2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-24-2004

Selkridge v. United Omaha Life

Precedential or Non-Precedential: Precedential

Docket No. 03-1146

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"Selkridge v. United Omaha Life" (2004). 2004 Decisions. Paper 942.

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 PRECEDENTIAL

UNITED STATES 

COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

NOS. 03-1146 and 03-1147

 

 MARGARITA SELKRIDGE

Appellant

v.

UNITED OF OMAHA LIFE

INSURANCE COMPANY

 

On Appeal From the District Court 

of the Virgin Islands

(D.C. Civil Action No. 01-cv-00143)

District Judge: Hon. Thomas K. Moore

 

Argued December 8, 2003

BEFORE: NYGAARD, BECKER and

STAPLETON, Circuit Judges

(Opinion Filed February 24, 2004)

 

Lee J. Rohn

K. Glenda Cameron (Argued)

1101 King Street, Suite 2

Christiansted, St. Croix, USVI 00820

 and

Terry M. Halpern

Suite 314

9003 Havensight Mall

Charlotte Amalie, St. Thomas, USVI

00802

 Attorneys for Appellant

Charles E. Engeman

Simone R.D. Francis (Argued)

Ogletree, Deakins, Nash, Smoak &

Stewart

1336 Beltjen Road, Suite 202

Charlotte Amalie, St. Thomas, USVI

00802

 Attorneys for Appellee

 

OPINION OF THE COURT

 

STAPLETON, Circuit Judge:

Margarita Selkridge (“Selkridge”) filed

a lawsuit against United of Omaha Life

Insurance Company (“Omaha”) on several

state-law theories alleging that she had

been wrongfully denied benefits under her

disability plan. (“Selkridge I.”) After the

District Court granted summary judgment

on all of those theories in favor of the sole

defendant, Selkridge chose not to appeal

that decision. Instead, she filed a new

lawsuit that asserted a claim “arising

under” the Employee Retirement Income

Security Act (“ERISA”) for the wrongful

denial of benefits. (“Selkridge II.”) The

District Court granted summary judgment

on res judicata grounds. Selkridge also

eventually filed a Fed. R. Civ. P. 60(b)
2

motion seeking to amend the judgment in

Selkridge I to indicate that the grant of

summary judgment was without prejudice

to filing a new lawsuit. The District Court

denied the Rule 60(b) motion because it

sought to utilize that Rule as a substitute

for an appeal.

Selkridge appeals the grant of summary

judgment and the denial of her Rule 60(b)

motion in Selkridge I and the grant of

summary judgment in Selkridge II. We

determine that we are without jurisdiction

to hear an appeal of the grant of summary

judgment in Selkridge I because an appeal

was not timely taken. While we conclude

that Judge Moore should have recused

himself before entering the order granting

summary judgment in Selkridge II and the

order denying Selkridge’s Rule 60(b)

motion in Selkridge I, we hold that our

recognition of his failure to do so as plain

error and our independent, plenary review

of those orders make further remedial

action unnecessary. Accordingly, given

that our independent plenary review

convinces us that the results reached were

required as a matter of law, we will affirm

both December 23, 2002, orders.

I. Background

Selkridge was enrolled in a group

insurance plan with Omaha during the

period in which she was employed by the

Virgin Islands Telephone Company and its

successors. In December 1996, Selkridge

filed an application for long-term disability

benefits with Omaha. Omaha denied the

claim initially and, following an appeal,

Selkridge then filed Selkridge I, a diversity

action in the District Court of the Virgin

Islands against Omaha alleging breach of

contract, bad faith, fraud, intentional

infliction of emotional distress, and

negligent infliction of emotional distress.

Omaha moved for summary judgment

on all claims Selkridge had alleged against

it. The motion contended that all of

Selkridge’s claims arose “under the

common law of the Territory” and were

therefore “expressly preempted by

ERISA.” JA at 61. 

In her opposition to Omaha’s motion,

Selkridge argued that summary judgment

should be denied but went on to make the

following request: “[i]f this Court were to

find that the claims are preempted and

must be converted to federal claims,

Plaintiff respectfully requests that she be

given the opportunity to amend her

Complaint accordingly to more clearly

state her claims as federal violation of

ERISA claims.” JA at 156-57. 

The District Court held that all of

Selkridge’s claims were preempted by

ERISA and that Omaha was entitled to

summary judgment on all counts. See

Selkridge v. United of Omaha Life Ins.

Co., 221 F. Supp. 2d 579 (D.V.I. 2002). It

did not mention the application for leave to

amend found only in Selkridge’s brief.

The Court’s February 22, 2002, order

read: “it is hereby ORDERED that

defendants’ motion for summary judgment

. . . is GRANTED. . . .” JA at 364. The

order did not expressly reserve to
3

Selkridge a right to pursue ERISA-based

claims in a new action. 

On April 23, 2002, Selkridge filed a

new action, Selkridge II, in the District

Court. The complaint asserted that

Selkridge’s claim “arises under ERISA.”

JA at 390. 

Omaha moved forsummary judgment in

Selkridge II on September 23, 2002,

arguing that Selkridge’s claim “under

ERISA” was barred by res judicata

because it arose out of the same set of

circumstances at issue in Selkridge I and

could have been litigated in Selkridge I.

On October 30, 2002, eight months after

the order granting summary judgment in

Selkridge I, Selkridge filed a Fed. R. Civ.

P. 60(b) motion in Selkridge I. That

motion requested that the District Court

“clarify” its February 22, 2002, order to

state that Selkridge’s claims in Selkridge I

were “converted to federal claims” and to

grant Selkridge “leave to amend to plead

claims under ERISA” with respect to

Selkridge I. JA at 719, 726.

On December 23, 2002, the District

Court granted summary judgment in

Selkridge II on res judicata grounds and

denied the Rule 60(b) motion in Selkridge

I on the ground that it was an

impermissible attempt to utilize that Rule

as a substitute for an appeal. See Selkridge

v. United of Omaha Life Ins. Co., 237 F.

Supp. 2d 600 (D.V.I. 2002). 

Just before the summary judgment

motion in Selkridge II and the Rule 60(b)

motion in Selkridge I were filed, one of

Selkridge’s attorneys wrote a letter-to-theeditor of an on-line publication critical of

the District Judge presiding over the

Selkridge matters. The content of the

letter was not directly related to either

Selkridge matter, but the letter prompted a

series of events that will be discussed in

Part III of this opinion relating to the

propriety of the DistrictJudge’s continuing

to preside over the Selkridge matters.

On January 9, 2003, Selkridge filed a

notice of appeal in Selkridge I seeking to

appeal the February 22, 2002, grant of

summary judgment in Selkridge I, the

December 23, 2002, denial of her Rule

60(b) motion, and “the Court’s recusal of

itself from this case and its subsequent

reinstatement, sua sponte.” SA. On the

same day, Selkridge filed a notice of

appeal seeking to appeal the December 23,

2002, grant of summary judgment in

Selkridge II.

