                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE FIFTH CIRCUIT

                               _______________

                                 No. 92-3502
                               _______________



                              IN THE MATTER OF:

                         CLINTON J. BILLEDEAUX, SR.,

                                                          Petitioner.

                         _________________________

          Petition for Writ of Mandamus and/or Prohibition
                 to the United States District Court
                for the Eastern District of Louisiana
                      _________________________

                              (August 27, 1992)

Before SMITH, EMILIO M. GARZA, and DEMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

       Clinton   Billedeaux,    the    plaintiff    in    a   maritime    lawsuit

pending in the United States District Court for the Eastern Dis-

trict of Louisiana styled Billedeaux v. Tidex, Inc., No. 91-0134,

seeks to disqualify the district judge in that suit, the Honor-

able   Edith     Brown   Clement,     on   the   ground    that   her    husband,

Rutledge Clement, is a partner in the law firm of Phelps, Dunbar,

Marks, Claverie & Sims ("Phelps, Dunbar"), which, according to

Billedeaux, "has actively represented defendant Tidex, Inc., in

many other cases."        Judge Clement denied Billedeaux's motion for

recusal; accordingly, Billedeaux pursues the matter by petition

for writ of mandamus or prohibition.
                                              I.

      Billedeaux cites a few additional facts and allegations in

support of his petition.             These include the fact that before her

recent elevation to the bench, Judge Clement was a partner in the

law   firm    of        Jones,    Walker,     Waechter,         Poitevent,      Carrere   &

Denegre, which, according to Billedeaux, is "a firm well known

for its maritime defense practice."                          Billedeaux asserts that

Phelps, Dunbar represents Tidex, Inc. ("Tidex"), though of course

not   in     the    instant       matter,         and     receives     fees     therefrom.

Billedeaux     says       that    "[t]his     fact        may   well   impact    on   Judge

Clement's rulings and decision in the instant matter, which is

scheduled for a bench trial . . . ."                            From this, Billedeaux

surmises that "the economic ties her husband's firm has to Tidex

raises [sic] the possibility of partiality, thus falling within

the parameters of 28 U.S.C. § 455(b)(1)."

      To this, Billedeaux adds that "[b]ecause defendant Tidex is

represented        in    many    cases   by    the        Phelps-Dunbar    law    firm,   a

portion of Judge Clement's family income comes directly                               from

Tidex.       Further,        it    appears         that     Phelps-Dunbar       was   under

consideration by Tidex for referral of this claim for defense

. . . ."



                                            II.

      Billedeaux bases his request for disqualification only upon




                                              2
28 U.S.C. § 455(a) and (b)(1).1       These provisions read as follows:

          (a) Any . . . judge . . . shall disqualify himself
     in any proceeding in which his impartiality might rea-
     sonably be questioned.

          (b) He shall also           disqualify        himself    in    the
     following circumstances:

                (1) Where he has a personal bias or prejudice
           concerning a party, or personal knowledge of dis-
           puted evidentiary facts concerning the proceeding
           . . . .

     "The very purpose of § 455(a) is to promote confidence in

the judiciary by avoiding even the appearance of impropriety

whenever   possible."       Liljeberg     v.    Health    Servs.    Acquisition

Corp., 486 U.S. 847, 865 (1988).          A party proceeding under this

section "must show that, if a reasonable man knew of all the

circumstances,     he   would    harbor        doubts    about     the   judge's

impartiality."     Chitimacha Tribe v. Harry L. Laws Co., 690 F.2d

1157, 1165 (5th Cir. 1982) (citations omitted), cert. denied, 464

U.S. 814 (1983).        Thus, "the view of the average, reasonable

person is the standard for analysis . . . ."              In re Faulkner, 856

F.2d 716, 720 (5th Cir. 1988) (per curiam).                Since a motion to

disqualify is "committed to the sound discretion of the district

judge," Chitimacha Tribe, 690 F.2d at 1166, we must decide here

only whether Judge Clement abused her discretion.2



      1
        Billedeaux makes no claim for recusal under 28 U.S.C. § 144, regarding
actual bias.
      2
        In Faulkner, we did not specifically address the abuse-of-discretion
standard.   In deciding, however, that "[a] reasonable person easily could
question the judge's impartiality," 856 F.2d at 721, we implicitly recognized
the efficacy of that standard and held that the district judge had abused his
discretion.

