Amy Jerrine Mischler v. Matt Bevin

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 18a0067p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
A MY J ERRINE MISCHLER,
Plaintiff-Appellant,
v.
M ATT BEVIN, in his official capacity as Governor of
Kentucky; ANDY BESHEAR , in his official capacity
as Attorney General; STITES & HARBISON, P LLC;
HOWARD KEITH HALL ; J ULIE PAXTON; J OSEPH
LAMBERT ; TIMOTHY FEELEY; J OHN DAVID PRESTON;
J ANIE WELLS ; LEWIS D. NICHOLLS; SUSAN
HOWARD; DEBRA WILCOX-LE M ASTER; KATHY
LARDER; D EBORAH W EBB; SHEREENA HAMILTON-
SPURLOCKE ; LATOYA J ONES ; WILMA TAYLOR; M IKE
HARTLAGE ; GWEN HATFIELD; J EFFREY PRATHER;
CRAIG NEWBORN; M ONA WOMACK ; DEBBIE DILE ;
ZACK OUSLEY; EMILY GRAY-J ONES ; DR. SALLY
BRENZEL ; SELENA WOODY STEVENS ,
Defendants-Appellees.
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No. 18-5249
Appeal from the United States District Court
for the Eastern District of Kentucky at Frankfort.
No. 3:17-cv-00066—Gregory F. Van Tatenhove, District Judge.
Decided and Filed: April 4, 2018
Before: GUY, DAUGHTREY, and SUTTON, Circuit Judges.
_________________
ORDER
_________________
PER CURIAM. We must determine whether this appeal is properly before this court.
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No. 18-5249 Mischler v. Bevin Page 2
Amy Jerrine Mischler filed a civil rights action against multiple government officials.
She later asked the district court judge to recuse himself from the case under 28 U.S.C. § 144.
On March 2, 2018, the district court entered an order denying Mischler’s motion for recusal.
On March 7, 2018, Mischler appealed the order.
This court lacks jurisdiction over the appeal. The district court has not entered a final
appealable order terminating all of the issues presented in the litigation. And an order denying
recusal is not immediately appealable under the collateral order doctrine. See Firestone Tire
& Rubber Co. v. Risjord, 449 U.S. 368, 373–75 (1981).
We pause to note a possible exception—and to explain why it does not apply. We have
previously said that a non-final order denying recusal may be reviewed in a mandamus
proceeding. In re Aetna Cas. & Sur. Co., 919 F.2d 1136, 1143 (6th Cir. 1990) (en banc). But we
have not said when that is the case. Today we make clear that, consistent with Supreme Court
precedent, the exception applies only when a petitioner alleges that delay will cause irreparable
harm. See Firestone Tire, 449 U.S. at 378 n.13. Otherwise, a party could always circumvent the
final judgment rule by petitioning for a writ of mandamus. See Roche v. Evaporated Milk Ass’n,
319 U.S. 21, 27–31 (1943); 16 Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 3932.1 (3d ed. 2017).
Where does that leave Mischler? She insists that the judge “should have recused”
himself “because his paramour” is an employee of one of the defendants. R. 56 at 2. But she
makes no argument “that the harm [she] might suffer if forced to await the final outcome . . . is
any greater than the harm suffered by any litigant forced to wait.” Firestone Tire, 449 U.S. at
378 n.13. We therefore decline to treat the appeal as a petition for a writ of mandamus.
Accordingly, the appeal is DISMISSED for lack of jurisdiction.
ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk

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