NOW INTO COURT, through undersigned counsel, comes
plaintiff, Dr. Carl Bernofsky ("Dr. Bernofsky"), who moves the
district court judge pursuant to 28 U.S.C. Section 455 to grant
plaintiff's Motion for Recusal on the ground that the judge is
disqualified under 28 U.S.C. Section 455(a).
Respectfully submitted,
s/ R. Phipps
Roger D. Phipps #20326
PHIPPS & PHIPPS
210 Baronne Street, Suite 1410 New Orleans, Louisiana 70112
(504) 524-2298
UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF LOUISIANA
Plaintiff herein, Dr. Carl Bernofsky ("Dr. Bernofsky"),
submits this memorandum in support of his Motion for Recusal.
Recusal is warranted because this matter has been assigned to
United States District Court Judge Helen Ginger Berrigan who has
held an appointment on the Board of Directors of the Amistad
Research Center at Tulane University. This assignment creates a
strong appearance of impropriety.
I. INTRODUCTION
According to the Tulane Law School Catalogue
1995-96, page
104, Judge Berrigan, was an Adjunct Associate Professor of Law.
According to the 1997
edition of the Almanac of the Federal
Judiciary, Judge Berrigan has been associated with Tulane's
Amistad Research center since 1990. (Vol.1, 5th Circuit, p.3).
For this reason, a strong appearance of impropriety is created
with Judge Berrigan assigned to a matter where Tulane University
is the defendant. For these reasons, she is disqualified under 28
U.S.C. Section 455(a), and Dr. Bernofsky's motion for recusal is
warranted and must be granted.
II. LAW AND ARGUMENT
A. Standards For Recusal Under Section 455(a)
Title 28 U.S.C. Section 455(a) provides in
relevant part: "(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 relevant consideration under Section 455(a) is the
appearance of partiality. Liljeberg v. Health Services
Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194, 100 L.Ed.2d 855,
(1988). 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. Dr. Bernofsky Is Entitled To Have This Case Assigned
To Another Judge Who Is Not Affiliated With
Tulane University.
Here, a reasonable person would question the judge's
impartiality where the judge has been an adjunct faculty member
at defendant university. If a reasonable man or woman apprised
of all of the circumstances would question the judge's
impartiality, then an appearance of impartiality sufficient to
trigger Section 455 exists. Travelers Ins. Co. v. Liljeberg
Enterprises, Inc., 38 F.3d 1405 (5th Cir. 1994).
Here, recusal will promote confidence in the judiciary by
avoiding even the appearance of impropriety. Because a strong
appearance of partiality is created here under Section 455(a),
recusal is required.
III. CONCLUSION
Dr. Bernofsky's motion for recusal is warranted pursuant to
28 U.S.C. Section 455(a). Dr. Bernofsky respectfully submits the
recusal motion must be granted and this case assigned to another
district court judge unaffiliated with Tulane University.
Respectfully submitted,
s/ R. Phipps
Roger D. Phipps #20326
PHIPPS & PHIPPS
210 Baronne Street, Suite 1410 New Orleans, Louisiana 70112
(504) 524-2298
CERTIFICATE
I certify that a copy of the above and foregoing has this
day, October 15, 1998, been forwarded to counsel of record by
U.S. Mail, postage prepaid, i.e.:
