### The Honorable D. Brook Bartlett, Chief Judge, United States 1 

### District Court for the Western District of Missouri. _____________ No. 95-4061

_____________

* * In re: * Kansas Public Employees * Petition for Writ Retirement System, * of Mandamus. * * Petitioner. * * *

_____________ Submitted: January 11, 1996 Filed: June 11, 1996

_____________ Before McMILLIAN, JOHN R. GIBSON, and HANSEN, Circuit Judges.

_____________ HANSEN, Circuit Judge.

On Dec ember 7, 1995, Kansas Public Employees Retirement Syste m (KPERS) filed a petition seeking a writ of manda mus directing the district judge t o disqualify himself under 28 U.S.C. § 455(a), (b)(1), an d

1 (b)(5)(ii i). In addition, KPERS filed a motion to stay the pendin g district court proceedings until this court ruled on the mandamus petition

. After hearing oral arguments, we denied the stay. We now deny th e petition.

### For more details on the facts of the underlying suit, see 2 

### KPERS v. Reimer & Koger Assocs

. , Inc. , 77 F.3d 1063 (8th Cir. 1996) (affirming district court's enjoining KPERS from filing lawsuits in Kansas based on same claims sued on in federal court); KPERS v. Reimer & Koger Assocs., Inc. , 61 F.3d 608 (8th Cir. 1995) (reversing district court's decision that 10-year Kansas statute of limitations applied and remanding for determination of which of two shorter statutes apply), cert. denied , 116 S. Ct. 915 (1996); KPERS v. Reimer & Koger Assocs., Inc. , 60 F.3d 1304 (8th Cir. 1995) (reversing the district court's denial of Blackwell's application to intervene); KPERS v. Reimer & Koger Assocs., Inc. , 4 F.3d 614 (8th Cir. 1993) (affirming district court's order denying KPERS' motion to remand the case to state court), cert. denied , 114 S. Ct. 2132 (1994)

. By this time, Judge Bartlett had already spent a great deal 3 

### of time on this case. (Tr. of Proceedings of 6/30/94, at 191 (stating that the court had already spent more time on this case than any other case but one in 10 years).)
2 I.

KPERS fil ed the basic underlying suit in which recusal is sought in Kansas state court in 1991, seeking damages alle gedly sustained in 1986 in connection with KPERS' investments in Home Savings Association. Much of the litigation has involved attempts to control the choice of forum , with KPERS preferring a Kansas state court forum and the defendant s preferrin g to bring this case to and keep it in federal court. Afte r forging a winding trail, the case has again arrived at our doorstep. We set for th only those facts bearing on the issue before us -- whether w e should direct the district court to disqualify himself under 28 U.S.C

. § 455. 2

On October 18, 1994, approximately t wo years after the case had been removed from Kansas state court to federal district court in the Western Distric t of Missouri and assigned to the Honorable D. Brook Bartlett , United S tates District Judge, three parties filed motions to intervene

. 3 These parties were Bo atmen's First National Bank of Kansas City, Missouri (Boa tmen's) and the law firms of Blackwell Sanders Matheny Weary an d Lombardi, L.C.

### Shook and Blackwell moved to intervene after KPERS notified 4 

### them of KPERS' intention to file a separate suit against them in state court. All that remained was a transfer of some insurance to a new 5 

### trust. The Honorable Dean Whipple, United States District Judge

6 

### for the Western District of Missouri.
3 (B lackwell) and Shook Hardy & Bacon, P.C. (Shook). Judge Bartlet t 4 immedia telyinformed the parties that attorneys in Blackwell's trust , estate, and taxation departments had provided him routine estate planning advice, had probated his deceased father's estate, and were probating his mother's estate, of which Judge Bartlett was a p rimary beneficiary. Judge Bartlett explained that the estate planning workfor him was substantially compl ete and that he was seeking no further legal advice from the firm

.

5 The court asked the parties to anonymously submit in writing any objection s to his presiding over the case by noon, November 3, 1994.

On Octobe r 26, 1994, Judge Bartlett sua sponte disqualified himself from presiding over t he applications to intervene and had them reassigned to anot her federal district judge. Judge Bartlett recused himself fro m 6 deciding Boatmen's ap plication because he owned stock in Boatmen's parent
co mpany. His disqualification from deciding Shook's and Blackwell' s applications stemmed from a concern that his rul ings on these applications would affect Boatmen's application. Boatmen's motion to intervene wa s eventually stayed, and Boatmen's then filed a separate declaratory judgmen t action over which Judge Bartlett does not preside. See Boatmen's Firs t Nat'l Bank v. KPERS , 57 F.3d 638 (8th Cir. 1995).

Noon, Nov ember 3, 1994, came and went, and no one, including KPERS, objected to the potential conflict involving Blackwell. That afternoon, however, another potential conflict arose. Shook

### 4

advis ed the parties that it had offered a summer associate position t o Judge Bartlett's daughter, Ms. Amanda Mook.

The follo wing day, November 4, 1994, the court informed the parties that his daughter hadaccepted the offer from Shook and also that his son

was probably a member of KPERS because he was the assistant city manager of the City of Hays, Kansas. The judge asked for comments on thes e matters, but no one offered any at that time.

