2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-6-2014

In Re: Theresa Ellis

Precedential or Non-Precedential: Non-Precedential

Docket No. 14-3369

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Recommended Citation

"In Re: Theresa Ellis" (2014). 2014 Decisions. Paper 1038.

http://digitalcommons.law.villanova.edu/thirdcircuit_2014/1038
CLD-374 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 14-3369

___________

IN RE: THERESA M. ELLIS; SCOTT A. ZUKOWSKI,

Petitioners

____________________________________

On a Petition for Writ of Mandamus from the 

United States District Court for the District of New Jersey

(Related to D.N.J. Civ. No. 3-05-cv-00726)

____________________________________

Submitted Pursuant to Rule 21, Fed. R. App. P.

September 25, 2014

Before: FUENTES, JORDAN and SHWARTZ, Circuit Judges

(Opinion filed: October 6, 2014 )

_________

OPINION

_________

PER CURIAM

Theresa M. Ellis and her husband, Scott A. Zukowski, have filed a petition for a 

writ of mandamus. We will deny the petition.

Ellis is a former employee of Ethicon Inc. (“Ethicon”) whose employment Ethicon 

effectively terminated in 2001. Ellis filed suit against Ethicon under the Americans with 

Disabilities Act and, following a jury trial, obtained a judgment in her favor. The District 

Court both awarded Ellis an amount of back pay and ordered Ethicon to reinstate her. 
2

Ethicon appealed. While its appeal was pending, Ethicon made two offers of 

reemployment to Ellis. Ellis claimed that Ethicon’s offers were deficient and rejected 

them. She later filed a motion seeking to convert the judgment of reinstatement into an 

award of front pay on the basis of Ethicon’s allegedly deficient offers. The District Court 

denied that motion. Ellis appealed and, after consolidating both parties’ appeals, we 

affirmed both the judgment against Ethicon and the denial of Ellis’s motion. See Ellis v. 

Ethicon, Inc., 529 F. App’x 310, 312 (3d Cir. 2013).

Thereafter, Ethicon filed a motion with the District Court seeking an order 

discharging the judgment of reinstatement on the basis of its two offers of reemployment. 

The parties ultimately entered into a settlement agreement and, when Ellis later contested 

the settlement, Ethicon filed a motion to enforce it. The District Court granted both of 

Ethicon’s motions and discharged the final judgment on June 2, 2014. Both Ellis and 

Ethicon have appealed from that order (C.A. Nos. 14-2937 & 14-3000), and their appeals 

remain to be briefed.

In addition to filing her appeal, Ellis and Zukowski1 have filed the mandamus 

petition presently before the Court asserting that the District Judge is biased and 

committed misconduct. According to Ellis, the District Judge “did nothing” to enforce 

 

1 Zukowski was named as a plaintiff because he asserted a claim for loss of consortium, but that 

claim was dismissed by stipulation before trial and we question whether Zukowski is a proper 

petitioner at this stage. We need not resolve that issue, however, because Ellis’s own name 

appears on the petition and she has signed the certificate of service. We refer hereafter solely to 

Ellis.
3

our mandates, improperly disclosed the existence of a judicial complaint against him 

during a May 7, 2014 teleconference with the parties, and has shown an otherwise 

unspecified “history of bias” against Ellis requiring the District Court’s disqualification 

under 28 U.S.C. § 455(a).2 For relief, Ellis requests that we (1) vacate the District 

Court’s orders entered after the May 7 teleconference and (2) order reassignment of this 

case to a difference District Judge on remand.

We decline to order either form of relief. Mandamus is an extraordinary remedy 

that we have the discretion to grant only when, among other things, “there is no other 

adequate means to obtain the desired relief.” In re Kensington Int’l Ltd., 353 F.3d 211, 

219 (3d Cir. 2003) (quotation marks omitted). Ellis has not shown that she has no other 

adequate means of obtaining the relief she requests.

First, Ellis’s argument that we should vacate the District Court’s post-May 7 

rulings potentially states grounds for relief on appeal, and “mandamus must not be used 

as a mere substitute for appeal.” Id. (quotation marks and alteration omitted); see also

Knoll v. City of Allentown, 707 F.3d 406, 411 (3d Cir. 2013) (addressing claim of 

judicial bias raised in brief on appeal). Ellis has not argued that she cannot obtain 

effective relief if warranted on appeal, and we discern no reason why she cannot.

Second, Ellis’s request that we order reassignment to a different District Judge by 

 

2 This statute applies when a judge’s “impartiality might reasonably be questioned.” Claims of 

actual bias of the kind that Ellis appears to assert, by contrast, are governed by 28 U.S.C. § 144. 

This distinction is not relevant to our disposition.
4

way of mandamus is premature because she has not filed a motion seeking the District 

Judge’s disqualification in the District Court. “Mandamus is a proper means for this 

court to review a district court judge’s refusal to recuse from a case pursuant to 28 U.S.C. 

§ 455(a).” In re Kensington Int’l Ltd., 353 F.3d at 219 (emphasis added) (quotation 

marks omitted). When the District Judge has yet to refuse a request for recusal, however, 

it cannot be said that a petitioner has no recourse but to seek the extraordinary remedy of 

mandamus from this Court. See id. at 223-24.3 In addition, an order of reassignment to a 

different District Judge is a form of relief that we can award, if warranted, pursuant to 28 

U.S.C. § 2106 as part of our disposition of an appeal on the merits. See United States v. 

Kennedy, 682 F.3d 244, 258 (3d Cir. 2012).

For these reasons, we will deny the mandamus petition. Our denial is without 

prejudice to Ellis’s ability to raise her present arguments in her brief on appeal in C.A. 

No. 14-2937. We emphasize that we express no opinion on the merits of those 

arguments.

 

3 This discussion should not be read to suggest that Ellis file a motion for disqualification with 

the District Court now. The parties have appealed the District Court’s order discharging the 

judgment, which directed Ethicon to pay the settlement amount into court pending the 

disposition of any appeal, and it thus appears that the District Court intends to take no 

substantive action pending our disposition of the parties’ appeals.