Margarita Selkridge v. UNITED OF OMAHA LIFE INSURANCE COMPANY On Appeal From the District Court of the…

PRECEDENTIAL
UNITED STATES
COURT OF APPEALS
FOR THE THIRD CIRCUIT
NOS. 03-1146 and 03-1147
MARGARITA SELKRIDGE
Appellant
v.
UNITED OF OMAHA LIFE
INSURANCE COMPANY
On Appeal From the District Court
of the Virgin Islands
(D.C. Civil Action No. 01-cv-00143)
District Judge: Hon. Thomas K. Moore
Argued December 8, 2003
BEFORE: NYGAARD, BECKER and
STAPLETON, Circuit Judges
(Opinion Filed February 24, 2004)
Lee J. Rohn
K. Glenda Cameron (Argued)
1101 King Street, Suite 2
Christiansted, St. Croix, USVI 00820
and
Terry M. Halpern
Suite 314
9003 Havensight Mall
Charlotte Amalie, St. Thomas, USVI
00802
Attorneys for Appellant
Charles E. Engeman
Simone R.D. Francis (Argued)
Ogletree, Deakins, Nash, Smoak &
Stewart
1336 Beltjen Road, Suite 202
Charlotte Amalie, St. Thomas, USVI
00802
Attorneys for Appellee
OPINION OF THE COURT
STAPLETON, Circuit Judge:
Margarita Selkridge (“Selkridge”) filed
a lawsuit against United of Omaha Life
Insurance Company (“Omaha”) on several
state-law theories alleging that she had
been wrongfully denied benefits under her
disability plan. (“Selkridge I.”) After the
District Court granted summary judgment
on all of those theories in favor of the sole
defendant, Selkridge chose not to appeal
that decision. Instead, she filed a new
lawsuit that asserted a claim “arising
under” the Employee Retirement Income
Security Act (“ERISA”) for the wrongful
denial of benefits. (“Selkridge II.”) The
District Court granted summary judgment
on res judicata grounds. Selkridge also
eventually filed a Fed. R. Civ. P. 60(b)

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motion seeking to amend the judgment in
Selkridge I to indicate that the grant of
summary judgment was without prejudice
to filing a new lawsuit. The District Court
denied the Rule 60(b) motion because it
sought to utilize that Rule as a substitute
for an appeal.
Selkridge appeals the grant of summary
judgment and the denial of her Rule 60(b)
motion in Selkridge I and the grant of
summary judgment in Selkridge II. We
determine that we are without jurisdiction
to hear an appeal of the grant of summary
judgment in Selkridge I because an appeal
was not timely taken. While we conclude
that Judge Moore should have recused
himself before entering the order granting
summary judgment in Selkridge II and the
order denying Selkridge’s Rule 60(b)
motion in Selkridge I, we hold that our
recognition of his failure to do so as plain
error and our independent, plenary review
of those orders make further remedial
action unnecessary. Accordingly, given
that our independent plenary review
convinces us that the results reached were
required as a matter of law, we will affirm
both December 23, 2002, orders.
I. Background
Selkridge was enrolled in a group
insurance plan with Omaha during the
period in which she was employed by the
Virgin Islands Telephone Company and its
successors. In December 1996, Selkridge
filed an application for long-term disability
benefits with Omaha. Omaha denied the
claim initially and, following an appeal,
Selkridge then filed Selkridge I, a diversity
action in the District Court of the Virgin
Islands against Omaha alleging breach of
contract, bad faith, fraud, intentional
infliction of emotional distress, and
negligent infliction of emotional distress.
Omaha moved for summary judgment
on all claims Selkridge had alleged against
it. The motion contended that all of
Selkridge’s claims arose “under the
common law of the Territory” and were
therefore “expressly preem pted by
ERISA.” JA at 61.
In her opposition to Omaha’s motion,
Selkridge argued that summary judgment
should be denied but went on to make the
following request: “[i]f this Court were to
find that the claims are preempted and
must be converted to federal claims,
Plaintiff respectfully requests that she be
given the opportunity to amend her
Complaint accordingly to more clearly
state her claims as federal violation of
ERISA claims.” JA at 156-57.
The District Court held that all of
Selkridge’s claims were preempted by
ERISA and that Omaha was entitled to
summary judgment on all counts. See
Selkridge v. United of Omaha Life Ins.
Co., 221 F. Supp. 2d 579 (D.V.I. 2002). It
did not mention the application for leave to
amend found only in Selkridge’s brief.
The Court’s February 22, 2002, order
read: “it is hereby ORDERED that
defendants’ motion for summary judgment
. . . is GRANTED. . . .” JA at 364. The
order did not expressly reserve to

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Selkridge a right to pursue ERISA-based
claims in a new action.
On April 23, 2002, Selkridge filed a
new action, Selkridge II, in the District
Court. The complaint asserted that
Selkridge’s claim “arises under ERISA.”
JA at 390.
Omaha moved for summary judgment in
Selkridge II on September 23, 2002,
arguing that Selkridge’s claim “under
ERISA” was barred by res judicata
because it arose out of the same set of
circumstances at issue in Selkridge I and
could have been litigated in Selkridge I.
On October 30, 2002, eight months after
the order granting summary judgment in
Selkridge I, Selkridge filed a Fed. R. Civ.
P. 60(b) motion in Selkridge I. That
motion requested that the District Court
“clarify” its February 22, 2002, order to
state that Selkridge’s claims in Selkridge I
were “converted to federal claims” and to
grant Selkridge “leave to amend to plead
claims under ERISA” with respect to
Selkridge I. JA at 719, 726.
On December 23, 2002, the District
Court granted summary judgment in
Selkridge II on res judicata grounds and
denied the Rule 60(b) motion in Selkridge
I on the ground that it was an
impermissible attempt to utilize that Rule
as a substitute for an appeal. See Selkridge
v. United of Omaha Life Ins. Co., 237 F.
Supp. 2d 600 (D.V.I. 2002).
Just before the summary judgment
motion in Selkridge II and the Rule 60(b)
motion in Selkridge I were filed, one of
Selkridge’s attorneys wrote a letter-to-the-
editor of an on-line publication critical of
the District Judge presiding over the
Selkridge matters. The content of the
letter was not directly related to either
Selkridge matter, but the letter prompted a
series of events that will be discussed in
Part III of this opinion relating to the
propriety of the District Judge’s continuing
to preside over the Selkridge matters.
On January 9, 2003, Selkridge filed a
notice of appeal in Selkridge I seeking to
appeal the February 22, 2002, grant of
summary judgment in Selkridge I, the
December 23, 2002, denial of her Rule
60(b) motion, and “the Court’s recusal of
itself from this case and its subsequent
reinstatement, sua sponte.” SA. On the
same day, Selkridge filed a notice of
appeal seeking to appeal the December 23,
2002, grant of summary judgment in
Selkridge II.1
1 These notices of appeal were not
included in the appendix filed by
Selkridge. Instead, the appendix included
two additional notices of appeal for
Selkridge I and Selkridge II, both of which
were filed on January 13, 2003. The
January 13, 2003, notice of appeal for
Selkridge I was the same as the January 9,
2003, notice of appeal for Selkridge I. The
January 13, 2003, notice of appeal for
Selkridge II, however, differed from the
January 9, 2003, notice of appeal for
Selkridge II, and failed to specify any
order being appealed from in Selkridge II.

