                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             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Precedential or Non-Precedential: Precedential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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Recommended Citation
"Selkridge v. United Omaha Life" (2004). 2004 Decisions. Paper 942.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/942


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                                       Terry M. Halpern
                    PRECEDENTIAL       Suite 314
                                       9003 Havensight M all
                                       Charlotte Amalie, St. Thomas, USVI
        UNITED STATES                  00802
       COURT OF APPEALS                       Attorneys for Appellant
     FOR THE THIRD CIRCUIT
                                       Charles E. Engeman
                                       Simone R.D. Francis (Argued)
      NOS. 03-1146 and 03-1147         Ogletree, Deakins, Nash, Smoak &
                                       Stewart
                                       1336 Beltjen Road, Suite 202
     MARGARITA SELKRIDGE               Charlotte Amalie, St. Thomas, USVI
          Appellant                    00802
                                             Attorneys for Appellee
                  v.

     UNITED OF OMAHA LIFE
     INSURANCE COMPANY                        OPINION OF THE COURT




  On Appeal From the District Court
          of the Virgin Islands        STAPLETON, Circuit Judge:
 (D.C. Civil Action No. 01-cv-00143)
District Judge: Hon. Thomas K. Moore      Margarita Selkridge (“Selkridge”) filed
                                       a lawsuit against United of Omaha Life
                                       Insurance Company (“Omaha”) on several
       Argued December 8, 2003         state-law theories alleging that she had
                                       been wrongfully denied benefits under her
 BEFORE: NYGAARD, BECKER and           disability plan. (“Selkridge I.”) After the
    STAPLETON, Circuit Judges          District Court granted summary judgment
                                       on all of those theories in favor of the sole
   (Opinion Filed February 24, 2004)   defendant, Selkridge chose not to appeal
                                       that decision. Instead, she filed a new
                                       lawsuit that asserted a claim “arising
                                       under” the Employee Retirement Income
Lee J. Rohn                            Security Act (“ERISA”) for the wrongful
K. Glenda Cameron (Argued)             denial of benefits. (“Selkridge II.”) The
1101 King Street, Suite 2              District Court granted summary judgment
Christiansted, St. Croix, USVI 00820   on res judicata grounds. Selkridge also
 and                                   eventually filed a Fed. R. Civ. P. 60(b)
motion seeking to amend the judgment in             Selkridge then filed Selkridge I, a diversity
Selkridge I to indicate that the grant of           action in the District Court of the Virgin
summary judgment was without prejudice              Islands against Omaha alleging breach of
to filing a new lawsuit. The District Court         contract, bad faith, fraud, intentional
denied the Rule 60(b) motion because it             infliction of emotional distress, and
sought to utilize that Rule as a substitute         negligent infliction of emotional distress.
for an appeal.
                                                       Omaha moved for summary judgment
   Selkridge appeals the grant of summary           on all claims Selkridge had alleged against
judgment and the denial of her Rule 60(b)           it. The motion contended that all of
motion in Selkridge I and the grant of              Selkridge’s claims arose “under the
summary judgment in Selkridge II. We                common law of the Territory” and were
determine that we are without jurisdiction          therefore “expressly preem pted by
to hear an appeal of the grant of summary           ERISA.” JA at 61.
judgment in Selkridge I because an appeal
was not timely taken. While we conclude                In her opposition to Omaha’s motion,
that Judge Moore should have recused                Selkridge argued that summary judgment
himself before entering the order granting          should be denied but went on to make the
summary judgment in Selkridge II and the            following request: “[i]f this Court were to
order denying Selkridge’s Rule 60(b)                find that the claims are preempted and
motion in Selkridge I, we hold that our             must be converted to federal claims,
recognition of his failure to do so as plain        Plaintiff respectfully requests that she be
error and our independent, plenary review           given the opportunity to amend her
of those orders make further remedial               Complaint accordingly to more clearly
action unnecessary. Accordingly, given              state her claims as federal violation of
that our independent plenary review                 ERISA claims.” JA at 156-57.
convinces us that the results reached were
required as a matter of law, we will affirm             The District Court held that all of
both December 23, 2002, orders.                     Selkridge’s claims were preempted by
                                                    ERISA and that Omaha was entitled to
              I. Background                         summary judgment on all counts. See
                                                    Selkridge v. United of Omaha Life Ins.
   Selkridge was enrolled in a group                Co., 221 F. Supp. 2d 579 (D.V.I. 2002). It
insurance plan with Omaha during the                did not mention the application for leave to
period in which she was employed by the             amend found only in Selkridge’s brief.
Virgin Islands Telephone Company and its            The Court’s February 22, 2002, order
successors. In December 1996, Selkridge             read: “it is hereby ORDERED that
filed an application for long-term disability       defendants’ motion for summary judgment
benefits with Omaha. Omaha denied the               . . . is GRANTED. . . .” JA at 364. The
claim initially and, following an appeal,           order did not expressly reserve to

                                                2
Selkridge a right to pursue ERISA-based            motion in Selkridge I were filed, one of
claims in a new action.                            Selkridge’s attorneys wrote a letter-to-the-
                                                   editor of an on-line publication critical of
  On April 23, 2002, Selkridge filed a             the District Judge presiding over the
new action, Selkridge II, in the District          Selkridge matters. The content of the
Court.     The complaint asserted that             letter was not directly related to either
Selkridge’s claim “arises under ERISA.”            Selkridge matter, but the letter prompted a
JA at 390.                                         series of events that will be discussed in
                                                   Part III of this opinion relating to the
   Omaha moved for summary judgment in             propriety of the District Judge’s continuing
Selkridge II on September 23, 2002,                to preside over the Selkridge matters.
arguing that Selkridge’s claim “under
ERISA” was barred by res judicata                     On January 9, 2003, Selkridge filed a
because it arose out of the same set of            notice of appeal in Selkridge I seeking to
circumstances at issue in Selkridge I and          appeal the February 22, 2002, grant of
could have been litigated in Selkridge I.          summary judgment in Selkridge I, the
On October 30, 2002, eight months after            December 23, 2002, denial of her Rule
the order granting summary judgment in             60(b) motion, and “the Court’s recusal of
Selkridge I, Selkridge filed a Fed. R. Civ.        itself from this case and its subsequent
P. 60(b) motion in Selkridge I. That               reinstatement, sua sponte.” SA. On the
motion requested that the District Court           same day, Selkridge filed a notice of
“clarify” its February 22, 2002, order to          appeal seeking to appeal the December 23,
state that Selkridge’s claims in Selkridge I       2002, grant of summary judgment in
were “converted to federal claims” and to          Selkridge II.1
grant Selkridge “leave to amend to plead
claims under ERISA” with respect to
Selkridge I. JA at 719, 726.                           1
                                                          These notices of appeal were not
                                                   included in the appendix filed by
   On December 23, 2002, the District
                                                   Selkridge. Instead, the appendix included
Court granted summary judgment in
                                                   two additional notices of appeal for
Selkridge II on res judicata grounds and
                                                   Selkridge I and Selkridge II, both of which
denied the Rule 60(b) motion in Selkridge
                                                   were filed on January 13, 2003. The
I on the ground that it was an
                                                   January 13, 2003, notice of appeal for
impermissible attempt to utilize that Rule
                                                   Selkridge I was the same as the January 9,
as a substitute for an appeal. See Selkridge
                                                   2003, notice of appeal for Selkridge I. The
v. United of Omaha Life Ins. Co., 237 F.
                                                   January 13, 2003, notice of appeal for
Supp. 2d 600 (D.V.I. 2002).
                                                   Selkridge II, however, differed from the
                                                   January 9, 2003, notice of appeal for
  Just before the summary judgment
                                                   Selkridge II, and failed to specify any
motion in Selkridge II and the Rule 60(b)
                                                   order being appealed from in Selkridge II.