1

 

1

 These notices of appeal were not

included in the appendix filed by

Selkridge. Instead, the appendix included

two additional notices of appeal for

Selkridge I and Selkridge II, both of which

were filed on January 13, 2003. The

January 13, 2003, notice of appeal for

Selkridge I was the same as the January 9,

2003, notice of appeal for Selkridge I. The

January 13, 2003, notice of appeal for

Selkridge II, however, differed from the

January 9, 2003, notice of appeal for

Selkridge II, and failed to specify any

order being appealed from in Selkridge II.
4

II. Jurisdiction to Hear an Appeal from

the Grant of Summary Judgment in

Selkridge I

Selkridge insists that we have

jurisdiction to review the summary

judgment order entered in Selkridge I

under 28 U.S.C. § 1291, which authorizes

appeals from final decisions of the District

Court. We cannot agree. 

“A final order is one that ‘ends the

litigation on the merits and leaves nothing

for the court to do but execute the

judgment.’” Welch v. Folsom, 925 F.2d

666, 668 (3d Cir. 1991) (quoting Coopers

& Lybrand v. Livesay, 437 U.S. 463, 467

(1978) (internal quotations omitted)). For

purposes of appeal under 28 U.S.C. §

1291, “A summary judgment that fully

disposes of all claims among all parties is

final.” 15B Charles Alan Wright, Arthur

R. Miller & Edward H. Cooper, Fed. Prac.

& Proc.: Juris. 2d § 3914.28 (2d ed. 1992),

at 202; see Hampton v. Borough of Tinton

Falls Police Dept., 98 F.3d 107, 111 (3d

Cir. 1996) (“The district court granted

summary judgment for the defendants as to

all counts of plaintiffs’ complaint. . . . The

district court’s grant of summary judgment

is a final order that disposed of all claims,

and this court therefore has jurisdiction

over this appeal pursuant to 28 U.S.C. §

1291.”). The District Court’s February 22,

2002, order granted summary judgment in

favor of Omaha on all of Selkridge’s

claims on the grounds that the claims were

expressly preempted by ERISA. Because

it disposed of all claims with respect to all

parties,2 that order was a final order within

Selkridge has made a motion to

correct the appendix with respect to the

fact that the January 9, 2003, notices of

appeal were not included in the appendix.

Under Fed. R. App. P. 30(a)(2), “[p]arts of

the record may be relied on by the court or

the parties even though not included in the

appendix.” While we need not necessarily

correct the appendix, Selkridge’s motion is

unopposed and we will, by separate order,

grant the motion.

Selkridge concedes that the January

13, 2003, notice of appeal in Selkridge II

“does not correctly identify the District

Court Order from which an appeal was

taken in that case.” Motion at 3. We will

consider the January 13, 2003, Selkridge II

notice of appeal as one merely expanding

that which Selkridge sought to appeal in

Selkridge II–and not one intended as a

substitute for the earlier notice of

appeal–because it provides no indication

that it was intended to change the content

of the earlier notice of appeal. Therefore,

as construed by this Court, Selkridge’s

notices of appeal in Selkridge II seek to

appeal the December 23, 2002, order

granting summary judgment to Omaha. 

 

2

 That order also met the procedural

requirements of Fed. R. Civ. P. 58 for an

order that commences the running of the

time for appeal. See Local Union No.

1992 of the Int’l Brotherhood of Electrical

Workers v. The Okonite Co., F.3d ,

2004 WL 113150, *5 (3d Cir. 2004) (order

satisfies Rule 58’s separate document

requirement where it (1) is self-contained
5

the meaning of 28 U.S.C. § 1291.

Fed. R. App. P. 4(a)(1)(A) requires that

a notice of appeal be filed “with the

district clerk within 30 days after the

judgment or order appealed from is

entered,” id., unless certain exceptions

inapplicable here apply. Selkridge filed

her notice of appeal in Selkridge I on

January 9, 2003–over ten months after

summary judgment had been granted in

that matter. It is a well-established rule

that “[t]he time limits for filing a notice of

appeal are ‘mandatory and jurisdictional.’”

In re Rashid, 210 F.3d 201, 204 (3d Cir.

2000) (quoting Krebs Chrysler-Plymouth,

Inc. v. Valley Motors, Inc., 141 F.3d 490,

495 (3d Cir. 1998)); see, e.g., Browder v.

Director, Dept. of Corrections of Illinois,

434 U.S. 257, 264 (1978) (same); U.S. v.

Vastola, 989 F.2d 1318, 1321 (3d Cir.

1993) (same). We thus lack jurisdiction to

review the summary judgment in Selkridge

I.

Selkridge first argues that she “did not

seek reconsideration or appeal the district

court’s decision because she reasonably

believed that the district court had

overlooked her request for automatic

conversion of [plaintiff’s] claims and leave

to amend. . . .” Appellant’s Reply Brief at

8-9 (footnote omitted). We are

unpersuaded. If Selkridge’s counsel

thought that the District Court had

“overlooked” her request for automatic

conversion of her state law claims into

ERISA claims, and had also “overlooked”

Selkridge’s request for leave to amend, we

fail to understand how this would excuse

counsel from seeking reconsideration by

the District Court or appealing the District

Court’s decision.

Alternatively, Selkridge argues that her

counsel reasonably viewed the February

22, 2002, order as a partial summary

judgment and, accordingly, not as a final

order. While it is true that a grant of

“partial summary judgment” under Fed. R.

Civ. P. 56(d) is not a “final” judgment

within the meaning of 28 U.S.C. § 1291

because it is an adjudication of less than

the entire action, see 10B Charles Alan

Wright, Arthur R. Miller & Mary Kay

Kane, Fed. Prac. & Proc.: Civil 3d § 2737

(1998), at 322-25, there is simply no

record basis for construing the February

22, 2002, order as a grant of partial

summary judgment. Omaha moved for

summary judgment on all claims on the

grounds that the claims were expressly

preempted by ERISA. Although Omaha

requested that, in the alternative, it be

granted partial summary judgment on

Selkridge’s state law claims should “Count

I [be] deemed to constitute a claim for

benefits under ERISA,” JA at 48, the

February 22, 2002, order in explicit terms

grants summary judgment on all claims.3

and separate from the opinion, (2) sets

forth the relief granted, and (3) omits the

District Court’s reasons for disposing of

the parties’ motions as it did).

 

3

 We also reject Selkridge’s argument

that the filing of her Fed. R. Civ. P. 60(b)
6

We thus conclude that we lack

jurisdiction to review the District Court’s

February 22, 2002, order in Selkridge I. 

III. Summary Judgment in Selkridge II

and the Rule 60(b) Motion in Selkridge I:

The Recusal Issue

Selkridge insists that the summary

judgment order in Selkridge II and the

refusal to vacate the judgment in Selkridge

I must be vacated because Judge Moore’s

impartiality when he rendered those

decisions would be questioned by a

reasonable person aware of the relevant

facts.

A. Background

On September 3, 2002, Lee J. Rohn,

one of Selkridge’s attorneys, wrote a

letter-to-the-editor of an onlin e

publication, the St. Croix Source,

regarding United States District Judge

Thomas K. Moore’s performance of his

official duties and the fact that Judge

Moore was not being reappointed4 by

President George W. Bush.5 Attorney

motion and her subsequent timely appeal

of the denial of that motion entitles her to

a review of the underlying grant of

summary judgment on February 22, 2002.

Fed. R. App. P. 4(a)(4)(A) provides a

limited exception to the time limits for

filing a notice of appeal outlined in Fed R.

App. P. 4(a)(1)(A). 

If a party timely files in the

district court any of the

following motions under the

Federal Rules of Civil

Procedure, the time to file an

appeal runs for all parties from

the entry of the order disposing

of the last such remaining

motion: . . . (vi) for relief

under Rule 60 if the motion is

filed no later than 10 days after

the judgment is entered.