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II. Jurisdiction to Hear an Appeal from
the Grant of Summary Judgment in
Selkridge I
Selkridge insists that we have
jurisdiction to review the summary
judgment order entered in Selkridge I
under 28 U.S.C. § 1291, which authorizes
appeals from final decisions of the District
Court. We cannot agree.
“A final order is one that ‘ends the
litigation on the merits and leaves nothing
for the court to do but execute the
judgment.’” Welch v. Folsom, 925 F.2d
666, 668 (3d Cir. 1991) (quoting Coopers
& Lybrand v. Livesay, 437 U.S. 463, 467
(1978) (internal quotations omitted)). For
purposes of appeal under 28 U.S.C. §
1291, “A summary judgment that fully
disposes of all claims among all parties is
final.” 15B Charles Alan Wright, Arthur
R. Miller & Edward H. Cooper, Fed. Prac.
& Proc.: Juris. 2d § 3914.28 (2d ed. 1992),
at 202; see Hampton v. Borough of Tinton
Falls Police Dept., 98 F.3d 107, 111 (3d
Cir. 1996) (“The district court granted
summary judgment for the defendants as to
all counts of plaintiffs’ complaint. . . . The
district court’s grant of summary judgment
is a final order that disposed of all claims,
and this court therefore has jurisdiction
over this appeal pursuant to 28 U.S.C. §
1291.”). The District Court’s February 22,
2002, order granted summary judgment in
favor of Omaha on all of Selkridge’s
claims on the grounds that the claims were
expressly preempted by ERISA. Because
it disposed of all claims with respect to all
parties,2 that order was a final order within
Selkridge has made a motion to
correct the appendix with respect to the
fact that the January 9, 2003, notices of
appeal were not included in the appendix.
Under Fed. R. App. P. 30(a)(2), “[p]arts of
the record may be relied on by the court or
the parties even though not included in the
appendix.” While we need not necessarily
correct the appendix, Selkridge’s motion is
unopposed and we will, by separate order,
grant the motion.
Selkridge concedes that the January
13, 2003, notice of appeal in Selkridge II
“does not correctly identify the District
Court Order from which an appeal was
taken in that case.” Motion at 3. We will
consider the January 13, 2003, Selkridge II
notice of appeal as one merely expanding
that which Selkridge sought to appeal in
Selkridge II–and not one intended as a
substitute for the earlier notice of
appeal–because it provides no indication
that it was intended to change the content
of the earlier notice of appeal. Therefore,
as construed by this Court, Selkridge’s
notices of appeal in Selkridge II seek to
appeal the December 23, 2002, order
granting summary judgment to Omaha.
2 That order also met the procedural
requirements of Fed. R. Civ. P. 58 for an
order that commences the running of the
time for appeal. See Local Union No.
1992 of the Int’l Brotherhood of Electrical
Workers v. The Okonite Co., F.3d ,
2004 WL 113150, *5 (3d Cir. 2004) (order
satisfies Rule 58’s separate document
requirement where it (1) is self-contained

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the meaning of 28 U.S.C. § 1291.
Fed. R. App. P. 4(a)(1)(A) requires that
a notice of appeal be filed “with the
district clerk within 30 days after the
judgment or order appealed from is
entered,” id., unless certain exceptions
inapplicable here apply. Selkridge filed
her notice of appeal in Selkridge I on
January 9, 2003–over ten months after
summary judgment had been granted in
that matter. It is a well-established rule
that “[t]he time limits for filing a notice of
appeal are ‘mandatory and jurisdictional.’”
In re Rashid, 210 F.3d 201, 204 (3d Cir.
2000) (quoting Krebs Chrysler-Plymouth,
Inc. v. Valley Motors, Inc., 141 F.3d 490,
495 (3d Cir. 1998)); see, e.g., Browder v.
Director, Dept. of Corrections of Illinois,
434 U.S. 257, 264 (1978) (same); U.S. v.
Vastola, 989 F.2d 1318, 1321 (3d Cir.
1993) (same). We thus lack jurisdiction to
review the summary judgment in Selkridge
I.
Selkridge first argues that she “did not
seek reconsideration or appeal the district
court’s decision because she reasonably
believed that the district court had
overlooked her request for automatic
conversion of [plaintiff’s] claims and leave
to amend. . . .” Appellant’s Reply Brief at
8-9 (footnote omitted). We are
unpersuaded. If Selkridge’s counsel
thought that the District Court had
“overlooked” her request for automatic
conversion of her state law claims into
ERISA claims, and had also “overlooked”
Selkridge’s request for leave to amend, we
fail to understand how this would excuse
counsel from seeking reconsideration by
the District Court or appealing the District
Court’s decision.
Alternatively, Selkridge argues that her
counsel reasonably viewed the February
22, 2002, order as a partial summary
judgment and, accordingly, not as a final
order. While it is true that a grant of
“partial summary judgment” under Fed. R.
Civ. P. 56(d) is not a “final” judgment
within the meaning of 28 U.S.C. § 1291
because it is an adjudication of less than
the entire action, see 10B Charles Alan
Wright, Arthur R. Miller & Mary Kay
Kane, Fed. Prac. & Proc.: Civil 3d § 2737
(1998), at 322-25, there is simply no
record basis for construing the February
22, 2002, order as a grant of partial
summary judgment. Omaha moved for
summary judgment on all claims on the
grounds that the claims were expressly
preempted by ERISA. Although Omaha
requested that, in the alternative, it be
granted partial summary judgment on
Selkridge’s state law claims should “Count
I [be] deemed to constitute a claim for
benefits under ERISA,” JA at 48, the
February 22, 2002, order in explicit terms
grants summary judgment on all claims.3
and separate from the opinion, (2) sets
forth the relief granted, and (3) omits the
District Court’s reasons for disposing of
the parties’ motions as it did).
3 We also reject Selkridge’s argument
that the filing of her Fed. R. Civ. P. 60(b)

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We thus conclude that we lack
jurisdiction to review the District Court’s
February 22, 2002, order in Selkridge I.
III. Summary Judgment in Selkridge II
and the Rule 60(b) Motion in Selkridge I:
The Recusal Issue
Selkridge insists that the summary
judgment order in Selkridge II and the
refusal to vacate the judgment in Selkridge
I must be vacated because Judge Moore’s
impartiality when he rendered those
decisions would be questioned by a
reasonable person aware of the relevant
facts.
A. Background
On September 3, 2002, Lee J. Rohn,
one of Selkridge’s attorneys, wrote a
l e t te r - to - t h e -e d itor of an onlin e
publication, the St. Croix Source,
regarding United States District Judge
Thomas K. Moore’s performance of his
official duties and the fact that Judge
Moore was not being reappointed4 by
President George W. Bush.5 Attorney
motion and her subsequent timely appeal
of the denial of that motion entitles her to
a review of the underlying grant of
summary judgment on February 22, 2002.
Fed. R. App. P. 4(a)(4)(A) provides a
limited exception to the time limits for
filing a notice of appeal outlined in Fed R.
App. P. 4(a)(1)(A).
If a party timely files in the
district court any of the
following motions under the
F e d e r a l R u l e s o f C i v il
Procedure, the time to file an
appeal runs for all parties from
the entry of the order disposing
of the last such remaining
motion: . . . (vi) for relief
under Rule 60 if the motion is
filed no later than 10 days after
the judgment is entered.
Id. This provision of Fed. R. App. P.
4(a)(4)(A), clarifying the relationship
between the time limits for filing a Fed. R.
Civ. P. 60 motion and an appeal under
Fed. R. App. P. 4, makes clear the limited
circumstances under which an appeal from
a Fed. R. Civ. P. 60(b) motion may address
the underlying judgment. See United
States v. Fiorelli, 337 F.3d 282, 288 n.3
(3d Cir. 2003). Selkridge filed her Rule
60(b) motion eight months after summary
judgment was entered on February 22,
2002. That motion did not toll the time for
appeal of that order because it was not
filed within ten days after summary
judgment was entered.
4 Judges sitting in the District Court of
the Virgin Islands are appointed for 10-
year terms pursuant to the Revised Organic
Act of 1954. See 48 U.S.C. 1614(a).
5 We take judicial notice of the
existence of a letter-to-the-editor by
Attorney Rohn published in the St. Croix
Source. See, e.g., Ieradi v. Mylan
Laboratories, Inc., 230 F.3d 594, 598 n.2
(3d Cir. 2000) (appellate court may take
judicial notice of the existence of a
newspaper article); Peters v. Delaware

