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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

JAMES P. DeFAZIO,

Plaintiff,

v. NO. CIV. S-04-1358 LKK/GGH

HOLLISTER, INC., Plan 

Administrator; et al., O R D E R

Defendants.

 /

Plaintiffs James P. Defazio, Kathleen Ellis, Brenda Dimaro,

Hallie Lavick, and Michael McNair (plaintiffs), brought suit

against defendants Hollister Incorporated, the Firm of John

Dickinson Schneider, Inc., the Hollister Employee Share Ownership

Trust, Samuel Brilliant, James A. Karlovsky, James J. McCormack and

Richard T. Zwirner (defendants) alleging various violations under

the Employee Retirement Income Security Act of 1974 ("ERISA"; 29

U.S.C. §1001 et seq.). Pending before the court is defendants’

motion to vacate Judge David Levi's January 9, 2007 order

reassigning the DeFazio case back to this court.

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 At the time defendants’ filed their motion to vacate, the 1

reason for this court’s initial recusal had not yet been disclosed.

On February 7, 2007, after defendants’ filed their motion, this

court issued an order which set forth the reasons for the recusal.

Defendants respond to the February 7th order in their reply brief.

2

I.

Background 

The court briefly sets forth the background facts relevant to

the recusal order and subsequent reassignment of the pending case.

This court initially disqualified itself when it learned that the

law firm of Porter, Scott, Weiberg & Delehant (attorneys for

plaintiff Kathleen Ellis in the above captioned case) was

representing the Sacramento Public Defenders’ Office in a Section

1983 case. See Order of Recusal, September 12, 2006. The judge’s

wife, a public defender for the County, was a named defendant. The

case, Ware v. Sacramento County et. al., 06-00913 RRB, has since

been dismissed and the time for appeal has expired. Soon

thereafter, the pending case was reassigned to this court. See

Reassignment Order, January 9, 2007. Defendants’ now seek to

vacate the reassignment order.1

II.

Standard

It is well established that in deciding whether recusal is

appropriate under § 455(a), “what matters is not the reality of

bias or prejudice but its appearance. Quite simply and quite

universally, recusal was required whenever ‘impartiality might

reasonably be questioned.’” Liteky v. United States, 510 U.S. 540,

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26 Whether it should be granted is quite another matter. 2

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548 (1994)(internal citations omitted). Under Section 455(a),

recusal is required “‘if a reasonable person, knowing all the

circumstances, would expect that the judge would have actual

knowledge’ of his interest or bias in the case.” Sao Paulo of Fed.

Repub. v. American Tobacco Co., 535 U.S. 229, 232-33 (2002)

(quoting Liljeberg v. Health Services Acquisition Corp., 486 U.S.

847 (1988)). In general, a judge, “once having disqualified

himself for cause, on his own motion,” should not subsequently

resume full control of the proceeding. Stringer v. United States,

233 F.2d 947, 948 (9th Cir. 1956).

III. 

Analysis

Defendants’ motion to vacate is premised on the general rule

that a judge should not resume control of a case once he has

recused himself. For the reasons set forth below, defendants’

motion will be granted.2

In Stringer v. United States, the trial court judge

disqualified himself for an unknown reason and then some time

later, the case was reassigned to him. The Ninth Circuit found

this to be an incurable error: “In our judgment, once having

disqualified himself for cause, on his own motion, it was incurable

error for the district judge to resume full control and try the

case.” 233 F.2d at 948 (9th Cir. 1956). In a footnote, however,

the Stringer court also stated that,

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[t]here may be other instances where a judge disqualifying

himself could resume direction or even decide the issues.

For instance, he might be mistaken as to the identity of a

party. But the reason for resuming control should be more

than a second reflection on the same facts which the trial

judge considered originally disqualified him. 

Id. at 948, n. 2. 

Defendants argue that the court should follow Stringer’s

holding and not retain control of the case. Plaintiffs, on the

other hand, rely on the Stringer footnote for support and contend

that resuming control is proper because the conflict of interest

no longer exists. While plaintiffs present a compelling argument,

the court concludes that recusal is the more prudent course of

action. 

The First and Fifth Circuits also addressed the issue of

whether a judge, once recused, should resume control of a case.

Citing Stringer, the First Circuit held that a district court judge

should not have retaken control of a case after having recused

herself. El Fenix de Puerto Rico v. The M/Y Johanny, 36 F.3d 136,

141 (1st Cir. 1994). The court went on to state that, while “it

may be arguable that this reasoning does not control the distinct

question whether an improvident recusal order may be revisited by

the recused judge absent a proper waiver under subsection 455(e),

[the court was] aware of no such authority for such a position.”

Id. at 141-42. 

The Fifth Circuit reached a similar conclusion in Doddy v. Oxy

U.S.A., Inc., in which the judge recused herself and then

determined that she need not have done so. 101 F.3d 448 (5th Cir.

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1996). In concluding that the judge should not resume control of

the case, Doddy addressed the Stringer footnote: “[The court]

doubt[s] the value of this footnote. First, it cites no authority

for its conclusion. Indeed, it seems to conflict with the

overwhelming body of case law that suggests that judges can do

nothing after recusal other than transfer their case to another

judge.” Id. at 458. Clearly, the First and Fifth Circuits follow

Stringer’s holding, rather than the possibility left open in its

footnote.

While not binding on this court, other sources provide

additional guidance. First, various state courts have determined

that once a judge recuses himself, it is improper for the judge to

resume control of the case. See, e.g., Payton v. State, 937 So.2d

462, 465 (Miss. App. 2006) (“The State has cited to [the court] no

authority which contradicts the proposition that, once recused, a

judge should take no further action in the case.”); Margulies v.

Margulies, 528 So.2d 957, 960 (Fla. App. 3 Dist. 1988) (citing

Stringer to support its contention that, “in the few cases

regarding this issue . . . , the rule has been followed

unwaveringly”). 

Secondary authority also provides support for defendants’

position. See, e.g., 13A Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure § 3550 (3rd Ed. 2003)(“If the judge

concludes that he is disqualified he should take no other action

in the case except the necessary ministerial acts to have the case

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 All the above conflicts with a judge’s duty to decide the 3

case properly before the judge, and not to unreasonably burden his

colleagues.

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transferred to another judge.”)3

In light of the guiding cases on point, it seems that once a

judge recuses himself, he should not resume control of the case.

In the case at bar, the court’s initial reason for disqualification

is no longer present. However, in an abundance of caution, this

court will follow the prudent course of action and not resume

control of the case.

IV. Conclusion

The motion to vacate is GRANTED and the matter is REFERRED to

the Chief Judge for reassignment.

IT IS SO ORDERED.

DATED: March 27, 2007. 

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