Id. This provision of Fed. R. App. P.

4(a)(4)(A), clarifying the relationship

between the time limits for filing a Fed. R.

Civ. P. 60 motion and an appeal under

Fed. R. App. P. 4, makes clear the limited

circumstances under which an appeal from

a Fed. R. Civ. P. 60(b) motion may address

the underlying judgment. See United

States v. Fiorelli, 337 F.3d 282, 288 n.3

(3d Cir. 2003). Selkridge filed her Rule

60(b) motion eight months after summary

judgment was entered on February 22,

2002. That motion did not toll the time for

appeal of that order because it was not

filed within ten days after summary

judgment was entered. 

 

4

 Judges sitting in the District Court of

the Virgin Islands are appointed for 10-

year terms pursuant to the Revised Organic

Act of 1954. See 48 U.S.C. 1614(a).

 

5

 We take judicial notice of the

existence of a letter-to-the-editor by

Attorney Rohn published in the St. Croix

Source. See, e.g., Ieradi v. Mylan

Laboratories, Inc., 230 F.3d 594, 598 n.2

(3d Cir. 2000) (appellate court may take

judicial notice of the existence of a

newspaper article); Peters v. Delaware
7

Rohn suggested that “[t]he failure of Judge

Tom Moore to be recommended for

reappointment has much less to do with

politics and more to do with the allegations

of inappropriate behavior while he was on

the bench.” See Lee J. Rohn, Lawyer:

Judge’s Non-Reappointment Not Politics,

St. Croix Source (Sept. 3, 2002).6

Attorney Rohn then listed in a cursory

fashion seve ral allega t io n s o f

“inappropriate behavior” by Judge Moore.7

On September 9, 2002, Judge Moore

began issuing sua sponte recusal orders in

numerous cases involving Attorney Rohn.8

A total of 19 recusal orders were issued

between September 9, 2002, and October

7, 2002, in Judge Moore cases involving

River Port Authority of Pennsylvania and

New Jersey, 16 F.3d 1346, 1356 n.12 (3d

Cir. 1994) (same).

 

6

 The full text of the letter can be found

in United States v. Roebuck, 289 F. Supp.

2d 678, 684-85 (D.V.I. 2003) (appendix).

 

7

 Wrote Attorney Rohn:

Judge Moore’s problems lie in the

allegations of inappropriate

behavior while he was on the

bench. These include, but are not

limited to, repeatedly being

reversed by the Third Circuit

[Court of Appeals], repeated

disagreements with the judges of

the Third Circuit, rude behavior

toward attorneys practicing before

him, including, but not limited to,

refusing to grant a trial continuance

to a seven months pregnant

attorney despite a medical

necessity; ordering attorneys to be

in his court despite the fact that

they were also supposed to be

before the Third Circuit at the same

time; complaints by jurors that they

were coerced and harassed and

subjected to ex parte instructions

and conversations by Judge Moore

while in jury deliberations; jurors

complaints of being castigated after

reaching a verdict because it was

contrary to what Judge Moore

would have decided; keeping the

court house open late to

accommodate the filing of a

petition to keep poor housing out of

a neighborhood that Judge Moore

lived in, and then granting the

motion despite a conflict that

required recusal; repeatedly

imposing sanctions without notice

and a proper ability to respond;

[and] being vindictive against

litigants who took a position

contrary to his. 

Id. (alterations in original).

 

8

 We take judicial notice of the

existence of the judicial orders set forth

infra in which Judge Moore recused

himself from a large number of Attorney

Rohn’s cases, and in which Judge Brotman

indicated that nearly all of Attorney

Rohn’s cases were being reassigned to him

for “mediation and/or settlement

discussions.” 
8

Attorney Rohn.9 Virtually all of these cases were then

reassigned to Judge Brotman for purposes

of mediation and settlement negotiations.10

 

9

See Antonie, et al. v. VI Port

Authority, et al., V.I. Civ. No. 2001-63

(recusal order dated Sept. 9, 2002);

Bolinger v. Virgin Islands Telephone

Corp., et al., V.I. Civ. No. 2002-49

(recusal order dated Sept. 9, 2002); Gore,

et al. v. Prosser, et al., V.I. Civ. No. 2001-

003 (recusal order dated Sept. 9, 2002);

Hendricks v. Belardo, V.I. Civ. No. 1999-

033 (recusal order dated Sept. 9, 2002);

Jones v. Daily News Publishing Co., et al.,

V.I. Civ. No. 1999-138 (recusal order

dated Sept. 9, 2002); Lang v. United

States, V.I. Civ. No. 2000-100 (recusal

order dated Sept. 9, 2002); Matheson v.

Virgin Islands Community Bank, et al.,

V.I. Civ. No. 2000-80 (recusal order dated

Sept. 9, 2002); Nyfield v. Virgin Islands

Telephone Corp., et al., V.I. Civ. No.

2001-53 (Sept. 9, 2002); Sweeney v. Virgin

Islands Telephone Corp., et al., V.I. Civ.

No. 2001-53 (recusal order dated Sept. 9,

2002); Williams v. Kmart Corp., V.I. Civ.

No. 1999-102 (recusal order dated Sept. 9,

2002); Ch apa rro v. Inno vativ e

Communications Corp., V.I. Civ. No.

1999-190 (recusal order dated Sept. 10,

2002); Island Management Group v. Bank

of Nova Scotia, et al., V.I. Civ. No. 1999-

104 (recusal order dated Sept. 10, 2002);

Martin v. Virgin Islands Telephone Corp.,

et al., V.I. Civ. No. 1999-202 (recusal

order dated Sept. 10, 2002); Trantham v.

Ford, et al., V.I. Civ. No. 1998-140

(recusal order dated Sept. 10, 2002);

VECC, et al. v. The Bank of Nova Scotia,

V.I. Civ. No. 2002-72 (recusal order dated

Sept. 10, 2002); Souder v. Withers, Civ

No. 2000-91 (recusal order dated Sept. 20,

2002); Anderson v. Government of the

Virgin Islands, et al., V.I. Civ. No. 2001-

149 (recusal order dated Sept. 26, 2002);

Airo v. Sugar Bay Club, et al., V.I. Civ.

No. 2000-134 (recusal order dated Oct. 1,

2002); Derr v. BCM/CHI Frenchmen’s

Reef, Inc., V.I. Civ. No. 2001-148 (recusal

order dated Oct. 7, 2002).

 

10

 See Antonie, et al. v. VI Port

Authority, et al., V.I. Civ. No. 2001-63

(reassignment notice dated Dec. 3, 2002);

Bolinger v. Virgin Islands Telephone

Corp., et al., V.I. Civ. No. 2002-49

(reassignment notice dated Dec. 3, 2002);

Gore, et al. v. Prosser, et al., V.I. Civ. No.

2001-003 (reassignment notice dated Dec.

3, 2002); Jones v. Daily News Publishing

Co., et al., V.I. Civ. No. 1999-138

(reassignment notice dated Dec. 3, 2002);

Lang v. United States, V.I. Civ. No. 2000-

100 (reassignment notice dated Dec. 3,

2002); Matheson v. Virgin Islands

Community Bank, et al., V.I. Civ. No.

2000-80 (reassignment notice dated Dec.

