
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________          No. 93-1493                               EL FENIX DE PUERTO RICO,                                Plaintiff, Appellant,                                          v.                            THE M/Y JOHANNY, ETC., ET AL.,                                Defendants, Appellees.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Raymond L. Acosta, U.S. District Judge]                                             ___________________                                                                                      ____________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                                                                      ____________________               Fernando  D. Castro,  with  whom Calvesbert  & Brown  was on               ___________________              ___________________          brief for appellant.               Jorge Calero Blanco, with whom Ada Pilar Martin and Ledesma,               ___________________            ________________     ________          Palou & Miranda were on brief for appellees.          _______________                                                                                      ____________________                                  September 26, 1994                                                                                      ____________________                    CYR,  Circuit Judge.    In  this  case we  must  decide                    CYR,  Circuit Judge.                              _____________          whether a recusal order under 28 U.S.C.   455(a) may be set aside          on reconsideration by the judge  who entered it.  As we  conclude          that it was improper for the recused judge to revisit the recusal          order in  these circumstances, we  leave appellant's  substantive          challenges to  the district  court judgment for  consideration on          remand.                                          I                                          I                                     BACKGROUND1                                     BACKGROUND                                     __________          A.   The Underlying Action          A.   The Underlying Action               _____________________                    Appellee Aurelio Varona Perez ("Varona")  purchased the          M/Y  JOHANNY, a  43-foot Wellcraft  "San Remo"  twin-diesel motor          yacht, in  October 1987.  Appellant El  Fenix de Puerto Rico ("El          Fenix") later issued an "all-risk" marine insurance policy on the          JOHANNY in the total amount of  $340,000.  No claims were made on          the  policy  until after  the  JOHANNY's final  voyage  two years          later.                    In the wake of Hurricane Hugo, which struck Puerto Rico          in September 1989,  Varona noticed  a slight  "vibration" in  the          JOHANNY.  On November 14, 1989, Varona and his brother, a profes-          sional  marine mechanic, set off from the Cangrejos Yacht Club in                                        ____________________               1The  material  facts  underlying  the  merits  dispute  are          recited in the  light most favorable to the judgment.   See Pinto                                                                  ___ _____          v. M/S FERNWOOD, 507 F.2d 1327, 1329 (1st Cir. 1974) ("In review-             ____________          ing  the judgment of the trial court sitting in admiralty without          a jury,  . . .  [t]he evidence must be  viewed in the  light most          favorable to the prevailing party below . . . .").                                            2          San  Juan for the port of Fajardo,  Puerto Rico, to have the boat          drydocked  for  repair.   Prior  to  departing San  Juan  Harbor,          Varona's brother inspected the JOHANNY's underwater running gear,          and,  finding nothing amiss, concluded  that it was  safe to pro-          ceed.                    Approximately one hour into the voyage, however, Varona          noticed  that the JOHANNY was riding abnormally low in the water.          Upon investigation, Varona's brother discovered two to three feet          of  water in the engine compartment.  Varona issued Mayday calls,          but was unable to contact either the United States Coast Guard or          his  yacht club  in San  Juan.  The  source of  the leak  was not          located and, within thirty minutes after discovery of  the flood-          ing,  the two  engines  stopped simultaneously,  apparently as  a          result of the rising water.                      With the  JOHANNY rapidly  taking on water,  Varona and          his brother disembarked into a small  dinghy, intending to return          to  San Juan, summon assistance  and attempt to  salvage the JOH-          ANNY.  The  outboard motor on the  dinghy malfunctioned, however,          and  since it  would operate only  intermittently it  took almost          three  hours to  reach the  nearest point  of land,  where Varona          reported  the incident to the  Puerto Rico Maritime  Police.  The          following  day he informed his  insurance broker.  Neither Varona          nor  his brother saw the JOHANNY sink, and marine salvage survey-          ors have never been able to locate her.                     In  due  course,  El  Fenix  initiated  this  admiralty          action, alleging that Varona had scuttled the vessel, and demand-                                          3          ing damages and a judicial declaration disallowing coverage under          the marine insurance policy.   Varona counterclaimed for a decla-          ration  of coverage.  During the four-day bench trial, Varona and          his  brother testified  to the  events of  November 14,  1989, as          related above,  and  proffered opinions  to the  effect that  the          incursion  of sea  water into  the engine compartment  could have          resulted from the failure of a stuffing-box, a perforation in the          hull, or any  number of other possible breaches.   