                                               3
II. Jurisdiction to Hear an Appeal from                “A final order is one that ‘ends the
   the Grant of Summary Judgment in                litigation on the merits and leaves nothing
               Selkridge I                         for the court to do but execute the
                                                   judgment.’” Welch v. Folsom, 925 F.2d
   Selkridge insists that we have                  666, 668 (3d Cir. 1991) (quoting Coopers
jurisdiction to review the summary                 & Lybrand v. Livesay, 437 U.S. 463, 467
judgment order entered in Selkridge I              (1978) (internal quotations omitted)). For
under 28 U.S.C. § 1291, which authorizes           purposes of appeal under 28 U.S.C. §
appeals from final decisions of the District       1291, “A summary judgment that fully
Court. We cannot agree.                            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),
        Selkridge has made a motion to
                                                   at 202; see Hampton v. Borough of Tinton
correct the appendix with respect to the
                                                   Falls Police Dept., 98 F.3d 107, 111 (3d
fact that the January 9, 2003, notices of
                                                   Cir. 1996) (“The district court granted
appeal were not included in the appendix.
                                                   summary judgment for the defendants as to
Under Fed. R. App. P. 30(a)(2), “[p]arts of
                                                   all counts of plaintiffs’ complaint. . . . The
the record may be relied on by the court or
                                                   district court’s grant of summary judgment
the parties even though not included in the
                                                   is a final order that disposed of all claims,
appendix.” While we need not necessarily
                                                   and this court therefore has jurisdiction
correct the appendix, Selkridge’s motion is
                                                   over this appeal pursuant to 28 U.S.C. §
unopposed and we will, by separate order,
                                                   1291.”). The District Court’s February 22,
grant the motion.
                                                   2002, order granted summary judgment in
        Selkridge concedes that the January
                                                   favor of Omaha on all of Selkridge’s
13, 2003, notice of appeal in Selkridge II
                                                   claims on the grounds that the claims were
“does not correctly identify the District
                                                   expressly preempted by ERISA. Because
Court Order from which an appeal was
                                                   it disposed of all claims with respect to all
taken in that case.” Motion at 3. We will
                                                   parties,2 that order was a final order within
consider the January 13, 2003, Selkridge II
notice of appeal as one merely expanding
that which Selkridge sought to appeal in
                                                       2
Selkridge II–and not one intended as a                    That order also met the procedural
substitute for the earlier notice of               requirements of Fed. R. Civ. P. 58 for an
appeal–because it provides no indication           order that commences the running of the
that it was intended to change the content         time for appeal. See Local Union No.
of the earlier notice of appeal. Therefore,        1992 of the Int’l Brotherhood of Electrical
as construed by this Court, Selkridge’s            Workers v. The Okonite Co.,       F.3d    ,
notices of appeal in Selkridge II seek to          2004 WL 113150, *5 (3d Cir. 2004) (order
appeal the December 23, 2002, order                satisfies Rule 58’s separate document
granting summary judgment to Omaha.                requirement where it (1) is self-contained

                                               4
the meaning of 28 U.S.C. § 1291.                     thought that the District Court had
                                                     “overlooked” her request for automatic
   Fed. R. App. P. 4(a)(1)(A) requires that          conversion of her state law claims into
a notice of appeal be filed “with the                ERISA claims, and had also “overlooked”
district clerk within 30 days after the              Selkridge’s request for leave to amend, we
judgment or order appealed from is                   fail to understand how this would excuse
entered,” id., unless certain exceptions             counsel from seeking reconsideration by
inapplicable here apply. Selkridge filed             the District Court or appealing the District
her notice of appeal in Selkridge I on               Court’s decision.
January 9, 2003–over ten months after
summary judgment had been granted in                    Alternatively, Selkridge argues that her
that matter. It is a well-established rule           counsel reasonably viewed the February
that “[t]he time limits for filing a notice of       22, 2002, order as a partial summary
appeal are ‘mandatory and jurisdictional.’”          judgment and, accordingly, not as a final
In re Rashid, 210 F.3d 201, 204 (3d Cir.             order. While it is true that a grant of
2000) (quoting Krebs Chrysler-Plymouth,              “partial summary judgment” under Fed. R.
Inc. v. Valley Motors, Inc., 141 F.3d 490,           Civ. P. 56(d) is not a “final” judgment
495 (3d Cir. 1998)); see, e.g., Browder v.           within the meaning of 28 U.S.C. § 1291
Director, Dept. of Corrections of Illinois,          because it is an adjudication of less than
434 U.S. 257, 264 (1978) (same); U.S. v.             the entire action, see 10B Charles Alan
Vastola, 989 F.2d 1318, 1321 (3d Cir.                Wright, Arthur R. Miller & Mary Kay
1993) (same). We thus lack jurisdiction to           Kane, Fed. Prac. & Proc.: Civil 3d § 2737
review the summary judgment in Selkridge             (1998), at 322-25, there is simply no
I.                                                   record basis for construing the February
                                                     22, 2002, order as a grant of partial
   Selkridge first argues that she “did not          summary judgment. Omaha moved for
seek reconsideration or appeal the district          summary judgment on all claims on the
court’s decision because she reasonably              grounds that the claims were expressly
believed that the district court had                 preempted by ERISA. Although Omaha
overlooked her request for automatic                 requested that, in the alternative, it be
conversion of [plaintiff’s] claims and leave         granted partial summary judgment on
to amend. . . .” Appellant’s Reply Brief at          Selkridge’s state law claims should “Count
8-9 (footnote omitted).            We are            I [be] deemed to constitute a claim for
unpersuaded.      If Selkridge’s counsel             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
                                                        3
District Court’s reasons for disposing of                  We also reject Selkridge’s argument
the parties’ motions as it did).                     that the filing of her Fed. R. Civ. P. 60(b)

