Free Order - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Before the court is Plaintiff John Killingsworth's request for my recusal from further 17 participation in this case because I am an automobile insurance policyholder of Defendant 18 State Farm Mutual Automobile Insurance Company and because I am a class member in a 19 class action against State Farm, White v. State Farm Mutual Automobile Insurance Company, 20 No. CV99-01053 in the Arizona Superior Court, Maricopa County. (Docs. # 251, 253, and 21 260.) 22 disqualified, and therefore I must deny Plaintiff Killingsworth's request for recusal. 23 I. 24 I took the oath of office as a district judge on April 30, 2004. When this case was 25 transferred to me in June 2004, I considered whether I was disqualified because I have 26 automobile insurance with Defendant State Farm, and I consulted with another judge about 27 28
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) Plaintiff, ) ) vs. ) ) State Farm Mutual Automobile Insurance) ) Company; Dave Gonzales, ) ) Defendants. ) ) John Killingsworth,

No. CV 03-1950-PHX-NVW ORDER

I conclude that under the applicable statutes and ethical principles I am not

THE DISQUALIFICATION ISSUES

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it. My advice and my conclusion at that time was that I am not disqualified because 28 U.S.C. § 455(d)(4)(iii) eliminates disqualification in precisely these circumstances. By order of March 24, 2005 (doc. # 240), I informed the parties that I had recently received Notices of Proposed Settlement, Fairness Hearing and Release in White v. State Farm Mutual Automobile Insurance Company, advising of a class settlement and of the time for submitting a claim for compensation. The class settlement provides for compensation to State Farm automobile insurance policyholders who were denied compensation for certain repairs. I have no recollection of having been denied compensation for any repairs in connection with any claims under my State Farm policies. Nor do I have any recollection or record of receiving a prior class action notice in the case. I did not keep records of past claims under my State Farm policy and therefore would not be able to submit a claim even if I thought I had a claim. I advised the parties that I did not think I am disqualified in this case, and I ordered that any party thinking otherwise make a motion for recusal by April 15, 2005. I further invited any party who wished to have more information to contact the court to schedule a telephone conference with the court and all parties. The parties did arrange such a discussion, which was held on the record on March 31 , 2005 (doc. # 244). By memorandum of April 14, 2005, (doc. # 250) I further advised the parties that I had written to the claims administrator in the class action stating that I had no claim in the class action, that I lacked the records to submit a claim even if I had a claim, and that I irrevocably renounced any claim relating to the action. The parties submitted memoranda (docs. # 251, 252, and 253). The court held further telephone conferences with the parties on May 6 and 19, 2005 (docs. # 255 and 259), and the parties filed further memoranda on May 22 and 23, 2005 (docs. # 260 and 261). I have taken no substantive action in this case since the matter of my qualification arose. II. NATURE OF THE CASE AND PRIOR PROCEEDINGS All that remains for adjudication in this case are Killingsworth's claims of constructive discharge and age and race discrimination and his breach of contract, promissory estoppel,

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and implied covenant claims concerning State Farm's failure to give him an agency when his employment terminated. Killingsworth began working with State Farm as a trainee agent in 1978.1 In 1980, he became an employee of State Farm as an agency manager. He claims that when he was recruited into management he was promised that he could return to agency status at his request. In 1995 he accepted a position with State Farm as an agency field executive ("AFE"). He signed a letter agreement which described his employment as at-will. The letter agreement contained no reference to the right to return to agency status, but he understood that it was standard practice for AFEs and agency field consultants ("AFC"s) to be given an agency if they wanted it. In January of 2000, Defendant Gonzales became regional vice president of the Sunland region, where Killingsworth was employed as an AFE. Gonzales' subordinate Mike Dannewitz became vice president of agency, and Killingsworth's direct supervisor, in March of 2000. In a June 12, 2001 meeting with Gonzales, Killingsworth learned of allegations concerning his management style and conduct made against him by some of his subordinates. Gonzales instructed Killingsworth not to return to his agency field office ("AFO") or have any contact with his employees. On June 15, 2001, Killingsworth wrote a letter to Dannewitz requesting a State Farm agency. On June 29, 2001, Dannewitz demoted Killingsworth from AFE to AFC due to the complaints about his management style and conduct. Killingsworth claims that he accepted the demotion because Dannewitz promised him that he would receive the Dennis Eggert State Farm Agency in January of 2002. On September 24, 2001, Gonzales gave