The court followed up with a letter to the parties on November 9 , 1994, r estating the facts regarding his son and daughter and invitin g anony mous objections to be submitted by November 21, 1994. KPERS, in a letter of November 18, 1994, expressing concern about Judge Bartlett' s continued participation in the case because of h is daughter's relationship with Shook, stated:

Previo usly, we expressed no objection to Judge Bartlett' s continu ed role as judge in this litigation by reason of hi s involvement with the est ate and probate attorneys at Blackwell Sanders. By itself, we did not believe that Judge Bartlett's inv olvement with the Blackwell firm warranted significan t concern.
(App. Pet'r at 195.) In KPERS' letter of November 21, 1994, it stated:

Judg e Bartlett previously notified the parties that he ha d retained Blackwell, Sanders for personal estate matters. The court required the parties to file by 12:00 p.m., November 3, 1994 no tice of objections to Judge Bartlett continuing t o preside over the case. All parties notified the court tha t they did not object.

(App. Pet'r at 173.) The letter then refers to the hiring of Judg e Barlett's daughter by Shook, and continues:

### 5 De spite their previous waiver, the parties should not b e pr ecluded from asserting the Judge's retention of Blackwell , Sand ers in conjunction with Shook, Hardy's hiring of Judg e Ba rtlett's daughter or the matters related to Boatmen a s gro unds for recusal. While each situation alone might no t con stitute sufficient grounds, all situations considere d together might.

Id.
The court addressed the pending obje ction at KPERS' specific request at a hearing on December 16, 1994. At that time, KPERS volunteered that it had submitted the November 18 and 21 letters, and asked the court t o
recuse himself. KPERS noted that, although Shook was not yet a party, a part ner of Shook was, and the partner had brought an indemnity clai m against Shook. Judge Bartlett declined to disqualify himself, because he
was persuaded by KPERS' original argument that consideration of recusal wa s premature until Shook's motion to intervene had been granted.

On Decemb er 29, 1994, Judge Whipple granted Shook its motion t o intervene. KPERS too k no action to renew its recusal request. In denying Blackwell's motion to intervene, Judge Whipple, considering the question of whether Judge Bartlett would have to recuse if Blackwell were allowed to intervene, made the following statement: "Co nsidering the intervention of Blackwell Sanders, KPERS has expressly waived any objection to Judg e Bartlett continuing t o preside over the pending litigation." (App. Pet'r at 210.) In the appeal to this court by Blackwell on the issue o f intervention, KPERS in its brief made no issue as to whether Judge Bartlet t would be required to recuse, or to request that he do so. We reversed the distri ct court's denial and permitted Blackwell to intervene by ou r decision filed July 27, 1995. No motion for rehearing or suggestion for rehearin g en banc was filed. So, by the end of July 1995, Blackwell' s interv ention was assured, and Judge Bartlett's daughter was working a t Shook as a summer associate. Still, KPERS took no action to renew it s recusal

### KPERS appealed this ruling, we affirmed the injunction 7 

### order. KPERS v. Reimer & Koger Assocs., Inc. , 77 F.3d 1063 (8th Cir. 1996).
6 req uest. During the ten-month period between December 1994 and Octobe r 1995, the parties engaged in full-blown discovery, deposing more than 60 witnesses, disclosing dozens of expert witnesses, and producing millions of p ages of documents. Although the parties participated in severa l pretrial conferences with the court, no one reasserted any issue of an y potential conflict of interest on the part of Judge Bartlett during this period involving Boatmen's, Blackwell, or Shook.

In the me antime, on July 27, 1995, we reversed the district court's ruling on the applicable statute of limitations for this case. Our ruling held that the ten-yea r statute of limitations did not apply to this case, and we remanded for a determination of which of two shorter Kansas statute s of limitations applied. KPERS v. Reimer & Koger Assocs. Inc. , 61 F.3d 608 (8th Cir. 1995), cert. denied , 116 S. Ct. 915 (1996). Shortly thereafter , KPERS filed a motion asking the district court to reconsider its April 199 4 hold ing that KPERS was acting in a proprietary capacity and was thu s subject to the statut e of limitations -- a decision KPERS did not attempt to appeal to this court. In addition, KPERS filed duplicative suits i n Kansas state court an d filed its third motion to remand this case back to state court. In response, the defendants filed motions seeking preliminar y inju nctions prohibiting KPERS from filing additional suits against th e defendan ts. The district court granted the preliminary injunctions an d 7 set a hearing for October 18, 1995, to address several issues, including KPE RS' motion to remand the case to state court and KPERS' motion fo r reconsideration on issues relating to the statute of limitations.

### 7 On Octo ber 5, 1995, Shook notified the parties that it had offere d Judg e Bartlett's daughter a permanent position commencing September 1 , 1996. On October 16, 1995, two days before the scheduled hearing, KPERS filed a motion requesting that Judge Bartlett disqualify himself, assertin g the Blackwell, Boatmen's, and Shook employment issues. Defendants oppose d the motion, stating that KPERS had filed the motion as a dilatory tactic to prevent the case from moving forward. The di strict judge postponed the hearing and denied KPERS' motion to disqualify on December 5, 1995.
On December 7, KPERS filed this peti tion, seeking a writ of mandamus ordering Judge Bartle tt to disqualify himself from this case. KPERS also filed a motion to stay the district court procee dings pending our decision
on th e mandamus petition. After hearing oral arguments, we denied th e motion for the stay. During the time between oral arguments and ou r decision on the petition, Judge Bartlett's daughter withdrew her acceptanc e of th e associate position at Shook, deciding to reside and obtai n employmen t in another city. We now decide the petition for a writ o f mandamus.