3, 2002); Nyfield v. Virgin Islands

Telephone Corp., et al., V.I. Civ. No.

2001-53 (reassignment notice dated Dec.

3, 2002); Sweeney v. Virgin Islands

Telephone Corp., et al., V.I. Civ. No.

2001-53 (reassignment notice dated Dec.

3, 2002); Chaparro v. Innovative

Communications Corp., V.I. Civ. No.

1999-190 (reassignment notice dated Dec.
9

In addition, at least twelve other Judge

Moore cases involving Attorney Rohn

were reassigned to Judge Brotman for

settlement purposes11 although no sua

sponte recusal orders were issued by Judge

Moore in these cases.12 It is in this last

3, 2002); Airo v. Sugar Bay Club, et al.,

V.I. Civ. No. 2000-134 (reassignment

notice dated Dec. 5, 2002); Anderson v.

Government of the Virgin Islands, et al.,

V.I. Civ. No. 2001-149 (reassignment

notice dated Dec. 5, 2002); Derr v.

BCM/CHI Frenchmen’s Reef, Inc., V.I.

Civ. No. 2001-148 (reassignment notice

dated Dec. 5, 2002); VECC, et al. v. The

Bank of Nova Scotia, V.I. Civ. No. 2002-

72 (reassignment notice dated Dec. 5,

2002); Martin v. Virgin Islands Telephone

Corp., et al., V.I. Civ. No. 1999-202

(reassignment notice dated Dec. 12, 2002);

Souder v. Withers, Civ. No. 2000-91

(reassignment notice dated Dec. 20, 2002);

see also Trantham v. Ford, et al., V.I. Civ.

No. 1998-140 (order from Magistrate

Judge Jeffrey L. Resnick dated Dec. 4,

2002, directing the parties to discuss

settlement with Judge Brotman).

 

11

 See Donastorg, Jr. v. Innovative

Communications Corp., V.I. Civ. No.

2002-97 (reassignment notice dated Dec.

3, 2002); Dabrowski v. Emerald Beach

Corp., V.I. Civ. No. 2001-121

(reassignment notice dated Dec. 5, 2002);

Greene v. Honda Motor Co., Ltd., et al.,

V.I. Civ. No. 2002-159 (reassignment

notice dated Dec. 5, 2002); Konikoff v.

Peninsular and Oriental Steam Navigation

Co., et al., V.I. Civ. No. 1999-224

(reassignment notice dated Dec. 5, 2002);

Mahoney v. Bulhof, et al., V.I. Civ. No.

2001-154 (reassignment notice dated Dec.

5, 2002); Selkridge v. United Omaha Life

Ins. Co., V.I. Civ. No. 2002-73

(reassignment notice dated Dec. 5, 2002);

Sexton, et al. v. Equivest St. Thomas, et al.,

V.I. Civ. No. 2002-96 (reassignment

notice dated Dec. 5, 2002); Collins v.

Castle Acquisitions, V.I. Civ. No. 99-212

(reassignment notice dated Dec. 20, 2002);

Domino Oil v. Phoenix Assurance Co. of

New York, V.I. Civ. No. 1996-99

(reassignment notice dated Dec. 20, 2002);

Soltau v. CTF St. Thomas Corp., V.I. Civ.

No. 1998-143 (reassignment notice dated

Dec. 20, 2002); Smith v. Elias, et al., V.I.

Civ. No. 02-14 (scheduling order for a

status hearing and settlement discussions

dated Dec. 23, 2002); Khan v. Soleiman, et

al., V.I. Civ. No. 2000-223 (reassignment

notice dated Jan. 14, 2003).

 

12 Selkridge included in her appendix

an “Affidavit of Lee J. Rohn in Support of

Motion for Judicial Recusal.” SA at 31-

33. According to the Affidavit:

Magistrate Judge Barnard said

that Judge Moore was upset with

me for having written the letter

criticizin g his jud icia l

performance and temperament.

Magistrate Judge Barnard further

stated that he had been instructed

Judge Barnard [sic] to prepare

recusal Orders for every case in

which I was attorney of record.

SA at 32. The affidavit does not make

clear as to who instructed Magistrate
10

group of matters, where no recusal order

by Judge Moore had been issued but the

case had nonetheless been reassigned to

Judge Brotman forsettlement negotiations,

that Selkridge II landed.13 

Selkridge was notified on December 9,

2002, by Judge Brotman that her matter

had been reassigned to Judge Brotman for

settlement negotiations.14 In an order

dated December 23, 2002, and filed on

December 27, 2002, Judge Brotman

scheduled a conference for a “status

hearing and settlement discussions” for

Selkridge II. JA at 764. Apparently

unbeknownst to Judge Brotman, by way of

a memorandum opinion and orders dated

December 20, 2002, and filed on

December 23, 2002, Judge Moore had

already granted summary judgment in

Selkridge II on all claims in favor of

Omaha, and had denied Selkridge’s Rule

60(b) motion in Selkridge I.

Also on December 23, 2002, Magistrate

Judge Geoffrey W. Barnard wrote to Judge

Brotman by letter, a copy of which was

sent to the parties. The letter read, in part:

“This is to confirm our discussion earlier

regarding the above-referenced cases.

These cases were inadvertently categorized

as cases from which Judge Moore recused

himself. However, Judge Moore has

confirmed that he will continue to preside

over these cases.” JA at 766. Judge

Brotman then notified the parties that his

previous scheduling order was vacated, in

light of Judge Moore’s December 20,

2002, opinion.

Two published opinions from the

District Court of the Virgin Islands,

written after the orders being appealed

from in this case were filed, purport to

address Judge Moore’s recusals (or

withholding of recusals) with respect to

Attorney Rohn’s cases. See United States

v. Roebuck, 271 F. Supp. 2d 712 (D.V.I.

2003); United States v. Roebuck, 289 F.

Supp. 2d 678 (D.V.I. 2003).15

Judge Barnard to prepare recusal orders in

all of Attorney Rohn’s cases. In any case,

we cannot consider the affidavit, which

purports to have been prepared for the

United States v. Roebuck, V.I. Crim. No.

02-171 case. The affidavit is outside of

the record for Selkridge I and Selkridge II,

and Selkridge suggests no theory under

which we may consider the affidavit.

 

13 Neither a recusal order nor a

reassignment notice was issued with

respect to Selkridge I. The case was not

reassigned for settlement purposes because

final judgment had been entered and only

a Fed. R. Civ. P. 60(b) motion was

pending.

 

14

 See Selkridge v. United Omaha Life

Ins. Co., V.I. Civ. No. 2002-73

(reassignment notice dated Dec. 5, 2002).

 

15 “[W]e recognize that we have the

power to take judicial notice of subsequent

developments in related proceedings since

the appeal in each case was filed.”

Federal Ins. Co. v. Richard I. Rubin &

Co., Inc., 12 F.3d 1270, 1284 (3d Cir.
11

In United States v. Roebuck, 271 F.

Supp. 2d 712 (D.V.I. 2003), Judge

Brotman, presiding over a motion to quash

subpoenas to compel the testimony of four

federal judges at an evidentiary hearing on

a motion to recuse Judge Moore from

presiding over that case, noted that:

 Shortly after Judge Moore had

recused himself from all of Attorney

Rohn’s cases, he withdrew his

recusal in some cases, including the

matters of Selkridge v. United of

Omaha Life Insurance Company,

V.I. Civil Action Nos. 2001-143 and

2002-73, without giving a reason for

this decision. (See Selkridge v.