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7
Rohn suggested that “[t]he failure of Judge
Tom Moore to be recommended for
reappointment has much less to do with
politics and more to do with the allegations
of inappropriate behavior while he was on
the bench.” See Lee J. Rohn, Lawyer:
Judge’s Non-Reappointment Not Politics,
St. Croix Source (Sept. 3, 2002).6
Attorney Rohn then listed in a cursory
f a s h i o n s e v e r a l a l l e g a t i o n s o f
“inappropriate behavior” by Judge Moore.7
On September 9, 2002, Judge Moore
began issuing sua sponte recusal orders in
numerous cases involving Attorney Rohn.8
A total of 19 recusal orders were issued
between September 9, 2002, and October
7, 2002, in Judge Moore cases involving
River Port Authority of Pennsylvania and
New Jersey, 16 F.3d 1346, 1356 n.12 (3d
Cir. 1994) (same).
6 The full text of the letter can be found
in United States v. Roebuck, 289 F. Supp.
2d 678, 684-85 (D.V.I. 2003) (appendix).
7 Wrote Attorney Rohn:
Judge Moore’s problems lie in the
allegations of inappropriate
behavior while he was on the
bench. These include, but are not
limited to, repeatedly being
reversed by the Third Circuit
[Court of Appeals], repeated
disagreements with the judges of
the Third Circuit, rude behavior
toward attorneys practicing before
him, including, but not limited to,
refusing to grant a trial continuance
to a seven months pregnant
attorney desp ite a m edical
necessity; ordering attorneys to be
in his court despite the fact that
they were also supposed to be
before the Third Circuit at the same
time; complaints by jurors that they
were coerced and harassed and
subjected to ex parte instructions
and conversations by Judge M oore
while in jury deliberations; jurors
complaints of being castigated after
reaching a verdict because it was
contrary to what Judge Moore
would have decided; keeping the
court house o p e n late to
accommodate the filing of a
petition to keep poor housing out of
a neighborhood that Judge Moore
lived in, and then granting the
motion despite a conflict that
requ ired recusal; repeatedly
imposing sanctions without notice
and a proper ability to respond;
[and] being vindictive against
litigants who took a position
contrary to his.
Id. (alterations in original).
8 We take judicial notice of the
existence of the judicial orders set forth
infra in which Judge Moore recused
himself from a large number of Attorney
Rohn’s cases, and in which Judge Brotman
indicated that nearly all of Attorney
Rohn’s cases were being reassigned to him
for “mediation and/or settlement
discussions.”

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Attorney Rohn.9 Virtually all of these cases were then
reassigned to Judge Brotman for purposes
of mediation and settlement negotiations.10
9 See Antonie, et al. v. VI Port
Authority, et al., V.I. Civ. No. 2001-63
(recusal order dated Sept. 9, 2002);
Bolinger v. Virgin Islands Telephone
Corp., et al., V.I. Civ. No. 2002-49
(recusal order dated Sept. 9, 2002); Gore,
et al. v. Prosser, et al., V.I. Civ. No. 2001-
003 (recusal order dated Sept. 9, 2002);
Hendricks v. Belardo, V.I. Civ. No. 1999-
033 (recusal order dated Sept. 9, 2002);
Jones v. Daily News Publishing Co., et al.,
V.I. Civ. No. 1999-138 (recusal order
dated Sept. 9, 2002); Lang v. United
States, V.I. Civ. No. 2000-100 (recusal
order dated Sept. 9, 2002); Matheson v.
Virgin Islands Community Bank, et al.,
V.I. Civ. No. 2000-80 (recusal order dated
Sept. 9, 2002); Nyfield v. Virgin Islands
Telephone Corp., et al., V.I. Civ. No.
2001-53 (Sept. 9, 2002); Sweeney v. Virgin
Islands Telephone Corp., et al., V.I. Civ.
No. 2001-53 (recusal order dated Sept. 9,
2002); Williams v. Kmart Corp., V.I. Civ.
No. 1999-102 (recusal order dated Sept. 9,
2 0 0 2 ) ; C h a p a r r o v . I n n o v a t i v e
Communications Corp., V.I. Civ. No.
1999-190 (recusal order dated Sept. 10,
2002); Island Management Group v. Bank
of Nova Scotia, et al., V.I. Civ. No. 1999-
104 (recusal order dated Sept. 10, 2002);
Martin v. Virgin Islands Telephone Corp.,
et al., V.I. Civ. No. 1999-202 (recusal
order dated Sept. 10, 2002); Trantham v.
Ford, et al., V.I. Civ. No. 1998-140
(recusal order dated Sept. 10, 2002);
VECC, et al. v. The Bank of Nova Scotia,
V.I. Civ. No. 2002-72 (recusal order dated
Sept. 10, 2002); Souder v. Withers, Civ
No. 2000-91 (recusal order dated Sept. 20,
2002); Anderson v. Government of the
Virgin Islands, et al., V.I. Civ. No. 2001-
149 (recusal order dated Sept. 26, 2002);
Airo v. Sugar Bay Club, et al., V.I. Civ.
No. 2000-134 (recusal order dated Oct. 1,
2002); Derr v. BCM/CHI Frenchmen’s
Reef, Inc., V.I. Civ. No. 2001-148 (recusal
order dated Oct. 7, 2002).
10 See Antonie, et al. v. VI Port
Authority, et al., V.I. Civ. No. 2001-63
(reassignment notice dated Dec. 3, 2002);
Bolinger v. Virgin Islands Telephone
Corp., et al., V.I. Civ. No. 2002-49
(reassignment notice dated Dec. 3, 2002);
Gore, et al. v. Prosser, et al., V.I. Civ. No.
2001-003 (reassignment notice dated Dec.
3, 2002); Jones v. Daily News Publishing
Co., et al., V.I. Civ. No. 1999-138
(reassignment notice dated Dec. 3, 2002);
Lang v. United States, V.I. Civ. No. 2000-
100 (reassignment notice dated Dec. 3,
2002); Matheson v. Virgin Islands
Community Bank, et al., V.I. Civ. No.
2000-80 (reassignment notice dated Dec.
3, 2002); Nyfield v. Virgin Islands
Telephone Corp., et al., V.I. Civ. No.
2001-53 (reassignment notice dated Dec.
3, 2002); Sweeney v. Virgin Islands
Telephone Corp., et al., V.I. Civ. No.
2001-53 (reassignment notice dated Dec.
3, 2002); Chaparro v. Innovative
Communications Corp., V.I. Civ. No.
1999-190 (reassignment notice dated Dec.

