In re: Rich Bergeron

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3279
IN RE:
RICH BERGERON,
Petitioner.
Petition for Writ of Mandamus to the
United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 09-cv-00386-SEB-DML—Sarah Evans Barker, Judge.
SUBMITTED OCTOBER 7, 2010—DECIDED MARCH 4, 2011
Before POSNER, WILLIAMS, and TINDER, Circuit Judges.
POSNER, Circuit Judge. Rich Bergeron asks us to remove
the judge presiding in Eppley v. Iacovelli, a case pending
in the district court. Bergeron had repeatedly asked her,
without success, to recuse herself.
Eppley, a plastic surgeon, had sued Iacovelli, a former
patient, in 2009 for defamation and other alleged wrongs
arising from Iacovelli’s dissatisfaction with the face-lift
operation that Eppley had performed on her. The judge
issued a preliminary injunction that ordered Iacovelli
and anyone acting as her agent to remove all Internet

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2 No. 10-3279
postings that referred to the surgeon. Some of those
websites were maintained by Bergeron, an agent of
Iacovelli within the meaning of the preliminary injunc-
tion. He did not remove the postings and the judge
held him in contempt and ordered him to pay Eppley
$1,772.99 as a sanction. Bergeron’s appeal from that
award is pending. Earlier he had instituted proceedings
in this court arising from his entanglement in Eppley’s
suit, but we can disregard them. Eppley’s suit against
Iacovelli remains pending in the district court.
We need to distinguish between Bergeron’s desire
that the district judge be removed from Eppley v. Iacovelli
and his desire that she be removed from the contempt
proceeding. A nonparty cannot inject himself into a case
without intervening, Marino v. Ortiz, 484 U.S. 301, 304
(1988) (per curiam)—which Bergeron has not done—
unless the judgment “concludes the rights of the affected
person, who cannot litigate the issue in some other
forum.” SEC v. Enterprise Trust Co., 559 F.3d 649, 651 (7th
Cir. 2009); see also National Ass’n of Chain Drug Stores
v. New England Carpenters Health Benefits Fund, 582 F.3d 30,
41-42 (1st Cir. 2009). Bergeron has an interest in Eppley
v. Iacovelli: he wants to post Iacovelli’s complaints
about Eppley on his website. The interest might enable
him to intervene, and become a party, to seek relief that
would protect his interest. But his interest is too uncertain
to give him the rights of a party automatically. For ex-
ample, the financial consequences of his not being able
to post Iacovelli’s complaints on his website are
unknown and possibly nil.

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No. 10-3279 3
But obviously he is a party to the contempt proceeding,
and as our court and most other courts have held—see,
e.g., In re Sherwin-Williams Co., 607 F.3d 474, 477 (7th
Cir. 2010) (per curiam); United States v. Diekemper, 604
F.3d 345, 352 (7th Cir. 2010); In re Basciano, 542 F.3d 950,
955 (2d Cir. 2008); In re United States, 441 F.3d 44, 56-57
(1st Cir. 2006)—mandamus is a proper vehicle for
seeking a judge’s removal from a case on the ground,
which is Bergeron’s only ground, that the judge’s “im-
partiality might reasonably be questioned.” 28 U.S.C.
§ 455(a); Liljeberg v. Health Services Acquisition Corp., 486
U.S. 847, 859-61, 865 (1988). (That is, that the judge
appears to be biased.) Actual bias would entitle the
losing party to a new trial, but the mere appearance of
bias would not; whether to grant a new trial would be a
discretionary judgment for the court, as the Supreme
Court held in Liljeberg, 486 U.S at 862-64; see also, e.g.,
United States v. Amico, 486 F.3d 764, 777 (2d Cir. 2007);
United States v. Cerceda, 172 F.3d 806, 812-14 (11th Cir.
1999) (per curiam). So the cleanest remedy against the
creation of an appearance of judicial bias is to seek the
judge’s removal as soon as the appearance materializes,
hopefully before trial. That is why we won’t order a
new trial unless the party complaining of the appearance
of bias seeks mandamus, e.g., United States v. Diekemper,
supra, 604 F.3d at 352; it is far better to correct the problem
by ordering recusal in advance than by ordering a new
trial. “If a party is deprived of his substantial rights in
a trial before an actually biased judge the harm can be
remedied (though not costlessly) by a new trial before an
unbiased judge. But the harm to the public’s perception of

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4 No. 10-3279
the judicial system when a judge who appears to be biased
proceeds in a case is more difficult to correct. Prevention
in such circumstances is clearly preferable to attempts
to cure.” United States v. Balistrieri, 779 F.2d 1191, 1205
(7th Cir. 1985). Because a district court’s denial of recusal
is not an appealable order, the requester is allowed to
seek mandamus from the court of appeals in lieu of
appealing. Id.
Although he asked us for mandamus before
Judge Barker concluded the contempt proceeding by
her award of sanctions to Eppley, Bergeron did not ask
us to stay the proceeding in the district court and we
did not, and now it’s too late for us to order the
judge removed from the case, because she’s through
with it. We could order a do-over of the contempt pro-
ceeding were this an egregious case of apparent bias, as
the Supreme Court considered Liljeberg to be; but the
appearance of impropriety in this case is too attenuated
to justify that extraordinary remedy. The petition for
mandamus is therefore
DENIED.
3-4-11

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