            Case: 14-12047   Date Filed: 10/28/2015   Page: 1 of 12


                                                       [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                              No. 14-12047
                          Non-Argument Calendar
                        ________________________

                   D.C. Docket No. 1:13-cv-00258-CB-B,
                      Bkcy No. 11-bkc-00096-WWS


In Re:   RICHARD D. HORNE,
         PATRICIA NELSON HORNE,

                                                                       Debtors.
_________________________________________________________

MARY BETH MANTIPLY,

                                                             Plaintiff–Appellant
                                                                Cross-Appellee,

versus

PATRICIA NELSON HORNE, as personal representative
of the Estate of Richard D. Horne, and individually,

                                                            Defendant–Appellee
                                                               Cross-Appellant.
                        ________________________

                Appeals from the United States District Court
                   for the Southern District of Alabama
                       ________________________
                            (October 28, 2015)
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Before HULL, ROSENBAUM and JULIE CARNES, Circuit Judges.

PER CURIAM:

       A bankruptcy court denied Plaintiff Mary Beth Mantiply’s motion for

recusal. The district court affirmed, and Plaintiff now appeals. Defendants

Patricia Nelson Horne and Richard D. Horne1 cross appeal the district court’s order

denying them appellate attorney’s fees. Defendants also filed a motion with this

Court seeking attorney’s fees for the present appeal.

                                    I.    BACKGROUND

       Defendants filed for Chapter 7 bankruptcy on January 10, 2011. This

triggered an automatic stay of any litigation against Defendants under 11 U.S.C.

§ 362.2 Notwithstanding the automatic stay, Plaintiff filed a civil action against

Mr. Horne in state court. Defendants were discharged from bankruptcy on May

10, 2011. Plaintiff ignored requests to voluntarily dismiss the civil suit against Mr.

Horne and maintained the action until it was dismissed in November 2011, more

than 200 days after she initially filed her complaint.

       Defendants filed a motion in bankruptcy court seeking damages from

Plaintiff for violating the automatic stay provision of the bankruptcy code,


1
  Richard Horne died during the pendency of this lawsuit. Although Patricia Nelson Horne was
substituted as his personal representative, this order uses “Defendants” for ease of exposition.
2
  Section 362 states that a bankruptcy petition operates as a stay of, among other things, “the
commencement or continuation . . . of a judicial, administrative, or other action or proceeding
against the debtor . . . .” 11 U.S.C. § 362(a)(1).
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11 U.S.C. § 362. They later amended their motion to add a request for damages

for Plaintiff’s violation of the discharge injunction provision of the bankruptcy

code, 11 U.S.C. § 524. 3 The bankruptcy court granted Defendants’ amended

motion and awarded them $81,714.31 in damages, including $41,714.31 in

attorney’s fees.

       Plaintiff appealed the bankruptcy court’s damages award, but the district

court affirmed that award. The district court subsequently denied Plaintiff’s

motion for rehearing and awarded Defendants $34,551.28 in attorney’s fees for

defending the appeal. Plaintiff then filed two identical motions for recusal of the

bankruptcy court judge: one in district court and one in bankruptcy court. Plaintiff

sought recusal on the basis of “newly discovered evidence” that the bankruptcy

judge was biased. Specifically, the judge’s courtroom deputy is the sister of a

paralegal for Defendants’ bankruptcy counsel. The paralegal had offered affidavit

testimony during the trial that contradicted Plaintiff’s testimony. According to

Plaintiff, the judge credited the paralegal’s testimony over Plaintiff’s. Plaintiff

alleged that the connection between the courtroom deputy and the paralegal-

witness at least gave the appearance of partiality and therefore warranted recusal

and vacatur.


3
  Section 524 states that a discharge from bankruptcy “operates as an injunction against the
commencement or continuation of an action . . . to collect, recover, or offset any [discharged]
debt as a personal liability of the debtor.” 11 U.S.C. § 524(a)(2).
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         The bankruptcy court denied Plaintiff’s motion for recusal. Plaintiff

appealed that ruling and moved to consolidate it with her appeal of the bankruptcy

court’s damages award. 4 The district court granted Plaintiff’s motion to

consolidate and affirmed the bankruptcy judge’s ruling on Plaintiff’s motion for

recusal.