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9
In addition, at least twelve other Judge
Moore cases involving Attorney Rohn
were reassigned to Judge Brotman for
settlement purposes11 although no sua
sponte recusal orders were issued by Judge
Moore in these cases.12 It is in this last
3, 2002); Airo v. Sugar Bay Club, et al.,
V.I. Civ. No. 2000-134 (reassignment
notice dated Dec. 5, 2002); Anderson v.
Government of the Virgin Islands, et al.,
V.I. Civ. No. 2001-149 (reassignment
notice dated Dec. 5, 2002); Derr v.
BCM/CHI Frenchmen’s Reef, Inc., V.I.
Civ. No. 2001-148 (reassignment notice
dated Dec. 5, 2002); VECC, et al. v. The
Bank of Nova Scotia, V.I. Civ. No. 2002-
72 (reassignment notice dated Dec. 5,
2002); Martin v. Virgin Islands Telephone
Corp., et al., V.I. Civ. No. 1999-202
(reassignment notice dated Dec. 12, 2002);
Souder v. Withers, Civ. No. 2000-91
(reassignment notice dated Dec. 20, 2002);
see also Trantham v. Ford, et al., V.I. Civ.
No. 1998-140 (order from Magistrate
Judge Jeffrey L. Resnick dated Dec. 4,
2002, directing the parties to discuss
settlement with Judge Brotman).
11 See Donastorg, Jr. v. Innovative
Communications Corp., V.I. Civ. No.
2002-97 (reassignment notice dated Dec.
3, 2002); Dabrowski v. Emerald Beach
Corp., V.I. Civ. No. 2001-121
(reassignment notice dated Dec. 5, 2002);
Greene v. Honda Motor Co., Ltd., et al.,
V.I. Civ. No. 2002-159 (reassignment
notice dated Dec. 5, 2002); Konikoff v.
Peninsular and Oriental Steam Navigation
Co., et al., V.I. Civ. No. 1999-224
(reassignment notice dated Dec. 5, 2002);
Mahoney v. Bulhof, et al., V.I. Civ. No.
2001-154 (reassignment notice dated Dec.
5, 2002); Selkridge v. United Omaha Life
Ins. Co., V.I. Civ. No. 2002-73
(reassignment notice dated Dec. 5, 2002);
Sexton, et al. v. Equivest St. Thomas, et al.,
V.I. Civ. No. 2002-96 (reassignment
notice dated Dec. 5, 2002); Collins v.
Castle Acquisitions, V.I. Civ. No. 99-212
(reassignment notice dated Dec. 20, 2002);
Domino Oil v. Phoenix Assurance Co. of
New York, V.I. Civ. No. 1996-99
(reassignment notice dated Dec. 20, 2002);
Soltau v. CTF St. Thomas Corp., V.I. Civ.
No. 1998-143 (reassignment notice dated
Dec. 20, 2002); Smith v. Elias, et al., V.I.
Civ. No. 02-14 (scheduling order for a
status hearing and settlement discussions
dated Dec. 23, 2002); Khan v. Soleiman, et
al., V.I. Civ. No. 2000-223 (reassignment
notice dated Jan. 14, 2003).
12 Selkridge included in her appendix
an “Affidavit of Lee J. Rohn in Support of
Motion for Judicial Recusal.” SA at 31-
33. According to the Affidavit:
Magistrate Judge Barnard said
that Judge Moore was upset with
me for having written the letter
c r i t i c i z i n g h i s j u d i c i a l
performance and temperament.
Magistrate Judge Barnard further
stated that he had been instructed
Judge Barnard [sic] to prepare
recusal Orders for every case in
which I was attorney of record.
SA at 32. The affidavit does not make
clear as to who instructed M agistrate

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10
group of matters, where no recusal order
by Judge Moore had been issued but the
case had nonetheless been reassigned to
Judge Brotman for settlement negotiations,
that Selkridge II landed.13
Selkridge was notified on December 9,
2002, by Judge Brotman that her matter
had been reassigned to Judge Brotman for
settlement negotiations.14 In an order
dated December 23, 2002, and filed on
December 27, 2002, Judge Brotman
scheduled a conference for a “status
hearing and settlement discussions” for
Selkridge II. JA at 764. Apparently
unbeknownst to Judge Brotman, by way of
a memorandum opinion and orders dated
December 20, 2002, and filed on
December 23, 2002, Judge Moore had
already granted summary judgment in
Selkridge II on all claims in favor of
Omaha, and had denied Selkridge’s Rule
60(b) motion in Selkridge I.
Also on December 23, 2002, Magistrate
Judge Geoffrey W. Barnard wrote to Judge
Brotman by letter, a copy of which was
sent to the parties. The letter read, in part:
“This is to confirm our discussion earlier
regarding the above-referenced cases.
These cases were inadvertently categorized
as cases from which Judge Moore recused
himself. However, Judge Moore has
confirmed that he will continue to preside
over these cases.” JA at 766. Judge
Brotman then notified the parties that his
previous scheduling order was vacated, in
light of Judge Moore’s December 20,
2002, opinion.
Two published opinions from the
District Court of the Virgin Islands,
written after the orders being appealed
from in this case were filed, purport to
address Judge Moore’s recusals (or
withholding of recusals) with respect to
Attorney Rohn’s cases. See United States
v. Roebuck, 271 F. Supp. 2d 712 (D.V.I.
2003); United States v. Roebuck, 289 F.
Supp. 2d 678 (D.V.I. 2003).15
Judge Barnard to prepare recusal orders in
all of Attorney Rohn’s cases. In any case,
we cannot consider the affidavit, which
purports to have been prepared for the
United States v. Roebuck, V.I. Crim. No.
02-171 case. The affidavit is outside of
the record for Selkridge I and Selkridge II,
and Selkridge suggests no theory under
which we may consider the affidavit.
13 Neither a recusal order nor a
reassignment notice was issued with
respect to Selkridge I. The case was not
reassigned for settlement purposes because
final judgment had been entered and only
a Fed. R. Civ. P. 60(b) motion was
pending.
14 See Selkridge v. United Omaha Life
Ins. Co., V.I. Civ. No. 2002-73
(reassignment notice dated Dec. 5, 2002).
15 “[W]e recognize that we have the
power to take judicial notice of subsequent
developments in related proceedings since
the appeal in each case was filed.”
Federal Ins. Co. v. Richard I. Rubin &
Co., Inc., 12 F.3d 1270, 1284 (3d Cir.

