author: KAREN LeCRAFT HENDERSON, Circuit Judge:

text:
    WSB, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, NewCity Communications of Massachusetts, Inc., Intervenor.
    No. 95-1289.
    United States Court of Appeals, District of Columbia Circuit.
    Argued March 15, 1996.
    Decided June 14, 1996.
    Kevin F. Reed, Washington, DC, argued the cause, for the appellant.

      Clifford G. Pash, Jr., Counsel, Federal Communications Commission, Washington, DC, argued the cause, for the appellee. William E. Kennard, General Counsel, and John E. Ingle, Deputy Associate General Counsel, Washington, DC, were on brief. Daniel M. Armstrong, Associate General Counsel, Washington, DC, entered an appearance.
    Irving Gastfreund, Washington, DC, entered an appearance, for the intervenor.
    Before: BUCKLEY, HENDERSON and RANDOLPH, Circuit Judges.
   Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge:

The owner of an Atlanta television station wants to purchase a radio station that is licensed to La Grange, Georgia but is also heard in Atlanta. Before asking the Federal Communication Commission (FCC) to approve the broadcast license transfer, the radio station’s current owner sought the FCC’s permission to modify the station’s radio signal so that a small area of Atlanta no longer received the signal. The FCC denied the request because the radio station owner’s reason for the requested signal change was to allow the television station owner’s purchase of the radio station to meet FCC multiple media ownership rules. The FCC also denied the television station owner’s subsequent request for a waiver. The television station owner appeals from the FCC’s consolidated order, arguing primarily that the FCC’s rationale for denying both the modification and the waiver requests was arbitrary. We disagree and affirm the FCC.

Background

This case involves the efforts of Cox Enterprises, Inc. (Cox) to buy commercial radio station WJZF (FM) (WJZF radio) from NewCity Communications of Massachusetts, Inc. (NewCity). Cox owns an Atlanta VHF television station (WSB-TV), two Atlanta radio stations (WSB-AM and WSB-FM) and two Atlanta daily newspapers (The Atlanta Constitution and The Atlanta Journal). NewCity broadcasts WJZF radio from an antenna located between Atlanta and La Grange, Georgia. Although WJZF radio’s “community of license” is La Grange, and it must therefore provide that small rural community with a strong radio signal, see 47 C.F.R. § 73.315 (1994), WJZF radio is also heard throughout Atlanta. Cox would own six significant Atlanta media sources if allowed to purchase WJZF radio.

Cox’s proposed purchase of WJZF radio implicates two of the FCC’s media ownership rules. See 47 U.S.C. § 310(d) (requiring FCC approval to transfer radio broadcast license). The FCC enforces local media ownership restrictions to promote diversity of views and programming as well as to “prevent undue concentration of economic power” in a particular community. See In re Amendment of Section 73.3555 of the Commission’s Rules, the Broadcast Multiple Ownership Rules, 4 F.C.C.R. 1741, 1745 (1989); FCC v. National Citizens Comm. for Broadcasting, 436 U.S. 775, 781, 98 S.Ct. 2096, 2105, 56 L.Ed.2d 697 (1978). Under its “one-to-a-market rule,” the FCC will not grant a commercial radio license to a company that already owns a local television station. See 47 C.F.R. § 73.3555(c) (1994). Similarly, under its “daily newspaper cross-ownership rule,” the FCC will not grant a commercial radio license to a company that already owns a local daily newspaper. See 47 C.F.R. § 73.3555(d). The multiple ownership rules prohibit the owner of a community’s television station or daily newspaper from also owning a radio station that “encompasses” the community.

Cox’s and NewCity’s initial strategy for gaining FCC approval of their transaction was to modify WJZF radio’s signal so that the station would no longer “encompass” Atlanta. Because Cox already owns one Atlanta television station and two Atlanta newspapers, both the “one-to-a-market” and the “newspaper cross-ownership” rules prohibit Cox from acquiring a radio station which has a signal “encompassing” Atlanta; Atlanta is both the “community of license” and the “community in which such newspaper is published” for Cox’s television station and daily newspapers respectively. WJZF radio’s signal encompasses Atlanta and thus Cox could not own the station. Undaunted, NewCity submitted to the FCC a Minor Change Application asking for permission to modify WJZF radio’s signal so that a “sliver” of Atlanta would no longer receive the signal. Because the modified signal would no longer encompass Atlanta, the multiple ownership rules would not prevent Cox from purchasing WJZF radio.

