United States District Court, E.D. Louisiana
In Re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010 Applies to: Salvesen
Feinberg, et al. 11-02533, Pinellas Marine Salvage Inc., et al.
Feinberg, et al. 11-01987, Ditch
Feinberg, et al. 13-06014, Donovan
ORDER & REASONS
the Court are two “Motions to Recuse the Honorable Carl
J. Barbier.” (Rec. Docs. 25908, 25927). The first
motion (Rec. Doc. 25908) was filed by the plaintiffs in
member cases 11-02533, 11-01987, and 13-06014, all of whom
are represented by Brian Donovan (“Donovan”).
This Order will use “Donovan Clients” to refer to
these plaintiffs. The second motion (Rec. Doc. 25927) was
filed by Donovan on behalf of himself as the plaintiff in
member case 19-12014. This Order will use “Movants”
to refer collectively to the Donovan Clients and Donovan.
Steve Herman (“Herman”), who is the defendant in
case no. 19-12014 as well as Plaintiffs' Co-Liaison
Counsel and a member of the Plaintiffs' Steering
Committee in MDL 2179 (both per this Court's
appointment), filed an opposition (Rec. Doc. 26014), to which
Movants have replied (Rec. Doc. 26022). The Court has
considered these motions without oral argument.
motions are substantively identical. Movants press two
grounds for recusal. First, they argue recusal is required
under 28 U.S.C. § 455(b)(4) because I owned debt
instruments issued by Halliburton and Transocean-companies
that are not parties to any of Movants' cases, although
they have been named as defendants in many other cases
consolidated with MDL 2179-which I sold in June of 2010.
Second, Movants argue recusal is required under 28 U.S.C.
§ 455(a),  claiming that my impartiality might be
reasonably questioned based on various events, rulings, or
The Donovan Clients' Motion Is Untimely
first motion, the one filed by the Donovan Clients, is
untimely. “The general rule on timeliness requires that
‘one seeking disqualification must do so at the
earliest moment after knowledge of the facts demonstrating
the basis for such disqualification.'” United
States v. Sanford, 157 F.3d 987, 988 (5th Cir. 1998)
(quoting Travelers Ins. Co. v. Liljeberg Enter.,
Inc., 38 F.3d 1404, 1410 (5th Cir. 1994)); see also
Hill v. Schilling, 495 Fed.Appx. 480, 483-84 (5th Cir.
2012) (unpublished per curiam).
Donovan Clients' argument regarding § 455(b)(4)
relies entirely on a Fifth Circuit opinion from 2010 that
concerned the same debt instruments at issue here. See In
re Cameron Int'l Corp., 393 Fed.Appx. 133 (5th Cir.
2010) (unpublished per curiam). Following the April 20, 2010
blowout of the Macondo Well but before MDL 2179 was created
on August 10, 2010, certain defendants moved for my recusal
on the grounds that the Halliburton and Transocean debt
instruments constituted “financial interest[s] . . . in
a party to a proceeding” under § 455(b)(4).
Id. at 134 & n.6. I denied these motions, and
defendants petitioned the Fifth Circuit for a writ of
mandamus. The Circuit upheld my conclusion that the debt
instruments did not constitute a financial interest in a
party, but it noted in dicta that recusal may be required
under § 455(b)(4) if the debt
instruments are determined to be either “financial
interest[s] in the subject matter in controversy” or
“any other interest that could be substantially
affected by the proceedings.” Id. at 135-36.
However, it “express[ed] no opinion as to the merits of
either ground.” Id. at 136. Instead, the Fifth
Circuit denied the petitions without prejudice to the
defendants' ability to present these arguments to me so
that I may rule on them in the first instance. Id.
re Cameron was decided on July 22, 2010. In the
following weeks, the eponymous defendant filed and then
withdrew a motion for judicial disclosure. (Rec. Docs. 55,
67). Aside from that, no party in MDL 2179 has pursued the
alternative arguments identified in Cameron until
the Donovan Clients filed their motion on July 29, 2019. I
have been assigned to the Donovan Clients' cases since
2011 and 2013, when they were consolidated with MDL 2179.
Consequently, if the Donovan Clients believed that my prior
ownership of these debt instruments warranted recusal under
§ 455(b)(4), such evidence and argument should have been
presented shortly after those actions were consolidated with
MDL 2179, not in 2019. See Sanford, 157 F.3d at 988;
Hill, 495 Fed.Appx. at 483-84.
Donovan Clients' arguments regarding § 455(a) are
also untimely. The Donovan Clients invoke § 455(a) based
on events that allegedly occurred between August of 2010 and
March of 2018. Even if these events supported the instant
motions to recuse-they do not-the Donovan Clients (who,
again, have had suits in the MDL since 2011 and 2013) should
not have waited until July 2019, over a year after the last
event and years after other events, to file their motions to
these reasons, the Donovan Clients' motion (Rec. Doc.
25908) is untimely.
Both Motions Lack Merit
Court assumes but does not decide that the second motion to
recuse, the one filed by Donovan himself, is
timely. Nevertheless, this motion is meritless.
Furthermore, because the Donovan Clients' arguments are
identical to Donovan's, their motion is also meritless,
in addition to being untimely.
on the dicta in In re Cameron, supra,
Movants argue that recusal under § 455(b)(4) is required
because the Halliburton and Transocean debt instruments I
owned nine years ago qualify as “financial interest[s]
in the subject matter of the controversy” or “any
other interest that could be substantially affected by the
outcome of the proceeding.” However, Movants make
absolutely no factual, legal, or evidentiary showing that
these debt instruments actually are “financial
interest[s] in the subject matter of the controversy”
or “could be substantially affected by the outcome of
the proceeding.” Moreover, the Court fails to
understand how these debt instruments could qualify as such.
Neither Halliburton nor Transocean is a party to any of
Movants' cases, and Movants' cases were filed after I
divested myself of the debt instruments. Consequently,
recusal is not required under § 455(b)(4).
455(a) mandates recusal “in any proceeding in which
[the judge's] impartiality might reasonably be
questioned.” 28 U.S.C. § 455(a). The Supreme Court
has explained that § 455(a) is “evaluated on an
objective basis, so that what matters is not the reality of
bias or prejudice but its appearance.” Liteky v.
United States, 510 U.S. 540, 548 (1994). However, the
appearance of partiality is determined from the viewpoint of
a “‘well-informed, thoughtful and objective
observer, rather than the hypersensitive, cynical, and
suspicious person.'” Andrade v. Chojnacki,
338 F.3d 448, 455 (5th Cir. 2003) (quoting United States
v. Jordan, 49 F.3d 152, 156 (5th Cir. 1995)). Also,
“review should entail a careful consideration of
context, that is, the entire course of judicial proceedings,
rather than isolated incidents.” Id. (citation
omitted). “Finally, the origin of a judge's alleged
bias is of critical importance.” Id. Under the
so-called “extrajudicial source doctrine, ”
“judicial rulings alone almost never constitute a valid
basis for a bias or partiality motion.”
Litkey, 510 U.S. at 555. “[O]pinions formed by
the judge on the basis of facts introduced or events
occurring in the course of the current proceedings, or of
prior proceedings, do not constitute a basis for a bias or
partiality motion unless they ...