II.

KPERS lists three reasons supporting its claim that Judge Bartlet t should disqualify him self: (1) Boatmen's is the plaintiff in a separate, but related, declaratory judgment action against KPERS, and Judge Bartlett owns stock in the parent company of Boatmen's; ( 2) Blackwell has performed estate planning work for Judge Bartlett, has probated the estate of Judge Bartlett's deceased father, and is probating the estate of the judge's lat e mother, which will in clude the closing of a trust of which Judge Bartlett is the trustee; and ( 3) Judge Bartlett's daughter had accepted during the pen dencyof this litigation defendant Shook's offer of employment as a n associate attorney. KPERS contends that, separately, each of these facts mandates disqualification under

### 8

either 28 U.S.C. §§ 455(b)(1), 455(b)(5)(iii), or 455(a). KPERS further argues that these fac ts cumulatively create an appearance of impartiality such that disqualification is necessary under § 455(a).

Defendants oppose the petition for the writ, arguing that KPER S brin gs this petition purely as a tactical move to delay the distric t court 's consideration of the case and to avoid the pending decision o n defend ants' motions for summary judgment on the remanded statute o f limitations issue. D efendants also argue that any alleged interest Judge Bartlett has in this case is too speculative to fall within the purview of § 455(b)( 5) and that no person who knows the facts and circumstances o f this case would reasonably question Judge Bartlett's impartiality.

A.
The issue of recusal is before us on petition for a writ of man damus. The writ of mandamus is an extraordinary remedy that should be utili zed only in those `exceptional circumstances . .

. amounting to a judicial usurpation of power.' A federal court may issu e a writ of mandamus only when the appellant ha s esta blished a `clear and indisputable right' to the relie f sou ght, the court has a nondiscretionary duty to honor tha t right, and appellant has no other adequate remedy.

Perkins v. General Mo tors Corp. , 965 F.2d 597, 598-99 (8th Cir.) (quoting In re Lane , 801 F.2d 1040, 1042 (8th Cir. 1986)) (alteration in original) cert. denied , 113 S. Ct. 654 (1992).
Our determination of whether an "indisputable and clear right" exists must take into consideration the discretion entrusted in the district cour t in deciding disqualification matters. In re Dre xel Burnham Lambert, Inc. , 861 F.2d 1307, 1312 (2d Cir. 1988) ("An appellate court's power to issue a writ of mandamus upon a claim of

### 9

wrongful refusal to r ecuse is inextricably related to the scope of review
over the district court's determination."), cert. denied sub nom , Milken

v. S.E.C. , 490 U.S. 1102 (1989). In this circuit, whether disqualificatio n is required in a particular case is committed to the sound discretion of the distr ict judge, and we review only for an abuse of that discretion

. Perkins v. Spivey , 911 F.2d 22, 33 (8th Cir. 199 0), cert. denied , 499 U.S. 920 (1991). This is so because

[t]he ju dge presiding over a case is in the best position t o appreci ate the implications of those matters alleged in a rec usal motion. In deciding whether to recuse himself, th e trial judge must carefully weigh the policy of prom oting public confidence in the judici ary against the possibility that those ques tioning his impartiality might be seeking to avoid th e adverse consequences of his presiding over their case.

In re Drexel , 861 F.2d at 1312. Accordingly, we presume Judge Bartlett is impartial, and KPERS bears "the substantial burden of proving otherwise." Pope v. Federal Express Corp. , 974 F.2d 982, 985 (8th Cir. 1992).

Conside ring together the mandamus standard and the abuse o f disc retion standard, the pivotal inquiry for determining whether KPER S asserts a clear and indisputable right to recusa l and whether the district court had a nondiscretionary duty to honor that right is whether Judg e Bartlett abused his discretion by refusing to di squalify himself from this

ca se. In pursuing this inquiry, we must bear in mind that a writ o f mandam us is an extraordinary remedy requiring a showing of exceptiona l circumstances. Because we ultimately conclude t hat the petition is a last hour tactical move as to the Boatmen's and the Blackwell matters and that the district court's decision not to recuse does not amount to an abuse of discretion on any of the issues, we do not addre ss the question of whether another adequate remedy exists.

### 10 B.

Title 2 8, U.S.C. § 455 dictates the circumstances in which a judg e must disqualify himself in a proceeding.

Sub section 455(a) requires a United States judge to "disqualif y him self in any proceeding in which his impartiality might reasonably b e questioned." 28 U.S.C. § 455(a). Under § 455(a ), we consider whether the judge's impartiality might reasonably be questioned by the average person on the street who knows all the relevant facts o f a case. Lunde v. Helms , 29 F.3d 367, 370 (8th Cir. 1994), cert. denied , 115 S. Ct. 1111 (1995) ; United States v. Poludniak , 657 F.2d 948, 954 (8th Cir. 1981), cert. denie d sub nom , Weigland v. United States , 455 U.S. 940 (1982). The words of the Senate Judiciary Committee, in recommending what became § 455(a) under the 1974 amend ments to § 455, provide guidance for judges who must decid e whether to disqualify themselves under § 455(a):

[I]n assessing the reasonableness of a challenge to hi s impartiality, each judge must be alert to avoid the possibility tha t those who would question his impartiality are in fac t seeking to avoid the consequences of his expected advers e decision. Disqualificat ion for lack of impartiality must have a reason able basis. Nothing in [§ 455(a)] should be read t o war rant the transformation of a litigant's fear that a judg e may decide a question against him into a "reasonabl e fear" that the judge will not be impartial. Litigants ought not have t o fac e a judge where there is a reasonable question o f impartiality, but they a re not entitled to judges of their own choice.

