1 District Judge Kenneth M. Hoyt, Southern District of Texas, presiding over proceedings

entitled Dorothy Adams, et al. v. Chevron U.S.A., Inc., et al.

, bearing number 96-CV-1462

on the docket of said court.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-20612

IN RE:

CHEVRON U.S.A., INC., GULF PRODUCTION COMPANY,

GULF PIPE LINE COMPANY, GULF REFINING COMPANY,

and GULF OIL CORPORATION,

Petitioners.

Petition for Writ of Mandamus

to the United States District Court for the

Southern District of Texas

August 19, 1997

Before POLITZ, Chief Judge, SMITH and BENAVIDES, Circuit Judges.

POLITZ, Chief Judge:

Chevron U.S.A., Inc., et al., bring t his, their Third Petition for Writ of

Mandamus, based upon the district judge’s denial of their motion for his

disqualification under 28 U.S.C. § 455. 1 For the reasons assigned, we conclude that

the actions complained of meet the stan dards for recusal under § 455, but, as we

explain, we exercise our discretion and decline to issue the requested writ.

Background2 In re City of Houston , 745 F.2d 925 (5th Cir. 1984).

2 This petition for writ of mandamus arises out of an action filed by current

and former residents of Kennedy Heights, a predominantly black su bdivision in

Houston, against several defendants, including Chevron and L og Development

Company. Involved is a mass tort action in which plaintiffs claim damages for

personal in

juries, wrongful death, and property damage, with overtones or

implications of alleged race discrimination. On July 24, 1997 Chevron invoked

28 U.S.C. § 455 and sought the trial judge’s disqualificat ion based upon several

statements made by the judge which Chevron viewed as demonstrating the judge’s

personal bias or prejudice against it or which created the appearance thereof. The

district judge denied the motion, referring the ruling for review by his chief district

judge who declined to perf o rm that review, correctly deeming same to be an

appellate function. Chevron then filed the instant petition which we immediately

set for oral argument, staying further evidentiary hearings in the case pending our

ruling. The trial judge thereafter filed a supplemental order denying the recusal

motion in which he stated that he found Chevron’s subm i ssions to be “frivolous,

speculative, and lacking virtue,” a finding with which we do not agree.

Analysis

We note at the outset that a petition for writ of mandamus is an appropriate

legal vehicle for challenging the denial of a disqualification motion, but it is relief

granted only in exceptional circumsta nces. 2 Although section 455 speaks in3 Sec tion 455(a) requires that any judge “shall disqualify himself in any

proceeding in which his impartiality might reasonably be questioned. ” Section

455(b)(1) provides that the judge “shall also disqualify himself

. . . [w]here he has

a personal bias or prejudice concerning a party. . . .”

4 In re City of Houston

.

5 Nichols v. Alley

, 71 F.3d 347, 352 (10th Cir. 1995) (per cur iam) (granting

mandamus) (citing United States v. Dandy , 998 F.2d 1344, 1349 (6th Cir. 1993)).

6 United States v. Jordan , 49 F.3d 152 (5th Cir. 1995).

7 Id. at 155 (citing Liljeberg v. Health Servs. Acquisition Corp.

, 486 U.S. 847

(1988)).

8 Liteky v. United States , 510 U.S. 540 (1994).

3 mandatory language, 3 in actual application we have recognized that the decision to

recuse is committed to the sound discretion of the district court and typically is

reviewed for an abuse thereof. 4 But, “[i]f the question of whether § 455(a) requires

disqualification is a close one, the balance tips in favor of recusal.” 5

The purpose of section 455 ( a), upon which Chevron principally relies, is

apparent; it seeks to protect against even the appearance of impropriety in judicial

procee dings 6 and we are charged with determining “whether a reasonable and

objective person, knowing all of the facts, would harbor doubts concerning the

judge’s impartiality.” 7

The Supreme Court has given substantial guidance in the proper application

to be given to section 455(a), teaching that judicial rulings and comments standing

alone rarely will suffice to disqualify a judge. 8 For example, it has instructed that

“judicial remarks during the course of a trial that are critical or disapproving of, or

even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias9 Id. at 555.