         Plaintiff then appealed various district court orders to this Court. We

considered our jurisdiction to review the orders sua sponte and held that Plaintiff

could appeal only the district court’s order concerning recusal. Defendants cross

appealed a second district court order that denied them appellate attorney’s fees for

defending against Plaintiff’s appeal of the bankruptcy court’s recusal order.

                                        II.    RECUSAL

         The district court first concluded that recusal was not necessary under the

federal judge recusal statute, 28 U.S.C. § 455(a). The district court then

determined that, even assuming for the sake of argument the need for recusal under

§ 455(a), reversal for failure to recuse would not have been required under

Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (1988). We review the

district court’s order concerning recusal for abuse of discretion. In re Walker, 532

F.3d 1304, 1308 (11th Cir. 2008).




4
    A final judgment had not been entered on Plaintiff’s earlier appeal of the damages award.
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       A.      Recusal was not required under §455(a).

       Under § 455(a), a federal judge “shall disqualify himself in any proceeding

in which his impartiality might reasonably be questioned.” 5 28 U.S.C. § 455(a).

The purpose of § 455(a) is “to promote confidence in the judiciary by avoiding

even the appearance of impropriety whenever possible.” Liljeberg, 486 U.S. at

865. Recusal is thus warranted “only if an objective, disinterested, lay observer

fully informed of the facts underlying the grounds on which recusal was sought

would entertain a significant doubt about the judge’s impartiality.” United States

v. Amedeo, 487 F.3d 823, 828 (11th Cir. 2007) (internal quotation marks and

citation omitted). We do not consider the perceptions of idiosyncratic,

hypersensitive, and cynical observers. See Sensley v. Albritton, 385 F.3d 591, 599

(5th Cir. 2004).

       We agree with the district court that recusal is unwarranted. 6 To begin with,

there is no evidence of a direct connection between the bankruptcy judge and the

courtroom deputy’s sister. And like the district court, we are unable to locate any

5
  Plaintiff sought recusal on the basis of § 455(a) alone. Section 455(b) sets forth several other
grounds for recusal. Because Plaintiff relied exclusively on § 455(a), we do not consider other
possible bases for recusal under § 455(b).
6
  Plaintiff’s main argument for recusal is that the bankruptcy judge had an undisclosed
connection to a witness. We address this argument below. Plaintiff also cites numerous adverse
rulings by the bankruptcy court judge that allegedly evidence his bias. As the district court
noted, “judicial rulings alone almost never constitute a valid basis for a bias or partiality
motion.” Liteky v. United States, 510 U.S. 540, 555 (1994). The district court was correct, and
we readily reject Plaintiff’s argument that the bankruptcy judge’s adverse rulings warrant
recusal.
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cases suggesting that a judge’s administrative employee’s relationship with a

witness is grounds for the judge’s recusal. To the contrary, recusal is warranted on

the basis of a judicial employee’s relationships only when the employee has (or

appears to have) a role in the substantive decision-making process. See Byrne v.

Nezhat, 261 F.3d 1075, 1100–02 (11th Cir. 2001) (explaining that the district court

did not abuse its discretion by determining that a law clerk’s prior employment

with a law firm representing a party in the case did not call into question the

judge’s impartiality and thus did not warrant recusal), abrogated on other grounds

as recognized by Nurse v. Sheraton Atlanta Hotel, ___ Fed. App’x ___, 2015 WL

4153677, at *3 (11th Cir. July 10, 2015); Parker v. Connors Steel Co., 855 F.2d

1510, 1523–25 (11th Cir. 1988) (concluding that an appearance of impropriety

existed because a law clerk’s father was a partner in the law firm that represented

the defendant, the law clerk held a hearing in the judge’s absence, and the judge

credited the law clerk in a footnote of the opinion); Hunt v. Am. Bank & Trust Co.

of Baton Rouge, 783 F.2d 1011, 1015–16 (11th Cir. 1986) (per curiam) (holding

that recusal was not required when two of the judge’s law clerks had accepted

employment offers from the law firm representing the defendants while the case

was pending, or because the case had been assigned to one of those law clerks as a

“ministerial” matter before the law clerk was screened from it). The record does

not indicate that the courtroom deputy had a role in the bankruptcy judge’s


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decision-making process. Consequently, recusal was not required.

