SAO PAULO STATE OF THE FEDERATIVE REPUBLIC OF BRAZIL v. AMERICAN TOBACCO CO., INC., et al.

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Syllabus
SAO PAULO STATE OF THE FEDERATIVE REPUBLIC
OF BRAZIL v. AMERICAN TOBACCO CO., INC.,
et al.
on petition for writ of certiorari to the united
states court of appeals for the fifth circuit
No. 01–835. Decided April 1, 2002
Respondents moved the District Judge in this tobacco-products liability
case to recuse himself under 28 U. S. C. § 455(a) because, before his ap-
pointment to the bench, his name appeared on a motion to file an amicus
brief by the Louisiana Trial Lawyers Association (LTLA) in the similar
Gilboy suit against some of the same defendants. As he had done in a
companion case, Republic of Panama I, the judge refused to disqualify
himself on the grounds that he was erroneously listed as LTLA presi-
dent on the Gilboy motion when he no longer held that post, and that
he took no part in preparation or approval of the Gilboy brief. In Re-
public of Panama I, the judge found it unsurprising that he was un-
aware of the brief because the LTLA affixed its president’s name to all
motions to file amicus briefs. The Fifth Circuit reversed, citing its
prior decision reversing the judge’s order denying recusal in Republic
of Panama I.
Held: The Fifth Circuit’s decision is inconsistent with Liljeberg v. Health
Services Acquisition Corp., 486 U. S. 847, which stated that § 455(a) re-
quires judicial recusal “if a reasonable person, knowing all the circum-
stances, would expect that the judge would have actual knowledge” of
his interest or bias in the case, id., at 861 (internal quotation marks
omitted and emphasis added). The Fifth Circuit considered what a rea-
sonable person would believe without knowing that the judge’s name
was added mistakenly and without his knowledge to a pro forma motion
to file an amicus brief in a separate controversy. The decision whether
his impartiality might reasonably be questioned should not have been
made in disregard of the facts that he took no part in the preparation
or approval of the amicus brief and that he was only vaguely aware of
that brief. When those facts are taken into account, it is self-evident
that a reasonable person would not believe that he had any interest
or bias.
Certiorari granted; 250 F. 3d 315, reversed and remanded.

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230 SAO PAULO STATE OF FEDERATIVE REPUBLIC
OF BRAZIL v. AMERICAN TOBACCO CO.
Per Curiam
Per Curiam.
Section 455(a) of 28 U. S. C. (1994 ed.) provides that a
judge “shall disqualify himself in any proceeding in which
his impartiality might reasonably be questioned.” In this
tobacco-products liability case, the Court of Appeals for the
Fifth Circuit held that § 455(a) required disqualification of a
District Judge whose name appeared erroneously, prior to
his appointment to the bench, on a motion to file an amicus
brief in a similar suit against some of the same defendants.
Republic of Panama v. American Tobacco Co., 250 F. 3d 315
(2001) (per curiam) (Republic of Panama II). We grant
the writ of certiorari and reverse.
Petitioner, Sao Paulo State, brought this suit against re-
spondent tobacco companies in Louisiana state court. It al-
leged that respondents had conspired to conceal the health
risks of smoking, thereby preventing it from adopting poli-
cies that would have reduced smoking by Sao Paulo citi-
zens. It seeks compensation for the costs of treating their
smoking-related health problems. The suit was removed to
the United States District Court for the Eastern District of
Louisiana and assigned to District Judge Carl J. Barbier, who
had presided over a companion case, Republic of Panama v.
American Tobacco Co., No. 98–3279, 1999 WL 350030 (ED
La., May 28, 1999) (Republic of Panama I), vacated and re-
manded, 217 F. 3d 343 (CA5 2000). As in that case, respond-
ents filed a motion seeking Judge Barbier’s recusal under
§ 455(a) because of his involvement, prior to appointment to
the bench, in a similar suit against some of the respondents.
Almost nine years before the present suit was commenced,
Judge Barbier’s name appeared on a motion to file an amicus
curiae brief in Gilboy v. American Tobacco Co., 582 So. 2d
1263 (La. 1991). The motion was submitted by the Louisi-
ana Trial Lawyers Association (LTLA), and erroneously
listed Judge Barbier as the association’s president, a position
from which he had retired about six months earlier. The
motion also correctly listed as a member of the LTLA’s

