Ruling under fire as "conflict of interest"
Ex-Tulane professor asks for review of suit dismissal
May 9, 2001

A federal judge who accepted a Tulane University teaching assignment in Greece the day before she threw out a lawsuit against the university is under scrutiny before the 5th U.S. Circuit Court of Appeals. The motion on behalf of former biochemistry professor Carl Bernofsky asks the full court to reconsider a recent decision by a sharply divided three-judge panel to throw out the case. Bernofsky claims that the university maligned him to prospective employers after firing him and that U.S. District Judge Ginger Berrigan had a conflict of interest when she threw out his case.

Berrigan was one of three jurists with connections to Tulane when Bernofsky filed his libel lawsuit. The other two, who were magistrates, removed themselves from consideration to preside over the case.

Berrigan's relationship with Tulane began before she accepted the overseas assignment. She did some part-time teaching at the law school and sat on the board of the Amistad Research Center, which is legally separate from the university but housed on its campus.

In a dissent in last month's three-judge panel ruling upholding Berrigan's decision to throw out Bernofsky's claims, 5th Circuit Chief Judge Carolyn Dineen King said a reasonable person would have viewed the summer teaching assignment and its $5,500 pay "as something of a plum."

"I think that a reasonable person might question her impartiality," King said, adding that she would have reversed Berrigan's judgment and sent the case back to the district court for assignment to another judge.

Berrigan, in written explanations to the appeals court, said that, under case law, she had an obligation not to recuse herself but welcomed guidance from a higher court.

"It was a pure legal issue, not involving factual findings or credibility calls," Berrigan said.

Copyright 2001, Capital City Press, Baton Rouge, La.

From: The Advocate, Baton Rouge, La., May 9, 2001, p. 7-B.  Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.


  • Tulanelinks:

  • Complaint — Consolidated lawsuits against Tulane University for defamation (CA 98-2102) and retaliation (CA 98-1792).
  • Motion to recuse Judge Berrigan.  Filed Oct. 15, 1998.
  • Judge Berrigan's denial of motion for her recusal.  Filed Nov. 23, 1998.
  • Motion of attorneys to withdraw from case.  Filed Feb. 8, 1999.
  • Judge Berrigan's acceptance of attorneys' withdrawal.  Filed Feb. 8, 1999.
  • Complaint of Judicial Misconduct against Judge Ginger Berrigan to U.S. Court of Appeals for the Fifth Circuit.  Filed Feb. 11, 1999.
  • Appeal of Chief Judge's Order Dismissing Complaint.  Filed Mar. 12, 1999.
  • Petition to Fifth Circuit Court of Appeals for Writ of Mandamus to recuse Judge Ginger Berrigan.  Filed June 14, 1999.
  • Judge Berrigan's response to petition for her recusal.  Filed June 21, 1999.
  • Reply to Judge Berrigan's response to petition for her recusal.  Filed June 24, 1999.
  • Petition for Writ of Mandamus to U.S. Supreme Court.  Filed Aug. 30, 1999.
  • Reply to Tulane's brief opposing Writ of Mandamus.  Filed Oct. 8, 1999.
  • Pre-Trial Order — Filed Jan. 4, 2000 by new counsel in preparation for trial scheduled Jan. 18, 2000.

  • Letter to Judge Ginger Berrigan requesting that she recuse herself after accepting $5,500 for teaching a Tulane course in Greece during the summer of 2000.  Dated Apr. 4, 2000.
  • Order and Reasons — Judge Berrigan's rationale for denying the trial and awarding favorable judgment to Tulane.  Filed Apr. 18, 2000.
  • Motion requesting that Judge Berrigan to recuse herself, and/or amend her judgment, and/or permit a trial on the merits.  Filed May 2, 2000.
  • Reply to Tulane's Opposition to Reconsideration.  Further affirmation of arguments favoring Judge Berrigan's recusal.  Filed May 18, 2000.
  • Order and Reasons — Judge's rationale for refusing to recuse herself and denying plaintiff's motion for reconsideration.  Filed May 31, 2000.
  • Appeal — Original Brief on Behalf of Dr. Bernofsky; Case No. 00-30704, filed Sept. 6, 2000 in U.S. Court of Appeals for the Fifth Circuit.
  • Reply Brief on Behalf of Dr. Bernofsky; Filed Dec. 7, 2000.  Oral arguments Apr. 3, 2001.
  • Judgment — Appellate court affirms lower court's decision against recusal, but Chief Judge King dissents.  Filed Apr. 10, 2001.
  • Petition — Request for a rehearing en banc based, in part, on Chief Judge King's dissent and Justice Scalia's recusal in other Tulane cases.  Filed Apr. 24, 2001.
  • Petition for Writ of Certiorari to U.S. Supreme Court.  Case No. 01-249.  Filed Aug. 9, 2001.
  • Reply to Tulane's Brief in Opposition to Writ of Certiorari.  Filed Oct. 19, 2001.