Killingsworth a letter informing him that he was to be demoted to agency field specialist ("AFS"). However, this second demotion was later withdrawn. Killingsworth resigned from

The factual summary that follows is taken from the ruling on State Farm's first motion for summary judgment and states any disputed evidence most favorably for Killingsworth. (Order entered October 19, 2004, doc. # 193.) -3Document 262 Filed 08/10/2005 Page 3 of 16

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his employment with State Farm on October 29, 2001, and took an agency with American Family Insurance. Killingsworth filed charges with the EEOC on December 19, 2001, alleging age and religious discrimination and retaliation. On September 17, 2003, He filed suit against State Farm and Gonzales in Maricopa County Superior Court, asserting state law contract and tort claims and federal statutory claims of discrimination based on age, race, and national origin. (Doc. #1.) State Farm removed the case to federal court on October 6, 2003, and filed a motion for summary judgment on May 13, 2004. (Doc. #72.) On State Farm's first motion for summary judgment Killingsworth did not contest summary judgment against his Title VII national origin claim, his wrongful discharge claims, his § 1985 claim, and his Title VII age discrimination and retaliation claims. This court granted summary judgment against Killingsworth's claim for improper interference with contract but denied summary judgment against his breach of contract, promissory estoppel, and implied covenant of good faith and fair dealing claims relating to his not getting an agency when his employment with State Farm ended. (Doc. # 193.) This court has also ruled on other contested matters. Killingsworth's motion to amend his complaint to revive a previously abandoned religious discrimination claim was denied. (Doc. # 155). The court has ruled on numerous discovery disputes between September and November 2004. (Docs. # 156, 157, 158, 162, 169, 200, and 215.) This case has been hard-fought. The discovery has been extensive, even with limits ordered by the court. Discovery disputes have been frequent and the time I have devoted to them may equal the amount of time spent on discovery disputes in all other civil cases in the last fourteen months. This case has the most voluminous chambers file currently maintained in this court. The briefs and exhibits on State Farm's pending second motion for summary judgment mount to fourteen inches. Without question, "substantial judicial time has been devoted to the matter," 28 U.S.C. § 455(f), and recusal at this time would entail considerable judicial inefficiency and burden upon another judge.

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THE STATE COURT CLASS ACTION When I received the White class action claim notice, I originally concluded that I was not a class member because I did not come within that notice's description of persons entitled to compensation. I equated having a claim with being a class member. However, Killingsworth's counsel informed me that they spoke the class counsel in the White litigation, who confirm that I am a member of the class. This is because the Class Definition is written so as to include as class members every State Farm policyholder who submitted a repair claim within the relevant time period and who was not compensated for certain listed repairs whether or not the listed types repairs were sought or owing.2 I neither sought nor was entitled to any of the listed types of repairs in relation to the repair claims I submitted in the relevant time period. Therefore, the Class Definition in the White litigation swept in numerous policyholders, like me, who did not and could not have a claim and who would have no reason to go to the trouble to opt out of the class even if they received and read an original class notice, which I have no recollection of doing. State Farm has also supplied an affidavit from the Claims Administrator in White stating that because I did not submit a timely Initial Information Sheet by April 11, 2005, any claim I might have had is procedurally barred. The affidavit further states that, had I submitted a timely claim, they "would have concluded that those claims were not eligible for benefits because none of the Identified Procedures was necessary under the [claim-by-claim analysis provided by the parties]."

2

The Class Definition reads: All State Farm Arizona policyholders who, from or after January 29, 1993, mad a claim for vehicle repairs pursuant to their policy and who received payment based on an estimate prepared or approved by State Farm which did not include one or more Omitted Repairs* where the vehicle was not a total loss. *"Omitted Repairs" alleged by Plaintiff and as used in the Class definition is limited to the following: seat belt check, rust proofing, weld through primer, undercoating, flex additive, masking inner surfaces, front wheel alignment, four wheel alignment, aim lamps and replace EPA label. -5Document 262 Filed 08/10/2005 Page 5 of 16