El Fenix coun-          tered  with the  deposition of  Dr. Carlos  V. Wheeler,  a marine          engineer, for the purpose of undermining the technical plausibil-          ity of the Varonas' accounts  of the flooding of the vessel.   El          Fenix also  presented the expert  testimony of Arturo  A. Vaello,          Jr.,  a marine  surveyor, who  opined that  the JOHANNY  had been          scuttled.    Vaello's  opinion  was based  largely  on  perceived          irregularities in  the manner  in which  Varona  had pursued  the          insurance claim.                      At  the conclusion  of the  trial, the  presiding judge          explicitly  credited  the  Varonas'  testimony  and rejected  the          expert testimony presented by El Fenix.   The court held that the          loss  of  the JOHANNY  had been  accidental,  and found  El Fenix          liable under its marine insurance policy.            B.   The Recusal Order          B.   The Recusal Order               _________________                    On February 9, 1993,  the first day of trial,  El Fenix          witness  Arturo Vaello spotted one  Bob Fisher in  the gallery of          the courtroom.   Vaello knew Fisher to  be a local yachtsman well          versed  in maritime  matters.   In casual  conversation following                                          4          Vaello's testimony on the second day of trial, Fisher told Vaello          that the presiding judge  had "asked him to sit through the trial          and listen to  the evidence  presented by the  parties."   Vaello          reported this conversation to El Fenix's counsel the same day.                      On March 1, 1993, nearly three weeks  after the Vaello-          Fisher  conversation allegedly  occurred, and after  judgment had          entered in  favor of Varona on February 19, El Fenix moved, inter                                                                      _____          alia, for a new trial  or to alter and  amend the judgment.   See          ____                                                          ___          Fed. R. Civ.  P. 59(a), (e).  Although El  Fenix conceded that it          had "no  specific knowledge"  that  the presiding  judge was  not          impartial, it  hypothesized that  the judge might  have consulted          with Fisher in arriving at a  judgment in the case.  It contended          that the Vaello  affidavit gave  rise "to the  possibility of  an          'appearance'  of partiality" that  might require disqualification          under  28 U.S.C.   455(a)  ("Any justice, judge  or magistrate of          the United States shall  disqualify himself in any  proceeding in          which his  impartiality might  reasonably be questioned.").   The          motion was accompanied by a  request that El Fenix be  allowed to          depose Fisher.                    On March  11, 1993, notwithstanding a  finding that the          judgment had been based exclusively on the evidence,  the presid-          ing judge disqualified himself  from further participation in the          case and vacated the judgment previously entered, based simply on          the  fact that his impartiality had been challenged.  The recusal          order stated in pertinent part:                    [T]he  Court invited  both  Mr. and  Mrs. Bob                    Fisher, long time personal friends, to attend                                          5                    a public trial. [The invitation] was prompted                    by the  fact that  the Fishers are  both boat                    aficionados and Mr. Fisher, who  is currently                    retired,  would enjoy the trial.  To conclude                                                      __ ________                    from the presence of Mr. and Mrs. Fisher that                    ____ ___ ________ __ ___ ___ ____ ______ ____                    the Court somehow surreptitiously connived to                    ___ _____ _______ _______________ ________ __                    seek the opinion of a non-witness to make its                    ____ ___ _______ __ _ ___________ __ ____ ___                    decision is a strained  conclusion to say the                    ________ __ _ ________  __________ __ ___ ___                    least. Plaintiff's argument on this issue has                    ______ ___________ ________ __ ____ _____ ___                    the tenor of a dubious strategy influenced by                    ___ _____ __ _ _______ ________ __________ __                    an unfavorable result.                    __ ___________ _______                         The  Court's  decision  in this  action,                    stated  for the record  at the  conclusion of                    the  evidence, was  based exclusively  on the                    evidence  presented  by both  parties  and in                    great  part  based  on  specific  credibility                    determinations.                          Nevertheless,  given  the fact  that the                                        _____  ___ ____  ____ ___                    impartiality  of this judge  has been  put at                    ____________  __ ____ _____  ___ ____  ___ __                    issue by plaintiff,  I hereby DISQUALIFY  my-                    _____ __ _________                    self from further participating in this case.                    It is  further ORDERED that the  Judgment is-                    sued  [previously in  this matter]  is hereby                    VACATED AND SET ASIDE.           (Emphasis added).                      