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Per Curiam
amicus curiae committee which approved the brief Michael
St. Martin, who represents petitioner in the case before us.
The amicus brief itself—which did not list either Judge
Barbier or Mr. St. Martin—supported the Gilboy plaintiff ’s
claim that cigarettes are addictive and cause cancer, and that
the defendants failed to warn consumers about these dan-
gers. Brief for LTLA as Amicus Curiae in No. 90–C–2686
(La. Sup. Ct.), App. to Brief in Opposition 9a; Gilboy, supra,
at 1266.
Respondents argued that Judge Barbier’s association with
the Gilboy amicus brief created an “appearance of partial-
ity” requiring disqualification under § 455(a). Brief in Oppo-
sition 3. Judge Barbier disagreed. Adopting his reasons
for denying recusal in Republic of Panama I, he refused to
disqualify himself because his name appeared in error on the
motion to file the amicus brief and because he took no part
in preparation or approval of the brief. Minute Entry in
Civ. Action Nos. 00–0922, 98–3279 (ED La., May 26, 2000),
App. to Pet. for Cert. 43a; Tr. of Proceeding on Motion for
Recusal in Republic of Panama I, pp. 21, 37–40 (Feb. 3,
1999), App. to Pet. for Cert. 48a–51a (Tr. of Proceeding). In-
deed, he was previously unaware of it, which he found unsur-
prising because the LTLA affixed the president’s name to all
motions to file amicus briefs, despite the fact that the presi-
dent had absolutely no role in preparation or approval of the
briefs. Tr. of Status Conf. in Republic of Panama I, pp. 7–8
(Dec. 21, 1998), App. to Pet. for Cert. 53a (Tr. of Status
Conf.); Tr. of Proceeding 37–40, App. to Pet. for Cert. 49a–
51a. Judge Barbier also noted in Republic of Panama I
that he had never practiced law with Mr. St. Martin or any
other lawyer listed on the motion, had no personal knowl-
edge of the disputed facts in Gilboy, had never taken a posi-
tion with respect to any of the issues raised in petitioner’s
suit, and had never been involved in a tobacco-related case
“one way or another in my whole legal career.” Tr. of

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232 SAO PAULO STATE OF FEDERATIVE REPUBLIC
OF BRAZIL v. AMERICAN TOBACCO CO.
Per Curiam
Status Conf. 9, App. to Pet. for Cert. 54a. See also Tr. of
Proceeding 39–40, App. to Pet. for Cert. 50a–51a.
The Court of Appeals for the Fifth Circuit reversed, citing
its prior decision reversing Judge Barbier’s order denying
recusal in Republic of Panama I. In that case, the Fifth
Circuit said:
“The fact that Judge Barbier’s name was listed on a mo-
tion to file an amicus brief which asserted similar alle-
gations against tobacco companies to the ones made in
this case may lead a reasonable person to doubt his im-
partiality. Also, Judge Barbier was listed on this filing
with the attorney who is currently representing the Re-
public of Panama. The trial judge’s assertions that he
did not participate directly in the writing or researching
of the amicus brief do not dissipate the doubts that a
reasonable person would probably have about the court’s
impartiality. We acknowledge that this is a close case
for recusal.” 217 F. 3d, at 347.
Judge Parker concurred, agreeing that the court was bound
by its decision in Republic of Panama I, but arguing that
that decision was “erroneous because it requires recusal on
the basis of a judge’s public statements on the law made
prior to becoming a judge . . . .” Republic of Panama II,
supra, at 318. Rehearing en banc was denied over the dis-
sent of six judges, who argued that the decision below
amounts to an “issue recusal” rule, requiring disqualification
whenever a judge has pre-judicial association with a legal
position. 265 F. 3d 299, 306 (2001) ( joint dissent of Wiener
and Parker, JJ.).
We need not consider the argument advanced by the dis-
senting judges, since this case is easily disposed of on other
grounds. The Fifth Circuit’s decision is inconsistent with
Liljeberg v. Health Services Acquisition Corp., 486 U. S. 847
(1988), which stated that § 455(a) requires judicial recusal
“if a reasonable person, knowing all the circumstances,

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would expect that the judge would have actual knowledge”
of his interest or bias in the case. Id., at 861 (internal quota-
tion marks omitted and emphasis added). The Fifth Circuit
reached the conclusion that recusal was required because it
considered what a reasonable person would believe without
knowing (or giving due weight to the fact) that the judge’s
name was added mistakenly and without his knowledge to
a pro forma motion to file an amicus brief in a separate
controversy. Although Judge Barbier was indeed a leader
of the LTLA at that time (he was a member of the associa-
tion’s executive committee), he took no part in the prepara-
tion or approval of the amicus brief; indeed, he was only
“vaguely aware” of the case. Tr. of Status Conf. 8, App. to
Pet. for Cert. 54a. The decision whether his “impartiality
might reasonably be questioned” should not have been made
in disregard of these facts; and when they are taken into
account we think it self-evident that a reasonable person
would not believe he had any interest or bias.
Accordingly, we grant the petition for certiorari, reverse
the judgment of the Court of Appeals, and remand the case
for proceedings consistent with this opinion.
It is so ordered.