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Under Ariz. R. Civ. P. 23(c)(2), a notice should have been sent to me upon certification of a class that included me, and Killingsworth has supplied a May 8, 2002 order in the White case approving a notice plan, forms of notice and exclusion request deadline. That order required the plaintiff in that action to "print and mail the notice to Class members at her expense" and further directed publication in the major newspapers in Arizona. Killingsworth supplies an email from the White class counsel that seems to say that an initial notice was mailed to me, and though I have no memory of receiving such notice, I cannot exclude the reasonable possibility that I did. If I received that notice (and did not review it or have forgotten it), it was two years before I left law practice and became a district judge. A judge must disqualify himself if he "knows that he . . . has a financial interest in the subject matter in controversy or in a party to the proceeding . . . ." 28 U.S.C. § 455(b)(4). He must also disqualify himself if he is "a party to the proceeding." 28 U.S.C. § 455(b)(5). Though the parties address these statutes as applying to my status in the White class action, neither provision applies to that issue. If I have a class claim in White, it is not an interest in this case; nor would it make me a party in this case. All the authorities cited by the parties concern the judge presiding over the class proceeding in which he or a family member is a class member, putative or certified. I am not the presiding judge in the White litigation. Rather, the significance of my status in the White is whether it makes me a litigant against State Farm in an another proceeding. Accordingly, none of the per se disqualifications of 28 U.S.C. § 455(b) through (f) or of the Code of Conduct for United States Judges, Canon 3(C), apply to my status in the White class action. The governing texts of the statute and of the Code, then, are the general ones that a judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a); see Canon 3(C)(1) (different in phrasing but identical in substance). The disqualification issues, stated in the circumstances of this case, are as follows: 1. Is a judge who is a member of a class proceeding against a party a litigant against that party for purposes of the rule that a judge may not sue and judge the same party? -6Document 262 Filed 08/10/2005 Page 6 of 16

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2. If so, does the judge's prompt renunciation of any class claim or the lapse of time to submit a claim end the disqualification? Killingsworth invokes the general principle that a judge may not preside over a case involving a party with whom the judge personally is in litigation in another matter. (Doc. # 251 at 6) (citing Am. Jur. 2d Judges § 109; Smith v. Smith, 115 Ariz. 299, 303, 564 P.2d 1266, 1270 (Ariz. Ct. App. 1970)). This principle is not included among the specific statutory grounds for disqualification under § 455. It is, however, properly considered as a circumstance under which the judge's "impartiality might reasonably be questioned." 28 U.S.C. § 455(a). As discussed in In re Cement Antitrust Litigation, 688 F.2d 1297, 1309-13 (9th Cir. 1982), absent class members are sometimes treated as parties and sometimes not, depending on whether such treatment serves the purposes of Rule 23. That case treated them as parties for purposes of whether a shareholder of an absent class member has a financial interest "in a party to the proceeding." Though White is a class proceeding in another court, not before this court, the reasoning of In re Cement is too close for this court to distinguish on that ground. Accordingly, the first question is resolved in the affirmative as a general matter and subject to the next question. No doubt the circumstances would matter for whether the disqualification ends when the judge promptly renounces any class claim or the time to submit a claim expires. A judge's active involvement in the class litigation would give rise to reasonable question of his impartiality as to that party even after the class litigation ended. But in the White case, I was a litigant against State Farm only in an empty sense and at the behest of someone else over a matter I know, and events have confirmed, could have no financial effect on me. While I have no memory of the original class notice, if I had read it I would not have troubled to opt out of the class because obviously I would have had no recovery whether in or out of the class. That circumstance is different from when a litigant/judge consciously starts and maintains an action. In these circumstances, I conclude that the difference between absent class members and named parties matters. A close analogy is the general rule that a judge may not hear a -7Document 262 Filed 08/10/2005 Page 7 of 16

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case in which one of the attorneys or his law firm is representing the judge on a different matter. However, there is an exception when the attorney before the judge is representing a class of which the judge or the judge's relative is a member. Advisory Opinion 99 (2000) states: The Committee is of the view that there is no absolute requirement of recusal in cases in which the judge or the judge's relatives are represented in the unrelated matter solely in their capacity as class members. In some instances, the relationship between the judge (or the judge's relatives) and the attorney for the class may be quite similar to the relationship between attorney and client in a conventional setting, and in such cases recusal would be required. However, where the class action is a large one, in which the judge (or the judge's relatives) are not lead plaintiffs or named plaintiffs, have had no role in selecting the attorney for the class, have not had, and do not expect to have, personal contact with the attorney, and have no reasonable expectation of a substantial personal recovery, the case for recusal is not nearly as strong. In that setting, the Committee is of the view that the mere fact that the judge, or a relative of the judge, is represented as a class member by the same attorney or firm that is appearing before the judge does not give rise to a reasonable question as to the judge's impartiality and therefore does not require recusal under Canon 3C(1). A different case would be presented if the class of which the judge is a member is a small one, if the judge is a named plaintiff, or is playing an active role in the litigation, or if the judge has a reasonable expectation of a substantial recovery. In that setting, the judge would be required to recuse, subject to remittal, if an attorney appearing before the judge in the case in question is a member of the firm that represents the class in the class action. In this case, I renounced what I otherwise knew to be an empty claim in the White class proceeding when I learned of it and recognized that it could affect my judicial duties. My renouncement arrived after the deadline for submitting a proof of claim in any event. I conclude that the prompt termination of my attenuated status as a litigant in White before taking any further action in this case cured any disqualification based on my status in the White class action. In so concluding, I do not rely directly on the divestiture provision of 28 U.S.C. § 455(f). Because my status in the White class action is not a "financial interest in a party," -8-