Varona  promptly  moved  for  reconsideration   of  the          recusal order on  grounds that (1) the  El Fenix motion had  been          untimely, in  that possible grounds for  disqualification must be          presented at the earliest possible juncture; and  (2) the presid-          ing judge had erred in recusing himself under  28 U.S.C.   455(a)          because  the  request to  depose Fisher,  paired with  El Fenix's          highly  tenuous and  speculative allegations,  did not  place the          court's  impartiality in  objectively  reasonable question.    On          April 20, 1993, the recused judge entered a one-page reconsidera-          tion  order     vacating the  recusal order  and reinstating  the          judgment     "based on the arguments presented" in the motion for          reconsideration.                                            6                                          7                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________                    El Fenix first attacks  the reconsideration order as an          abuse  of discretion.2  Cf.  Norfolk v. United  States Army Corps                                  ___  _______    _________________________          of Eng'rs, 968 F.2d 1438, 1460 (1st  Cir. 1992) (denial of   455-          _________          (a) motion reviewed for "abuse of discretion").                      As  a threshold matter, we note that El Fenix has never          asserted, either before the  district court or on appeal,  that a          sufficient factual basis existed for finding that the impartiali-          ty of  the presiding judge  was placed in  objectively reasonable          question simply by extending Fisher an  invitation to witness the                                        ____________________               2The challenge to the  reconsideration order is  accompanied          by two lackluster procedural claims.  First, El Fenix argues that          the recusal order was interlocutory, in that it "determin[ed] the          rights and liabilities of the  parties to [an] admiralty case[],"          and, therefore, that it had to be appealed directly to this court                                  ___          pursuant to 28 U.S.C.   1292(a)(3).  This claim is without merit:                    As  is the  case  with interlocutory  appeals                    generally,   1292(a)(3)  does not  compel [an                                                       ______                    appeal by a] party with a claim coming within                    its terms . . . .          9  James W. Moore &  Bernard J. Ward,  Moore's Federal Practice                                                   ________________________          110.19[3] (2d ed. 1994) (citing cases) (emphasis added).                 Similarly unavailing is the  El Fenix argument that adminis-          trative assignment of  this case to  another judge following  the          recusal order  deprived the recused judge  of "plenary authority"          to take further action in the case.  As a general matter, federal          district  judges  have plenary  authority  to reconsider  orders.          See,  e.g., McIsaac v. Didriksen Fishing Corp., 809 F.2d 129, 135          ___   ____  _______    _______________________          (1st  Cir.  1987).   In any  event,  the relevant  docket entries          reflect that the case had been referred back to the recused judge          prior to entry  of the reconsideration  order.  Thus,  it is  the          trial  judge's  reconsideration of  the  recusal  order, not  the          administrative assignment of the case, which is at issue here.                                           8          trial, nor by Fisher's attendance as a spectator.3   Furthermore,          El Fenix challenges  none of the findings  underlying the recusal          order,  most notably that  the "Court's decision .  . . was based          exclusively  on the evidence presented  by both parties  . . . ."          Consequently,  nothing  in  the  district  court  record provided          sufficient  grounds for recusal.  See, e.g., In re United States,                                            ___  ____  ___________________          666  F.2d 690,  695 (1st  Cir. 1981)  ("[A] charge  of partiality          [under 28 U.S.C.   455(a)]  must be supported by a  factual basis                                                              _______ _____          [and]  a judge  considering  whether to  disqualify himself  must          ignore  rumors, innuendos,  and erroneous information  . .  . .")          (emphasis added).        We  think it clear,  therefore, that the          motion for disqualification under  28 U.S.C.   455(a) should have          been denied.   First, the  district court did  not adhere to  the          impartiality  test  required  under  section 455(a).    See  Home                                                                  ___  ____          Placement Serv.,  Inc. v. Providence  Journal Co., 739  F.2d 671,          ______________________    _______________________          675  (1st Cir.  1984)  (describing    455(a)  test as  whether  a          reasonable  person, "were he to know all the circumstances, would                               ____ __ __ ____ ___ ___ _____________          harbor doubts about the judge's impartiality")  (emphasis added),          cert. denied, 469 U.S. 1191 (1985); see also Ricci v. Key Bancsh-          _____ ______                        ___ ____ _____    ___________          ares of  Maine, Inc., 111 F.R.D. 369,  373-75 (D. Me. 1986) (Ald-          ____________________          rich, J.) (discussing appropriate level of knowledge to impute to                                        ____________________               3The  recusal  regimen  under  28 U.S.C.    455(a)  in  this          circuit requires  the presiding  judge to determine  "whether the          charge  of lack of impartiality  is grounded on  facts that would          create a reasonable doubt concerning the judge's impartiality . .          .  in the mind  of the  reasonable [person]."   United  States v.                                                          ______________          Cowden, 545 F.2d 257, 265 (1st Cir. 1976), cert. denied, 430 U.S.          ______                                     _____ ______          909  (1977), quoted in United States v. Arache, 946 F.2d 129, 140                       _________ _____________    ______          (1st Cir. 1991).                                            9          "reasonable person").  Second, the utter absence of a  sufficient          factual  basis for  recusal  under  subsection 455(a)  completely          undermined the recusal order.  Further, as the district court was          in a  position  to  debunk the  innuendo  underlying  El  Fenix's          motion, and  did just that in  its recusal order, we  are left to          conclude, as the recusal order itself acknowledges, see supra pp.                                                              ___ _____          5-6,  that the only reason for the  recusal was that El Fenix had          broached a possible appearance of partiality.                       ________                    No  permissible  reading  of  subsection  455(a)  would          suggest that Congress intended to allow a litigant to compel dis-          qualification simply on unfounded innuendo concerning  the possi-                                                                     ______          ble  partiality of  the  presiding judge.4    Indeed, "[a]  trial          ___          judge must  hear cases  unless some  reasonable factual basis  to                ____          doubt the impartiality of the  tribunal is shown by some kind  of          probative evidence."  Blizard v.  Frechette, 601 F.2d  1217, 1221                                _______     _________          (1st  Cir.  1979) (emphasis  added);  see also  United  States v.                                                ___ ____  ______________          Alabama,  828  F.2d 1532,  1541  (11th  Cir.  1987) (noting  that          _______          following enactment of current  version of   455 in  1974, courts          should scrutinize factual accuracy of recusal motion and accompa-                                        ____________________               4El Fenix  did intimate, however, apparently  as a predicate          for  its deposition request, that there may have been grounds for          mandatory disqualification  under  28 U.S.C.    455(b)(1),  which          requires  recusal  where the  judge  has  "personal knowledge  of          disputed  evidentiary facts."    El Fenix  requested  that it  be          permitted to depose Fisher to determine whether  he had consulted          with the presiding judge relating to evidentiary matters at issue          during  trial.   See, e.g.,  United States  v. Alabama,  828 F.2d                           ___  ____   _____________     _______          1532, 1543-46  (11th Cir. 1987) (holding  recusal mandatory under            455(b)(1) where  trial judge's  activities had involved  him in          "disputed  evidentiary  facts"),  cert.  denied,  487  U.S.  1210                                            _____  ______          (1988).   Of course, the deposition request appeared to have been          mooted by the recusal order.                                           10          nying affidavits), cert. denied,  487 U.S. 1210 (1988).   As this                             _____ ______          court has explained:                      [D]isqualification is appropriate only if the                    facts provide what  an objective,  knowledge-                    able member of  the public would find to be a                    reasonable  basis  for  doubting the  judge's                    __________  _____                    impartiality.   Were  less required,  a judge                    could abdicate in difficult cases at the mere                    sound  of controversy,  or  a litigant  could                                                _ ________  _____                    avoid adverse decisions by alleging the slig-                    _____ _______ _________ __ ________ ___ _____                    htest  of factual  bases for  bias.   See [H.                    _____  __ _______  _____ ___  ____    ___                    Rep. No. 1453, 93d  Cong., 2d Sess. 5 (1974),                    reprinted in 1974  U.S.C.C.A.N. 6351,  6355].                    _________ __                    This  restricted  mandate  to  disqualify  is                    calculated  to induce  a judge  to tread  the                    narrow path between timidity and tenacity.          In re  United States, 666 F.2d  at 695 (emphasis in  original and          ____________________          emphasis added).                      The  proper approach  under subsection  455(e) requires          the trial judge to place on  the record all the facts relating to          any  alleged appearance  of lack of  impartiality and  then leave          entirely to  the parties whether to  waive disqualification under          section 455(a).   See 28 U.S.C.    455(e) ("Where the ground  for                            ___          disqualification arises only under  subsection (a), waiver may be          accepted  provided it  is preceded  by a  full disclosure  on the          record of  the basis for  disqualification."); see also  Brody v.                                                         ___ ____  _____          President & Fellows of  Harvard College, 664 F.2d 10,  11-12 (1st          _______________________________________          Cir. 1981) (noting operation of   455(e) waiver provision), cert.                                                                      _____          denied,  455 U.S. 1027 (1982).5  Absent an acceptable waiver, and          ______                                        ____________________               5Additionally, once all the  relevant facts were set out  in          the record, the district court might have considered the El Fenix          deposition  request.  But  cf. Ricci, 111 F.R.D.  at 373 n.4 (ex-                                ___  ___ _____          pressing reservations as to appropriateness of allowing discovery          by deposition  on   455(a)  motion); compare Cheeves  v. Southern                                               _______ _______     ________          Clays, Inc., 797 F.  Supp. 1570, 1579-83 (M.D. Ga.  1992) (noting          ___________                                          11          based  on the  findings  in the  recusal  order, the  motion  for                         ________          disqualification  in  this  case   should  have  been  denied  as          groundless.   See, e.g., Blizard, 601 F.2d at 1219-22 (finding no                        ___  ____  _______          abuse of discretion in denial of recusal motion devoid of factual          support).6          A.   The Reconsideration Order          A.   The Reconsideration Order               _________________________                    Notwithstanding  the  absence  of grounds  for  recusal          under  subsection 455(a), it does  not necessarily follow that it          was proper to reconsider and  set aside the recusal order.   As a                                        ____________________          dearth of authority on propriety of allowing discovery in support          of    455(a) motion and concluding that such discovery is permis-          sible in  limited circumstances,  subject to the  requirements of          Fed. R. Civ. P. 26).               Of course, had  there been any substance to the hypothetical          suggestion in the  El Fenix  motion that Fisher  might have  been          consulted by the  court in  arriving at a  decision, a  different          analysis  would be necessary.   See 28 U.S.C.    455(b), (e) (re-                                          ___          stricting waiver  to grounds coming  within 28 U.S.C.    455(a));          see also  Liljeberg v. Health  Serv. Acquisition Corp.,  486 U.S.          ___ ____  _________    _______________________________          847,  859-60 n.8  (1988) (distinguishing  subsections 455(a)  and          (b)).               6Furthermore,  the  recusal  motion may  have  been rendered          infirm by  the delay in filing.  See,  e.g., E. & J. Gallo Winery                                           ___   ____  ____________________          v. Gallo Cattle Co., 967 F.2d 1280, 1295 (9th Cir. 1992) (reject-             ________________          ing per se timeliness  rule, but finding motion untimely  where                ___ __          455(a) and (b)(2) challenge  was made after adverse judgment  and          grounds had been known to movant beforehand: "[t]o hold otherwise          would  encourage parties  to withhold  recusal motions  pending a          resolution"); see also United States v. Kelly, 519 F. Supp. 1029,                        ___ ____ _____________    _____          1047-1050 (D. Mass.  1981) (timing of recusal motion  is relevant          to  whether  impartiality  has  "reasonably"  been  brought  into          question; "one seeking the disqualification  of the judge must do          so at the  earliest moment  after knowledge of  the facts  demon-          strating  the basis for such disqualification"), mandamus denied,                                                           ________ ______          In re  United States, 666 F.2d  at 698; see generally  7 James W.          ____________________                    ___ _________          Moore & Jo D.  Lucas, Moore's Federal Practice    63.07[2.-2] (2d                                ________________________          ed.  1993) ("[A] litigant  who is aware of  a potential ground of          recusal should not be permitted to 'sandbag' that  ground, hoping          for a satisfactory  resolution, but retaining a ground  of attack          on the judge's rulings.") (citing cases).                                          12          general  rule, a trial judge who has recused himself "should take          no other action in the case except the necessary ministerial acts          to have the case transferred  to another judge."  13A Charles  A.          Wright & Arthur  R. Miller, Federal  Practice & Procedure    3550                                      _____________________________          (2d ed. 1984) (citing, e.g., Moody  v. Simmons, 858 F.2d 137, 143                                 ____  _____     _______          (3d Cir. 1988) (holding that recused judge's "power is limited to          performing ministerial  duties necessary to transfer  the case to          another  judge"), cert. denied,  489 U.S. 1078  (1989)); see also                            _____ ______                           ___ ____          Stringer  v. United  States, 233  F.2d 947,  948 (9th  Cir. 1956)          ________     ______________          (similar).   Although it may be arguable that this reasoning does          not control the distinct  question whether an improvident recusal          order  may  be revisited  by the  recused  judge absent  a proper          waiver  under subsection 455(e), we are aware of no authority for          such  a position.   Therefore, we consider it  the better part of          discretion,  for now at least,  not to blur  the reasonably clear          line traced by the extant case law.7                      Finally, we  consider the status of  the district court          judgment.  As  we have stated, see supra at  pp. 5-6, the recusal                                         ___ _____          order simultaneously  set aside  the final judgment  entered some          three weeks earlier.  