On August 11, 1993 the Chief of the Mass Media Bureau’s Audio Services Division granted NewCity permission to modify the radio signal. Jacor Broadcasting, Inc. (Jacor), a licensee of two Atlanta radio stations (WGST (AM) and WPCH (FM)), objected to NewCity’s modification request and petitioned the FCC for review of the decision. Before the FCC ruled on the modification request, NewCity and Cox asked the FCC to approve NewCity’s assignment of the modified WJZF radio to WSB, Inc., a wholly owned subsidiary of Cox.

In response to the assignment application, the Chief of the FCC’s Mass Media Bureau asked NewCity and Cox to submit materials establishing that Cox’s ownership of unmodified WJZF radio qualified for waivers from the FCC’s multiple ownership rules. Cox and NewCity requested that the FCC grant Cox “case-by-case” waivers to allow it to purchase WJZF radio. See 4 F.C.C.R. at 1744 (describing criteria for granting “case-by-ease” waiver from multiple ownership rules in light of “dramatic increase in the number of media outlets in markets of all sizes, which has enhanced both viewpoint and programming diversity on a local level”).

On May 5, 1995 the FCC issued a consolidated order reversing the Mass Media Bureau’s approval of the modification request and denying the assignment request. New-City Communications of Mass., Inc., 10 F.C.C.R. 4985 (1995). The FCC agreed that Cox could purchase a modified WJZF radio because as modified the station would not encompass Atlanta. The FCC denied the modification request, however, because the purpose of the request was to allow Cox to buy the radio station. The FCC decided against waiving the one-to-a-market rule (it did not reach the waiver request regarding the newspaper cross-ownership rule) and denied NewCity’s request to assign WJZF radio to Cóx. Cox’s appeal, in the name of WSB, Inc., followed.

Modification Request

The FCC claims that a procedural lapse prevents us from reviewing Cox’s appeal from the denial of NewCity’s modification request. Section 405(a) of the Communications Act of 1934 (Act) reads:

The filing of a petition for reconsideration shall not be a condition precedent to judicial review of any [FCC] order, decision, report, or action except where the party seeking such review (1) was not a party to the proceedings resulting in such order, decision, report, or action, or (2) relies on questions of fact or law upon which the Commission, or designated authority within the Commission, has been afforded no opportunity to pass.

47 U.S.C. § 405(a) (emphasis added). The FCC argues that Cox “was not a party” to the modification application. Cox did not petition for reconsideration of the FCC’s reversal dismissing the modification application and the agency therefore concludes that under section 405(a)(1) we cannot review Cox’s challenge to its denial of NewCity’s modification application.

Although silent before the staff decision to approve NewCity’s modification request, Cox defended that decision before the FCC. After Jacor petitioned for review, the FCC sent Cox and NewCity a letter “in reference to the recently granted application to modify the facilities of [WJZF], La Grange, Georgia, and the pending application to assign the license of [WJZF].” Joint Appendix (JA) 226. The letter noted “the Commission’s traditional concern with facilities modifications designed solely to avoid overlap problems under the multiple ownership rules.” Id. Cox defended the initial decision to approve NewCity’s proposed modification. The FCC’s consolidated order addressed Cox’s arguments regarding the modification application. 10 F.C.C.R. at 4987. These circumstances cause us to conclude that Cox “participated in the proceedings” involving NewCity’s modification request. We therefore turn to the merits of the FCC’s modification decision.

The FCC denied NewCity’s modification request because the request was “ ‘designed solely to avoid overlap problems.’” 10 F.C.C.R. at 4986. Cox claims that the FCC’s refusal to approve NewCity’s modification request was such a departure from FCC precedent that it was an abuse of discretion. We disagree.