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11
In United States v. Roebuck, 271 F.
Supp. 2d 712 (D.V.I. 2003), Judge
Brotman, presiding over a motion to quash
subpoenas to compel the testimony of four
federal judges at an evidentiary hearing on
a motion to recuse Judge Moore from
presiding over that case, noted that:
Shortly after Judge Moore had
recused himself from all of Attorney
Rohn’s cases, he withdrew his
recusal in some cases, including the
matters of Selkridge v. United of
Omaha Life Insurance Company,
V.I. Civil Action Nos. 2001-143 and
2002-73, without giving a reason for
this decision. (See Selkridge v.
United of Omaha Life Ins. Co., 237
F. Supp. 2d 600 (D.V.I. Dec. 20,
2002) (M oore, J.)).
Id. at 715. Thus, there is a published
opinion of the District Court representing
that Judge Moore recused himself in
Selkridge I and Selkridge II, and then
“withdrew” that recusal.
Judge Moore, in later proceedings in
Roebuck, indicated that he “never recused
[himself] from Selkridge” and commented
on his reason for recusing himself in many
of Attorney Rohn’s cases:
First, I entered no blanket order of
recusal from all of Lee Rohn’s cases
1993). We take judicial notice of these
published opinions to the extent that they
discuss Selkridge I and Selkridge II, and to
the extent they discuss whether Judge
Moore recused himself from Attorney
Rohn’s cases. With respect to United
States v. Roebuck, 289 F. Supp. 2d 678
(D.V.I. 2003) (Moore, J.), we take judicial
notice of the public statements made by
Judge M oore in that opinion.
We recognize that “[a] court may
take judicial notice of an adjudicative fact
if that fact is not subject to reasonable
dispute” and “[a] judicially noticed fact
must either be generally known within the
jurisdiction of the trial court, or be capable
of accurate and ready determination by
resort to sources whose accuracy cannot
reasonably be questioned.” Werner v.
Werner, 267 F.3d 288, 295 (3d Cir. 2001).
With respect to both published
Roebuck opinions, we do not take judicial
notice for “the truth of the facts recited
therein, but for the existence of the
opinion, which is not subject to reasonable
dispute over its authenticity.” Southern
Cross Overseas Agencies, Inc. v. Wah
Kwong Shipping Group Ltd., 181 F.3d
410, 426 (3d Cir. 1999). For example, to
the extent Judge Moore expressed that he
was “initially upset at the viciousness of
the letter [by Attorney Rohn],” Roebuck,
289 F. Supp. 2d at 682, we do not purport
to be taking judicial notice of the fact that
Judge Moore was actually upset at
Attorney Rohn. We take judicial notice
for the more limited purpose of
recognizing that Judge Moore made a
public statement indicating that he was
“initially upset at the viciousness” of
Attorney Rohn’s letter.

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12
. . . . Second, I entered recusal
orders in only some, but not all, of
Attorney Rohn’s then-pending cases.
Third, I have not made any rulings in
any of those cases from which I have
recused myself. The Selkridge matter
is one of those in which I have never
entered an order of recusal. Thus,
Attorney Rohn’s claim that I
deliberately “unrecused” myself just
to be able to rule against her client is
paten tly false. Although th e
mag istrate judg e inad vertently
included Selkridge among those
cases sent to the judge who had been
designated to oversee the Rohn
recusal cases for settlement
negotiations, the fact remains that I
never recused myself from Selkridge.
I ruled on the facts and law that I
believe governed the decision of the
case. I understand my rulings are on
appeal, and, as always, the Court of
Appeals will have the last word if it
disagrees with my decision.
I did recuse myself from some of
Attorney Rohn’s then-pending cases
because her personal attack in the St.
Thomas Source stung when I first
read it. I reiterate that these recusal
orders had absolutely nothing to do
with any antipathy or prejudice
against any of her clients or any
concern that I could not be fair and
impartial in handling their cases.
Several months have now gone by
and although I was initially upset at
the viciousness of the letter, the
passage of time has allowed me to
reflect, and, as the saying goes, time
heals all wounds. I have concluded
that this was just Lee Rohn being
Lee Rohn and doing what Lee Rohn
thinks she must do to win.
United States v. Roebuck, 289 F. Supp. 2d
678, 681-82 (D.V.I. 2003) (footnotes
omitted). Thus, while Judge M oore
characterized the group of cases referred to
Judge Brotman as the “Rohn recusal
cases,” there were some of these cases,
including Selkridge II, in which Judge
Moore maintains that he did not recuse
himself.
B. Standard of Review
Where a motion for disqualification was
made in the District Court, we review the
denial of such a motion for abuse of
discretion. See, e.g., General Motors
Corp. v. New A.C. Chevrolet, Inc., 263
F.3d 296, 336 n.25 (3d Cir. 2001);
S ec ur ac om m Co nsu lting , In c . v.
Securacom Inc., 224 F.3d 273, 278 (3d
Cir. 2000). However, Selkridge made no
motion in the District Court for Judge
Moore’s recusal from Selkridge I or
Selkridge II at any time after the events at
issue here took place.
Where a party has not requested that the
district judge recuse himself or herself
during proceedings in the district court, we
review a recusal argument made on appeal

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13
for plain error.16 See, e.g., Osei-Afriyie by
Osei-Afriyie v. Medical College of
Pennsylvania, 937 F.2d 876, 881 (3d Cir.
1991); United States v. Dalfonso, 707 F.2d
757, 760 (3d Cir. 1983); United States v.
Schreiber, 599 F.2d 534, 535 (3d Cir.
1979).17
16 We recognize that the Second
Circuit has, in the civil context, reviewed
a party’s argument made for the first time
on appeal–that the trial judge should have
recused himself or h erself–under
fundamental error analysis. See Taylor v.
Vermont Dept. of Educ., 313 F.3d 768, 795
(2d Cir. 2002) (“In the civil context,
however, we reverse only if there has been
fundamental error. Fundamental error is
more egregious than the plain error that
can excuse a procedural default in a
criminal trial, and is so serious and
flagrant that it goes to the very integrity of
the proceeding.”) (internal quotations,
citations, and alterations omitted). As Fed.
R. Crim. P. 52(b), upon which plain error
analysis is based, does not apply in the
civil setting, Taylor suggests that
fundamental error analysis should be
applied. Nonetheless, this Court has
applied plain error analysis, in the civil
context, to a party’s argument for the first
time on appeal that the trial judge should
have recused himself or herself. See
Osei-Afriyie by Osei-Afriyie v. Medical
College of Pennsylvania, 937 F.2d 876,
881 (3d Cir. 1991). Accordingly, we are
bound to apply plain error analysis.
17 Selkridge maintains that her counsel
had no fair opportunity to move for recusal
in the District Court. Counsel was aware
that Judge Moore had recused himself in
19 of her cases and that he had transferred
these cases and another group of cases in
which no recusal orders had been issued to
Judge Brotman for settlement discussions.
Counsel may well have expected Judge
Moore to recuse in this other group of
cases (as he had done with the other 19
cases) if they did not settle. Moreover,
based on Judge Brotman’s December 9th
order, counsel may well have anticipated
that, at a minimum, Judge Moore would
take no further action in these cases unless
and until settlement discussions proved
unfruitful. Judge Moore’s December 23rd
final judgment, accordingly, may have
come as a surprise. Finally, when the final
judgment was received, it was apparent
from the surrounding circumstances that
Judge Moore must have considered the
recusal issue. At that point, counsel may
well have considered a motion in the
District Court to be pointless. An
argument in favor of applying an abuse of
discretion standard of review has some
appeal in this context. See United States v.
Antar, 53 F.3d 568, 573 n.6 (3d Cir. 1995)
(expressing doubt as to whether the plain
error standard of review applies where
statement at issue was made by district
judge after conviction, and counsel may
have reasonably thought that making a
recusal motion was pointless; nonetheless,
plain error standard of review applied