United of Omaha Life Ins. Co., 237

F. Supp. 2d 600 (D.V.I. Dec. 20,

2002) (Moore, J.)). 

Id. at 715. Thus, there is a published

opinion of the District Court representing

that Judge Moore recused himself in

Selkridge I and Selkridge II, and then

“withdrew” that recusal.

Judge Moore, in later proceedings in

Roebuck, indicated that he “never recused

[himself] from Selkridge” and commented

on his reason for recusing himself in many

of Attorney Rohn’s cases:

First, I entered no blanket order of

recusal from all of Lee Rohn’s cases

1993). We take judicial notice of these

published opinions to the extent that they

discuss Selkridge I and Selkridge II, and to

the extent they discuss whether Judge

Moore recused himself from Attorney

Rohn’s cases. With respect to United

States v. Roebuck, 289 F. Supp. 2d 678

(D.V.I. 2003) (Moore, J.), we take judicial

notice of the public statements made by

Judge Moore in that opinion. 

We recognize that “[a] court may

take judicial notice of an adjudicative fact

if that fact is not subject to reasonable

dispute” and “[a] judicially noticed fact

must either be generally known within the

jurisdiction of the trial court, or be capable

of accurate and ready determination by

resort to sources whose accuracy cannot

reasonably be questioned.” Werner v.

Werner, 267 F.3d 288, 295 (3d Cir. 2001).

With respect to both published

Roebuck opinions, we do not take judicial

notice for “the truth of the facts recited

therein, but for the existence of the

opinion, which is not subject to reasonable

dispute over its authenticity.” Southern

Cross Overseas Agencies, Inc. v. Wah

Kwong Shipping Group Ltd., 181 F.3d

410, 426 (3d Cir. 1999). For example, to

the extent Judge Moore expressed that he

was “initially upset at the viciousness of

the letter [by Attorney Rohn],” Roebuck,

289 F. Supp. 2d at 682, we do not purport

to be taking judicial notice of the fact that

Judge Moore was actually upset at

Attorney Rohn. We take judicial notice

for the more limited purpose of

recognizing that Judge Moore made a

public statement indicating that he was

“initially upset at the viciousness” of

Attorney Rohn’s letter.
12

. . . . Second, I entered recusal

orders in only some, but not all, of

Attorney Rohn’s then-pending cases.

Third, I have not made any rulings in

any of those cases from which I have

recused myself. The Selkridge matter

is one of those in which I have never

entered an order of recusal. Thus,

Attorney Rohn’s claim that I

deliberately “unrecused” myself just

to be able to rule against her client is

patently false. Although the

magistrate judge inadvertently

included Selkridge among those

cases sent to the judge who had been

designated to oversee the Rohn

recusal cases for settlement

negotiations, the fact remains that I

never recused myself from Selkridge.

I ruled on the facts and law that I

believe governed the decision of the

case. I understand my rulings are on

appeal, and, as always, the Court of

Appeals will have the last word if it

disagrees with my decision.

I did recuse myself from some of

Attorney Rohn’s then-pending cases

because her personal attack in the St.

Thomas Source stung when I first

read it. I reiterate that these recusal

orders had absolutely nothing to do

with any antipathy or prejudice

against any of her clients or any

concern that I could not be fair and

impartial in handling their cases.

Several months have now gone by

and although I was initially upset at

the viciousness of the letter, the

passage of time has allowed me to

reflect, and, as the saying goes, time

heals all wounds. I have concluded

that this was just Lee Rohn being

Lee Rohn and doing what Lee Rohn

thinks she must do to win.

United States v. Roebuck, 289 F. Supp. 2d

678, 681-82 (D.V.I. 2003) (footnotes

omitted). Thus, while Judge Moore

characterized the group of cases referred to

Judge Brotman as the “Rohn recusal

cases,” there were some of these cases,

including Selkridge II, in which Judge

Moore maintains that he did not recuse

himself.

B. Standard of Review

Where a motion for disqualification was

made in the District Court, we review the

denial of such a motion for abuse of

discretion. See, e.g., General Motors

Corp. v. New A.C. Chevrolet, Inc., 263

F.3d 296, 336 n.25 (3d Cir. 2001);

Securacomm Co nsu lting , Inc. v.

Securacom Inc., 224 F.3d 273, 278 (3d

Cir. 2000). However, Selkridge made no

motion in the District Court for Judge

Moore’s recusal from Selkridge I or

Selkridge II at any time after the events at

issue here took place. 

Where a party has not requested that the

district judge recuse himself or herself

during proceedings in the district court, we

review a recusal argument made on appeal
13

for plain error.16 See, e.g., Osei-Afriyie by

Osei-Afriyie v. Medical College of

Pennsylvania, 937 F.2d 876, 881 (3d Cir.

1991); United States v. Dalfonso, 707 F.2d

757, 760 (3d Cir. 1983); United States v.

Schreiber, 599 F.2d 534, 535 (3d Cir.

1979).17

 

16 We recognize that the Second

Circuit has, in the civil context, reviewed

a party’s argument made for the first time

on appeal–that the trial judge should have

recused himself or herself–under

fundamental error analysis. See Taylor v.

Vermont Dept. of Educ., 313 F.3d 768, 795

(2d Cir. 2002) (“In the civil context,

however, we reverse only if there has been

fundamental error. Fundamental error is

more egregious than the plain error that

can excuse a procedural default in a

criminal trial, and is so serious and

flagrant that it goes to the very integrity of

the proceeding.”) (internal quotations,

citations, and alterations omitted). As Fed.

R. Crim. P. 52(b), upon which plain error

analysis is based, does not apply in the

civil setting, Taylor suggests that

fundamental error analysis should be

applied. Nonetheless, this Court has

applied plain error analysis, in the civil

context, to a party’s argument for the first

time on appeal that the trial judge should

have recused himself or herself. See

Osei-Afriyie by Osei-Afriyie v. Medical

College of Pennsylvania, 937 F.2d 876,

881 (3d Cir. 1991). Accordingly, we are

bound to apply plain error analysis.

 

17 Selkridge maintains that her counsel

had no fair opportunity to move for recusal

in the District Court. Counsel was aware

that Judge Moore had recused himself in

19 of her cases and that he had transferred

these cases and another group of cases in

which no recusal orders had been issued to

Judge Brotman for settlement discussions.

Counsel may well have expected Judge

Moore to recuse in this other group of

cases (as he had done with the other 19

cases) if they did not settle. Moreover,

based on Judge Brotman’s December 9th

order, counsel may well have anticipated

that, at a minimum, Judge Moore would

take no further action in these cases unless

and until settlement discussions proved

unfruitful. Judge Moore’s December 23rd

final judgment, accordingly, may have

come as a surprise. Finally, when the final

judgment was received, it was apparent

from the surrounding circumstances that

Judge Moore must have considered the

recusal issue. At that point, counsel may

well have considered a motion in the

District Court to be pointless. An

argument in favor of applying an abuse of

discretion standard of review has some

appeal in this context. See United States v.