S. Rep. No. 93-419, 93d Cong., 1st Sess. 5 (1973) (quoted in 13A Wright, Miller & Cooper, Fede ral Practice and Procedure: Juris 2d § 3549, at 623- 24). Unlike objectio ns under § 455(b), § 455(a) objections can be waived after a court gives full disclosure of the grounds for disqualification. 28 U.S.C. § 455(e).

### 11 Subsection 455(b) spells out the cir cumstances in which a judge must disqualify himself because of his relation to pa rticipants in a case. The specific provisions at issue here are § 455(b)(1 ), which requires a United States judge to disqualify himself from a case if "he has a personal bias
or pre judice concerning a party," and § 455(b)(5)(iii), which require s recusal if the judge "or a person within the th ird degree of relationship to [him] . . . [i]s known by the judge to have an interest that could be sub stantiallyaffected by the outcome of the proceeding." The interes t descri bed in § 455(b)(5)(iii) includes noneconomic as well as economi c interests. Potashnick v. Port City Const. Co. , 609 F.2d 1101, 1113 (5th Cir.), cert. denied , 449 U.S. 820 (1980). Subse ction 455(e) provides that a § 455(b) conflict cannot be waived.

C.

At th e outset, we choose to address the defendants' argument tha t KPERS brought both its district court motion to disqualify and thi s petition for mandamus as a part of a strategic and tactical plan to delay and prevent the district judge from ruling on th e pending summary judgment motions following our July 27, 1995, ruling reve rsing the district court's decision that a ten-year Kansas statute of limitations applied. After a thorough review of the record, we agree with defendants as to the Blackwel l and Boatmen's matters and find the petition as to those matters to b e untimely. With regard to Shook, we believe defendants' argument has merit , but we ultimately decline to find the petition untimely on that issue.
After our ruling that the ten-year Kansas statute of limitation s does not apply to this case, KPERS undertook a flurry of actions which occupied the district court's time to the detriment of the efficient resolution of this case. As noted above, it filed a motion to have the court reconsider its April

### 12

1994 ruling regarding KPERS' proprietary capacity, it filed duplicativ e suits in Kansas state court necessitating the issuance of preliminar y injunctions against i t, and it filed a third motion to remand the case to Kansas st ate court. In his order of October 25, 1995, on the renewe d motion to remand, the district judge noted that "[s]ince the Eighth Circui t Court of Appeals' decision on July 27, 1995, KPERS has taken a number of step s, including the filing of this motion, to delay the expeditiou s resolutio n of this case." (App. Pet'r at 359.) When we affirmed th e temporary injunctions prohibiting KPERS from pursuing the duplicative stat e
cour t suits it filed after our July 27, 1995, statute of limitation s decision, we noted that KPERS' purpose in filing the duplicative stat e suits was to obtain afavorable decision in the Kansas courts on the same statute of limitations issue we had already decided. We found the distric t court's finding that, by filing the duplicative state suits, KPERS ha d
mer elytried to "`carve up what was one case into separate cases wit h separate claims, all leading to a subversion of the RTC's right to remove the entire case'" to be fully supported by the record and not clearl y
erroneous. KPERS v. Reimer & Koger Assocs., Inc

. , 77 F.3d 1063, 1070 (8th Cir. 1996).

The b asic underlying facts concerning Judge Bartlett's stoc k ownership in Boatmen's parent company and his existing relationship with Blackwell 's probate and tax lawyers were known to KPERS for over a yea r before it filed its p etition for mandamus with us. On December 16, 1994, it asked for and received a ruling from Judge Ba rtlett on its then pending recusal request which had asserted the Blackwell and Shook matters. KPERS sought no relief from Judge Bartlett's denial of the request. Instead, as noted above, it embarked on full-scale trial preparation, knowing all alon g of the trial judge's stock holdings in Boatmen's parent company and th e existence of the rela ted suit against it by Boatmen's, filed December 12, 1994, pending before Judge Whipple and of any potential for collatera l effect it now asserts. It waited nearly a year after Judge Bartlet t disclosed his stock holdings before

### 13

rais ing any objection about them. Although Blackwell was allowed t o inter vene by our July 27, 1995, decision, and although KPERS had firs t assert ed its objection about Blackwell the previous November, it waite d unti l two days before the scheduled October 18, 1995, hearing on it s renewed motions to remand and to reconsider the question of its proprietar y capacity, to again seek the judge's recusal based on the Blackwell matters

. Our review of KPERS' pattern of conduct leads us to the conclusion that th e defendants' allegation that KPERS' recusal motion and this petition were filed for tactical an d strategic reasons, as opposed to concern about the impartiality of the t rial judge, is correct. "In the real world, recusal motions are sometimes driven more by litigation strategies than by ethical
concerns. " In re Cargill, Inc. , 66 F.3d 1256, 1262-63 (1st Cir. 1995)

. See als o In re Int'l Business Machines Corp. , 45 F.3d 641, 643 (2d Cir

. 1995) ("[A] prompt application avoids the risk that a party is holding bac k
a r ecusal application as a fall back position in the event of advers e rulings on pending matters.").

