                                                                          FILED
                              FOR PUBLICATION                              JUN 04 2012

                                                                       MOLLY C. DWYER, CLERK
                   UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                           FOR THE NINTH CIRCUIT



AGNES SUEVER, deceased; MADONNA                No. 10-17127
SUEVER; STEVE TUCKER;
ALEXANDER VONDJIDIS; RICHARD                   D.C. No. 5:03-CV-00156-RS
W. SEITZINGER; JO-ANN                          Northern District of California,
SEITZINGER, individually and as trustees       San Jose
for the Seitzinger Family Trust;
JOHNSTONE WHITLEY; TONY LEE;
LYNN KEITH, on behalf of themselves as         ORDER
individuals and as taxpayers on behalf of
other persons similarly situated,

             Plaintiffs - Appellants,

  v.

KATHLEEN CONNELL, in her
individualy capacity as former State
Controller of the State of California;
RICHARD CHIVARO, in his individual
and official capacity; GEORGE DELEON,
in his individual and official capacity;
STEVE WESTLY, in his individual and
official capacity as Controller of the State
of California, and its custodial capacity as
administrator for the Unclaimed Property
Fund; JOHN CHIANG,

             Defendants - Appellees.



D.W. NELSON, Circuit Judge:
      After this matter was assigned to me, I determined in the course of pre-

argument preparation that I appear to be a member of the putative plaintiff class,

though it is as yet uncertified, as I own property that appears in the California State

Controller’s database of unclaimed property.

      A fellow judge of this Court recently confronted a similar situation, though

in that case the judge appeared to be a member of the certified class. At any rate,

the judge concluded that her “decision not to recuse is authorized by [28 U.S.C.] §

455(f), strikes the appropriate balance between securing the interests of

impartiality and its appearance and reducing the practical costs that unnecessary

recusal entails, and does not diminish public respect for the judiciary.” Stern v.

Gambello, 2012 WL 1583305 (9th Cir. May 4, 2012) (quoting In re Literary

Works in Elec. Databases Copyright Litig., 509 F.3d 136, 144 (2d Cir. 2007)). In

accordance with § 455(f), the judge announced that she would forego any financial

interest in the class settlement or in any future settlement or adjudication. Id.

       I have considered whether I should recuse myself from this case because of

the possibility of class membership. However, after reviewing the analysis in Stern

and In re Literary Works, I believe recusal in this case would be inappropriate,

especially given that the class is not yet certified. I therefore will not recuse, but

rather announce that I will forego any financial interest in this putative class and

will not accept any payments due myself as a member of the putative class.