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14
Under the plain error standard of
review, a District Court’s order may be
reversed only when “[t]here [was] an
‘error’ that is ‘plain’ and that ‘affect[s]
substantial rights.’ ” Antar, 53 F.3d at 573
(quoting United States v. Olano, 507 U.S.
725, 732 (1993)) (alterations in original).
Normally, the requirement that the error
“affect substantial rights” is not satisfied
absent an affirmative showing “that the
error [was] prejudicial. It must have
affected the outcome of the district court
proceedings.” Olano, 507 U.S. at 734.
There is at least one situation, however, in
which prejudice may be presumed without
affirmative evidence that the alleged error
affected the outcome. As we held in
United States v. Antar, 53 F.3d 568, 573-
79 (3d Cir. 1995) (applying plain error
review where a trial judge’s failure to
recuse was first raised on appeal),
prejudice will be presumed and plain error
review is appropriate where a district
judge allegedly failed to recuse despite an
appearance of partiality. Because “the
touchstone of recusal is the integrity of the
judiciary . . . prejudice is presumed” once
“the appearance of partiality is shown.”
Id. at 573 n.7.
Even where the error is plain and affects
substantial rights, the decision to “correct
the forfeited error [is] within the sound
discretion of the court of appeals, and the
court should not exercise that discretion
unless the error seriously affect[s] the
fairness, integrity or public reputation of
judicial proceedings.” Olano, 507 U.S. at
732 (second alteration in original and
internal quotations omitted).
C. The Law of Recusal
Section 455(a) of Title 28, United States
Code, requires that:
Any justice, judge, or magistrate
judge of the United States shall
disqualify himself in any proceeding
in which his impartiality might
reasonably be questioned.
28 U.S.C. § 455(a); see Alexander v.
Primerica Holdings, Inc., 10 F.3d 155, 162
(3d Cir. 1993) (“Whenever a judge’s
impartiality ‘m ight reason ab ly be
questioned’ in a proceeding, 28 U.S.C. §
455(a) commands the judge to disqualify
himself sua sponte in that proceeding.”).
“A party seeking recusal need not show
actual bias on the part of the court, only
the possibility of bias. . . . Under § 455(a),
if a reasonable man, were he to know all
the circumstances, would harbor doubts
about the judge’s impartiality under the
applicable standard, then the judge must
recuse.” In re Prudential Ins. Co. of
America Sales Practices Litigation, 148
F.3d 283, 343 (3d Cir. 1998) (internal
quotations omitted); see Massachusetts
School of Law at Andover, Inc. v.
where parties both conceded it would
apply). Nevertheless, since it is clear that
we may review for plain error and since
we believe that standard is satisfied here,
we proceed hereafter with plain error
review.

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15
American Bar Ass’n, 107 F.3d 1026, 1042
(3d Cir. 1997) (“The standard for recusal
is whether an objective observer
reasonably might question the judge’s
impartiality.”)
Generally, “beliefs or opinions which
merit recusal must involve an extrajudicial
factor.” Antar, 53 F.3d at 574.
“[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 display a deep-seated
favoritism or antagonism that would make
fair judgment impossible.” Liteky v.
United States, 510 U.S. 540, 555 (1994).
There is no dispute here that the source
of Judge Moore’s alleged bias involved an
extrajudicial factor. The basis for
Selkridge’s concern that Judge Moore had
become biased against her was a letter
written by her counsel to a local
newspaper decrying Judge Moore’s
performance as a judge, and Judge
Moore’s reactio ns to th at letter.
Accordingly, a significant extrajudicial
factor is present and we review Judge
Moore’s lack of recusal under the
objective standard of whether a
“reasonable man, were he to know all the
circumstances, would harbor doubts about
the judge’s impartiality” under § 455(a).
Antar, 53 F.3d at 574 (quoting In re
Larson, 43 F.3d 410, 415 (8th Cir. 1994)
(quoting Potashnick v. Port City Constr.
Co., 609 F.2d 1101, 1111 (5th Cir.
1980))).
If it were the case that Judge Moore had
recused himself in Selkridge I and
Selkridge II and then unrecused himself,
our task would be an easy one. “Once a
judge has disqualified himself, he or she
may enter no further orders in the case.
His power is limited to performing
ministerial duties necessary to transfer the
case to another judge (including the
entering of ‘housekeeping’ orders).”
Moody v. Simmons, 858 F.2d 137, 143 (3d
Cir. 1988) (citations omitted). But the
dockets in these cases do not reflect that
such a recusal order was entered in either
of them, and we will analyze the recusal
issue on the assumption that there were no
such recusals.18
D. Section 455(a) Analysis
We agree with Omaha that the fact that
one of Selkridge’s attorneys wrote a letter-
to-the-editor of a newspaper regarding
Judge Moore is, alone, of little probative
value with respect to whether a reasonable
person, knowing all of the circumstances,
w o u l d q u e s t i o n Ju d g e M o o r e ’ s
impartiality. As the Court of Appeals for
the Second Circuit explained with regard
to a letter sent by a litigant to a judge that
questioned the judge’s motivations and
intentions, “[t]his letter may very well
establish [the litigant]’s feelings toward
18 As we note hereafter, this does not
mean that the existence of ambiguity on
the public record regarding whether
recusals occurred is irrelevant to our
analysis of the recusal issue.

-- 15 of 22 --

16
[the judge], but has no tendency to show
the latter’s feelings toward [the litigant]. .
. .” King v. United States, 576 F.2d 432,
437 (2d Cir. 1978); see United States v.
Wolfson, 558 F.2d 59, 61-62 (2d Cir.
1977) (litigant’s letter to newspaper
(which was never published), copied to the
judge, which accused the judge of
participating in a “scheme to frame” the
litigant, “only establish[ed] [the litigant]’s
feelings towards [the judge], not the
reverse”); see also United States v.
Helmsley, 760 F. Supp. 338, 342
(S.D.N.Y. 1991) (“Where the issue is not
hostility displayed by the judge, but
hostility displayed toward the judge, the
Second Circuit has found that hostile
attacks even by a criminal defendant,
much less by the defendant's lawyer, are
not a sufficient basis for recusal.”).
Were the rule otherwise, “those litigants
fortunate enough to have easy access to the
media could make charges against a
judge’s impartiality that would effectively
veto the assignment of judges.
Judge-shopping would then become an
additional and potent tactical weapon in
the skilled practitioner’s arsenal.” In re
Drexel Burnham Lambert Inc., 861 F.2d
1307, 1309 (2d Cir. 1988). We therefore
agree with Judge Moore’s view of recusal
law, expressed in United States v.
Roebuck, 289 F. Supp. 2d 678 (D.V.I.
2003), that “an attorney [may not] be
allowed to use her calculated personal
attack on a sitting judge as a technique to
prevent that judge from presiding over any
of her cases. . . .” Id. at 682. If the only
basis for Selkridge’s argument that Judge
Moore should have recused himself was
the letter written by Selkridge’s counsel
taking issue with Judge Moore’s
performance, there would be little basis for
arguing that he should have recused. It is
his reaction to counsel’s letter that raises
the difficult issues here presented.
We first address the circumstances
under which the December 23, 2002,
orders were entered by Judge M oore. A
letter written by Attorney Rohn and
directly challenging the competence of
Judge Moore had been published on
September 3rd. Commencing six days
later, and continuing over a period of a
month, Judge M oore recused himself in 19
cases involving Attorney Rohn. Almost
all of these cases were reassigned to Judge
Brotman, a visiting judge, for settlement
discussions only, presumably so that
permanent reassignment would be required
in only those that did not settle. These
recusals and reassignments were made sua
sponte and without explanation. In
addition, prior to December 23rd, at least
twelve more cases of Judge Moore’s
involving Attorney Rohn were transferred
from Judge Moore to Judge Brotman for
settlement negotiations, raising the
possibility that Judge Moore was
considering recusal in such of these cases
as did not settle. Again, the reassignments
came sua sponte and without explanation.
Because these extraordinary activities in
Judge Moore’s cases involving Attorney
Rohn followed almost immediately on the
heels of such a critical publication and
because no alternative explanation was