We have h eld in the past that even though § 455 has no expres s timeliness requiremen ts, claims under § 455 will not be considered unless timely made. Holloway v. United States , 960 F.2d 1348 (8th Cir. 1992); se e Oglala Sioux Tribe v. Homestate Mining Co. , 722 F.2d 1407, 1414 (8th Cir. 1983) ("Although § 455 does not include an explicit time limitation, w e belie ve that a timeliness requirement is appropriate . . . ."); Unite d States v. Bauer , 19 F.3d 409, 414 (8th Cir. 1994) ("This court has hel d that claims under § 455 `will not be considered unless timely made.'" ) (quoting Holloway ).

We are aware that a recent panel which exercised its authority t o reassign a case on remand to a different trial j udge pursuant to 28 U.S.C. § 2106 po inted out that both Hollowayand Bauer were § 455(b) case s alleging actual bias. United States v. Jim Guy Tucker , 78 F.3d 1313 (8th Cir. 1996). Oglala Sioux , however, which

### 14

predates both Holloway and Bauer , involved both § 455(a) and (b) claims an d imposed a timeliness requirement upon both. Tucker , resting primarily on the exercise of this court's supervisory powers under 28 U.S.C. § 2106 , specifi callyholds that a § 2106 request must be timely made and that a § 2106 request made in an appellate brief satisfies § 2106's timelines s req uirement. Because it was not necessary for the Tucker panel t o determine whether § 4 55(a) has a timeliness requirement attached to it in ord er to determine whether the Independent Counsel's § 2106 request wa s tim ely, we believe the panel's comments, to the extent they can b e construed to indicate that there is no timelines s requirement for § 455(a) challenges, are not controlling in this case.
Our reading of Oglala Sioux , Holloway , Bauer , and In re Apex Oi l Co. , 981 F.2d 302 (8th Cir. 1992), tells us that our circuit has consistently requi red timely action as to § 455 in general, i.e., as to both (a) an d (b). We subscribe to the view that motions to recuse should not "be viewe d
as an additional arrow in the quiver of advocates in the face o f [anticipated] adverse rulings." TV Communications Network, Inc. v. ESPN, Inc. , 767 F . Supp. 1077, 1081 (D. Colo. 1991). We hold that KPERS ' petition for a writ of mandamus is untimely as to the Boatmen's an d Blackwell matters, that it is interposed for suspect tactical and strategi c reasons, and that it can and should be denied for these reasons alone.
We also believe the timing of KPERS' petition as to Judge Bartlett's daughter's then prospective employment at Shook is suspect. When the judg e disclosed in November 1994 his daughter's summer associate position with Shook, KPERS noted its concerns in a letter to the court, arguing tha t
summer employment created a conflict because such positions often ripe n into permanent positions. At that point, although KPERS expressed it s
conc erns, KPERS felt an objection would be premature until Shook wa s actually a party in the case. Three days later, in a November 21, 1994,

### 15

let ter, KPERS changed its stance and actually objected to the conflict

. The court declined to disqualify himself, statin g that he was persuaded by KPERS' original position that disqualification would be premature unti l Shook was indeed a party in this case.
Approximatelyone month later, in December 1994, Shook was allowe d to intervene. Instead of renewing its motion, K PERS engaged in full-blown discov eryfor the next ten months and gave no indication that it wa s
concer ned about Judge Bartlett's impartiality during that time. Fo r example, KPERS filed an amended complaint against Shook and made no mentio n of an y conflict of interest. KPERS also deposed Shook's witnesses an d disclosed five experts it intended to have testi fy against Shook. In midOctober 1995, after we issued an opinion that may render KPERS' cause of action against Shook untimely under the relevant statute of limitations, KPERS finally complained about the alleged conflict involving Judg e Bartlett's daughter.

Given these facts, we believe KPERS' argument regarding Shook may be tainted with the same tactical motives as the arguments regarding th e alleged conflicts wit h Blackwell and Boatmen's. Nonetheless, we note the factual development occuring in October 1995 -- Ms. Mook's acceptance of Sh ook's offer of permanent employment. Within two weeks of thi s development, and two days before a scheduled hearing on its renewed motion s implicating the statute of limiations and seeking remand to state court, KPER S' alleged concern about Judge Bartlett's impartiality re-emerged

. Because Ms. Mook's then prospective permanent em ployment at Shook at least altered the landscape slightly, we give KPERS th e benefit of the doubt and do not fin d the request for disqualification untimely as to the Shoo k matter.

### 16 D.

Alth oughwe hold the conflict issues involving Blackwell an d Boatmen's to be untimely, we turn to the reasons advanced by KPERS fo r disqualification, addressing each specific conte ntion regarding Boatmen's, Blackwell, and Shook, respectively.