Antar, 53 F.3d 568, 573 n.6 (3d Cir. 1995)

(expressing doubt as to whether the plain

error standard of review applies where

statement at issue was made by district

judge after conviction, and counsel may

have reasonably thought that making a

recusal motion was pointless; nonetheless,

plain error standard of review applied
14

Under the plain error standard of

review, a District Court’s order may be

reversed only when “[t]here [was] an

‘error’ that is ‘plain’ and that ‘affect[s]

substantial rights.’ ” Antar, 53 F.3d at 573

(quoting United States v. Olano, 507 U.S.

725, 732 (1993)) (alterations in original).

Normally, the requirement that the error

“affect substantial rights” is not satisfied

absent an affirmative showing “that the

error [was] prejudicial. It must have

affected the outcome of the district court

proceedings.” Olano, 507 U.S. at 734.

There is at least one situation, however, in

which prejudice may be presumed without

affirmative evidence that the alleged error

affected the outcome. As we held in

United States v. Antar, 53 F.3d 568, 573-

79 (3d Cir. 1995) (applying plain error

review where a trial judge’s failure to

recuse was first raised on appeal),

prejudice will be presumed and plain error

review is appropriate where a district

judge allegedly failed to recuse despite an

appearance of partiality. Because “the

touchstone of recusal is the integrity of the

judiciary . . . prejudice is presumed” once

“the appearance of partiality is shown.”

Id. at 573 n.7.

Even where the error is plain and affects

substantial rights, the decision to “correct

the forfeited error [is] within the sound

discretion of the court of appeals, and the

court should not exercise that discretion

unless the error seriously affect[s] the

fairness, integrity or public reputation of

judicial proceedings.” Olano, 507 U.S. at

732 (second alteration in original and

internal quotations omitted).

C. The Law of Recusal

Section 455(a) of Title 28, United States

Code, requires that:

Any justice, judge, or magistrate

judge of the United States shall

disqualify himself in any proceeding

in which his impartiality might

reasonably be questioned.

28 U.S.C. § 455(a); see Alexander v.

Primerica Holdings, Inc., 10 F.3d 155, 162

(3d Cir. 1993) (“Whenever a judge’s

impartiality ‘might reasonably be

questioned’ in a proceeding, 28 U.S.C. §

455(a) commands the judge to disqualify

himself sua sponte in that proceeding.”). 

“A party seeking recusal need not show

actual bias on the part of the court, only

the possibility of bias. . . . Under § 455(a),

if a reasonable man, were he to know all

the circumstances, would harbor doubts

about the judge’s impartiality under the

applicable standard, then the judge must

recuse.” In re Prudential Ins. Co. of

America Sales Practices Litigation, 148

F.3d 283, 343 (3d Cir. 1998) (internal

quotations omitted); see Massachusetts

School of Law at Andover, Inc. v.

where parties both conceded it would

apply). Nevertheless, since it is clear that

we may review for plain error and since

we believe that standard is satisfied here,

we proceed hereafter with plain error

review.
15

American Bar Ass’n, 107 F.3d 1026, 1042

(3d Cir. 1997) (“The standard for recusal

is whether an objective observer

reasonably might question the judge’s

impartiality.”)

Generally, “beliefs or opinions which

merit recusal must involve an extrajudicial

factor.” Antar, 53 F.3d at 574.

“[O]pinions formed by the judge on the

basis of facts introduced or events

occurring in the course of the current

proceedings, or of prior proceedings, do

not constitute a basis for a bias or partiality

motion unless they display a deep-seated

favoritism or antagonism that would make

fair judgment impossible.” Liteky v.

United States, 510 U.S. 540, 555 (1994).

There is no dispute here that the source

of Judge Moore’s alleged bias involved an

extrajudicial factor. The basis for

Selkridge’s concern that Judge Moore had

become biased against her was a letter

written by her counsel to a local

newspaper decrying Judge Moore’s

performance as a judge, and Judge

Moore’s reactions to that letter.

Accordingly, a significant extrajudicial

factor is present and we review Judge

Moore’s lack of recusal under the

objective standard of whether a

“reasonable man, were he to know all the

circumstances, would harbor doubts about

the judge’s impartiality” under § 455(a).

Antar, 53 F.3d at 574 (quoting In re

Larson, 43 F.3d 410, 415 (8th Cir. 1994)

(quoting Potashnick v. Port City Constr.

Co., 609 F.2d 1101, 1111 (5th Cir.

1980))).

If it were the case that Judge Moore had

recused himself in Selkridge I and

Selkridge II and then unrecused himself,

our task would be an easy one. “Once a

judge has disqualified himself, he or she

may enter no further orders in the case.

His power is limited to performing

ministerial duties necessary to transfer the

case to another judge (including the

entering of ‘housekeeping’ orders).”

Moody v. Simmons, 858 F.2d 137, 143 (3d

Cir. 1988) (citations omitted). But the

dockets in these cases do not reflect that

such a recusal order was entered in either

of them, and we will analyze the recusal

issue on the assumption that there were no

such recusals.18 

D. Section 455(a) Analysis

We agree with Omaha that the fact that

one of Selkridge’s attorneys wrote a letterto-the-editor of a newspaper regarding

Judge Moore is, alone, of little probative

value with respect to whether a reasonable

person, knowing all of the circumstances,

wo uld question Judge Moore’s

impartiality. As the Court of Appeals for

the Second Circuit explained with regard

to a letter sent by a litigant to a judge that

questioned the judge’s motivations and

intentions, “[t]his letter may very well

establish [the litigant]’s feelings toward

 

18 As we note hereafter, this does not

mean that the existence of ambiguity on

the public record regarding whether

recusals occurred is irrelevant to our

analysis of the recusal issue.
16

[the judge], but has no tendency to show

the latter’s feelings toward [the litigant]. .

. .” King v. United States, 576 F.2d 432,

437 (2d Cir. 1978); see United States v.

Wolfson, 558 F.2d 59, 61-62 (2d Cir.

1977) (litigant’s letter to newspaper

(which was never published), copied to the

judge, which accused the judge of

participating in a “scheme to frame” the

litigant, “only establish[ed] [the litigant]’s

feelings towards [the judge], not the

reverse”); see also United States v.

Helmsley, 760 F. Supp. 338, 342

(S.D.N.Y. 1991) (“Where the issue is not

hostility displayed by the judge, but

hostility displayed toward the judge, the

Second Circuit has found that hostile

attacks even by a criminal defendant,

much less by the defendant's lawyer, are

not a sufficient basis for recusal.”). 

Were the rule otherwise, “those litigants

fortunate enough to have easy access to the

media could make charges against a

judge’s impartiality that would effectively

veto the assignment of judges.

Judge-shopping would then become an

additional and potent tactical weapon in

the skilled practitioner’s arsenal.” In re

Drexel Burnham Lambert Inc., 861 F.2d

1307, 1309 (2d Cir. 1988). We therefore

agree with Judge Moore’s view of recusal

law, expressed in United States v.

Roebuck, 289 F. Supp. 2d 678 (D.V.I.

2003), that “an attorney [may not] be

allowed to use her calculated personal

attack on a sitting judge as a technique to

prevent that judge from presiding over any

of her cases. . . .” Id. at 682. If the only

basis for Selkridge’s argument that Judge

Moore should have recused himself was

the letter written by Selkridge’s counsel

taking issue with Judge Moore’s

performance, there would be little basis for

arguing that he should have recused. It is

his reaction to counsel’s letter that raises

the difficult issues here presented.

