Carl Bernofsky v. Tulane University
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"I do not harbor any ill will toward Dr. Bernofsky.  If anything, I feel empathy."

Lawsuit Against Tulane University for Retaliation and Defamation

Order and Reasons

(Case No. 98-1792 c/w 98-2102, Docket No. 88, May 31, 2000)

Judge Berrigan explains why, after accepting Tulane University funds to teach a course in Greece as part of the Law School's summer study program abroad, she is unable to recuse herself.

VERSUS NO. 98-1792 c/w


This matter comes before the Court on motion for recusal, and, in the alternative, to amend judgment and motion for new trial filed by the plaintiff, Dr. Carl Bernofsky ("Bernofsky"). Having considered the record, the memoranda of counsel and the law, the Court finds that denial of both motions is appropriate for the following reasons.

On April 18, 2000, the Court granted summary judgment in favor of Bernofsky's former employer, the Administrators of the Tulane Educational Fund ("Tulane"), dismissing his claims against the Medical School for retaliation under 42 U.S.C. §1981 and Title VII and for retaliation and defamation under Louisiana state law in conjunction with requests for references on employment applications. This motion was filed after judgment was entered against the plaintiff.

Recusal is sought because this Court agreed in November 1999 to teach a three week summer course for Tulane University School of Law in July 2000. The Court will receive a stipend in the amount of $5,500, which will cover costs and expenses associated with teaching the course in Greece. The plaintiff argues that this teaching requires recusal under 28 U.S.C. §455(a) because this is a proceeding "in which [her] impartiality might reasonably be questioned," and under 28 U.S.C. §455(b)(4) due to her "financial interest . . . in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding."

Disqualification under Section 455(a) is measured by an objective standard. Levitt v. University of Texas at El Paso, 847 F.2d 221 (5th Cir. 1988), cert. denied, 493 U.S. 970 (1989).
Because 28 U.S.C. §455(a) focuses on the appearance of impartiality, as opposed to the existence in fact of any bias or prejudice, a judge faced with a potential ground for disqualification ought to consider how his participation in a given case looks to the average person on the street. Use of the word "might" in the statute was intended to indicate that disqualification should follow if a reasonable man, were he to know all the circumstances, would harbor doubts about the judge's impartiality.
Potashnick v. Port City Construction Co., 609 F.2d 1101, 1111 (5th Cir.), cert. denied, 449 U.S. 820 (1980). Discretion is to be exercised in favor of disqualification if a judge has any question about the propriety of sitting on a case. Id., 609 F.2d at 1112. The Court finds that the teaching of the upcoming summer course at the Tulane Law School does not support recusal under this objective standard. See also U.S. ex rel Hochman v. Nackman, 145 F.3d 1069 (9th Cir. 1998).

For purposes of Section 455(b)(4), a "financial interest" is defined as "ownership of a legal or equitable interest, however small . . ." 28 U.S.C. §455(d)(4). Section 455(b)(4) "requires disqualification no matter how insubstantial the financial interest and regardless of whether or not the interest actually creates an appearance of impropriety." Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 860 fn. 8 (1988). However, this Court finds that there is no "financial interest" in Tulane or in the subject matter of this litigation for purposes of this section. The stipend that will be received is for reimbursable costs and expenses; it is not a salary and does not constitute a legal interest under this definition. (1)  See Wu v. Thomas, 996 F.2d 271 (llth Cir. 1993), cert. denied, 511 U.S. 1033 (1994) (adjunct professor who received no salary not recused). See also Swift v. Trustees of Indiana University, 1989 WL 15919 (N.D.Ind. 1989). In addition, the Court finds that there is no "equitable interest'' involved here.

1.  It is unclear whether the plaintiff is arguing that recusal is required under Section 455(b)(4) for "any other interest that could be substantially affected by the outcome of this proceeding." To the extent that argument is raised, the Court finds that such an interest is lacking.

However, the Court admits that its research revealed surprisingly little jurisprudence addressing the appropriateness of recusal for teaching at a local law school under either subsection of Section 455. This Court is only one of the many sitting judges who teach at local law schools, although the terms of compensation (or lack thereof) would vary among us. In addition, the Court is mindful of the Code of Conduct for United States Judges advice on "Law School Teaching":
§3.4-3(a)  A judge who teaches at a law school should recuse from all cases involving that [educational] institution as party. The judge should recuse (or remit) from cases involving the university, as well as those involving the law school, where the judge's impartiality might reasonably be questioned in view of the size and cohesiveness of the university, the degree of independence of the law school, the nature of the case, and related factors. Similar factors govern recusal of judges serving on a university advisory board.  (Ed. note: Word in brackets was improperly omitted.)
Unfortunately, this rule does not provide clear guidance either. The first sentence does not distinguish between paid and unpaid teaching positions, and it is unclear whether the first sentence's "that institution" refers only to the law school as a party. In the second sentence, ''that institution" is not mentioned at all, and the university of which the law school is a party is described as such. (2)

2.  Of course, Tulane Law School has no involvement here.

While this Court believes that recusal is not appropriate, it would welcome clear guidance from a higher Court on the issue raised herein. In this ruling, the Court acknowledges its duty to decide the cases assigned to it. It can not recuse simply because a party wants it to, or because it has previously ruled against the party seeking recusal, however attractive such an option might be in protracted and difficult litigation such as this. (3)

3.  The current lawsuit is a derivative of an earlier complex lawsuit which was dismissed by this Court on a defense motion for summary judgment and upheld by the Fifth Circuit. Knowledge of the history of the previous litigation was essential to evaluating the merits of the current litigation, a knowledge this Court already had but which would require a new judge to independently amass. This frankly was a factor in this Court's decision to "keep" the case at this juncture rather than recuse. But as the Court has previously advised the Fifth Circuit, the Court has been concerned about the distraction caused the litigation by Dr. Bernofsky's conviction that the Court is biased. We have simply felt that, objectively, recusal is not justified under the circumstances, at least under the current state of the caselaw, and therefore the Court had an obligation not to recuse.

No new arguments are raised pertaining to the motion to reconsider and/or motion for new trial. The plaintiff's arguments are best directed to the Court of Appeals.


IT IS ORDERED that the motion for recusal, and, in the alternative, to amend judgment and motion for new trial filed by the plaintiff, Dr. Carl Bernofsky, are DENIED.

New Orleans, Louisiana, this  30  day of May, 2000.

s/     Helen G. Berrigan                  

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