Elaine R. Mangini v. United States of America, Department of Interior, National Park Service and Dick Gottsegen d/b/

Dick Gottsegen, doing business as Timberline Adventures,
also known as Timberline Bicycle Tours (collectively “Timberline”),
appeals the district court’s judgment, following a
bench trial, finding the United States and Timberline liable for
negligently failing to warn Elaine Mangini (“Mangini”) of the
gravel patch on which her bicycle accident occurred.1 We
have jurisdiction pursuant to 28 U.S.C. § 1291.

Timberline argues that the district court abused its discretion
by denying Timberline’s motion to disqualify Judge Molloy.
Because we conclude that facts unknown to Judge
Molloy required his disqualification prior to the trial, we
vacate the judgment and remand for a new trial before a different
district court judge.

On July 15, 1998, while on a tour operated by Timberline,
Mangini had a bicycle accident in Glacier National Park,
Montana. After riding into a gravel patch on Highway 17
(also known as Chief Mountain Highway), Mangini pitchedover
the top of her handle bars and suffered serious physical
injuries. Mangini brought a tort action in negligence against
the United States and Timberline. Following a four-day bench
trial on December 11, 13, 21, and 22, 2000, the district court
found that the United States and Timberline negligently failed
to adequately warn Mangini of the known gravel patch. The
district court awarded Mangini $755,176.92, apportioning$656,675.58 to Timberline and $98,501.34 to the United
States.

28 U.S.C. § 455 (“Section 455”) provides in relevant part:

(a) Any justice, judge, or magistrate judge of the
United States shall disqualify himself in any
proceeding in which his impartiality might reasonably
be questioned.

(b) He shall also disqualify himself in the following
circumstances:

(5) He or his spouse, or a person within the
third degree of relationship to either of
them, or the spouse of such a person:

(ii) Is acting as a lawyer in the proceeding
. . . .

28 U.S.C. § 455.

On November 14, 2000, prior to the trial, Timberline discovered
that Judge Molloy’s brother-in-law, Kurt M. Jackson
(“Jackson”), was a seventeen-year associate at Hoyt & Blewett,
the law firm representing Mangini. Mangini concedes
that Jackson is the spouse of a person, Judge Molloy’s sister,
“within the third degree of relationship” to Judge Molloy, as
described in Section 455. 28 U.S.C. § 455(b)(5). This discovery
prompted Timberline to move to disqualify Judge Molloypursuant to Section 455 on November 20, 2000, three weeks
before the start of the trial. On November 21, 2000, the late
John C. Hoyt (“Hoyt”), one of two partners in Hoyt & Blewett,
submitted an affidavit to the district court opposing Timberline’s
motion to disqualify. Jackson, moreover, submitted
a similar affidavit on December 5, 2000. The affidavits did
not dispute Jackson’s relationship to Judge Molloy, but
attempted to avoid mandatory disqualification by averring
that Jackson never appeared or acted as a lawyer in the proceeding.
On the same day, the district court denied Timberline’s
motion to disqualify, finding that “Jackson is not a
partner in the firm and has not acted as a lawyer in this proceeding
. . . He authored some correspondence that circulated
among the parties before the case was filed.” (Emphasis
added).

On July 26, 2001, Timberline filed a motion with this court
to supplement the record on appeal with three newly discovered
documents reflecting Jackson’s communication with the
expert witness retained by Hoyt & Blewett on behalf of
Mangini: (1) a May 11, 2000, letter from Jackson to the
expert witness enclosing an initial retainer fee and case information
to assist the expert in evaluating the case; (2) a May
25, 2000, letter from Jackson to the expert witness enclosing
evidence for the expert’s use in evaluating the case, and
describing how Hoyt & Blewett was attempting to obtain an
extension on the deadline for expert reports and disclosures;
and (3) a record from the expert’s office that listed Jackson
as the expert’s contact for the Mangini case. Jackson clearly
wrote the two letters after Mangini filed her complaint in federal
court on June 22, 1999, and the documents demonstrate
that Jackson acted as a lawyer in the proceeding. Accordingly,
in a separate Order, we granted Timberline’s motion to supplement
the record on appeal to correct the material misstatement
in the record created by Hoyt’s and Jackson’s affidavits
that Jackson did not act as a lawyer in the proceeding.