                                                 5
   We thus conclude that we lack                   February 22, 2002, order in Selkridge I.
jurisdiction to review the District Court’s
                                                    III. Summary Judgment in Selkridge II
                                                   and the Rule 60(b) Motion in Selkridge I:
                                                              The Recusal Issue
motion and her subsequent timely appeal
of the denial of that motion entitles her to
                                                      Selkridge insists that the summary
a review of the underlying grant of
                                                   judgment order in Selkridge II and the
summary judgment on February 22, 2002.
                                                   refusal to vacate the judgment in Selkridge
Fed. R. App. P. 4(a)(4)(A) provides a
                                                   I must be vacated because Judge Moore’s
limited exception to the time limits for
                                                   impartiality when he rendered those
filing a notice of appeal outlined in Fed R.
                                                   decisions would be questioned by a
App. P. 4(a)(1)(A).
                                                   reasonable person aware of the relevant
      If a party timely files in the
                                                   facts.
      district court any of the
      following motions under the
                                                                 A. Background
      F e d e r a l R u l e s o f C i v il
      Procedure, the time to file an
                                                        On September 3, 2002, Lee J. Rohn,
      appeal runs for all parties from
                                                   one of Selkridge’s attorneys, wrote a
      the entry of the order disposing
                                                   l e t te r - to - t h e -e d itor of a n onlin e
      of the last such remaining
                                                   publication, the St. Croix Source,
      motion: . . . (vi) for relief
                                                   regarding United States District Judge
      under Rule 60 if the motion is
                                                   Thomas K. Moore’s performance of his
      filed no later than 10 days after
                                                   official duties and the fact that Judge
      the judgment is entered.
                                                   Moore was not being reappointed 4 by
Id. This provision of Fed. R. A pp. P.
                                                   President George W. Bush.5 Attorney
4(a)(4)(A), clarifying the relationship
between the time limits for filing a Fed. R.
Civ. P. 60 motion and an appeal under                 4
                                                        Judges sitting in the District Court of
Fed. R. App. P. 4, makes clear the limited         the Virgin Islands are appointed for 10-
circumstances under which an appeal from           year terms pursuant to the Revised Organic
a Fed. R. Civ. P. 60(b) motion may address         Act of 1954. See 48 U.S.C. 1614(a).
the underlying judgment. See United
                                                          5
States v. Fiorelli, 337 F.3d 282, 288 n.3                   We take judicial notice of the
(3d Cir. 2003). Selkridge filed her Rule           existence of a letter-to-the-editor by
60(b) motion eight months after summary            Attorney Rohn published in the St. Croix
judgment was entered on February 22,               Source.    See, e.g., Ieradi v. Mylan
2002. That motion did not toll the time for        Laboratories, Inc., 230 F.3d 594, 598 n.2
appeal of that order because it was not            (3d Cir. 2000) (appellate court may take
filed within ten days after summary                judicial notice of the existence of a
judgment was entered.                              newspaper article); Peters v. Delaware

                                               6
Rohn suggested that “[t]he failure of Judge           On September 9, 2002, Judge Moore
Tom Moore to be recommended for                    began issuing sua sponte recusal orders in
reappointment has much less to do with             numerous cases involving Attorney Rohn. 8
politics and more to do with the allegations       A total of 19 recusal orders were issued
of inappropriate behavior while he was on          between September 9, 2002, and October
the bench.” See Lee J. Rohn, Lawyer:               7, 2002, in Judge Moore cases involving
Judge’s Non-Reappointment Not Politics,
St. Croix Source (Sept. 3, 2002). 6
Attorney Rohn then listed in a cursory
fashion seve ral allega tions of
“inappropriate behavior” by Judge Moore.7              were coerced and harassed and
                                                       subjected to ex parte instructions
                                                       and conversations by Judge M oore
River Port Authority of Pennsylvania and               while in jury deliberations; jurors
New Jersey, 16 F.3d 1346, 1356 n.12 (3d                complaints of being castigated after
Cir. 1994) (same).                                     reaching a verdict because it was
                                                       contrary to what Judge Moore
  6
    The full text of the letter can be found           would have decided; keeping the
in United States v. Roebuck, 289 F. Supp.              court house o p e n la te to
2d 678, 684-85 (D.V.I. 2003) (appendix).               accommodate the filing of a
                                                       petition to keep poor housing out of
   7
         Wrote Attorney Rohn:                          a neighborhood that Judge Moore
      Judge Moore’s problems lie in the                lived in, and then granting the
      a l l eg ations of inappropria te                motion despite a conflict that
      behavior while he was on the                     requ ire d r e cusal; repeatedly
      bench. These include, but are not                imposing sanctions without notice
      limited to, repeatedly being                     and a proper ability to respond;
      reversed by the Third Circuit                    [and] being vindictive against
      [Court of Appeals], repeated                     litigants who took a position
      disagreements with the judges of                 contrary to his.
      the Third Circuit, rude behavior             Id. (alterations in original).
      toward attorneys practicing before
                                                         8
      him, including, but not limited to,                   We take judicial notice of the
      refusing to grant a trial continuance        existence of the judicial orders set forth
      to a seven months pregnant                   infra in which Judge Moore recused
      attorney desp ite a m edical                 himself from a large number of Attorney
      necessity; ordering attorneys to be          Rohn’s cases, and in which Judge Brotman
      in his court despite the fact that           indicated that nearly all of Attorney
      they were also supposed to be                Rohn’s cases were being reassigned to him
      before the Third Circuit at the same         for “mediation and/or settlement
      time; complaints by jurors that they         discussions.”

                                               7
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             Sept. 10, 2002); Souder v. Withers, Civ
(recusal order dated Sept. 9, 2002);                 No. 2000-91 (recusal order dated Sept. 20,
Bolinger v. Virgin Islands Telephone                 2002); Anderson v. Government of the
Corp., et al., V.I. Civ. No. 2002-49                 Virgin Islands, et al., V.I. Civ. No. 2001-
(recusal order dated Sept. 9, 2002); Gore,           149 (recusal order dated Sept. 26, 2002);
et al. v. Prosser, et al., V.I. Civ. No. 2001-       Airo v. Sugar Bay Club, et al., V.I. Civ.
003 (recusal order dated Sept. 9, 2002);             No. 2000-134 (recusal order dated Oct. 1,
Hendricks v. Belardo, V.I. Civ. No. 1999-            2002); Derr v. BCM/CHI Frenchmen’s
033 (recusal order dated Sept. 9, 2002);             Reef, Inc., V.I. Civ. No. 2001-148 (recusal
Jones v. Daily News Publishing Co., et al.,          order dated Oct. 7, 2002).
V.I. Civ. No. 1999-138 (recusal order
                                                           10
dated Sept. 9, 2002); Lang v. United                           See Antonie, et al. v. VI Port
States, V.I. Civ. No. 2000-100 (recusal              Authority, et al., V.I. Civ. No. 2001-63
order dated Sept. 9, 2002); Matheson v.              (reassignment notice dated Dec. 3, 2002);
Virgin Islands Community Bank, et al.,               Bolinger v. Virgin Islands Telephone
V.I. Civ. No. 2000-80 (recusal order dated           Corp., et al., V.I. Civ. No. 2002-49
Sept. 9, 2002); Nyfield v. Virgin Islands            (reassignment notice dated Dec. 3, 2002);
Telephone Corp., et al., V.I. Civ. No.               Gore, et al. v. Prosser, et al., V.I. Civ. No.
2001-53 (Sept. 9, 2002); Sweeney v. Virgin           2001-003 (reassignment notice dated Dec.
Islands Telephone Corp., et al., V.I. Civ.           3, 2002); Jones v. Daily News Publishing
No. 2001-53 (recusal order dated Sept. 9,            Co., et al., V.I. Civ. No. 1999-138
2002); Williams v. Kmart Corp., V.I. Civ.            (reassignment notice dated Dec. 3, 2002);
No. 1999-102 (recusal order dated Sept. 9,           Lang v. United States, V.I. Civ. No. 2000-
2002); Ch apa rro v. Inno vative                     100 (reassignment notice dated Dec. 3,
Communications Corp., V.I. Civ. No.                  2002); Matheson v. Virgin Islands
1999-190 (recusal order dated Sept. 10,              Community Bank, et al., V.I. Civ. No.
2002); Island Management Group v. Bank               2000-80 (reassignment notice dated Dec.
of Nova Scotia, et al., V.I. Civ. No. 1999-          3, 2002); Nyfield v. Virgin Islands
104 (recusal order dated Sept. 10, 2002);            Telephone Corp., et al., V.I. Civ. No.
Martin v. Virgin Islands Telephone Corp.,            2001-53 (reassignment notice dated Dec.
et al., V.I. Civ. No. 1999-202 (recusal              3, 2002); Sweeney v. Virgin Islands
order dated Sept. 10, 2002); Trantham v.             Telephone Corp., et al., V.I. Civ. No.
Ford, et al., V.I. Civ. No. 1998-140                 2001-53 (reassignment notice dated Dec.
(recusal order dated Sept. 10, 2002);                3, 2002); Chaparro v. Innovative
VECC, et al. v. The Bank of Nova Scotia,             Communications Corp., V.I. Civ. No.
V.I. Civ. No. 2002-72 (recusal order dated           1999-190 (reassignment notice dated Dec.