Cox first argues that the FCC arbitrarily relied on inapplicable precedent. The FCC cited two decisions, Huron Shores Broadcasting Corp., 53 F.C.C.2d 216, 217 (1975), and Jones T. Sudbury, 4 Rad. Reg.2d (P & F) 679, 680 (FCC 1965), in support of its rationale. Repeating language from Sudbury, the FCC stated in Huron: “[T]he Commission is concerned about proposed modifications designed solely to avoid overlap problems.” 53 F.C.C.2d at 217. Cox claims the two decisions are inapplicable because they both, it appears, involved rural communities with few radio stations. In contrast, Atlanta is an mb an city with nineteen licensed commercial radio stations. As the FCC concluded, however, “[t]here is nothing in the two cases that limits the broad language proscribing modifications requested for the sole purpose of avoiding the multiple ownership rules to the circumstances of those cases.” 10 F.C.C.R. at 4987. Cox’s attempt to distinguish Huron and Sudbury based on facts not even mentioned in those orders does not come close to convincing us that the FCC acted arbitrarily in relying on its two earlier decisions to deny NewCity’s modification request.

Cox also claims that the FCC has “implicitly” overruled Huron. (Appellant’s Br. at 24.) The FCC “allots” radio frequencies to specific communities. Because a commercial station depends on advertising for income, it is often more lucrative for a broadcaster to provide radio service to an urban community than to a rural community even if the urban area has multiple stations and the rural area none. See Communications Investment Corp. v. FCC, 641 F.2d 954, 964 (D.C.Cir.1981) (“It is to be expected that broadcasters will constantly apply whatever pressure they can bring to bear to get FCC approval for placement of their stations as close to the heart of a major population center as possible.”) To prevent a broadcaster from applying for a license allotted to a small community while intending to profit from a nearby urban area, the FCC developed a collection of policies to determine “which community an applicant actually intended to serve.” The Suburban Community Policy, the Berwick Doctrine, and the De Facto Reallocation Policy, 93 F.C.C.2d 436, 437 (1983); see Communications Investment Corp., 641 F.2d at 967. In its Suburban Community Policy decision, however, the FCC repealed the community policies because the increased requirements delayed approval of proposed stations, causing the policies to thwart rather than further the statutory goal of making radio more available to different communities. Cox argues that repeal of the community policies also repeals Huron because both involved regulating the intent behind a proposed modification or assignment.

In its order below, the FCC declared that it has not “overruled or modified” Huron and Sudbury. 10 F.C.C.R. at 4987. Although both the community policies and the multiple ownership rules affect a broadcaster’s modification request, they have different rationales. The community policies sought to prevent communities from having all the broadcast media; the multiple ownership rules prevent individuals from having all the broadcast media. Compare Communications Investment Corp., 641 F.2d at 965 (“If left to their own devices broadcasters would congregate around the biggest city in the area.”) with Astroline Communications Co. v. FCC, 857 F.2d 1556, 1558 (D.C.Cir.1988) (“The one-to-a-market rule reflects the Commission’s commitment to diversity in ownership and control of broadcast licenses.”). Abandoning a regulatory method (monitoring the reason for a proposed modification) because it no longer serves a regulatory goal (increasing the number of served communities) does not require the FCC to jettison the regulatory method altogether if the method continues to further a separate regulatory goal (increasing the number of station owners). We defer to the FCC’s decision to reaffirm Huron and Sudbury.

Cox complains that this holding mil result in the “cruel irony” of punishing it for pursuing the assignment request too soon after the modification request. (Appellant’s Rep. Br. at 3 n.6.) Had Cox waited more than the eleven weeks it did to file the assignment request, the FCC might not have known the reason for the modification and thus might well have allowed the modification. Nevertheless, it is far from clear that delay would have allowed Cox to own the station. Even if the FCC had approved NewCity’s modification request, Cox’s subsequent — albeit delayed — assignment request would have revealed that the reason for NewCity’s modification was to make Cox’s ownership of the station fit the multiple ownership rules. The FCC might well have decided not to approve an assignment application which complied with the multiple ownership rules solely because of a (much) earlier modification made to facilitate the subsequent assignment. Cf. NLRB v. American Geri-Care, Inc., 697 F.2d 56, 60 (2d Cir.1982) (upholding NLRB finding based on “stunningly obvious” timing of employer’s actions).