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the safe harbor provision in 28 U.S.C. § 455(f) for divesting disqualifying financial interests is literally inapplicable. Cf. In re Aetna Cas. & Sur. Co., 919 F.2d 1136 (6th Cir. 1990) (§ 455(f) is limited to its terms). Even though the divestiture authority of § 455(f) ("a financial interest in a party") is textually broader than the corresponding automatic disqualification provision of § 455(b)(4) (a financial interest "in a party to the proceedings"), status as an absent class member in a different action is neither. My renunciation of White claims met all the other conditions of a § 455(f) divestiture. In summary, I conclude that my status as a class member in the White class action who never had a claim and who waived any claim (after the time for submitting a claim had already expired) does not disqualify me from presiding over this case. After divesting myself of my theoretical interest in the White litigation, I would not have been disqualified from presiding over that case itself. 28 U.S.C. § 455(f). Congress could not have intended to permit a judge to preside over a class action after divestiture but require him to recuse himself from an entirely unrelated case based on his former interest in the separate class action. As the Second Circuit has noted, "Congress did not consider judges with minor interests in a class action to be parties to a proceeding once they have divested themselves of said financial interest." In re Certain Underwriter, 294 F.3d 297, 305 (2d Cir. 2002). Accordingly, the principle that a judge may not sue and judge the same party does not apply and does not permit me to recuse in this case.

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IV.

THE PROPRIETARY INTEREST OF A POLICYHOLDER IN A MUTUAL INSURANCE COMPANY When this case was originally transferred to me I concluded that having my personal

automobiles insured with State Farm did not disqualify me. Section 455(d) states in relevant part: (d) For purposes of this section the following words or phrases have the meaning indicated: ... (4) "financial interest" means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that: ... (iii) The proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association or a similar proprietary interest is a "financial interest" in the organization only if the outcome of the proceeding could substantially affect the value of the interest;

Accordingly, Advisory Opinion No. 94 (1997) states: [W]e have recognized that a judge must be allowed to manage his or her investments and to purchase goods and services and that a commercial relationship with a party does not always require recusal. For example, we have said that a judge's impartiality cannot reasonably be questioned when a judge sits on a case involving an insurance company of which the judge is a policy holder, so long as the case will not substantially affect the judge's interest in the policy. Advisory Opinion No. 26. See Compendium §§ 3.1-7[1](a), (b) (2005). Killingsworth argues that the outcome of his case "could substantially affect the value of" my three automobile insurance policies. Nothing in this case would directly affect my own policies or terms of coverage. Cf. Hartman v. State Farm Mut. Auto. Ins. Co., 817 F.Supp. 1566 (S.D. Fla. 1993) (judge recused in a cryptic opinion because his own policy terms would be affected). Rather, Killingsworth argues principally that his damage recovery

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would be substantial enough to affect the dividends and premiums for Arizona policyholders. He seeks $2,200,000 in back pay and front pay. State Farm asserts without disagreement from Killingsworth that if he received an emotional distress award as high as the highest located in an individual discrimination action in the country through October 2003, it would be $1,600,000. A similar highest punitive damage award would be $2,600,000. Adding an optimistic additional one-third attorney fee award, a highest-in-the-country total damage award could be about $9,500,000. Whether such an award would affect dividends to