                                                 8
In addition, at least twelve other Judge           sponte recusal orders were issued by Judge
Moore cases involving Attorney Rohn                Moore in these cases.12 It is in this last
were reassigned to Judge Brotman for
settlement purposes11 although no sua
                                                   2001-154 (reassignment notice dated Dec.
                                                   5, 2002); Selkridge v. United Omaha Life
3, 2002); Airo v. Sugar Bay Club, et al.,          Ins. Co., V.I. Civ. No. 2002-73
V.I. Civ. No. 2000-134 (reassignment               (reassignment notice dated Dec. 5, 2002);
notice dated Dec. 5, 2002); Anderson v.            Sexton, et al. v. Equivest St. Thomas, et al.,
Government of the Virgin Islands, et al.,          V.I. Civ. No. 2002-96 (reassignment
V.I. Civ. No. 2001-149 (reassignment               notice dated Dec. 5, 2002); Collins v.
notice dated Dec. 5, 2002); Derr v.                Castle Acquisitions, V.I. Civ. No. 99-212
BCM/CHI Frenchmen’s Reef, Inc., V.I.               (reassignment notice dated Dec. 20, 2002);
Civ. No. 2001-148 (reassignment notice             Domino Oil v. Phoenix Assurance Co. of
dated Dec. 5, 2002); VECC, et al. v. The           New York, V.I. Civ. No. 1996-99
Bank of Nova Scotia, V.I. Civ. No. 2002-           (reassignment notice dated Dec. 20, 2002);
72 (reassignment notice dated Dec. 5,              Soltau v. CTF St. Thomas Corp., V.I. Civ.
2002); Martin v. Virgin Islands Telephone          No. 1998-143 (reassignment notice dated
Corp., et al., V.I. Civ. No. 1999-202              Dec. 20, 2002); Smith v. Elias, et al., V.I.
(reassignment notice dated Dec. 12, 2002);         Civ. No. 02-14 (scheduling order for a
Souder v. Withers, Civ. No. 2000-91                status hearing and settlement discussions
(reassignment notice dated Dec. 20, 2002);         dated Dec. 23, 2002); Khan v. Soleiman, et
see also Trantham v. Ford, et al., V.I. Civ.       al., V.I. Civ. No. 2000-223 (reassignment
No. 1998-140 (order from Magistrate                notice dated Jan. 14, 2003).
Judge Jeffrey L. Resnick dated Dec. 4,
                                                      12
2002, directing the parties to discuss                   Selkridge included in her appendix
settlement with Judge Brotman).                    an “Affidavit of Lee J. Rohn in Support of
                                                   Motion for Judicial Recusal.” SA at 31-
    11
         See Donastorg, Jr. v. Innovative          33. According to the Affidavit:
Communications Corp., V.I. Civ. No.                       Magistrate Judge Barnard said
2002-97 (reassignment notice dated Dec.                that Judge Moore was upset with
3, 2002); Dabrowski v. Emerald Beach                   me for having written the letter
C o rp ., V .I. C iv. N o. 2001- 121                   criticizing his judicial
(reassignment notice dated Dec. 5, 2002);              performance and temperament.
Greene v. Honda Motor Co., Ltd., et al.,               Magistrate Judge Barnard further
V.I. Civ. No. 2002-159 (reassignment                   stated that he had been instructed
notice dated Dec. 5, 2002); Konikoff v.                Judge Barnard [sic] to prepare
Peninsular and Oriental Steam Navigation               recusal Orders for every case in
Co., et al., V.I. Civ. No. 1999-224                    which I was attorney of record.
(reassignment notice dated Dec. 5, 2002);          SA at 32. The affidavit does not make
Mahoney v. Bulhof, et al., V.I. Civ. No.           clear as to who instructed M agistrate

                                               9
group of matters, where no recusal order            December 23, 2002, Judge Moore had
by Judge Moore had been issued but the              already granted summary judgment in
case had nonetheless been reassigned to             Selkridge II on all claims in favor of
Judge Brotman for settlement negotiations,          Omaha, and had denied Selkridge’s Rule
that Selkridge II landed.13                         60(b) motion in Selkridge I.

   Selkridge was notified on December 9,               Also on December 23, 2002, Magistrate
2002, by Judge Brotman that her matter              Judge Geoffrey W. Barnard wrote to Judge
had been reassigned to Judge Brotman for            Brotman by letter, a copy of which was
settlement negotiations.14 In an order              sent to the parties. The letter read, in part:
dated December 23, 2002, and filed on               “This is to confirm our discussion earlier
December 27, 2002, Judge Brotman                    regarding the above-referenced cases.
scheduled a conference for a “status                These cases were inadvertently categorized
hearing and settlement discussions” for             as cases from which Judge Moore recused
Selkridge II. JA at 764. Apparently                 himself. However, Judge Moore has
unbeknownst to Judge Brotman, by way of             confirmed that he will continue to preside
a memorandum opinion and orders dated               over these cases.” JA at 766. Judge
December 20, 2002, and filed on                     Brotman then notified the parties that his
                                                    previous scheduling order was vacated, in
                                                    light of Judge Moore’s December 20,
Judge Barnard to prepare recusal orders in          2002, opinion.
all of Attorney Rohn’s cases. In any case,
we cannot consider the affidavit, which                Two published opinions from the
purports to have been prepared for the              District Court of the Virgin Islands,
United States v. Roebuck, V.I. Crim. No.            written after the orders being appealed
02-171 case. The affidavit is outside of            from in this case were filed, purport to
the record for Selkridge I and Selkridge II,        address Judge Moore’s recusals (or
and Selkridge suggests no theory under              withholding of recusals) with respect to
which we may consider the affidavit.                Attorney Rohn’s cases. See United States
        13
                                                    v. Roebuck, 271 F. Supp. 2d 712 (D.V.I.
          Neither a recusal order nor a             2003); United States v. Roebuck, 289 F.
reassignment notice was issued with                 Supp. 2d 678 (D.V.I. 2003). 15
respect to Selkridge I. The case was not
reassigned for settlement purposes because
final judgment had been entered and only
                                                        15
a Fed. R. Civ. P. 60(b) motion was                         “[W]e recognize that we have the
pending.                                            power to take judicial notice of subsequent
                                                    developments in related proceedings since
   14
      See Selkridge v. United Omaha Life            the appeal in each case was filed.”
Ins. Co., V.I. Civ. No. 2002-73                     Federal Ins. Co. v. Richard I. Rubin &
(reassignment notice dated Dec. 5, 2002).           Co., Inc., 12 F.3d 1270, 1284 (3d Cir.