Waiver Request

The FCC’s case-by-case approach to a requested waiver from the multiple ownership rules weighs five factors. Because WJZF radio is a powerful “Class Cl” station and Cox already owns multiple media sources, the FCC decided that neither the broadcast power of the radio station nor the owner’s other media holdings supported a waiver. 10 F.C.C.R. at 4989. Cox did not assert that the radio station was facing financial hardship so the third factor did not support granting a waiver. The FCC acknowledged that the proposed transaction might not increase media concentration in Atlanta but stated that this factor alone did not justify granting the waiver (otherwise the case-by-case waiver approach could become a large-market general exception — see infra). The FCC dubbed Cox’s proposals to increase WJZF radio’s public service programming and to start a minority training program “minor.” Id. at 4990. It also doubted that joint ownership would produce “economies of scale,” another alleged public benefit, because Cox operates all of its radio and television stations independently.

Cox thus has little claim to a waiver, as its belated request suggests, and its arguments on appeal have no merit. See 4 F.C.C.R. at 1753 (“Waiver requests forwarded by applicants who already own a number of media outlets in the relevant market will have a higher hurdle than those from applicants with few outlets.”); WAIT Radio, 459 F.2d at 1207 (waiver applicant faces “high hurdle”). The FCC did not ignore evidence of the lack of competitive harm caused by the proposed purchase — it rejected the waiver request even assuming there was no competitive harm. 10 F.C.C.R. at 4990. Cox also claims that the FCC departed from standards applied in earlier waiver cases in denying Cox’s waiver request but Cox provides not a single case where the FCC granted a cross ownership case-by-ease waiver to a buyer with a similar market position to Cox’s and with similar public benefits. On the other hand, the FCC can point to precedent supporting its decision to deny Cox’s waiver request. See Kargo Broadcasting, Inc., 5 F.C.C.R. 3442 (1990) (denying case by case waiver to owner of Salt Lake City newspaper and television stations).

Although the proposed transaction would provide little public benefit, we are skeptical that blocking the transaction does much for the public weal either. In the same order creating the “case-by-ease” waiver, the FCC stated it intended to “look favorably” on common ownership of radio and television stations if the stations are located in large urban areas where there are many independent stations (“top 25 markets/30 voices” test). The presumptive waiver rule would apply to the Atlanta media market (Atlanta is the tenth largest television market and has over forty independent stations) and so one might think that Cox’s proposed ownership of WJZF radio would clear the hurdle, high as it is. In Revision of Radio Rules and Policies, 7 F.C.C.R. 6387 (1992), however, the FCC in a brief footnote rejected the suggestion that the top 25 markets/30 voices exception apply to a television owner seeking to acquire a second local radio station. It escapes us why Cox’s ownership of WJZF radio is more threatening to the public interest because of its ownership of other radio stations or, more generally, why the proposed assignment is inimical to the public interest notwithstanding Cox’s other media holdings. See 10 F.C.C.R. at 4992 (Quello, Comm’r, concurring) (“I am also somewhat baffled as to why Cox’s purchase of an additional FM station should be denied in light of the vast array of other radio, television, [and] cable ... available in Atlanta.”). The FCC is of course free to decide, as it did in Huron, that “fixed overlap standards [are] vastly superior to an ad hoc approach,” 53 F.C.C.2d at 216, but where, as here, neither the general rule nor its specific application may serve the public interest the FCC arguably steps outside its statutory role. See 47 U.S.C. § 307(a) (“The Commission, if the public eonvenience, interest, or necessity will be served thereby ... shall grant to any applicant therefor a station license.”) Cox, however, never asked for a top 25 markets/30 voices waiver.

For the preceding reasons, we affirm the FCC’s consolidated order denying both NewCity’s modification request and Cox’s assignment application.

Affirmed.

      . Formerly WYAI.

      . Although Cox owns two radio stations, its purchase of WJZF radio would not violate the radio duopoly rule because of the stations’ combined audience size. See 47 C.F.R. § 73.3555(a)(1)(ii) (permitting joint ownership of up to 2 AM and 2 FM stations in large radio markets provided combined audience share is less than 25 per cent).

      .Similar FCC rules promote the same goals at the national level. See, e.g., 47 C.F.R. § 73.3555(e)(1) ("National multiple ownership rule”).