KPERS' first contention centers on Judge Bartlett's financia l interest not in Boatm en's itself, but in the parent company of Boatmen's. The judge indisputably has such an interest. Ac cordingly, he disqualified hims elf from presiding over Boatmen's motion to intervene, and whe n Boatmen's motion was later stayed and Boatmen's filed a separate, related declaratory judgment action, that case was not a ssigned to Judge Bartlett. The question here, however, is whether Judge Bar tlett's ownership of stock in the parent company of Boatmen's constitutes a conflict of interest unde r § 455(b)(5 )(iii) or (a) in this case, where neither Boatmen's nor it s parent company is involved.

KPERS contends that a conflict exists because Judge Bartlett' s rulings in this case may have a collateral effec t upon issues in Boatmen's separate declaratory judgment action. The issue s in Boatmen's declaratory judgment action arise out of Boatmen's separate and distinct contractual obliga tions as trustee under trust indentures covering the Home Saving s debentures purchased by KPERS and are not presented in the case pendin g before Judge Bartlett. Apart from its general assertion that there ar e overl apping issues between the two cases, KPERS has not shown th e identi calityof the issues involved sufficient to indicate that Judg e Bartlett 's rulings in this case will, or are likely to, result i n preclusive effect. While it is true that Boatme n's cited Judge Bartlett's dec ision concerning the proprietary nature of KPERS to Judge Whipple i n resisting KPERS' Elev enth Amendment defense, Boatmen's did not assert the decisi on under a collateral estoppel theory, and Judge Whipple wa s certainly free to come to a

### 17

contrary conclusion. Having no specific allegation before us of a common remaining issue in the two separate cases, we do not view this case as one involving potential collateral estoppel.

KPERS als o seems to argue that the possible persuasive authority of this case on the separate action brought by Boatmen's creates a § 455( b)(5)(iii) conflict. KPERS' argument essentially invites us t o speculate on whether a district judge would deci de issues in a case before hima particular way in hopes of persuading a different judge presidin g
over a separate case to reach the same decision. This speculation, a s noted above, would not be based on any identified, remaining overlapping is sue. We decline to accept KPERS' invitation to engage in suc h unsupp orted conjecture. We are confident that Judge Whipple wil l independentlyassess the merits of the arguments in the case before him. At best, Judge Bartlett's alleged financial inte rest in this case in these circumstances is simp ly too remote, speculative, and contingent to be "an interest that could be substantially affected by the outcome of th e proceeding" before him. 28 U.S.C. § 455(b)(5)(iii).

Furthermo re, we are reluctant to fashion a rule requiring judges to
recuse themselves from all cases that might remotely affect nonpart y companies in which they own stock. We believe such a rule would paint wit h too broad a stroke. By way of example, a judge holding stock in General Motors should not hav e to recuse from a case involving Ford Motor Company because some ruling he may make might be used as persuasive authority in a case against GM. Cf. In re Placid , 802 F.2d 7 83, 786-87 (5th Cir. 1986) (reject ing argument that recusal is required when judge owns stock i n nonpartybank and case before him may have impact on banking industry)

. As a general matter, the administratively daunting task of identifying suc h tang ential "interests" outweighs any benefit of eliminating the remot e possibility of consequential bias.

### 18 The only authority KPERS cites to support its collateral estoppe l argument is In re Aetna Casualty & Surety Co. , 919 F.2d 1136 (6th Cir

. 1990). I n Aetna , seven separate cases were brought by the FDIC agains t Aetna. All of them w ere consolidated for trial. All of them involved the interp retation of the same provisions of Aetna's blanket banker's bond

. Because the trial jud ge's daughter was a member of a law firm involved in four of the cases, the judge originally disqualified himself. His daughte r had participated in depositions when the cases were consolidated. Th e trial judge later separated out for trial before him the three cases where his daughter's firm was not involved, and Aetna sought his recusal. A majority of the judges of the Sixth Circuit joined Judge Kennedy' s concurring opinion ho lding that because his daughter had been involved in the consolidated case s, the trial judge should not have severed the cases for tr ial, and should have remained out of all the cases, relying o n § 455(b)(5)(ii). KPE RS draws upon dicta in Aetna , stating that because a decision in any one of the cases might be used collaterally in all th e rest, an additional r eason for questioning the trial judge's impartiality existed. We do not f ind the Aetna dicta to be persuasive authority here, and our research has revealed no other authority for the proposition that a judge's interest in a nonparty company can cre ate a conflict of interest mandating recusal under § 455(b)(5)(iii).

Given the facts of this case, we hol d that KPERS has not carried its substa ntial burden of proving that Judge Bartlett's stock ownership i n Boatmen's parent company creates a § 455(b)(5)(iii) conflict. See Pope , 974 F.2d at 985. KPERS has not proven that Judge Bartlett's stoc k
owners hip in the parent company of Boatmen's would be substantiall y affected by the outcome of this case where neither Boatmen's nor its paren t is a party. Cf. Oglala Sioux , 722 F.2d at 1414 (holding that, in an actio n determining title to certain Black Hills property, the district

### 19

judge wa s not required to recuse because he owned property in th e vicinity).