      In addition to our own Court’s authority concerning recusal, we find a recent

case from the Tenth Circuit Court of Appeals particularly relevant and persuasive.

See Mathis v. Huff & Puff Trucking, Inc., 787 F.3d 1297 (10th Cir. 2015). In that

case, the husband of the trial judge’s law clerk had been hired by the defendant’s

insurer to monitor the trial. Id. at 1304. The Tenth Circuit held that the judge did

not err in declining to recuse himself because the law clerk did not have continuing

substantial participation in the case, the insurer was not the defendant, the law

clerk performed only ministerial acts at trial, and she did not participate in drafting

post-trial findings and conclusions. Id. at 1312–13. As mentioned above, the

record here is devoid of evidence that the courtroom deputy had any substantive

role in the bankruptcy judge’s decision. Moreover, the deputy’s sister was merely

an affiant, not the defendant. These facts lead us to agree with the district court

that recusal was not warranted and indeed would have been inappropriate. See

United States v. Greenough, 782 F.2d 1556, 1558 (11th Cir. 1986) (“[A] judge,

having been assigned to a case, should not recuse himself on unsupported,

irrational, or highly tenuous speculation.”).

      In sum, recusal is not required merely because the movant can “draw[ ] a

line . . . connecting a person within chambers to a person or firm related, no matter

how remotely, to a party in the case.” Mathis, 787 F.3d at 1312 ) (internal


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quotation marks omitted) (citing Hamid v. Price Waterhouse, 51 F.3d 1411, 1417

(9th Cir. 1995). Because Plaintiff has done no more than identify a relationship

between the courtroom deputy and a witness in the case, we affirm the district

court’s holding that recusal was not required.

       B.      The absence of a § 455(a) violation ends our inquiry.

       The district court was not required to go further in its analysis once it

concluded that recusal was unnecessary under § 455(a). Nevertheless, the court

considered whether, assuming arguendo that recusal had been warranted under

§ 455(a), reversal would have been appropriate under Liljeberg. Because the

district court did not abuse its discretion in making its recusal determination, we do

not analyze whether, in a counter-factual world in which a § 455(a) violation had

occurred, vacatur would be appropriate under Liljeberg.

                      III.    APPELLATE ATTORNEY’S FEES

       Defendants cross appeal the district court’s order denying them appellate

attorney’s fees incurred during Plaintiff’s unsuccessful appeal of the bankruptcy

court’s recusal order.7 The district court’s order states that because the underlying

appeal “involve[d] violation of the discharge injunction,” attorney’s fees are “not

authorized.” By that statement, the court was perhaps explaining that attorney’s


7
  Defendants seek a total of $14,918.60 in fees associated with the district court proceedings
concerning recusal.

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fees for litigation dealing with violations of the discharge injunction are

discretionary. See 11 U.S.C. § 105; In re Hardy, 97 F.3d 1384, 1389–91 (11th

Cir. 1996). If so, the court was presumably exercising its discretion not to award

attorney’s fees for Defendants’ expenses during the appeal.

      A problem with that analysis arises, however, due to the fact that the district

court cites 11 U.S.C. § 362(k), which provides that “an individual injured by any

willful violation of a stay . . . shall recover actual damages, including costs and

attorneys’ fees” (emphasis added), which presumably means that an award of

attorney’s fees is mandatory for a stay violation, albeit only discretionary for a

discharge violation. The district court declined to explain why Plaintiff’s recusal

motion did not involve the litigation over her stay violation, as well as her

discharge violation. Instead, the court cites its order that ruled on the merits of the

recusal appeal. But that order provides no help here. It says only that “[Plaintiff]

admits that she violated the automatic stay and seeks reversal only as to the

violation of the discharge injunction.”