Arizona policyholders or future premiums is subject to multiple contingencies within State Farm and not determined by the anticipated judgment itself. State Farm estimates that on a worst case analysis, the effect could be $10 per insured automobile, or $30, in one year only for my three insured automobiles. Even that estimate assumes that the numerous

contingencies break for Killingsworth and against the policyholders. Still, that would not rise to the level to "substantially affect the value" of my policies. Killingsworth acknowledges that there is very little interpretative authority on the "substantially affect the value" test of § 455(d)(4)(iii) and § 455(b)(4). The Tenth Circuit held in In re New Mexico Natural Gas Antitrust Litigation, 620 F.2d 794 (10th Cir. 1980), that a contingent consumer benefit to the judge of $31 did not substantially effect the judge. In In re Virginia Electric & Power Co., 539 F.2d 357 (4th Cir. 1976), the Fourth Circuit was "inclined to agree with the district court that $70 to $100 in hand is not de minimis" but still reversed a recusal because of the contingencies built into that estimate. Extrapolating from those numbers at those times to the present reduced value of

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money, closer to $100 in contingent effects probably would not be a substantial effect and somewhere between $200 and $300 might be.3 Yet even these numbers overlook that the fact that the marketplace itself will prevent the "value" of a mutual automobile insurance policy from deteriorating much. "When a transaction is standardized and generally available to all who qualify, it is not likely to require recusal. To the extent that the parties to the transaction are fungible, with either party able to go elsewhere, the power of each party over the other is diminished, and therefore so is the appearance of impropriety." Advisory Opinion No. 94 (1997). The market for automobile insurance is highly competitive, and a policyholder can change insurers any time he perceives disadvantage in remaining with State Farm. Killingsworth also argues that the value of my policies could be affected because he will prove that he was constructively discharged as a part of a general plan to oust white middle-aged male supervisors in favor of minorities. Even if that is proven, whether that would lead to other successful claims in large amounts is entirely speculative and remote. Taking all assumptions in favor of Killingsworth's quantification of possible economic effect upon my policies from his best outcome in this case, it still could not "substantially affect" my policies. Recusal out of caution or for my own convenience would be improper in its own right:

Advisory Opinion No. 94 (1997) is an example, but does not set a boundary, of what would be substantial. "Thus we have said that a $.60 per month increase would not be a substantial effect on a judge's utility bill, but that the doubling of a utility bill from $10 to $20 per month would be substantial. See Compendium §§ 3.1-7[1](c), (e) (2005)." Ten dollars a month indefinitely would present value to over $1,000 at any arguable discount rate. - 12 Document 262 Filed 08/10/2005 Page 12 of 16

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In addition to the foregoing technical analysis of the canons, and their intent and reach, and in addition to the precedents afforded by Advisory Opinion Nos. 26 and 49, the Committee is of the view that unwarranted recusal may bring public disfavor to the bench and to the judge himself or herself. Where the provisions of the canons point to recusal, then recusal must follow, but where the only factor present is supersensitivity on the part of the judge, or a distaste for the litigation, or annoyance at a party's suggestion that the judge recuse -- and nothing more -- the dignity of the bench, the judge's respect for the fulfillment of judicial duties, and a proper concern for judicial colleagues, all require that the judge not recuse. Advisory Opinion No. 52 (1977, revised 1988) DISQUALIFICATION UNDER 28 U.S.C. § 455(a) Killingsworth correctly argues that disqualification may also be required under 28 U.S.C. § 455(a) even if not required under § 455(b) through (f). Chase Manhattan Bank v. Affiliated FM Ins. Co., 343 F.3d 120 (2d Cir. 2003). Killingsworth advances two more general arguments in favor of recusal based on the appearance of impropriety in addition to the argument, discussed above, that I should recuse based on my status as an absent class member in the White class action. First, he contends that my interest as a policyholder in State Farm, even if it comes within the exception to disqualifying financial interests under § 455(d)(4)(iii), gives rise to an appearance of partiality. Second, he argues that my impartiality might reasonably be questioned based on my letter renouncing any claim I might have had in the White class action. The first argument misperceives the relationship between the relevant statutory provisions. Killingsworth in effect urges an interpretation of the statute under which every non-frivolous claim of a § 455(b)(4) disqualification would create an appearance of partiality sufficient to require recusal under § 455(a). While facts insufficient to require recusal under § 455(b) "may be examined as part of an inquiry into whether recusal is mandated under § - 13 Document 262 Filed 08/10/2005 Page 13 of 16