      .The “one-to-a-market ownership rule" states in part:
      No license for an AM, FM or TV broadcast station shall be granted to any party (including all parties under common control) if such party directly or indirectly owns, operates or controls one or more such broadcast stations and the grant of such license will result in: ... The predicted 1 mV/m contour of an existing or proposed FM station ... encompassing the entire community of license of an existing or proposed TV broadcast station(s), or the Grade A contour(s) of the TV broadcast station(s) ... encompassing the entire community of license of the FM station.
      47 C.F.R. § 73.3555(c). The newspaper cross-ownership rule is similar except that it refers to the "community in which such newspaper is published” rather than the "community of license.” See 47 C.F.R. § 73.3555(d).

      . Cox’s ownership of WSB-TV, WSB-FM and WSB-AM is exempt from the FCC multiple ownership rules because Cox owned the stations before the FCC rules became effective. See 47 C.F.R. § 73.3555 n.4 (multiple ownership rules shall “not be applied so as to require divestiture, by any licensee, of existing facilities").

      . NewCity requested permission to change the station’s transmitter from "omnidirectional” to "directional." Eighty thousand Atlanta residents, three per cent of WJZF radio’s current audience, would no longer receive the radio signal if the transmitter were so modified.

      . Accepting the FCC's argument would also require us to ignore the holding in Office of Communication of the United Church of Christ v. FCC, 779 F.2d 702 (D.C.Cir.1985). In that case, we relied on Washington Ass’n for Television & Children v. FCC, 712 F.2d 677 (D.C.Cir.1983) (WATCH) to hold that “Section 405 simply codifies the common law exhaustion requirement.” 779 F.2d at 707. The FCC asks us to disavow the UCC decision because in that case we purportedly disregarded the statutory text and instead relied on WATCH, a case interpreting section 405(a)(2), not (a)(1). (Appellee’s Br. at 17 n.9.) ("We believe that this decision [UCC] was in error.”) We considered and rejected the same arguments in UCC itself. See 779 F.2d at 706-07 (quoting language of statute and acknowledging different provision at issue in WATCH).

      . The FCC orders in Huron and Sudbury omitted these facts; Cox apparently reviewed the parties' original documents, now some twenty to thirty years old. (Appellant’s Br. at 26-27.)

      . The Act requires the FCC to “make such distribution of licenses, frequencies, hours of operation and of power among the several States and communities as to provide a fair, efficient, and equitable distribution of radio service to each of the same.” 47 U.S.C. § 307(b). See National Broadcasting Co. v. United States, 319 U.S. 190, 217, 63 S.Ct. 997, 1010, 87 L.Ed. 1344 (1943) (describing goal of Act to "secure the maximum benefits of radio to all the people of the United States"); FCC v. Allentown Broadcasting Corp., 349 U.S. 358, 359-62, 75 S.Ct. 855, 856-58, 99 L.Ed. 1147 (1955) (describing section 307(b) goal "to secure local means of expression”); 47 C.F.R. § 73.202(b) (allotting FM channels to communities across country).

      . WJZF's radio frequency is licensed to La Grange but its radio antenna is located halfway between La Grange and Atlanta.

      . See, e.g., Policy Statement on Section 307(b) Considerations for Standard Broadcast Facilities Involving Suburban Communities, 2 F.C.C.2d 190, 193 (1965) (suburban community policy); Berwick Broadcasting Corp., 20 F.C.C.2d 393 (1969), modifying 12 F.C.C.2d 8 (1968), on remand, P.A.L. Broadcasters, Inc., 40 F.C.C.2d 546 (1973) (Berwick policy); Hall Broadcasting Co., Inc., 40 F.C.C.2d 546 (1973) (de facto reallocation policy). For example, if an applicant for an AM license proposed a radio signal that covered both the community of license and an urban community, the presumption was that the applicant intended to serve the urban community, a presumption the applicant could rebut by showing it planned to serve the distinctive programming needs of the suburban community. See Beaufort County Broadcasting Co. v. FCC, 787 F.2d 645, 650-53 & n. 6 (D.C.Cir.1986).