                                      3
                                          III.

       The particulars of the Chitimacha decision are instructive

here and ultimately determine our conclusion that no abuse of

discretion has been shown.           There, the plaintiffs asserted that

the district judge should be disqualified because he once had

represented the target defendant.                We noted, though, that "[t]he

fact    that    [the      judge]   once    represented      [the     defendant]    in

unrelated matters does not forever prevent him from sitting in a

case in which [the defendant] is a party[, as t]he relationship

between [the judge] and [the defendant] is too remote and too

innocuous to warrant disqualification under § 455(a) . . . ."                      We

also emphasized that, as here, the firm in question "does not

represent [the defendant] or any other party in this case."                       Id.

       There is no assertion that Judge Clement ever represented

Tidex; nor is there an averment that her husband has handled

matters for that client.           The claim, instead, is that her husband

is a partner in a firm that has represented Tidex on various

occasions and that, as a result of that relationship, she and her

husband benefit from fees from that client and that, accordingly,

her impartiality might reasonably be questioned.

       A   similar     argument    was    made    in    Chitimacha    Tribe:      The

plaintiffs asserted that the judge was receiving payments from

his former firm, which at times still represented the defendant

and thus might suffer financially if the judge were to rule

adversely      to   the    defendant.       We   held    that   "[a]t   best,   this

speculation is remote and unrealistic [and] does not justify


                                           4
disqualification."     Id. at 1167.

     Here, as well, there is no reason to conclude or speculate

that any action Judge Clement might take in the case sub judice

would    affect   Phelps,   Dunbar   or    Judge   Clement's    husband.    A

"remote, contingent, or speculative" interest is not one "which

reasonably brings into question a judge's partiality."                 In re

Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1313 (2d Cir. 1988),

cert. denied, 490 U.S. 1102 (1989).          Thus, any interest of Judge

Clement's is too remote and speculative to support or suggest

recusal.



                                     IV.

     Chitimacha Tribe is binding precedent in this circuit; its

facts are so closely analogous to those in the case sub judice

that we believe recusal here was not called for.3              Even if we did

not have Chitimacha Tribe to guide us, however, we would conclude

that Judge Clement is not disqualified.            The proper test, as we

have stated, is whether "a reasonable person, knowing all the

circumstances," would believe it improper for the judge to sit in

the case in question."      Liljeberg, 486 U.S. at 861.

     If a reasonable person knew all the relevant facts, he or

she would know that any interest that could be attributed to


     3
       In his dissenting opinion, Judge DeMoss states that Chitimacha Tribe is
not dispositive, but he makes no further mention of the case nor attempts to
explain why it is not binding authority or, with its similar facts, at least
persuasive enough authority to guide our decision in this case. Instead, he
relies only upon three general propositions with which we do not disagree but
which, unlike the rationale in Chitimacha Tribe, have no specific application
to the question posed in the case sub judice.

                                      5
Judge Clement in the fate of her husband's law firm's sometime

client is so remote and speculative as to dispel any perception

of impropriety.      Thus, there was ample reason for Judge Clement

to conclude that there was no reason to grant the motion for

recusal.



                                     V.

     Finally, even if we were not convinced that, on a de novo

basis, the decision was correct, we could not conclude that Judge

Clement abused her discretion in so deciding.               In reviewing a

district court's denial of a motion to recuse, "we ask only

whether [the judge] has abused that discretion."                 Chitimacha

Tribe, 690 F.2d at 1166.4         Certainly, in regard to an interest

that is, at best, theoretical, Judge Clement was well within her

discretion in refusing to step aside.5

     The petition for writ of mandamus and/or prohibition is

DENIED.