                                               10
                                                         In United States v. Roebuck, 271 F.
                                                      Supp. 2d 712 (D.V.I. 2003), Judge
                                                      Brotman, presiding over a motion to quash
1993). We take judicial notice of these
                                                      subpoenas to compel the testimony of four
published opinions to the extent that they
                                                      federal judges at an evidentiary hearing on
discuss Selkridge I and Selkridge II, and to
                                                      a motion to recuse Judge Moore from
the extent they discuss whether Judge
                                                      presiding over that case, noted that:
Moore recused himself from Attorney
Rohn’s cases. With respect to United
                                                           Shortly after Judge Moore had
States v. Roebuck, 289 F. Supp. 2d 678
                                                        recused himself from all of Attorney
(D.V.I. 2003) (Moore, J.), we take judicial
                                                        Rohn’s cases, he withdrew his
notice of the public statements made by
                                                        recusal in some cases, including the
Judge M oore in that opinion.
                                                        matters of Selkridge v. United of
        We recognize that “[a] court may
                                                        Omaha Life Insurance Company,
take judicial notice of an adjudicative fact
                                                        V.I. Civil Action Nos. 2001-143 and
if that fact is not subject to reasonable
                                                        2002-73, without giving a reason for
dispute” and “[a] judicially noticed fact
                                                        this decision. (See Selkridge v.
must either be generally known within the
                                                        United of Omaha Life Ins. Co., 237
jurisdiction of the trial court, or be capable
                                                        F. Supp. 2d 600 (D.V.I. Dec. 20,
of accurate and ready determination by
                                                        2002) (M oore, J.)).
resort to sources whose accuracy cannot
reasonably be questioned.” Werner v.
                                                      Id. at 715. Thus, there is a published
Werner, 267 F.3d 288, 295 (3d Cir. 2001).
                                                      opinion of the District Court representing
        With respect to both published
                                                      that Judge Moore recused himself in
Roebuck opinions, we do not take judicial
                                                      Selkridge I and Selkridge II, and then
notice for “the truth of the facts recited
                                                      “withdrew” that recusal.
therein, but for the existence of the
opinion, which is not subject to reasonable
                                                         Judge Moore, in later proceedings in
dispute over its authenticity.” Southern
                                                      Roebuck, indicated that he “never recused
Cross Overseas Agencies, Inc. v. Wah
                                                      [himself] from Selkridge” and commented
Kwong Shipping Group Ltd., 181 F.3d
                                                      on his reason for recusing himself in many
410, 426 (3d Cir. 1999). For example, to
                                                      of Attorney Rohn’s cases:
the extent Judge Moore expressed that he
was “initially upset at the viciousness of
                                                        First, I entered no blanket order of
the letter [by Attorney Rohn],” Roebuck,
                                                        recusal from all of Lee Rohn’s cases
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                public statement indicating that he was
for the more limited purpose of                       “initially upset at the viciousness” of
recognizing that Judge Moore made a                   Attorney Rohn’s letter.

                                                 11
. . . . Second, I entered recusal                 reflect, and, as the saying goes, time
orders in only some, but not all, of              heals all wounds. I have concluded
Attorney Rohn’s then-pending cases.               that this was just Lee Rohn being
Third, I have not made any rulings in             Lee Rohn and doing what Lee Rohn
any of those cases from which I have              thinks she must do to win.
recused myself. The Selkridge matter
is one of those in which I have never           United States v. Roebuck, 289 F. Supp. 2d
entered an order of recusal. Thus,              678, 681-82 (D.V.I. 2003) (footnotes
Attorney Rohn’s claim that I                    omitted).    Thus, while Judge M oore
deliberately “unrecused” myself just            characterized the group of cases referred to
to be able to rule against her client is        Judge Brotman as the “Rohn recusal
paten tly false. Although th e                  cases,” there were some of these cases,
mag istrate judg e inad verte ntly              including Selkridge II, in which Judge
included Selkridge among those                  Moore maintains that he did not recuse
cases sent to the judge who had been            himself.
designated to oversee the Rohn
r e cusal cases for settleme nt                          B. Standard of Review
negotiations, the fact remains that I
never recused myself from Selkridge.               Where a motion for disqualification was
I ruled on the facts and law that I             made in the District Court, we review the
believe governed the decision of the            denial of such a motion for abuse of
case. I understand my rulings are on            discretion. See, e.g., General Motors
appeal, and, as always, the Court of            Corp. v. New A.C. Chevrolet, Inc., 263
Appeals will have the last word if it           F.3d 296, 336 n.25 (3d Cir. 2001);
disagrees with my decision.                     S ec ur ac om m Co nsu lting , In c . v.
                                                Securacom Inc., 224 F.3d 273, 278 (3d
I did recuse myself from some of                Cir. 2000). However, Selkridge made no
Attorney Rohn’s then-pending cases              motion in the District Court for Judge
because her personal attack in the St.          Moore’s recusal from Selkridge I or
Thomas Source stung when I first                Selkridge II at any time after the events at
read it. I reiterate that these recusal         issue here took place.
orders had absolutely nothing to do
with any antipathy or prejudice                    Where a party has not requested that the
against any of her clients or any               district judge recuse himself or herself
concern that I could not be fair and            during proceedings in the district court, we
impartial in handling their cases.              review a recusal argument made on appeal
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

                                           12
for plain error. 16 See, e.g., Osei-Afriyie by        1979). 17
Osei-Afriyie v. Medical College of
Pennsylvania, 937 F.2d 876, 881 (3d Cir.
1991); United States v. Dalfonso, 707 F.2d               17
                                                            Selkridge maintains that her counsel
757, 760 (3d Cir. 1983); United States v.
                                                      had no fair opportunity to move for recusal
Schreiber, 599 F.2d 534, 535 (3d Cir.
                                                      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
      16
           We recognize that the Second               Judge Brotman for settlement discussions.
Circuit has, in the civil context, reviewed           Counsel may well have expected Judge
a party’s argument made for the first time            Moore to recuse in this other group of
on appeal–that the trial judge should have            cases (as he had done with the other 19
recused himself or h erself–under                     cases) if they did not settle. Moreover,
fundamental error analysis. See Taylor v.             based on Judge Brotman’s December 9th
Vermont Dept. of Educ., 313 F.3d 768, 795             order, counsel may well have anticipated
(2d Cir. 2002) (“In the civil context,                that, at a minimum, Judge Moore would
however, we reverse only if there has been            take no further action in these cases unless
fundamental error. Fundamental error is               and until settlement discussions proved
more egregious than the plain error that              unfruitful. Judge Moore’s December 23rd
can excuse a procedural default in a                  final judgment, accordingly, may have
criminal trial, and is so serious and                 come as a surprise. Finally, when the final
flagrant that it goes to the very integrity of        judgment was received, it was apparent
the proceeding.”) (internal quotations,               from the surrounding circumstances that
citations, and alterations omitted). As Fed.          Judge Moore must have considered the
R. Crim. P. 52(b), upon which plain error             recusal issue. At that point, counsel may
analysis is based, does not apply in the              well have considered a motion in the
civil setting, Taylor suggests that                   District Court to be pointless.          An
fundamental error analysis should be                  argument in favor of applying an abuse of
applied. Nonetheless, this Court has                  discretion standard of review has some
applied plain error analysis, in the civil            appeal in this context. See United States v.
context, to a party’s argument for the first          Antar, 53 F.3d 568, 573 n.6 (3d Cir. 1995)
time on appeal that the trial judge should            (expressing doubt as to whether the plain
have recused himself or herself. See                  error standard of review applies where
Osei-Afriyie by Osei-Afriyie v. Medical               statement at issue was made by district
College of Pennsylvania, 937 F.2d 876,                judge after conviction, and counsel may
881 (3d Cir. 1991). Accordingly, we are               have reasonably thought that making a
bound to apply plain error analysis.                  recusal motion was pointless; nonetheless,
                                                      plain error standard of review applied