-- 16 of 22 --

17
given for them, we believe they would
suggest to a reasonable person that Judge
Moore was sufficiently upset by the letter
that he considered himself unable to be
objective in her cases. Moreover, in the
absence of an alternative explanation
suggesting a contrary conclusion, we
believe a reasonable person would
question Judge M oore’s ability to be
objective at that point in time in all of
Attorney Rohn’s cases.
Further, because the ultimate issue here
is whether the public can have confidence
in the integrity of the court’s judgments,
we are called to consider statements of the
court following December 23, 2002, to the
extent they bear upon that issue. In United
States v. Antar, 53 F.3d 568 (3d Cir.
1995), the defendant challenged the
validity of his conviction on the ground
that the trial judge was biased and should
not have presided over his trial. The
principal basis for the charge of bias was a
statement made by the judge at the
conclusion of the trial. We there rejected
the idea that we should look only at the
appearance of matters at the time of trial:
We reject the implications of the
government’s argument–that because
the statement occurred after the trial,
it cannot form the basis of an
allegation of bias during the trial.
Suppose, for instance, that at
sentencing the district judge informs
a defendant that throughout the trial
his object had been to see the
defendant behind bars. A reasonable
observer in such a scenario would
have serious reason to question
whether prior rulings in the case
w e r e b a s e d o n i m p a r t i a l
considerations or on the judge's
stated goal. The fact that the judge’s
motivation came to light only after
the conclusion of the trial would be
of no moment.
Antar, 53 F.3d at 576. Based on Antar, we
conclude that we must consider
developments between December 23,
2002, and the submission of this direct
appeal.
This conclusion is, of course, important
because Judge Moore, after December 23,
2002, had occasion to comment on the
extraordinary activity in Attorney Rohn’s
cases prior to that date. Writing 14 months
after the publication of Rohn’s letter and
11 months after December 23, 2002, Judge
Moore acknowledged that he had “entered
recusal orders in . . . some, but not all, of
Attorney Rohn’s . . . pending cases”
because he was “stung” by “her personal
attack” and “upset at the viciousness” of
her “scurrilous article.” He reported,
however, that “the passage of time [had]
allowed [him] to reflect, and . . . [had]
heal[ed] all wounds.” Roebuck, 289 F.
Supp. 2d at 682. Judge Moore thus
confirmed that he was sufficiently upset
with Attorney Rohn in the Fall of 2002
that he recused in some of her cases.
While he insisted that he did not recuse in
all of Attorney Rohn’s cases, he offered no
explanation for why he believed he could
be objective in some of her cases even
though he could not be in others. As a

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18
result, we believe that Judge Moore’s
opinion served to reinforce the conclusion
that a reasonable person would have
reached viewing matters as of December
23rd – that there was reason to “harbor
doubts about the judge’s impartiality”
when he was deliberating over the motions
pending in Selkridge I and Selkridge II and
writing his December 23, 2002, opinion.
Nor is the appearance of impropriety
assuaged by the co nflict in th e
subsequently developed record over
whether Judge Moore did at one point
recuse in the Selkridge cases. We accept
for present purposes that Judge Brotman
was mistaken in his belief that Judge
Moore had recused himself in all of
Attorney Rohn’s cases. Nevertheless,
there is a conflict in the public record that
the litigants have no means of resolving
and that conflict casts a shadow on Judge
Moore’s impartiality in the Selkridge
cases.
Viewing the record as a whole, given
the appearance that Judge Moore’s
impartiality was compromised, we
conclude that it was error for Judge Moore
to enter the December 23rd orders in
Selkridge I and Selkridge II, and that this
error was plain. Further, because this error
compromised the integrity of the
proceedings, “prejudice is presumed.”
Antar, 53 F.3d at 573. Finally, we exercise
our discretion to review this claim of error
because it “seriously affect[ed] the . . .
integrity [and] public reputation of judicial
proceedings.” Olano, 507 U.S. at 732
(internal quotations omitted).
E. Holding
Judge Moore’s reaction to Attorney
Rohn’s intemperate public criticism is
certainly understandable. Moreover, his
sensitivity to the possible impact of that
reaction on his ability to judge fairly cases
in which she was counsel is commendable.
We further agree with Judge Moore that
the passage of time does, indeed, heal
wounds, and we do not mean to suggest
that it is not presently appropriate for him
to sit on cases involving Attorney Rohn.19
We do hold, however, that a trial judge
cannot, without explanation, recuse
himself in a substantial number of cases
and, at substantially the same time, decline
to recuse himself in another group of cases
that appears indistinguishable for purposes
of recusal. From an appearance
perspective, that is precisely what Judge
Moore did here, and he committed plain
error in doing so.
F. The Remedy
“Although § 455 defines the
c i r c u m s t a n c e s t h a t m a n d a t e
disqualification of federal judges, it neither
prescribes nor prohibits any particular
remedy for a violation of that duty.
[Rather,] Congress has wisely delegated to
19 In particular, we, of course, express
no opinion on the propriety of Judge
Moore’s refusal to recuse himself in
United States v. Roebuck, 289 F. Supp. 2d
678 (D.V.I. 2003).

-- 18 of 22 --

19
the judiciary the task of fashioning
remedies that will best serve the purpose
of the legislation.” Liljeberg v. Health
Services Acquisition Corp., 486 U.S. 847,
862 (1988).
In Liljeberg, the Supreme Court
approved the vacatur of a final judgment
entered by a district judge who should
have disqualified himself. It explained,
however, that this remedy would not be
required in all such cases. It suggested
that, in deciding whether to vacate such a
final judgment, a court should “consider
the risk of injustice to the parties in the
particular case, the risk that the denial of
relief will produce injustice in other cases,
and the risk of undermining the public’s
confidence in the judicial process.” Id. at
864. With respect to the second factor, the
Court concluded that vacating the
judgment would help prevent injustice in
other cases “by encouraging a judge or
litigant to more carefully examine possible
grounds for disqualification and to
promptly disclose them when discovered.”
Id. at 868.
The Liljeberg Court expressly noted that
“[a]s in other areas of the law, there is . . .
room for harmless error” in § 455(a)
analysis, id. at 862, and we have heretofore
read that case as approving harmless error
analysis when applied with sensitivity not
only to the interests of the parties, but also
to the interests of other litigants and to the
public’s interest in the integrity of the
court system. See In re School Asbestos
Litigation, 977 F.2d 764, 785-88 (3d Cir.
1992); see also Patterson v. Mobil Oil
Corp., 335 F.3d 476, 485-86 (5th Cir.
2003); In re Continental Airlines Corp.,
901 F.2d 1259, 1263 (5th Cir. 1990);
Parker v. Connors Steel Co., 855 F.2d
1510, 1525-27 (11th Cir. 1988).
Compared with situations like the one
before us in In re School Asbestos
Litigation, determining the appropriate
remedy is not a complex matter. The letter
came late in the litigation, and only the
final decisions currently before us on
direct appeal could possibly have been
affected. Moreover, both of those
decisions are subject to plenary review by
this court, one because it is a summary
judgment and the other because it is based
on the District Court’s resolution of a pure
issue of law.
In this context, we have two choices:
(1) we can vacate the orders before us and
remand with instructions that the cases be
assigned to a new district judge for
resolution of the pending motions and
possible further proceedings; or (2) we can
independently review the record and
determine whether the res judicata and
Rule 60(b) issues were correctly decided
as a matter of law and remand only in the
event they were not, reasoning that, if
impartial decision makers of this court, in
addition to finding a violation of § 455(a),
independently approve the orders at issue,
any error is harmless and Omaha is fairly
entitled to its judgments. Where, as here,
it appears clear that the failure to recuse
did not affect the dispositions of the
plaintiff’s claims and a remand,
accordingly, would only prolong the