[1] Section 455(b)(5)(ii) requires disqualification under
Section 455(a), even absent any evidence of actual bias. See
Preston v. United States, 923 F.2d 731, 734 (9th Cir. 1991)
(addressing Section 455(b)(2), which requires disqualification
when the judge either served as a lawyer or a lawyer with
whom he previously practiced law served as a lawyer during
such association in the matter in controversy). The uncontroverted
evidence in the record after our grant of Timberline’s
motion to supplement shows that Jackson did act as a lawyer
after Mangini filed her lawsuit. Hoyt & Blewett’s characterization
of Jackson’s actions as being those of a “secretary”
and not a lawyer are unconvincing. Hoyt & Blewett admitted
at oral argument that the reason Jackson was assigned the task
of communicating with the expert was because of his prior
professional relationship with the expert. In addition, communicating
about a case with an expert for the purpose of obtaining
an expert opinion would, in almost all circumstances,
constitute professional work for which attorneys fees could be
awarded. See Bailey v. District of Columbia, 839 F. Supp.
888, 891 (D.D.C. 1993) (noting that consultations and outside
correspondence “are not mere clerical tasks.”). We also note
that the record of Jackson’s contacts with the expert is incomplete
because it is limited to written correspondence, and that
Hoyt & Blewett categorically objected at oral argument to a
possible remand for additional fact-finding on this question.

[2] Ordinarily, we review a district court’s denial of a disqualification
motion for an abuse of discretion. Kulas v. Flores,
255 F.3d 780, 783 (9th Cir. 2001) (recusal is appropriate
where a reasonable person with knowledge of all the facts
would conclude that the judge’s impartiality might reasonably
be questioned). In this case, however, Hoyt & Blewett’s failure
to provide Judge Molloy with all the facts deprived him
of the opportunity to exercise his informed discretion.2Dakota Indus., Inc. v. Dakota Sportswear, Inc., 988 F.2d 61,
62-64 (8th Cir. 1993) (finding that the district court “suffered
under a misconception that prevented a genuine application of
[its] discretion to all facets” of the case where the district
court thought appellee only had one trademark when it analyzed
whether to issue a preliminary injunction, and appellee
failed to inform the district court that it had three trademarks).
Now that all the facts are properly in the record, Section
455(b)(5)(ii) clearly requires disqualification.

[3] The appropriate remedy in this case is to vacate and
remand for a new trial before a different district court judge.
Preston, 923 F.2d at 734-35 (after determining that the trial
judge should have disqualified himself, the proper remedy
was to reverse judgment and remand for a new trial because
there was no way to “purge the perception of partiality” in the
case). Here, as in Preston, there is no way to cure this problem
because the fact remains that, unbeknownst to Judge Molloy,
his brother-in-law acted as a lawyer for a tort plaintiff in
an action that was tried in his court, without a jury. See Alexander
v. Primerica Holdings, Inc., 10 F.3d 155, 163 (3rd Cir.
1993) (noting special concerns about bench trials in considering
judicial disqualification). Thus, Section 455 compels
vacation of the judgment in this case.

[4] Because Jackson acted as a lawyer in the proceeding
before Judge Molloy, Section 455(b)(5)(ii) required his disqualification.
Judge Molloy was unaware of the need to disqualify
himself because of Hoyt’s and Jackson’s materially
misleading affidavits and Timberline’s failure to bring the relevant
documents to his attention. Now that all the facts have
come to light, however, we conclude that Judge Molloy was
mandatorily disqualified under Section 455(b)(5)(ii).

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