      The district court does not provide a citation or other support for the above

statement. We have combed the more than 3,000 page record and are no more

enlightened. Plaintiff’s various motions and briefs suggest that she seeks a new

trial for all issues litigated before the bankruptcy court, including the stay

violation. For example, Plaintiff’s motion for recusal alleges that as a result of the


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bankruptcy judge’s alleged bias, Plaintiff’s “credibility as to all other issues and

areas of her testimony was damaged.” Her reply brief in defense of her recusal

appeal at the district court states that “[i]t is obvious that [Plaintiff] is entitled both

to a new trial and vacatur” and “reversal and vacatur of [the bankruptcy judge’s]

prior decisions is mandated, recusal ordered, and a new bankruptcy judge

appointed.” In sum, Plaintiff does not appear to have limited her motion for

recusal and vacatur to the discharge injunction litigation.8

       At times even the district court seems not to construe Plaintiff’s motion for

recusal so narrowly. In its order addressing Plaintiff’s appeal of the bankruptcy

court’s denial of her motion for recusal, the district court writes: “[Plaintiff] argues

that . . . application of the correct legal standard [for recusal] should result in [the

bankruptcy judge’s] disqualification and vacatur of the sanctions award.” Notably,

Defendants’ sanctions award included damages for Plaintiff’s violation of both the

stay and the discharge injunction.

8
  However, during the course of her appeal to this Court, Plaintiff has changed her tune,
ultimately adopting the district court’s conclusion. Plaintiff’s first brief argues that “[Plaintiff]
has substantial grounds for remand for a new trial and to vacate the tainted judgments based on
the appearance of impropriety under Section 455(a).” Plaintiff does not focus on the judgment
for the discharge injunction violation but on the entire damages award, including the award
based on her stay violation. Even in her brief in response to Defendants’ brief, Plaintiff suggests
that she was originally seeking “vacatur of the entire sanctions judgment affirmed in the first
appeal,” including both “the discharge injunction and the automatic stay” decisions. But in her
response to Defendants’ amended motion for attorney’s fees, Plaintiff writes that “Appellees
have cross-appealed the district court’s denial of attorneys fees as they relate to the violation of
the discharge injunction only.” Nevertheless, as far as we can tell, when the issue of attorney’s
fees for Plaintiff’s appeal of the recusal order was before the district court, Plaintiff did not
construe her appeal as concerning only the trial of the discharge injunction.

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         Perhaps the district court judge’s thought process was as follows: Plaintiff is

alleging bias because the bankruptcy judge credited the courtroom deputy’s

sister’s testimony over Plaintiff’s. That testimony was relevant to the discharge

injunction. Therefore, Plaintiff seeks recusal only with respect to the discharge

injunction judgment.

         But even if Plaintiff is challenging the bankruptcy judge’s impartiality based

on his treatment of her testimony concerning the discharge injunction, Plaintiff has

not so limited her recusal motion, as amply demonstrated in the foregoing

paragraphs.9 She apparently seeks to have the entire damages award vacated and

retried. In any event, we cannot ascertain a basis in the record for the district

court’s conclusion that the recusal appeal involved only the discharge violation and

not the stay violation. We therefore remand this cross appeal to the district court

with instructions to reconsider the Defendants’ motion for appellate attorney’s fees

in light of a substantiated recitation of the facts and application of the law to those

facts.




9
  As noted, Plaintiff has, in her latest brief, suggested that the recusal order pertained only to the
discharge injunction violation and not the stay violation. This after-the-fact adoption of the
district court’s framing of the issue does not control whether Plaintiff’s recusal appeal concerned
the stay violation. Plaintiff’s and the district court’s contemporaneous statements are relevant
and telling.

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                               IV.    CONCLUSION

      For the foregoing reasons, we AFFIRM the district court’s ruling on

Plaintiff’s motion for recusal and REMAND Defendants’ cross appeal of the

district court’s order denying appellate attorney’s fees for Plaintiff’s appeal of the

bankruptcy court’s recusal decision. Having remanded Defendants’ motion for

appellate attorney’s fees incurred in the district court, we DENY without prejudice

Defendants’ amended motion for appellate attorney’s fees incurred in the present

appeal before our Court.




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