We first address the circumstances

under which the December 23, 2002,

orders were entered by Judge Moore. A

letter written by Attorney Rohn and

directly challenging the competence of

Judge Moore had been published on

September 3rd. Commencing six days

later, and continuing over a period of a

month, Judge Moore recused himself in 19

cases involving Attorney Rohn. Almost

all of these cases were reassigned to Judge

Brotman, a visiting judge, for settlement

discussions only, presumably so that

permanent reassignment would be required

in only those that did not settle. These

recusals and reassignments were made sua

sponte and without explanation. In

addition, prior to December 23rd, at least

twelve more cases of Judge Moore’s

involving Attorney Rohn were transferred

from Judge Moore to Judge Brotman for

settlement negotiations, raising the

possibility that Judge Moore was

considering recusal in such of these cases

as did not settle. Again, the reassignments

came sua sponte and without explanation.

Because these extraordinary activities in

Judge Moore’s cases involving Attorney

Rohn followed almost immediately on the

heels of such a critical publication and

because no alternative explanation was
17

given for them, we believe they would

suggest to a reasonable person that Judge

Moore was sufficiently upset by the letter

that he considered himself unable to be

objective in her cases. Moreover, in the

absence of an alternative explanation

suggesting a contrary conclusion, we

believe a reasonable person would

question Judge Moore’s ability to be

objective at that point in time in all of

Attorney Rohn’s cases.

Further, because the ultimate issue here

is whether the public can have confidence

in the integrity of the court’s judgments,

we are called to consider statements of the

court following December 23, 2002, to the

extent they bear upon that issue. In United

States v. Antar, 53 F.3d 568 (3d Cir.

1995), the defendant challenged the

validity of his conviction on the ground

that the trial judge was biased and should

not have presided over his trial. The

principal basis for the charge of bias was a

statement made by the judge at the

conclusion of the trial. We there rejected

the idea that we should look only at the

appearance of matters at the time of trial:

We reject the implications of the

government’s argument–that because

the statement occurred after the trial,

it cannot form the basis of an

allegation of bias during the trial.

Suppose, for instance, that at

sentencing the district judge informs

a defendant that throughout the trial

his object had been to see the

defendant behind bars. A reasonable

observer in such a scenario would

have serious reason to question

whether prior rulings in the case

were b ased on im partia l

considerations or on the judge's

stated goal. The fact that the judge’s

motivation came to light only after

the conclusion of the trial would be

of no moment.

Antar, 53 F.3d at 576. Based on Antar, we

conclude that we must consider

developments between December 23,

2002, and the submission of this direct

appeal.

This conclusion is, of course, important

because Judge Moore, after December 23,

2002, had occasion to comment on the

extraordinary activity in Attorney Rohn’s

cases prior to that date. Writing 14 months

after the publication of Rohn’s letter and

11 months after December 23, 2002, Judge

Moore acknowledged that he had “entered

recusal orders in . . . some, but not all, of

Attorney Rohn’s . . . pending cases”

because he was “stung” by “her personal

attack” and “upset at the viciousness” of

her “scurrilous article.” He reported,

however, that “the passage of time [had]

allowed [him] to reflect, and . . . [had]

heal[ed] all wounds.” Roebuck, 289 F.

Supp. 2d at 682. Judge Moore thus

confirmed that he was sufficiently upset

with Attorney Rohn in the Fall of 2002

that he recused in some of her cases.

While he insisted that he did not recuse in

all of Attorney Rohn’s cases, he offered no

explanation for why he believed he could

be objective in some of her cases even

though he could not be in others. As a
18

result, we believe that Judge Moore’s

opinion served to reinforce the conclusion

that a reasonable person would have

reached viewing matters as of December

23rd – that there was reason to “harbor

doubts about the judge’s impartiality”

when he was deliberating over the motions

pending in Selkridge I and Selkridge II and

writing his December 23, 2002, opinion.

Nor is the appearance of impropriety

assuaged by the conflict in the

subsequently developed record over

whether Judge Moore did at one point

recuse in the Selkridge cases. We accept

for present purposes that Judge Brotman

was mistaken in his belief that Judge

Moore had recused himself in all of

Attorney Rohn’s cases. Nevertheless,

there is a conflict in the public record that

the litigants have no means of resolving

and that conflict casts a shadow on Judge

Moore’s impartiality in the Selkridge

cases.

Viewing the record as a whole, given

the appearance that Judge Moore’s

impartiality was compromised, we

conclude that it was error for Judge Moore

to enter the December 23rd orders in

Selkridge I and Selkridge II, and that this

error was plain. Further, because this error

compromised the integrity of the

proceedings, “prejudice is presumed.”

Antar, 53 F.3d at 573. Finally, we exercise

our discretion to review this claim of error

because it “seriously affect[ed] the . . .

integrity [and] public reputation of judicial

proceedings.” Olano, 507 U.S. at 732

(internal quotations omitted).

E. Holding

Judge Moore’s reaction to Attorney

Rohn’s intemperate public criticism is

certainly understandable. Moreover, his

sensitivity to the possible impact of that

reaction on his ability to judge fairly cases

in which she was counsel is commendable.

We further agree with Judge Moore that

the passage of time does, indeed, heal

wounds, and we do not mean to suggest

that it is not presently appropriate for him

to sit on cases involving Attorney Rohn.19

We do hold, however, that a trial judge

cannot, without explanation, recuse

himself in a substantial number of cases

and, at substantially the same time, decline

to recuse himself in another group of cases

that appears indistinguishable for purposes

of recusal. From an appearance

perspective, that is precisely what Judge

Moore did here, and he committed plain

error in doing so.

F. The Remedy

“Although § 455 defines the

circumst ances that mandat e

disqualification of federal judges, it neither

prescribes nor prohibits any particular

remedy for a violation of that duty.

[Rather,] Congress has wisely delegated to

 

19 In particular, we, of course, express

no opinion on the propriety of Judge

Moore’s refusal to recuse himself in

United States v. Roebuck, 289 F. Supp. 2d

678 (D.V.I. 2003).
19

the judiciary the task of fashioning

remedies that will best serve the purpose

of the legislation.” Liljeberg v. Health

Services Acquisition Corp., 486 U.S. 847,

862 (1988).

In Liljeberg, the Supreme Court

approved the vacatur of a final judgment

entered by a district judge who should

have disqualified himself. It explained,

however, that this remedy would not be

required in all such cases. It suggested

that, in deciding whether to vacate such a

final judgment, a court should “consider

the risk of injustice to the parties in the

particular case, the risk that the denial of

relief will produce injustice in other cases,

and the risk of undermining the public’s

confidence in the judicial process.” Id. at

864. With respect to the second factor, the

Court concluded that vacating the

judgment would help prevent injustice in

other cases “by encouraging a judge or

litigant to more carefully examine possible

grounds for disqualification and to

promptly disclose them when discovered.”

Id. at 868. 

The Liljeberg Court expressly noted that

“[a]s in other areas of the law, there is . . .

room for harmless error” in § 455(a)

analysis, id. at 862, and we have heretofore

read that case as approving harmless error

analysis when applied with sensitivity not

only to the interests of the parties, but also

to the interests of other litigants and to the

public’s interest in the integrity of the

court system. See In re School Asbestos

Litigation, 977 F.2d 764, 785-88 (3d Cir.

1992); see also Patterson v. Mobil Oil

Corp., 335 F.3d 476, 485-86 (5th Cir.