DeMOSS, Circuit Judge, dissenting:

     I do not share the view of my colleagues on this panel that

Chitimacha Tribe is determinative of this case.            Rather, I think


       4
         The dissent takes no cognizance of the abuse-of-discretion standard
but, instead, appears to decide the case on a de novo basis.
       5
         Our dissenting colleague takes the view that one reason for requiring
recusal here and announcing the same as a rule of law is that this
circumstance "will occur with increasing frequency as the distribution of men
and women in the legal profession continues to become more equal." While the
prediction of a more salutary ratio of men to women is both correct and
welcome, the adoption of a rule that increases the need for recusals by the
jurist spouse can only serve to make such arrangements more difficult and
hence less desirable.

                                      7
the    later      cases      of         Health        Services    Acquisition      Corp.     v.

Liljeberg,       796      F.2d     796    (5th    Cir.     1986);       the   Supreme     Court

Decision       in     the        same    case,        Liljeberg     v.    Health    Services

Acquisition Corp., 486 U.S. 847, 108 S. Ct. 2194, 100 L. Ed. 855

(1988);     and      In     re    Faulkner,       856     F.2d    716    (5th    Cir.     1988)

establish the following principles:

       A.      The very purpose of § 455(a) is to promote confidence

               in the judiciary by avoiding even the appearance of

               impropriety whenever possible.                     Liljeberg, 108 S. Ct.

               at 2205;

       B.      Scienter is not an element of a violation of § 455(a).

               Liljeberg, 108 S. Ct. at 2202;

       C.      The    test       is     whether   the     average    reasonable      person,

               knowing all of the circumstances, might question the

               impartiality of the judge.                  In re Faulkner, 856 F.2d at

               721.

       Under the facts of this case the question becomes, would the

average person be reasonable in questioning the impartiality of a

Trial Judge in a personal injury action where the judges' spouse

was a partner in a major law firm that represented the corporate

defendant in other litigation matters, but not in the case before

the judge.          The circumstance that a Trial Judge has a spouse who

is    actively       engaged       in    the   practice      of   law     will    occur    with

increasing frequency as the distribution of men and women in the

legal profession continues to become more equal.                                 I think the

average person looks upon the relationship between spouses as the


                                                  8
closet of all human relationships; and rightly or wrongly, it is

my perception that the average person would doubt the ability of

a judge and spouse to maintain a "Chinese wall" between their

professional     responsibilities.            Perhaps         if   the    question     were

posed in the abstract, you would get a different answer; but, my

gut tells me that if the average person is asked whether he would

feel comfortable having his own personal injury case tried by a

judge whose spouse was a partner in a law firm that represented

the defendant in other matters, the answer would be, "Would the

judge really be impartial?"         I think that question is reasonable;

and the mandatory language of § 455 requires recusal.

      I would add two comments from the standpoint of policy and

judicial administration.        In our federal district courts located

in large metropolitan areas, where assignments of cases are done

initially on a random rotation basis and where there are several

other judges to whom the case can be referred, I think the call

in   close    cases   (which   is   the       case    before       us),    should    favor

recusal.      Likewise, when the issue of disqualification is raised

prior to trial (as it has been in this case), a call in close

cases   should    lean    toward    recusal          as   a    matter     of   efficient

judicial administration because the final decision making stage

of   the     litigation   is   thereby        insulated        from      the   waste   and

inefficiency which would result from a later determination that §

455 had not been complied with.

      Obviously none of my comments herein should be construed as

reflecting on the integrity or suggesting actual impartiality on


                                          9
the part of the Trial Judge in this case or her spouse.

     I would GRANT the writ of mandamus.




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