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455(a)," Certain Underwriter, 294 F.3d at 306, it is also true that "[n]ot every appearance of a violation of Section 455(b)(4) creates a disqualifying appearance under Section 455(a)." Chase Manhattan, 343 F.3d at 129. Section 455(b)(4) and the general definition of "financial interest" set forth in § 455(d)(4) created a bright-line prophylactic rule that is clearly "as to actual partiality, more than a little overbroad." Chase Manhattan, 343 F.3d at 128; see also In re Cement & Concrete Antitrust Litig., 515 F. Supp. 1076 (D. Ariz. 1981). "Although the prohibition [against a judge's knowingly presiding in a case in which he has a financial interest] results in recusal in cases where the interest is too small to sway even the most mercenary judge, occasional silly results may be an acceptable price to pay for a rule that both is straightforward in application and spares the judge from having to make decisions under an uncertain standard apt to be misunderstood." Union Carbide Corp. v. U.S. Cutting Serv., Inc., 782 F.2d 710, 714 (7th Cir. 1986). The rigidity of this rule is mitigated to some extent by the exceptions set forth in § 455(d)(4)(i-iv) and the divestiture provision of § 455(f). Nonetheless, there are situations which would give rise to a disqualifying conflict of interest under § 455(b)(4), yet would not qualify as situations in which the judge's impartiality might reasonably be questioned requiring recusal under § 455(a). Likewise, a colorable claim of a financial interest that does not fit within the bright-line rule of § 455(b)(4) by virtue of one of the exceptions in § 455(d)(4)(i-iv) might also fail to raise a reasonable question of partiality under § 455(a). The potential economic effect that this case might have on my automobile insurance policy is not only too remote, contingent, and speculative to substantially affect the value of my policy within the meaning of § 455(d)(4)(iii), it is also - 14 -

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too remote, contingent, and speculative to reasonably call my impartiality into question. See In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1313 (2d Cir. 1988) ("[W]here an interest is not direct, but is remote, contingent, or speculative, it is not the kind of interest which reasonably brings into question a judge's impartiality."); see also Advisory Opinion No. 94 (1997). Killlingsworth's second argument misconstrues the effect of my letter renouncing any claim I may have had in the White litigation. By renouncing any claim I may have had I was merely clarifying my status in that litigation. As my letter to the Administrator makes clear, I concluded (correctly as it turns out) that I had no claims entitling me to recovery under the proposed settlement. (Attach. to doc. #250.) I neither gave up any benefit that I was owed nor bestowed any "gift" on State Farm. I did not take this action in an effort to continue presiding over a case in which I was disqualified. Rather, it was an effort to enable the parties to make an accurate assessment of whether I was in fact disqualified based on the actual facts and circumstances surrounding my interest in the White class action and to remedy any potential disqualifying conflicts so that I can fulfill my obligation to hear those cases to which I am assigned and not disqualified. (Doc. #250.) "[I]t is one thing to assume that judges are human beings with the usual human emotions and another to attribute to them a malevolent, a calculating, vindictiveness." Union Carbide, 782 F.2d at 716; see also In Re Initial Pub. Offering Secs. Litig., 174 F. Supp. 2d 70, 95 (S.D.N.Y. 2001) (observing that in light of the judge's responsibilities to the litigants before her and to the other judges in the district, "it makes no sense to argue that an appearance of impropriety arose because I took steps to remove any conflict I may have had."). No objective, disinterested observer fully - 15 -

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informed of the facts would conclude that I could not be partial in this case based on an action that cost me nothing and provided no benefit or detriment to either party. Accordingly, I conclude that I am not disqualified under § 455(a). IT IS THEREFORE ORDERED that Plaintiff's request for recusal (docs. # 251, 253, and 260.) is denied. The court is of the opinion that this Order involves a controlling question of law as to which there is substantial ground for difference of opinion and an immediate appeal of this Order may materially advance the ultimate termination of this litigation. I therefore certify this order for immediate appeal upon application of plaintiff pursuant to 28 U.S.C. § 1292(b).4 DATED this 10th day of August, 2005.

I am aware that a divided panel of the Ninth Circuit in 1982 held that a district judge's decision to recuse himself did not involve a "controlling question of law." In re Cement Antitrust Litig., 673 F.2d 1020 (9th Cir. 1982). However, because the present Order denieds the request for recusal, it is a decision that will affect the ability of the district court to render a binding decision in the litigation. Cf. id. at 1026-27. Given this distinction and the "distinct movement toward making appellate review [of orders with regard to disqualification] more readily available," see 13A Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice & Procedure § 3553 (2d ed. 1984), I believe that certification for interlocutory appeal is appropriate. - 16 Document 262 Filed 08/10/2005 Page 16 of 16

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