KPERS' claim that the judge's interest in Boatmen's parent compan y creates an apparent conflict under § 455(a) also fails. Judge Bartlet t disclosed his ownership of stock in Boatmen's parent company on October 26 , 1994. From that time until almost a year later, conferences were held in whichthe parties and the court discussed various aspects of this case

. Not once during this period of time did KPERS question the court' s appearance of impartiality due to the separate case involving Boatmen's. Consid ering these facts, an informed person would not now reasonabl y question Judge Bartlett's ability to preside fai rly over this case because of his interest in a nonparty company. An informed person might instead reasonably question the sincerity of KPERS' belated concern.

KPERS' second allegation of a conflict of interest concerns Judg e Bartlett's relationship with Blackwell. As we n oted above, Judge Bartlett disclosed to all of t he parties in October 1994, when Blackwell sought to int ervene, that probate and tax lawyers in Blackwell had rendered lega l advice and services to him both for his personal estate planning and in th e probate of his parents' estates. He informed th em that while the work was nearlydone, some matters remained to be completed and that his mother's estate remained open and Blackwell's representation was continuing as to the estat e. He offered each party the opportunity to object to hi s continued handling of the case. KPERS made no objection, and in fact has acknowledged that it not only made no objection, but it expressly waived anysuch conflict. See KPERS letter of November 18, 1994, App. Pet'r at 195 ("Previously, we expressed no objection to Judge Bartlett's continued role as judge in this litigation by reason of his involvement with th e estate and probate attorneys at Blackwell Sanders."), and Pl.'s Supp. Resp

. to the Pets. to

### 20

Int ervene at 14, n.6 ("Even though KPERS expressly waived the Blackwel l Sanders conflict . . . .").
Despite i ts previous express waiver, and its admissions against its
own interests that it "did not believe that Judge Bartlett's involvement with the Blackwell fi rm [by itself] warranted significant concern," KPERS
now argues that Judge Bartlett should be disqualified because of hi s involvement with the Blackwell probate and tax l awyers under both § 455(a) and (b)(1) (a judge should disqualify himself "where he has a personal bia s
or prejudice concerning a party . . . ."). We believe the § 455(a ) objection has been expressly waived by KPERS, and we are not persuaded tha t Judge Bartlett's role as a trustee of his late mother's real estate trust (the closing of which was part of the probate matters handled by Blackwell ) requires a different result. What is important is that the relationship between Judge Bartlett and Blackwell and the fact that some matter s remained to be fully completed were disclosed and any potential conflict waived.

With respect to the § 455(b)(1) actual personal bias or prejudic e challenge, KPERS poin ts to no specific instances where Judge Bartlett has demonstrated bias or prejudice in favor of Blackwell. See Liteky v. Unite d States , 114 S. Ct. 1147, 1155 (1994) (distinguishing between the reality of bias or prejudice prohibited by § 455(b)(1) and the appearance of bias prohibite d by § 455(a)). Instead, it relies upon the nature of th e relationship discusse d above. If KPERS was concerned that Judge Bartlett had a personal bias or prejudice in favor of Bla ckwell, that concern would have been triggered by the judge's initial disclosure in October 1994, of his then existing inv olvement with some of Blackwell's lawyers. While it is true that a § 455(b)(1) objection cannot be w aived, it is still subject to the timeliness requirement of our cases. Her e, Blackwell was permitted to interv ene by our July 27, 1995, decision, and yet KPERS waited unti l October to raise the issue it had known about for a year. This delay,

### KPERS also asserts that because Judge Bartlett is a former 8 

### partner of Blackwell, his impartiality appears to be questionable. We first note that Judge Bartlett has had no opportunity to respond to this argument, because KPERS did not raise this issue below. Second, we question KPERS' assertion that its Kansas City attorneys did not know of Judge Bartlett's prior affiliation with Blackwell, a Kansas City firm, and in any event, the information was easily accessible. See Almanac of the Federal Judiciary, vol. 1, at 41 (1995). Finally, Judge Bartlett terminated his partnership with Blackwell when he was appointed to the bench in 1981. In our view, the intervening 15 years are sufficient to erase any appearance of partiality stemming from his prior firm membership. We note that subsection (f) of § 455 provides a procedure 9 

### by which a conflict stemming from a financial interest in a party may be cured, as long as that interest would not be substantially affected by the outcome of the case. Because Judge Bartlett presided over the case and rendered decisions after the alleged conflict appeared or was discovered, we do not believe § 455(f) is applicable to this case, if indeed it covers a § 455(b)(5)(iii) conflict, a question on which we do not comment.
21 considered in the lig ht of the numerous activities KPERS then engaged in, suchas the filing of additional actions in Kansas, gives us substantial reason to conclude that the present challenge wa s tactically motivated and untimely, and we so hold. 8

Next, we address KPERS' third allegation of a conflict -- Judg e Bartlett's daughter's prospective employment wit h Shook. Although Ms. Mook recent lywithdrew her acceptance of Shook's offer of employment, Judg e Bart lett presided over this case and rendered at least two decision s deny ing reconsideration of previously decided issues before Ms. Mook' s withd rawal of her acceptance. We therefore address this issue on th e 9 merits.
We begin our analysis on this issue by observing that an employment relationship between a party and a judge's son o r daughter does not per se
necess itate a judge's disqualification. See Datagate, Inc. v. Hewlett

Packard Co. , 941 F.2d 864, 871 (9th Cir. 1991), cert. denied , 503 U.S. 984 (1992); Hewlett-Packard Co. v. Bausch & Lomb, Inc. , 882 F.2d 1556, 156 8 (Fed. Cir. 1989), cert.