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20
litigations, we conclude that the second
approach is the appropriate one.
As we explain hereafter, any trial judge
presented with this record would be
required as a matter of law to enter
summary judgment in Selkridge II and to
decline to vacate the judgment in Selkridge
I. As a result, we perceive no unfairness to
Selkridge from declining to vacate the
judgments against her, and it seems
apparent to us that a contrary decision
wo uld serve only to impose an
unnecessary, additional litigation burden
on Omaha and the District Court.
Moreover, in these circumstances, we
believe our determination that a violation
of § 455(a) occurred will provide virtually
the same encouragement to other judges
and litigants as would a remand. Finally,
we conclude (1) that our independent
review and determination of the relevant
legal issues will provide as much
legitimacy to these particular final
judgments as they would have following a
remand, reexamination by another District
Judge, and a subsequent appellate
affirmance; and (2) that our finding of
plain error on Judge Moore’s part
constitutes a corrective process sufficient
to assure continuing confidence in the
judicial process.20
IV. Summary Judgment in Selkridge II:
The Merits
The District Court granted summary
judgment for Omaha in Selkridge II based
on claim preclusion. For claim preclusion
to apply, there must have been “[1] a final
judgment on the merits in [2] a prior suit
involving the same parties or their privies,
and [3] a subsequent suit based on the
same cause of action.” General Elec. Co.
v. Deutz AG, 270 F.3d 144, 158 (3d Cir.
2001). “If these three factors are present,
a claim that was or could have been raised
previously must be dismissed as
precluded.” CoreStates Bank, N.A. v.
Huls America, Inc., 176 F.3d 187, 194 (3d
Cir. 1999). Selkridge argues only that the
ERISA claim in Selkridge II is not subject
to claim preclusion because the decision in
Selkridge I was neither final nor on the
20 Our use of “harmless error” analysis
in determining the appropriate remedy is
not in tension with the Court’s holding in
Antar that prejudice is presumed once an
appearance of impartiality is shown.
Under Antar, an effect on the proceedings
before the compromised judge is presumed
for the purpose of determining whether
appellate review is permissible in the
absence of a motion to recuse. If a
contrary result had been reached in Antar,
there would have been no appellate review
and the District Court’s judgment would
have remained in place despite the fact that
its integrity had been impaired, a result
that no appellate court could sanction in
good conscience. Our “harmless error”
analysis, on the other hand, accepts the
presumption of prejudice at the trial level,
but takes into account the fact that plain
error review makes further, curative
proceedings possible in the Court of
Appeals.

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21
merits.
Selkridge asserted only state law claims
in her complaint in Selkridge I, and Omaha
asserted an affirmative defense of ERISA
preemption as to all of those claims. The
District Court sustained that defense and
entered a final judgment on every claim
asserted. That final judgment determined
that there could be no recovery on any
claim.
As Selkridge stresses, an argument can
be made that the District Court abused its
discretion by failing to provide an
opportunity to amend.21 But that is an
argument that should have been advanced
in a timely appeal and does not render the
District Court’s summary judgment
anything other than a final judgment on the
merits. Stewart v. U.S. Bancorp, 297 F.3d
953, 959 (9th Cir. 2002) (where
defendants brought motion to dismiss
based upon all of plaintiffs’ claims being
preempted by ERISA, “[p]laintiffs were on
notice that their claims were preempted by
ERISA, and they did not seek leave to
amend or dismiss ‘without prejudice.’ . . .
Absent a request from plaintiffs to amend,
the district court had no other alternative
but to dismiss the case, finding the only
cla i m s plaintiffs presented were
preempted.”).
Accordingly, the District Court had no
choice but to dismiss Selkridge II because
the claim in that lawsuit could have been
raised in Selkridge I.
V. The Rule 60(b) Motion in Selkridge I:
The Merits
Rule 60(b) provides:
On motion and upon such terms as
are just, the court may relieve a party
or a party’s legal representative from
a final judgm ent, o rde r, or
proceedin g for the fo llowing
reasons: (1) mistake, inadvertence,
surprise, or excusable neglect; (2)
newly discovered evidence which by
due diligence could not have been
discovered in time to move for a new
trial under Rule 59(b); (3) fraud
(whether heretofore denominated
i n t r i n s i c o r e x t r i n s i c ) ,
m i s r e p re s e n t a ti o n , o r o t h e r
misconduct of an adverse party; (4)
the judgment is void; (5) the
judgment has be en sa tisfied,
released, or discharged, or a prior
judgment upon which it is based has
been reversed or otherwise vacated,
or it is no longer equitable that the
judgment should have prospective
application; or (6) any other reason
justifying relief from the operation of
the judgment.
Selkridge urges that the District Court
21 But see Ramsgate Court Townhouse
Ass’n v. West Chester Borough, 313 F.3d
157, 161 (3d Cir. 2002) (District Court did
not abuse its discretion in failing to
address a request for permission to amend
the complaint contained in a brief but
never made the subject of a motion).

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22
committed reversible error by failing to
vacate the summary judgment in Selkridge
I pursuant to the residual provision of Rule
60(b)(6). Her argument is that the District
Court committed legal error in entering
that summary judgment. Even if that were
true, however, it would not, as a matter of
law, justify relief under Rule 60(b)(6).
As we held in Martinez-McBean v.
Government of Virgin Islands, 562 F.2d,
908, 912 (3d Cir. 1977), “[L]egal error
does not by itself warrant the application
of Rule 60(b). The correction of legal
errors committed by the district courts is
the function of the Courts of Appeals.
Since legal error can usually be corrected
on appeal, that factor without more does
not justify the granting of relief under Rule
60(b)(6). We know of no authority to the
contrary.” See also Morris v. Horn, 187
F.3d 333, 343-44 (3d Cir. 1999) (“What
[Appellant] is attempting to raise as a Rule
60(b) motion is in fact what he should
have brought as an appeal.”).
VI. Conclusion
For the foregoing reasons, we will
dismiss the appeal from the February 22,
2002, grant of summary judgment in
Selkridge I, No. 03-1146, for lack of
jurisdiction and will affirm the District
Court’s orders entered on December 23,
2002, in Selkridge I (No. 03-1146) and
Selkridge II (No. 03-1147).

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