10 Id.

1 1 It is undisputed that although the statements we re on the record, n one was

made in the presence of the jury, and all were made in sideb ar or conference

discussions. Some comments were quoted, however, in the local press. Counsel’s

assurances and the record satisfy us that the trial court took qui ck and effective

steps to learn if any juror had become aware of same and was adversely affected

thereby. That consequence apparently has not happened to date. This does not end

the inquiry, of c ourse, as statements made outside the jury's hearing may still

satisfy the standards of § 455(a).

1 2 The objectionable statements include a comment by the court in its rejection

of a writing indicating a greater incidence of lupus amongst black persons, which

Chevron’s counsel was planning to use in the cross-examinatio n of plaintiffs’

expert, that the writing was of little or no value “because white people wrote it.”

In lecturing counsel who said “black race” in his questioning, that there was “but

4 or partiality challenge.” 9 Such remarks will require disqualification, however, “if

they reveal such a high degree of favoritism or antagonism as to make fair

judgment impossible.” 10

Bringing to our attention several comments made on the record by the trial

judge, 11 Chevron contends that he should be disqualified for expre ssing personal

views about race, base d on an extrajudicial source, reflecting a pronounced bias

against Chev ron. Alternatively, Chevron submits that even if the judge is not

actually biased, the statements have created such an appearance of prejudice or bias

that public confidence in the judiciary generally, and in the outcome of the instant

litigation in particular, will be sorely impaired. We perforce agree with Chevron

that the challenged statements and comments are unfortunate, grossly

inappropriate, and deserving of close and c areful scrutiny and most serious

consideration. 12one race

. . . [only] genetic differences,” the judge pronounced: “I don’t care what

the literature says” and proceeded to make a patently o ffensive comparison of

ethnic differences:

Why do you think Chinese people are short? Because there is so damn much

wind over there they need to be short. Why are they so tall in Africa?

Because they need to be tall. It’s environmental. I mean, you don’t jump up

and get a banana off the tree if you’re only 4 feet. If you’re 7 foot tall and

you standing in China, then you’re going to g et blown away when that

Siberian wind comes through.

Those comments were followed by a reference to the ultimate wisdom of the Deity

and these remarks:

I think He knew that people in China didn’t need to be tall and that people

in Africa did. I think He knew that people in Africa needed to have this stuff

in their skin because, if they didn’t, they wouldn’t have surv ived in the

jungle. I think He knew that the people in Europe, Great Britain, didn’t need

it because, if they had that stuff in their skin, they would have died, but,

because they don’t have the pigmentation, they can live in Europe. Because

I have the pigmentation, I can’t live in Europe.

Further, in another conference the judge informed counsel: “I would not want to

be an

employee of Chevron U.S.A. if Chevron loses this case, because I would feel, as a black person, that something bad could happen to me real fast.” When counsel

fo r Chevron indicated his distress at this comment the judge continued: “I am

distressed that we live in a country [where] this kind of stuff happens.”

5 We are not persuaded from our review of the filings before us, specifically

the relevant excerpting of the trial court’s comments which counsel have quoted,

together with the representations of counsel in oral argument, that counse l have

carried their burden of demonstrating that the district judge has a personal bias or

prejudice for or against any party in the subject litigation. From the comments and

actions counsel have underscored in briefs and oral argument we are not persuaded

that the judge has displayed a deep-seated favoritism toward the plaintiff, nor has

he formed actual opinions based upon an extrajudic ial source that disadvantage13 Liteky , 510 U.S. at 555.

1 4 While plaintiffs’ counsel assert that the remarks were made in a joking or

flippant manner, counsel for Chevron disagree. We find it unnecessary to resolve

this dispute.

1 5 Needless to say, a judge is not insulated from recusal, in a racially-charged

case such as this, because he or she is black. I n this regard, we note that in their initial

response to the petition, plaintiffs' counsel contended that the thrust of the disqualification

motion is that the trial judge should be disqualified in this case because he is black. Nothing

in the record supports this imputation of motive to Chevron or its counsel. We quickly

disposed of a similar charge in another case seeking recusal by mandamus:

6 Chevron. We reach a different conclusion, however, as relates to the charge of an

appearance of partiality.