### 22

denied , 49 3 U.S. 1076 (1990). Rather, the determination of whether a conflict exists in a given situation is factually bound.
Upon careful review of these facts, we do not find an actual co nflict under § 455(b)(5)(iii). First, Ms. Mook was not and would not, as a futur e employee of Shook, be involved in the present litigation. Cf. Hunt v
. American Bank & Trust Co. of Baton Rouge , 783 F.2d 1011, 1016 (11th Cir. 1986) (" We do not believe that a law clerk's acceptance of futur e employmen t with a law firm would cause a reasonable person to doubt th e judge's impartiality so long as the clerk refrai ns from participating from the cases involving the firm in question."). Second, the actual employmen t relationship between Shook and Ms. Mook was not to ripen until September 1996. As the facts of this case demonstrate, many circumstances can chang e during the intervening period between the time a law student accepts a n offer to work as an associate and the time the student graduates an d actually goes to work. Third, Ms. Mook was to b e a salaried employee with tradit ional employee benefits, not a partner whose income is directl y related t o the profit margin of the firm and could be substantiall y affecte d by the outcome of this case. See Potashnick , 609 F.2d at 111 3 (distinguishing a partner's interest in a case f rom a salaried associate's interest); United States ex rel. Wienberger v. Equivfax Inc. , 557 F.2d 456 , 463-64 (5th Cir. 1977) , cert. denied , 434 U.S. 1035 (1978) (same). I n addition, Shook is on ly one of a number of defendants; if KPERS prevails, Shook's share of the damages would likely be covered by the insurance the briefs show it has an d almost certainly not affect the salary or benefits of a first-year associate. Given these facts and the contingencies they create, we find it ex tremely unlikely that any loss Shook could suffer in this case would trickle down to Ms. Mook. We th erefore find that Ms. Mook did not have a financial interest in this case. Moreover, Ms. Mook' s personal future was not dependent on Shook's success or failure, as he r cred entials evidently place her in a position where she could obtai n employment with other law firms. We therefore reject KPERS'

### 23

ass ertion that Ms. Mook has any other interest in Shook that could b e substantiallyaffected by the outcome of this case. Cf. Wienberger , 557 F.2d at 463-64 (holding that when judge's son is an associate with law fir m repres enting defendant, but is not actively participating in the case , judge need not recuse himself), cert. denied , 434 U.S. 1035 (1978).

KPERS' argument that Ms. Mook's employment with Shook creates a n apparent conflict under § 455(a) is a more diffi cult issue, for even if no actual conflict exists, we must be confident tha t an informed person would not re asonably believe the judge's impartiality was compromised. Upo n careful review of this entire record, however, w e believe KPERS has failed to show that a denial of a motion to recuse under these facts would be an abuse of discretion, and keeping in mind the procedural context of thi s case, we do not believe KPERS has made the showing necessary to warrant th e extraor dinaryremedy of a writ of mandamus. We again note that we vie w this situation through the eyes of a reasonable person informed of all the facts of this case, including: (1) that Ms. Mook has not and will not be personally involved in this litigation; (2) that in KPERS' first motion fo r recusal, which the judge denied, KPERS viewed summer employment as th e equivalent of permanent employment because the former often ripens into th e latter , and consequently there is little in the way of change d circumstances to support the present challenge; (3) that KPERS did not eve n challenge Judge Bartlett's ruling on KPERS' first Shook objection; (4) tha t during the next ten m onths, including the summer of Ms. Mook's employment with Shook, KPERS approached the pretrial litigation with Shook in the cas e
as a party as if no conflict existed; (5) that prior to his decision on th e
recusa l motion, no one, including KPERS, suggests that Judge Bartlet t exhibited any apparent personal bias for or against any party; (6) tha t when KPERS' second challenge of the potential co nflict finally emerged, it appea red only after KPERS was facing a potentially fatal decision on a motion for summary judgment; (7) that Ms. Mook

### 24

was not a ctually employed with Shook at the time KPERS brought thi s petition ; and (8) that Ms. Mook had accepted an offer to join the fir m prospectively only as a first-year, salaried ass ociate, not a partner with substantial interests in the profit margin of the firm. Considering all of this, as well as t he procedural history we traced in Section I of this opinion, we do not believe KPERS has provided us with the necessary showin g that a n informed person would question the judge's impartiality , particu larlywhen it is now clear that Ms. Mook will not be employed b y Shook at all.
Finally, KPERS argues that all of th ese facts cumulatively create an appearan ce of a conflict of interest in violation of § 455(a). To th e contrary, consideringall of the facts and the procedural context of this case, including KPERS ' delay and motivation, the big picture reveals to a reasonable person a complex case involving an inordinate number of pretria l motions, an underlying struggle between the parties to determine the choic e of forum, a tactical move made by a party who fears a looming advers e decisi on, and an experienced district judge who is attempting t o efficiently resolve the case.

III.

Because we find KPERS' petition to be untimely as to the Blackwel l and Boatmen's challen ges, and because none of KPERS' allegations meet the substantial showing n ecessary to establish a clear and indisputable right to recusal and a nondiscretionary duty on the di strict judge to disqualify himself, we deny the petition for a writ of mandamus.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.