This ruling, too, was error.                                          ____________________               7The  values secured by 28  U.S.C.   455(a) weigh heavily in          our decision.  Subsection (a)  safeguards not only the litigants'          constitutional entitlement to an  unbiased adjudication, see Ward                                                                   ___ ____          v. Monroeville, 409 U.S. 57, 62 (1972) (due process requires that             ___________          every  case be heard by a "neutral  and detached" judge), but the          public's perception of the integrity of the judicial process, see                                                                        ___          H. Rep. No. 1453, 93d Cong., 2d Sess. 5 (1974), reprinted in 1974                                                          ____________          U.S.C.C.A.N.  6351, 6355  (noting that    455(a) "is  designed to          promote  public confidence  in the  impartiality of  the judicial          process").                                            13                    First, a  vacatur in these circumstances  runs afoul of          the  general rule that the  recused judge should  take no further                                                                 __ _______          action except to enable  administrative reassignment of the case.          ______          See Wright & Miller, supra, at   3550.  Second, the Supreme Court          ___ _______________  _____          has  made it  clear that  "[s]ection 455  does not,  on its  own,          authorize the  reopening  of  closed  litigation,"  Liljeberg  v.                                                              _________          Health Serv. Acquisition  Corp., 486  U.S. 847,  863 (1988),  and          _______________________________          relief  from judgment  is  "neither  categorically available  nor          categorically unavailable  for all    455(a) violations,"  id. at                                                                     ___          864-65; see  also Russell  v. Lane, 890  F.2d 947, 948  (7th Cir.                  ___  ____ _______     ____          1989) ("nothing in the language or history of [  455(a)] suggests          that  the statute affects the  validity of orders  the judge made          before he recused  himself"); cf. Warner  v. Rossignol, 538  F.2d                                        ___ ______     _________          910,  913 n.6 (1st Cir. 1976) (approving action of district court          in referring  only the damages issues in bifurcated litigation to          another  judge,  where,  after presiding  over  liability  phase,          district judge had  recused himself  under   455(a)).   Both  the          need  for  finality and  a  common-sense  aversion to  frittering          scarce  judicial resources  militate  against an  inflexible rule          invalidating all  prior actions of  a judge disqualified  under            455(a).  See  United States v. Murphy,  768 F.2d 1518,  1541 (7th                   ___  _____________    ______          Cir. 1985)  (pre-Liljeberg case  under   455(a), holding  that an                           _________          "appearance of  impropriety  is not  enough to  poison the  prior                                                                 ___  _____          acts" of  recused judge) (emphasis added), cert. denied, 475 U.S.          ____                                       _____ ______          1012  (1986).  Thus,  we vacate the portion  of the recusal order          which set aside the final judgment previously entered.                                            14                    Our holding  that the recusal order  disabled the trial          judge  from further  adjudicative responsibility  in the  present                                                                    _______          case,  requires reassignment to a different judge on remand.  See                                                                        ___          Liteky v. United States, 114 S. Ct. 1147, 1156-57 (1994)  (noting          ______    _____________          that  28 U.S.C.    2106  empowers an  appellate court  to require          reassignment to  a different judge on remand to district court).8          After permitting the parties  a reasonable opportunity to supple-          ment  or  amend their  postjudgment  motions  and responses,  the          district court should  consider El Fenix's timely  motion for new          trial  under Rule 59 based not only  on 28 U.S.C.   455(a) but on          the  various  substantive  challenges  asserted  in the  original          motion.                                         III                                         III                                      CONCLUSION                                      CONCLUSION                                      __________                    The  reconsideration order,  and  the  portion  of  the                    ___  _______________ ______  ___  ___  _______  __  ___          recusal order  which  set aside  the final  judgment, are  hereby          _______ _____  _____  ___ _____  ___ _____  _________ ___  ______          vacated.   The  case is  remanded for  reassignment and  for such          _______    ___  ____ __  ________ ___  ____________ ___  ___ ____          further  proceedings as  may  be required,  consistent with  this          _______  ___________ __  ___  __ _________  __________ ____  ____          opinion.          _______                    SO ORDERED.                    __ _______                                        ____________________               8We in no sense suggest, however, that the mere filing  of a          recusal  motion under  section 455  requires  that the  motion be          determined by another judge.                                          15
