Carl Bernofsky v. Tulane University
 
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"With respect, I disagree with the panel majority . . ."

Lawsuit Against Tulane University for Retaliation and Defamation

Judgment, U.S. Court of Appeals

(Case No. 00-30704, U.S. Court of Appeals for the Fifth Circuit, April 10, 2001)
 
 
IN THE UNITED STATES COURT OF APPEALS
 
FOR THE FIFTH CIRCUIT
____________________
 
00-30704
____________________
 
CARL BERNOFSKY,  DR.,

Plaintiff - Appellant,

versus
 
ADMINISTRATORS OF THE TULANE EDUCATIONAL FUND,

Defendant - Appellee.

_____________________________________________
 
Appeal from the United States District Court for
the Eastern District of Louisiana
(USDC No. 98-CV-2102-C)
_____________________________________________

Before KING, Chief Judge, REAVLEY and JONES, Circuit Judges.

PER CURIAM:*

The judgment of the district court is affirmed.  The decision of that court against recusal is upheld for the reasons given by that court's order.  On the merits, even if Tulane's response to the requests for reference be considered as adverse employment actions, there was no error of any significance and Bernofsky presents no evidence of improper motive or defamation.

AFFIRMED.
___________________________________

*Pursuant to 5TH CIR R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR R. 47.5.4.


KING, Chief Judge, dissenting:

With respect, I disagree with the panel majority on the matter of Judge Berrigan's recusal.  A reasonable person would view the summer teaching assignment in Greece that Tulane Law School offered to Judge Berrigan, along with $5,500 to cover her expenses, as something of a plum.  She accepted that assignment in the midst of this litigation against the Administrators of the Tulane Educational Fund, indeed on the eve of her decision to grant summary judgment in favor of the Fund.  Under the circumstances (and with a record devoid of any evidence of attenuation in the relationship between the Fund and the Law School), I think that a reasonable person might question her impartiality.  I would reverse the judgment and remand with instructions to send the case to another judge.



Vacature

The Fifth Circuit considers judicial orders vacated if a judge improperly denied a motion to recuse.  Thus, in discussing an order remanding a case to the state court from which it had been removed,

...the Fifth Circuit held that it had jurisdiction to determine whether the district court abused its discretion in denying a motion to recuse.  The court reasoned that, because a trial judge who has recused himself from a case many take no further action (except transferring the case to another federal judge), if the judge should have recused himself, then any orders entered after denying the motion to recuse were improper.  Therefore, reviewing the refusal to recuse would not really be reviewing the order of remand, even though a finding that recusal was required would lead to vacating the remand order. "We would be performing an essentially ministerial task of vacating an order that the district court had no authority to enter into for reasons unrelated to the order of remand itself."  (Emphasis Added)

  • Citing Tramonte v. Chrysler Corp., 136 F.3d 1025, 1028 (5th Cir. 1998), from: "Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 &144," Federal Judicial Center, 2002, p. 74.


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