                                                 13
   Under the plain error standard of                 the forfeited error [is] within the sound
review, a District Court’s order may be              discretion of the court of appeals, and the
reversed only when “[t]here [was] an                 court should not exercise that discretion
‘error’ that is ‘plain’ and that ‘affect[s]          unless the error seriously affect[s] the
substantial rights.’ ” Antar, 53 F.3d at 573         fairness, integrity or public reputation of
(quoting United States v. Olano, 507 U.S.            judicial proceedings.” Olano, 507 U.S. at
725, 732 (1993)) (alterations in original).          732 (second alteration in original and
Normally, the requirement that the error             internal quotations omitted).
“affect substantial rights” is not satisfied
absent an affirmative showing “that the                       C. The Law of Recusal
error [was] prejudicial. It must have
affected the outcome of the district court             Section 455(a) of Title 28, United States
proceedings.” Olano, 507 U.S. at 734.                Code, requires that:
There is at least one situation, however, in
which prejudice may be presumed without                 Any justice, judge, or magistrate
affirmative evidence that the alleged error             judge of the United States shall
affected the outcome. As we held in                     disqualify himself in any proceeding
United States v. Antar, 53 F.3d 568, 573-               in which his impartiality might
79 (3d Cir. 1995) (applying plain error                 reasonably be questioned.
review where a trial judge’s failure to
recuse was first raised on appeal),                  28 U.S.C. § 455(a); see Alexander v.
prejudice will be presumed and plain error           Primerica Holdings, Inc., 10 F.3d 155, 162
review is appropriate where a district               (3d Cir. 1993) (“Whenever a judge’s
judge allegedly failed to recuse despite an          impartiality ‘m ight reason ab ly be
appearance of partiality. Because “the               questioned’ in a proceeding, 28 U.S.C. §
touchstone of recusal is the integrity of the        455(a) commands the judge to disqualify
judiciary . . . prejudice is presumed” once          himself sua sponte in that proceeding.”).
“the appearance of partiality is shown.”
Id. at 573 n.7.                                         “A party seeking recusal need not show
                                                     actual bias on the part of the court, only
  Even where the error is plain and affects          the possibility of bias. . . . Under § 455(a),
substantial rights, the decision to “correct         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
where parties both conceded it would
                                                     recuse.” In re Prudential Ins. Co. of
apply). Nevertheless, since it is clear that
                                                     America Sales Practices Litigation, 148
we may review for plain error and since
                                                     F.3d 283, 343 (3d Cir. 1998) (internal
we believe that standard is satisfied here,
                                                     quotations omitted); see Massachusetts
we proceed hereafter with plain error
                                                     School of Law at Andover, Inc. v.
review.

                                                14
American Bar Ass’n, 107 F.3d 1026, 1042                   If it were the case that Judge Moore had
(3d Cir. 1997) (“The standard for recusal              recused himself in Selkridge I and
is whether an objective observer                       Selkridge II and then unrecused himself,
reasonably might question the judge’s                  our task would be an easy one. “Once a
impartiality.”)                                        judge has disqualified himself, he or she
                                                       may enter no further orders in the case.
   Generally, “beliefs or opinions which               His power is limited to performing
merit recusal must involve an extrajudicial            ministerial duties necessary to transfer the
factor.”     Antar, 53 F.3d at 574.                    case to another judge (including the
“[O]pinions formed by the judge on the                 entering of ‘housekeeping’ orders).”
basis of facts introduced or events                    Moody v. Simmons, 858 F.2d 137, 143 (3d
occurring in the course of the current                 Cir. 1988) (citations omitted). But the
proceedings, or of prior proceedings, do               dockets in these cases do not reflect that
not constitute a basis for a bias or partiality        such a recusal order was entered in either
motion unless they display a deep-seated               of them, and we will analyze the recusal
favoritism or antagonism that would make               issue on the assumption that there were no
fair judgment impossible.” Liteky v.                   such recusals.18
United States, 510 U.S. 540, 555 (1994).
                                                                D. Section 455(a) Analysis
   There is no dispute here that the source
of Judge Moore’s alleged bias involved an                 We agree with Omaha that the fact that
extrajudicial factor.     The basis for                one of Selkridge’s attorneys wrote a letter-
Selkridge’s concern that Judge Moore had               to-the-editor of a newspaper regarding
become biased against her was a letter                 Judge Moore is, alone, of little probative
written by her counsel to a local                      value with respect to whether a reasonable
newspaper decrying Judge Moore’s                       person, knowing all of the circumstances,
performance as a judge, and Judge                      w o u l d q u e s t i o n Ju d g e M o o r e ’ s
Moore’s reactio ns to th at letter.                    impartiality. As the Court of Appeals for
Accordingly, a significant extrajudicial               the Second Circuit explained with regard
factor is present and we review Judge                  to a letter sent by a litigant to a judge that
Moore’s lack of recusal under the                      questioned the judge’s motivations and
objective standard of whether a                        intentions, “[t]his letter may very well
“reasonable man, were he to know all the               establish [the litigant]’s feelings toward
circumstances, would harbor doubts about
the judge’s impartiality” under § 455(a).
Antar, 53 F.3d at 574 (quoting In re                       18
                                                             As we note hereafter, this does not
Larson, 43 F.3d 410, 415 (8th Cir. 1994)
                                                       mean that the existence of ambiguity on
(quoting Potashnick v. Port City Constr.
                                                       the public record regarding whether
Co., 609 F.2d 1101, 1111 (5th Cir.
                                                       recusals occurred is irrelevant to our
1980))).
                                                       analysis of the recusal issue.