      . Instead, the FCC decided that “a renewal challenge for failure actually to serve the designated community constitutes a more effective regulatory tool than utilization in advance of guidelines and factors that are inexact in divining intent.” Suburban Community Policy, 93 F.C.C.2d at 437.

      . The FCC also denied the modification request because it proposed reducing service to 80,000 people without providing an offsetting public benefit. 10 F.C.C.R. at 4987. Because we uphold the FCC based on its policy of diffused ownership, we need not decide whether the service loss constitutes a separate ground on which to deny the modification request.

      . The factors are: (1) the public benefits of common ownership; (2) the type (i.e. broadcast power) of facilities involved; (3) the financial status of the station to be purchased; (4) the number of stations the applicant already owns in the market; and (5) diversity in the market if the purchase is approved. A strong showing based on one factor can compensate for a weak, or no, showing based on another factor. See Kargo Broadcasting, Inc., 5 F.C.C.R. 3442 (1990).

      . This “presumptive waiver" rule is "based on the fact that a very large number of broadcast outlets and separate voices will remain in these large markets, thereby preventing any single outlet or firm from obtaining undue economic power or undue sway over public opinion. Indeed, we believe that our ‘top 25 markets/30 voices’ standard is conservative and may far exceed the market size and the number of voices necessary to ensure diversity and prevent competitive abuses.” 4 F.C.C.R. at 1751. See Telecommunications Act of 1996, Pub.L. No. 104-104, 110 Stat. 56, 111, sec. 202(d) (instructing FCC to extend its presumptive waiver policy to top 50 markets "consistent with the public interest, convenience, and necessity").

      . The footnote reads in full:
      In addition, we note that CapCities/ABC requests that the Commission extend the application of the top 25 markets/30 voices test (one-to-a-market waiver process) to television licensees who propose to acquire more than one radio station in a community in the same service. Possible revisions to the one-to-a-market prohibition, including the impact of revised ownership limits, are being addressed in the Commission's television ownership proceeding. Until the issue is resolved, we will consider waiver requests using the case-by-case waiver approach, taking into account our general conclusions in this proceeding regarding the public interest in a strengthened radio service.
      7 F.C.C.R. 6387 n. 40 (citations omitted).


source: Caselaw Access Project

author: RANDOLPH, Circuit Judge: TATEL, Circuit Judge, with whom WALD, Circuit Judge, and KESSLER, District Judge,

license: Public Domain

text:
    In the Matter of a CHARGE OF JUDICIAL MISCONDUCT OR DISABILITY
    Judicial Council Complaint No. 95-14.
    Judicial Council for the District of Columbia Circuit.
    June 18, 1996.

      Before: WALD, BUCKLEY, GINSBURG, RANDOLPH, ROGERS, and TATEL, Circuit Judges; PENN, Chief Judge of the United States District Court, and JOHNSON, JACKSON, SPORKIN, LAMBERTH, and KESSLER, District Judges.

       EDWARDS, Chief Judge of the Circuit, took no part in the consideration or disposition of this petition.

   Opinion for the Judicial Council filed by Circuit Judge RANDOLPH.

Concurring opinion filed by Circuit Judge TATEL, in which Circuit Judge WALD and District Judge KESSLER join.

District Judge JACKSON concurs in the result.

RANDOLPH, Circuit Judge:

A complaint of misconduct has been lodged against a judge on the “Special Division” of the United States Court of Appeals for the District of Columbia Circuit (49 U.S.C. § 49) who participated in the appointment of an independent counsel to investigate the late Secretary of Commerce Ronald H. Brown. The complaint alleges that the judge is a close friend of a United States Senator who called for the appointment of an independent counsel to investigate Secretary Brown and that the Senator employs the judge’s wife as a receptionist. These ties, according to the complaint, created a situation in which the judge’s impartiality might reasonably be questioned, and should have caused the judge to disqualify himself. The judge’s failure to do so, the complaint concludes, constituted “conduct prejudicial to the effective and expeditious administration of the business of the courts” within the meaning of 28 U.S.C. § 372(c)(1), and warrants disciplinary action against the judge.