2003); In re Continental Airlines Corp.,

901 F.2d 1259, 1263 (5th Cir. 1990);

Parker v. Connors Steel Co., 855 F.2d

1510, 1525-27 (11th Cir. 1988). 

Compared with situations like the one

before us in In re School Asbestos

Litigation, determining the appropriate

remedy is not a complex matter. The letter

came late in the litigation, and only the

final decisions currently before us on

direct appeal could possibly have been

affected. Moreover, both of those

decisions are subject to plenary review by

this court, one because it is a summary

judgment and the other because it is based

on the District Court’s resolution of a pure

issue of law.

In this context, we have two choices:

(1) we can vacate the orders before us and

remand with instructions that the cases be

assigned to a new district judge for

resolution of the pending motions and

possible further proceedings; or (2) we can

independently review the record and

determine whether the res judicata and

Rule 60(b) issues were correctly decided

as a matter of law and remand only in the

event they were not, reasoning that, if

impartial decision makers of this court, in

addition to finding a violation of § 455(a),

independently approve the orders at issue,

any error is harmless and Omaha is fairly

entitled to its judgments. Where, as here,

it appears clear that the failure to recuse

did not affect the dispositions of the

plaintiff’s claims and a remand,

accordingly, would only prolong the
20

litigations, we conclude that the second

approach is the appropriate one.

As we explain hereafter, any trial judge

presented with this record would be

required as a matter of law to enter

summary judgment in Selkridge II and to

decline to vacate the judgment in Selkridge

I. As a result, we perceive no unfairness to

Selkridge from declining to vacate the

judgments against her, and it seems

apparent to us that a contrary decision

would serve only to impose an

unnecessary, additional litigation burden

on Omaha and the District Court.

Moreover, in these circumstances, we

believe our determination that a violation

of § 455(a) occurred will provide virtually

the same encouragement to other judges

and litigants as would a remand. Finally,

we conclude (1) that our independent

review and determination of the relevant

legal issues will provide as much

legitimacy to these particular final

judgments as they would have following a

remand, reexamination by another District

Judge, and a subsequent appellate

affirmance; and (2) that our finding of

plain error on Judge Moore’s part

constitutes a corrective process sufficient

to assure continuing confidence in the

judicial process.20

IV. Summary Judgment in Selkridge II:

 The Merits

The District Court granted summary

judgment for Omaha in Selkridge II based

on claim preclusion. For claim preclusion

to apply, there must have been “[1] a final

judgment on the merits in [2] a prior suit

involving the same parties or their privies,

and [3] a subsequent suit based on the

same cause of action.” General Elec. Co.

v. Deutz AG, 270 F.3d 144, 158 (3d Cir.

2001). “If these three factors are present,

a claim that was or could have been raised

previously must be dismissed as

precluded.” CoreStates Bank, N.A. v.

Huls America, Inc., 176 F.3d 187, 194 (3d

Cir. 1999). Selkridge argues only that the

ERISA claim in Selkridge II is not subject

to claim preclusion because the decision in

Selkridge I was neither final nor on the

 

20 Our use of “harmless error” analysis

in determining the appropriate remedy is

not in tension with the Court’s holding in

Antar that prejudice is presumed once an

appearance of impartiality is shown.

Under Antar, an effect on the proceedings

before the compromised judge is presumed

for the purpose of determining whether

appellate review is permissible in the

absence of a motion to recuse. If a

contrary result had been reached in Antar,

there would have been no appellate review

and the District Court’s judgment would

have remained in place despite the fact that

its integrity had been impaired, a result

that no appellate court could sanction in

good conscience. Our “harmless error”

analysis, on the other hand, accepts the

presumption of prejudice at the trial level,

but takes into account the fact that plain

error review makes further, curative

proceedings possible in the Court of

Appeals.
21

merits.

Selkridge asserted only state law claims

in her complaint in Selkridge I, and Omaha

asserted an affirmative defense of ERISA

preemption as to all of those claims. The

District Court sustained that defense and

entered a final judgment on every claim

asserted. That final judgment determined

that there could be no recovery on any

claim.

As Selkridge stresses, an argument can

be made that the District Court abused its

discretion by failing to provide an

opportunity to amend.21 But that is an

argument that should have been advanced

in a timely appeal and does not render the

District Court’s summary judgment

anything other than a final judgment on the

merits. Stewart v. U.S. Bancorp, 297 F.3d

953, 959 (9th Cir. 2002) (where

defendants brought motion to dismiss

based upon all of plaintiffs’ claims being

preempted by ERISA, “[p]laintiffs were on

notice that their claims were preempted by

ERISA, and they did not seek leave to

amend or dismiss ‘without prejudice.’ . . .

Absent a request from plaintiffs to amend,

the district court had no other alternative

but to dismiss the case, finding the only

claims plaintiffs presented were

preempted.”).

Accordingly, the District Court had no

choice but to dismiss Selkridge II because

the claim in that lawsuit could have been

raised in Selkridge I.

V. The Rule 60(b) Motion in Selkridge I:

The Merits

Rule 60(b) provides:

On motion and upon such terms as

are just, the court may relieve a party

or a party’s legal representative from

a final judgment, order, or

proceeding for the following

reasons: (1) mistake, inadvertence,

surprise, or excusable neglect; (2)

newly discovered evidence which by

due diligence could not have been

discovered in time to move for a new

trial under Rule 59(b); (3) fraud

(whether heretofore denominated

i n tri n s i c or extr insi c ) ,

misrepresentation, or o ther

misconduct of an adverse party; (4)

the judgment is void; (5) the

judgment has been satisfied,

released, or discharged, or a prior

judgment upon which it is based has

been reversed or otherwise vacated,

or it is no longer equitable that the

judgment should have prospective

application; or (6) any other reason

justifying relief from the operation of

the judgment. 

Selkridge urges that the District Court

 

21

 But see Ramsgate Court Townhouse

Ass’n v. West Chester Borough, 313 F.3d

157, 161 (3d Cir. 2002) (District Court did

not abuse its discretion in failing to

address a request for permission to amend

the complaint contained in a brief but

never made the subject of a motion).
22

committed reversible error by failing to

vacate the summary judgment in Selkridge

I pursuant to the residual provision of Rule

60(b)(6). Her argument is that the District

Court committed legal error in entering

that summary judgment. Even if that were

true, however, it would not, as a matter of

law, justify relief under Rule 60(b)(6).

As we held in Martinez-McBean v.

Government of Virgin Islands, 562 F.2d,

908, 912 (3d Cir. 1977), “[L]egal error

does not by itself warrant the application

of Rule 60(b). The correction of legal

errors committed by the district courts is

the function of the Courts of Appeals.

Since legal error can usually be corrected

on appeal, that factor without more does

not justify the granting of relief under Rule

60(b)(6). We know of no authority to the

contrary.” See also Morris v. Horn, 187

F.3d 333, 343-44 (3d Cir. 1999) (“What

[Appellant] is attempting to raise as a Rule

60(b) motion is in fact what he should

have brought as an appeal.”).

VI. Conclusion

For the foregoing reasons, we will

dismiss the appeal from the February 22,

2002, grant of summary judgment in

Selkridge I, No. 03-1146, for lack of

jurisdiction and will affirm the District

Court’s orders entered on December 23,

2002, in Selkridge I (No. 03-1146) and

Selkridge II (No. 03-1147).