Chevron’s alternative argument tha t a reasonable and objective person,

knowing all of the facts, would harbor doubts concerning the judge’s impartiality

is persuasive. This standard applies if a judge's statements “reveal an opinion that

derives from an extrajudicial source.” 13 The quoted statements qualify as such.

While one may argue to the contrary, we must conclude that a reasonable

person could believe that some of the judge’s rulings might be impacted by beliefs

or feelings, conscious or unconscious, underlying the quoted statements. Despite

the assurances of counsel present when the statements were made that they were

made either in jest or purposely were outrageous or sarcastic 14 and used by the

judge to emphasize his point in explaining his position, and that no harm was

intended, we must consider more. Regardless of intent, it is totally unacceptable

for a federal judge 

### SS irrespective of the judge’s color 

### SS to make racially

insensitive stat ements or even casual comments of same during the course of

judicial proceedings. 15 Such are not to be tolerated in any litigation and mostIn their brief the att orneys for plaintiffs state that “[t]he implicit premise of

petitioner's argument is that a judge who belongs to a raci al minority group is

inherently incapable of presiding fairly in a civil rights action involving other

members of that group.” We find no justification for that statement. The [petitioner]

raises a question of subst ance and may well have served the court and all of the

parties by seeing that it is resolved at this time.

In re City of Houston , 745 F.2d at 926 n.2.

16 United States v. Gregory , 656 F.2d 1132 (5th Cir. Unit B Sept. 1981).

7 d ecidedly are verboten in litigation in which racial or ethnic consideratio ns are

relevant to an issue before the court. When they occur, the risk of creating a public

perception that the judge has a bias or prejudice which might affect the o u tcome

crosses the proscribed threshold. This is especially true in a racially-charged case

such as the instant one. Accordingly, here a reasonable person might indeed harbor

doubts about the trial judge’s impartiality and recusal would be appropriate under

the terms of § 455(a).

Reaching that conclusion does not complete our consideration of the instant

petition, for mandamus ordinarily is a discretionary remedy. 16 Relative to the

specifics before us, we today hold that in a situation in which recusal is sought on

the basis of perceived bias, we have the discretion to decl ine to grant the writ of

mandamus. We opt to exercise that discretion.

Our examination of the course of the subject litigation reflects several facts

critical to today’s disposition. The jury was picked over 10 weeks ago and the trial

began. There already have been 31 trial days during which 58 witnesses have

testified. The trial was preceded by at least 9 pretrial conferences. It appears that

the plaintiffs are very near the completion of their case in chief. To disqualify the1 7 Our opinion should not be interpreted to say that recusal is never appropriate

in mid-trial; the status of a case is merely a factor we use in making our

discretionary decision.

1 8 See 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal

Practice and Procedure § 4478, at 798 (1981) (“Rulings that simply deny

extraordinary relief for want of a clear and strong showing on the merits, or that are avowedly preliminary or tentative, do not trigger law of the case consequences.”)

and cases cited therein.

8 present judge this far into the proceedings would be unprecedented. 17

This conclusion is bolstered by our view that th e continuation of these

proceedings in the district court would not be an exercise in futility. Chevron has

not begun to present its side of the case. Once the trial proceeds to final judgment,

if appropriate and called for another panel may review the record of the entire trial

to det ermine whether any proscribed bias requires that the final judgment be

vacated. That panel would have substantially greater information available to it.

Capsulating, we are not persuaded from our review of the filings in this court

by counsel for the parties, the quoted excerpts from the trial record, and the

representations of counsel in oral argument, that the district judge has been shown

to have a personal bias or prejudice concerning a party. Thus, we at this time deny

mandamus on the claim of personal bias or prejudice for want of a clear and strong

showin g on the merits. This ruling is not intended to trigger law of the case

consequences that would bind a subsequent pa n el of this court. 18 We conclude,

however, that a reasonable perception of bias or prejudice exists but, for the reasons

assigned, we decline to issue the requested writ.

We entrust to the district judge's discretion the proper course of action in9

light of today’s disposition and our reasons therefor. Because of the identified

discretionary basis for our r uling, the denial of the writ necessarily is without

prejudice to petitioners.

In light of today’s ruling the pending mo tion for an instanter ruling or,

alternatively, for a lifting of our stay of trial proceedings is mooted and is dismissed

as such.

The petition for writ of mandamus is DENIED.