The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.
On March 11, 2008, I first became aware that at the date of entry of final judgment in this matter, September 14, 2007, my son owned stock in Time Warner Cable Inc. ("TWC"). I learned this from copies of statements I received that day in preparation of my annual Financial Disclosure Report;*fn1 the statements reflect that my son owned 100 shares of TWC stock for three and one-half months in 2007 (on August 1, 2007, 100 shares of TWC stock were acquired for a cost of $3,711.57; on November 13, 2007, all 100 shares of TWC stock were sold at a loss). My son was twenty-one years old throughout the period that he owned TWC stock.
Based on these facts, the Court sua sponte considers the issue of recusal. See In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1312 (2d Cir. 1988) ("Discretion is confided in the district judge in the first instance to determine whether to disqualify [her]self."). For the reasons stated below, the Court finds that recusal is not warranted.
The Court finds that recusal is not warranted under 28 U.S.C. § 455(b)(4). Under this provision, a judge must recuse herself if "[s]he knows that [s]he, individually or as a fiduciary, or [her] spouse or minor child residing in [her] household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding."
Assuming arguendo that my son's ownership of TWC stock constitutes such a "financial interest,"*fn2 recusal is not warranted under § 455(b)(4). First, my son was not a "minor child" throughout the three and one-half months that he owned TWC stock. See Sears, Roebuck & Co. v. Automotive Controls Corp., No. 93 Civ. 3634, 1994 U.S. Dist. LEXIS 749, at *2 (N.D. Ill. Jan. 28, 1994) (quoting Sperling v. Comm'r, 726 F.2d 948, 951 n.6 (2d Cir. 1984)). Second, I did not have actual knowledge of his ownership of TWC stock until March 11, 2008. See Chase Manhattan Bank v. Affiliated FM Ins. Co., 343 F.3d 120, 127 (2d Cir. 2003) (holding that "Section 455(b)(4) embodies an actual knowledge test").
Accordingly, the Court finds that recusal is not warranted under 28 U.S.C. § 455(b)(4).
The Court finds that recusal is not warranted under 28 U.S.C. § 455(a). Under this provision, a judge "shall disqualify [her]self in any proceeding in which [her] impartiality might reasonably be questioned."
§ 455(b) and § 455(a) "focus on different types of conflicts requiring recusal. Section 455(b) focuses on interests and situations [that present conflicts of interest], while 'the goal of section 455(a) is to avoid even the appearance of partiality.'" In re Certain Underwriter Defendants, 294 F.3d 297, 306 (2d Cir. 2002) (quoting Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 860 (1988)). As stated above, a violation of § 455(b)(4) requires actual knowledge of the disqualifying interest. In contrast, "[s]cienter is not an element of a violation of § 455(a)." Liljeberg, 486 U.S. at 859. The Court must instead apply "Section 455(a)'s objective reasonable person test." Chase Manhattan Bank, 343 F.3d at 130. Specifically, recusal is warranted under § 455(a) when "(i) a reasonable person knowing all the facts, would conclude that the judge had a disqualifying interest in a party under Section 455(b)(4), and (ii) such a person would also conclude that the judge knew of that interest and yet heard the case." Id. at 128. Under the reasonable person standard, the Court finds that recusal is not warranted.
Pursuant to the plain language of the statute, § 455(b)(4) applies only to financial interests held by the judge, the judge's spouse, and the judge's minor children residing in the household. 28 U.S.C. § 455(b)(4). As stated above, my son was not a minor child throughout the period of his ownership of TWC stock. Thus, no reasonable ...