                                                  15
[the judge], but has no tendency to show              Moore should have recused himself was
the latter’s feelings toward [the litigant]. .        the letter written by Selkridge’s counsel
. .” King v. United States, 576 F.2d 432,             taking issue with Judge Moore’s
437 (2d Cir. 1978); see United States v.              performance, there would be little basis for
Wolfson, 558 F.2d 59, 61-62 (2d Cir.                  arguing that he should have recused. It is
1977) (litigant’s letter to newspaper                 his reaction to counsel’s letter that raises
(which was never published), copied to the            the difficult issues here presented.
judge, which accused the judge of
participating in a “scheme to frame” the                  We first address the circumstances
litigant, “only establish[ed] [the litigant]’s        under which the December 23, 2002,
feelings towards [the judge], not the                 orders were entered by Judge M oore. A
reverse”); see also United States v.                  letter written by Attorney Rohn and
Helmsley, 760 F. Supp. 338, 342                       directly challenging the competence of
(S.D.N.Y. 1991) (“Where the issue is not              Judge Moore had been published on
hostility displayed by the judge, but                 September 3rd. Commencing six days
hostility displayed toward the judge, the             later, and continuing over a period of a
Second Circuit has found that hostile                 month, Judge M oore recused himself in 19
attacks even by a criminal defendant,                 cases involving Attorney Rohn. Almost
much less by the defendant's lawyer, are              all of these cases were reassigned to Judge
not a sufficient basis for recusal.”).                Brotman, a visiting judge, for settlement
                                                      discussions only, presumably so that
   Were the rule otherwise, “those litigants          permanent reassignment would be required
fortunate enough to have easy access to the           in only those that did not settle. These
media could make charges against a                    recusals and reassignments were made sua
judge’s impartiality that would effectively           sponte and without explanation.          In
veto t h e assignment of judges.                      addition, prior to December 23rd, at least
Judge-shopping would then become an                   twelve more cases of Judge Moore’s
additional and potent tactical weapon in              involving Attorney Rohn were transferred
the skilled practitioner’s arsenal.” In re            from Judge Moore to Judge Brotman for
Drexel Burnham Lambert Inc., 861 F.2d                 settlement negotiations, raising the
1307, 1309 (2d Cir. 1988). We therefore               possibility that Judge Moore was
agree with Judge Moore’s view of recusal              considering recusal in such of these cases
law, expressed in United States v.                    as did not settle. Again, the reassignments
Roebuck, 289 F. Supp. 2d 678 (D.V.I.                  came sua sponte and without explanation.
2003), that “an attorney [may not] be
allowed to use her calculated personal                  Because these extraordinary activities in
attack on a sitting judge as a technique to           Judge Moore’s cases involving Attorney
prevent that judge from presiding over any            Rohn followed almost immediately on the
of her cases. . . .” Id. at 682. If the only          heels of such a critical publication and
basis for Selkridge’s argument that Judge             because no alternative explanation was

                                                 16
given for them, we believe they would                 have serious reason to question
suggest to a reasonable person that Judge             whether prior rulings in the case
Moore was sufficiently upset by the letter            were based on im partial
that he considered himself unable to be               considerations or on the judge's
objective in her cases. Moreover, in the              stated goal. The fact that the judge’s
absence of an alternative explanation                 motivation came to light only after
suggesting a contrary conclusion, we                  the conclusion of the trial would be
believe a reasonable person would                     of no moment.
question Judge M oore’s ability to be
objective at that point in time in all of           Antar, 53 F.3d at 576. Based on Antar, we
Attorney Rohn’s cases.                              conclude that we must consider
                                                    developments between December 23,
   Further, because the ultimate issue here         2002, and the submission of this direct
is whether the public can have confidence           appeal.
in the integrity of the court’s judgments,
we are called to consider statements of the             This conclusion is, of course, important
court following December 23, 2002, to the           because Judge Moore, after December 23,
extent they bear upon that issue. In United         2002, had occasion to comment on the
States v. Antar, 53 F.3d 568 (3d Cir.               extraordinary activity in Attorney Rohn’s
1995), the defendant challenged the                 cases prior to that date. Writing 14 months
validity of his conviction on the ground            after the publication of Rohn’s letter and
that the trial judge was biased and should          11 months after December 23, 2002, Judge
not have presided over his trial. The               Moore acknowledged that he had “entered
principal basis for the charge of bias was a        recusal orders in . . . some, but not all, of
statement made by the judge at the                  Attorney Rohn’s . . . pending cases”
conclusion of the trial. We there rejected          because he was “stung” by “her personal
the idea that we should look only at the            attack” and “upset at the viciousness” of
appearance of matters at the time of trial:         her “scurrilous article.” He reported,
                                                    however, that “the passage of time [had]
  We reject the implications of the                 allowed [him] to reflect, and . . . [had]
  government’s argument–that because                heal[ed] all wounds.” Roebuck, 289 F.
  the statement occurred after the trial,           Supp. 2d at 682. Judge Moore thus
  it cannot form the basis of an                    confirmed that he was sufficiently upset
  allegation of bias during the trial.              with Attorney Rohn in the Fall of 2002
  Suppose, for instance, that at                    that he recused in some of her cases.
  sentencing the district judge informs             While he insisted that he did not recuse in
  a defendant that throughout the trial             all of Attorney Rohn’s cases, he offered no
  his object had been to see the                    explanation for why he believed he could
  defendant behind bars. A reasonable               be objective in some of her cases even
  observer in such a scenario would                 though he could not be in others. As a

                                               17
result, we believe that Judge Moore’s                                E. Holding
opinion served to reinforce the conclusion
that a reasonable person would have                     Judge Moore’s reaction to Attorney
reached viewing matters as of December               Rohn’s intemperate public criticism is
23rd – that there was reason to “harbor              certainly understandable. Moreover, his
doubts about the judge’s impartiality”               sensitivity to the possible impact of that
when he was deliberating over the motions            reaction on his ability to judge fairly cases
pending in Selkridge I and Selkridge II and          in which she was counsel is commendable.
writing his December 23, 2002, opinion.              We further agree with Judge Moore that
                                                     the passage of time does, indeed, heal
   Nor is the appearance of impropriety              wounds, and we do not mean to suggest
assuaged by the co nflict in th e                    that it is not presently appropriate for him
subsequently developed record over                   to sit on cases involving Attorney Rohn. 19
whether Judge Moore did at one point
recuse in the Selkridge cases. We accept                We do hold, however, that a trial judge
for present purposes that Judge Brotman              cannot, without explanation, recuse
was mistaken in his belief that Judge                himself in a substantial number of cases
Moore had recused himself in all of                  and, at substantially the same time, decline
Attorney Rohn’s cases. Nevertheless,                 to recuse himself in another group of cases
there is a conflict in the public record that        that appears indistinguishable for purposes
the litigants have no means of resolving             of recusal.        From an appearance
and that conflict casts a shadow on Judge            perspective, that is precisely what Judge
Moore’s impartiality in the Selkridge                Moore did here, and he committed plain
cases.                                               error in doing so.

   Viewing the record as a whole, given                            F. The Remedy
the appearance that Judge Moore’s
impartiality was compromised, we                         “Although § 455 defines the
conclude that it was error for Judge Moore           c i r c u m s ta n c e s that m a n d a te
to enter the December 23rd orders in                 disqualification of federal judges, it neither
Selkridge I and Selkridge II, and that this          prescribes nor prohibits any particular
error was plain. Further, because this error         remedy for a violation of that duty.
compromised the integrity of the                     [Rather,] Congress has wisely delegated to
proceedings, “prejudice is presumed.”
Antar, 53 F.3d at 573. Finally, we exercise
our discretion to review this claim of error            19
                                                          In particular, we, of course, express
because it “seriously affect[ed] the . . .
                                                     no opinion on the propriety of Judge
integrity [and] public reputation of judicial
                                                     Moore’s refusal to recuse himself in
proceedings.” Olano, 507 U.S. at 732
                                                     United States v. Roebuck, 289 F. Supp. 2d
(internal quotations omitted).
                                                     678 (D.V.I. 2003).

                                                18
the judiciary the task of fashioning                   Corp., 335 F.3d 476, 485-86 (5th Cir.
remedies that will best serve the purpose              2003); In re Continental Airlines Corp.,
of the legislation.” Liljeberg v. Health               901 F.2d 1259, 1263 (5th Cir. 1990);
Services Acquisition Corp., 486 U.S. 847,              Parker v. Connors Steel Co., 855 F.2d
862 (1988).                                            1510, 1525-27 (11th Cir. 1988).

