & Lomb involved a judge whose son was a long-term employee of Hewlett-Packard, a party to both actions. In Bausch & Lomb, the Federal Circuit noted that Hewlett-Packard employed over 83,000 employees and that the judge’s son occupied a nonmanagement position without a policy-making role. 882 F.2d at 1569. The court concluded that although the son participated in a company profit-sharing plan, neither his financial interest nor his employment status would be affected by the resolution of the litigation before his father. Id. The Ninth Circuit resolved.the same issue identically in Datagate, 941 F.2d at 871 (citing Bausch & Lomb). This court cited both Bausch & Lomb and Datagate [523]*523favorably in In re KPERS. See 85 F.3d at 1364.

My situation is very analogous to that discussed by the Ninth and Federal Circuits in Datagate and Bausch & Lomb. MCI publicly asserts that it employs roughly 55,000 workers in at least 66 different nations and serves over 20 million customers, including 30 of the nation’s 100 largest companies.2 My son’s position is nonmanagement and involves no policy role. Rather, he has been hired as an entry-level computer programmer stationed in Cedar Rapids, Iowa. His work will be far removed from this litigation, and as a salaried employee, his interest in the outcome of these cases cannot be deemed “substantial.” Nor do I believe that “a reasonable person knowing and understanding all the relevant facts ... [would] conclude that I should recuse myself.” McCann v. Communications Design Corp., 775 F.Supp. 1506, 1533 n. 26 (D.Conn.1991) (Cabranes, J.) (explicating § 455(a)); accord In re National Union Fire Ins. Co., 839 F.2d at 1229 (“the appropriate inquiry under § 455(a) is whether an informed, reasonable observer would doubt the judge’s impartiality.”). As Judge Easterbrook aptly concluded when faced with a similar situation:

A judge’s relatives may engage in commercial transactions of one kind or another with large numbers of persons embroiled in litigation.

Free access — add to your briefcase to read the full text and ask questions with AI

Southwestern Bell Telephone Co. v. Federal Communications Commission, 153 F.3d 520 (8th Cir. 1998).

153 F.3d 520 (Southwestern Bell Telephone Co. v. Federal Communications Commission) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Purdy v. Wilkins
D. Minnesota, 2021
Fredin v. Miller
D. Minnesota, 2020
Fredin v. Kreil
D. Minnesota, 2020
Fredin v. Middlecamp
D. Minnesota, 2020
Munt v. Roy
D. Minnesota, 2018
United States v. Ibarra-Castaneda
396 F. Supp. 2d 1004 (N.D. Iowa, 2005)
Iowa Network Services, Inc. v. Qwest Corp.
385 F. Supp. 2d 850 (S.D. Iowa, 2005)
Pam Taylor v. Vermont Department Of Education
313 F.3d 768 (Second Circuit, 2002)
Taylor v. Vermont Department of Education
313 F.3d 768 (Second Circuit, 2002)
In Re Initial Public Offering Securities Litigation
174 F. Supp. 2d 70 (S.D. New York, 2001)
Southwestern Bell Telephone Company Southern New England Telephone Company Texas Office of Public Utility Counsel United States Telephone Association Ameritech Corporation U S West, Inc. Rural Telephone Coalition Cincinnati Bell Telephone Company Gte Service Corporation Gte Alaska, Incorporated Gte Arkansas Incorporated Gte California, Incorporated Gte Florida, Incorporated Gte Midwest, Incorporated Gte South, Incorporated Gte Southwest, Incorporated Gte North, Incorporated Gte Hawaiian Telephone Company, Incorporated Gte West Coast, Incorporated Contel of Minnesota, Inc. Contel of the South, Inc. Missouri Public Service Commission Gte Northwest, Incorporated Pacific Bell Nevada Bell, Intervenors on Appeal. v. Federal Communications Commission United States of America, Association for Local Telecommunications Services American Telephone and Telegraph Company Telecommunications Resellers Association the Competition Policy Institute Information Technology Association of America National Cable Television Association, Inc. Internet Access Coalition Ad Hoc Telecommunications Users Committee Worldcom, Inc. Sprint Corporation Telco Communications Group, Inc. Excel Telecommunications, Inc. Bell Atlantic Telephone Companies Time Warner Communications Holdings, Inc. MCI Telecommunications Corporation Ny Telephone New England Telephone and Telegraph Company, Intervenors on Appeal. America's Carriers Telecommunication Association, Intervenors on Appeal, Commercial Internet Exchange Association, Amicus Curiae. Southwestern Bell Telephone Company Ameritech Corporation Time Warner Communications Holdings Us Telephone Association Gte Service Corporation Gte Alaska, Incorporated Gte Arkansas, Incorporated Gte California, Incorporated Gte Florida, Incorporated Gte Midwest, Incorporated Gte South, Incorporated Gte Southwest, Incorporated Benjamin Wayne McCoin Inc. Gte Northwest, Incorporated Gte Hawaiian Telephone Company, Incorporated Gte West Coast, Incorporated Contel of Minnesota, Inc. Contel of the South, Inc. Association for Local Telecommunications Services Bell Atlantic-Maryland, Inc. Bell Atlantic-Washington, D.C., Inc. Bell Atlantic-West Virginia, Inc. Bell Atlantic-New Jersey, Inc. Bell Atlantic-Delaware, Inc. Bell Atlantic-Pennsylvania, Inc. Bell Atlantic-Virginia, Inc. New York Telephone Company New England Telephone and Telegraph Company Independent Telephone and Telecommunications Alliance, Intervenors on Appeal. v. Federal Communications Commission United States of America, American Telephone and Telegraph Company Telecommunications Resellers Association MCI Telecommunications Corporation, Lbc Communications, Inc. Worldcom, Inc. Competitive Telecommunications Association, Intervenors on Appeal
153 F.3d 520 (Eighth Circuit, 1998)