    In Liljeberg, the Supreme Court                       Compared with situations like the one
approved the vacatur of a final judgment               before us in In re School Asbestos
entered by a district judge who should                 Litigation, determining the appropriate
have disqualified himself. It explained,               remedy is not a complex matter. The letter
however, that this remedy would not be                 came late in the litigation, and only the
required in all such cases. It suggested               final decisions currently before us on
that, in deciding whether to vacate such a             direct appeal could possibly have been
final judgment, a court should “consider               affected.     Moreover, both of those
the risk of injustice to the parties in the            decisions are subject to plenary review by
particular case, the risk that the denial of           this court, one because it is a summary
relief will produce injustice in other cases,          judgment and the other because it is based
and the risk of undermining the public’s               on the District Court’s resolution of a pure
confidence in the judicial process.” Id. at            issue of law.
864. With respect to the second factor, the
Court concluded that vacating the                         In this context, we have two choices:
judgment would help prevent injustice in               (1) we can vacate the orders before us and
other cases “by encouraging a judge or                 remand with instructions that the cases be
litigant to more carefully examine possible            assigned to a new district judge for
grounds for disqualification and to                    resolution of the pending motions and
promptly disclose them when discovered.”               possible further proceedings; or (2) we can
Id. at 868.                                            independently review the record and
                                                       determine whether the res judicata and
   The Liljeberg Court expressly noted that            Rule 60(b) issues were correctly decided
“[a]s in other areas of the law, there is . . .        as a matter of law and remand only in the
room for harmless error” in § 455(a)                   event they were not, reasoning that, if
analysis, id. at 862, and we have heretofore           impartial decision makers of this court, in
read that case as approving harmless error             addition to finding a violation of § 455(a),
analysis when applied with sensitivity not             independently approve the orders at issue,
only to the interests of the parties, but also         any error is harmless and Omaha is fairly
to the interests of other litigants and to the         entitled to its judgments. Where, as here,
public’s interest in the integrity of the              it appears clear that the failure to recuse
court system. See In re School Asbestos                did not affect the dispositions of the
Litigation, 977 F.2d 764, 785-88 (3d Cir.              plaintiff’s claims and a remand,
1992); see also Patterson v. Mobil Oil                 accordingly, would only prolong the

                                                  19
litigations, we conclude that the second            IV. Summary Judgment in Selkridge II:
approach is the appropriate one.                                The Merits

   As we explain hereafter, any trial judge            The District Court granted summary
presented with this record would be                 judgment for Omaha in Selkridge II based
required as a matter of law to enter                on claim preclusion. For claim preclusion
summary judgment in Selkridge II and to             to apply, there must have been “[1] a final
decline to vacate the judgment in Selkridge         judgment on the merits in [2] a prior suit
I. As a result, we perceive no unfairness to        involving the same parties or their privies,
Selkridge from declining to vacate the              and [3] a subsequent suit based on the
judgments against her, and it seems                 same cause of action.” General Elec. Co.
apparent to us that a contrary decision             v. Deutz AG, 270 F.3d 144, 158 (3d Cir.
wo uld serve only to impose an                      2001). “If these three factors are present,
unnecessary, additional litigation burden           a claim that was or could have been raised
on Omaha and the District Court.                    previously must be dismissed as
Moreover, in these circumstances, we                precluded.”     CoreStates Bank, N.A. v.
believe our determination that a violation          Huls America, Inc., 176 F.3d 187, 194 (3d
of § 455(a) occurred will provide virtually         Cir. 1999). Selkridge argues only that the
the same encouragement to other judges              ERISA claim in Selkridge II is not subject
and litigants as would a remand. Finally,           to claim preclusion because the decision in
we conclude (1) that our independent                Selkridge I was neither final nor on the
review and determination of the relevant
legal issues will provide as much
legitimacy to these particular final
                                                    before the compromised judge is presumed
judgments as they would have following a
                                                    for the purpose of determining whether
remand, reexamination by another District
                                                    appellate review is permissible in the
Judge, and a subsequent appellate
                                                    absence of a motion to recuse. If a
affirmance; and (2) that our finding of
                                                    contrary result had been reached in Antar,
plain error on Judge Moore’s part
                                                    there would have been no appellate review
constitutes a corrective process sufficient
                                                    and the District Court’s judgment would
to assure continuing confidence in the
                                                    have remained in place despite the fact that
judicial process.20
                                                    its integrity had been impaired, a result
                                                    that no appellate court could sanction in
                                                    good conscience. Our “harmless error”
   20
      Our use of “harmless error” analysis          analysis, on the other hand, accepts the
in determining the appropriate remedy is            presumption of prejudice at the trial level,
not in tension with the Court’s holding in          but takes into account the fact that plain
Antar that prejudice is presumed once an            error review makes further, curative
appearance of impartiality is shown.                proceedings possible in the Court of
Under Antar, an effect on the proceedings           Appeals.

                                               20
merits.                                            cla i m s plaintif f s       pr e sente d     w e re
                                                   preempted.”).
   Selkridge asserted only state law claims
in her complaint in Selkridge I, and Omaha            Accordingly, the District Court had no
asserted an affirmative defense of ERISA           choice but to dismiss Selkridge II because
preemption as to all of those claims. The          the claim in that lawsuit could have been
District Court sustained that defense and          raised in Selkridge I.
entered a final judgment on every claim
asserted. That final judgment determined           V. The Rule 60(b) Motion in Selkridge I:
that there could be no recovery on any                           The Merits
claim.
                                                      Rule 60(b) provides:
   As Selkridge stresses, an argument can
be made that the District Court abused its            On motion and upon such terms as
discretion by failing to provide an                   are just, the court may relieve a party
opportunity to amend.21 But that is an                or a party’s legal representative from
argument that should have been advanced               a final jud gm ent, o rde r, or
in a timely appeal and does not render the            proceedin g for the fo llowing
District Court’s summary judgment                     reasons: (1) mistake, inadvertence,
anything other than a final judgment on the           surprise, or excusable neglect; (2)
merits. Stewart v. U.S. Bancorp, 297 F.3d             newly discovered evidence which by
953, 959 (9th Cir. 2002) (where                       due diligence could not have been
defendants brought motion to dismiss                  discovered in time to move for a new
based upon all of plaintiffs’ claims being            trial under Rule 59(b); (3) fraud
preempted by ERISA, “[p]laintiffs were on             (whether heretofore denominated
notice that their claims were preempted by            intrinsic              or       extrinsic),
ERISA, and they did not seek leave to                 m i s r e p re s e n t a ti o n , o r o t h e r
amend or dismiss ‘without prejudice.’ . . .           misconduct of an adverse party; (4)
Absent a request from plaintiffs to amend,            the judgment is void; (5) the
the district court had no other alternative           judgment has be en sa tisfied,
but to dismiss the case, finding the only             released, or discharged, or a prior
                                                      judgment upon which it is based has
                                                      been reversed or otherwise vacated,
  21                                                  or it is no longer equitable that the
      But see Ramsgate Court Townhouse
                                                      judgment should have prospective
Ass’n v. West Chester Borough, 313 F.3d
                                                      application; or (6) any other reason
157, 161 (3d Cir. 2002) (District Court did
                                                      justifying relief from the operation of
not abuse its discretion in failing to
                                                      the judgment.
address a request for permission to amend
the complaint contained in a brief but
                                                      Selkridge urges that the District Court
never made the subject of a motion).

                                              21
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).




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