Chief Judge Edwards dismissed the complaint, holding that the facts alleged, even if true, did not create the appearance of partiality. The Chief Judge reasoned that the decision whether to appoint an independent counsel rests with the Attorney General, id § 592(c), and once the Attorney General requests such an appointment, the Special Division must comply, id § 593(b)(1). Therefore, the ties between the judge and the Senator could not have affected the decision whether to appoint an independent counsel. The only decision within the Special Division’s control was who should be appointed, and there is no indication that the person appointed was unqualified or biased against Secretary Brown. The Chief Judge therefore determined that there was “no good basis upon which to question the actions of the judge or the decision of the Special Panel.” The complainant has now petitioned the Judicial Council for review of the Chief Judge’s decision.

The complaint and the petition assert that the judge’s conduct violated 28 U.S.C. § 455(a) and the corresponding Canon 3C(1) of the Code of Conduct for United States Judges, both of which require federal judges to disqualify themselves “in any proceeding in which [their] impartiality might reasonably be questioned.” The Chief Judge’s decision questioned the applicability of these provisions, but nonetheless resolved the case by “assuming, arguendo, that the appointment of an independent counsel is a ‘proceeding’ to which the recusal statute and Canon 3(C) apply.” We share the Chief Judge’s doubts about the applicability of § 455 and Canon 3C. Both the statute and the canon state that “ ‘proceeding’ includes pretrial, trial, appellate review, or other stages of litigation.” 28 U.S.C. § 455(d)(1); Canon 3C(3)(d). The appointment of an independent counsel does not fit comfortably within this description. The statute and Canon 3C seek to preserve judicial “impartiality,” which suggests an adversary context and adjudication.

Appointments are not mentioned in § 455, but are addressed separately in Canon 3B, under the heading of “administrative responsibilities.” Canon 3B(4) comes closest to the situation at hand: a judge should exercise the appointment “power only on the basis of merit, avoiding nepotism and favoritism.” Canon 3 states generally that “[a] judge should perform the duties of the office impartially and diligently,” and defines judicial duties to include “all duties of the office prescribed by law.” The Reporter’s Notes to the Code of Judicial Conduct indicate that such duties include both adjudicative and nonadjudicative duties “prescribed by constitution, statute, rule, regulation, or common law.” E. Wayne Thode, Reporter’s Notes to Code of Judicial Conduct 50 (1973); see Committee on Codes of Conduct, Compendium § 3.6-8(b) (1995) (“Canon 3 rules on disqualification apply to all of judge’s judicial duties....”). And Canon 2 provides that “[a] judge should avoid impropriety and the appearance of impropriety in all activities.”

We do not mean to suggest that every violation of Canons 2 and 3 amounts to “conduct prejudicial to the effective and expeditious administration of the business of the courts” within 28 U.S.C. § 372(c)(1). The Commentary to Canon 1 states that “[m]any of the proscriptions in the Code are necessarily east in general terms, and it is not suggested that disciplinary action is appropriate where reasonable judges might be uncertain as to whether or not conduct is proscribed.” Canons 2 and 3 certainly qualify as provisions cast in general terms. See In re Charge of Judicial Misconduct, 62 F.3d 320 (9th Cir.1995); In re Barry, 946 F.2d 913, 914 (D.C.Cir.1991) (per curiam). Still, there is some indication that judicial councils should be guided in part by the Canons in determining whether a § 372(c)(1) violation occurred. S. Rep. No. 362, 96th Cong., 1st Sess. 9 (1979), reprinted in 1980 U.S.C.C.A.N. 4315, 4323.

Even when we take the Canons into account, we reach the same conclusion as did the Chief Judge. We agree with him that the Interim Advisory Committee on Judicial Activities Advisory Opinion No. 11 supports his decision. The Opinion, adopted in 1970 and interpreting an older code of judicial conduct, discusses the question whether a judge should recuse himself in “cases where one of the attorneys is a friend of long standing and is also a godfather of one of the judge’s children.” The complainant thinks the Opinion is no longer valid because it embodies merely a subjective standard. This is not an accurate view of the Opinion. The Opinion expressly adopts a “twofold test” that considers both “whether the judge feels capable of disregarding the relationship and whether others can reasonably be expected to believe that the relationship can be disregarded” (italics added). The italicized language states an objective test, independent of the judge’s personal view of the circumstances.

Advisory Opinion No. 11 obviously is not directly on point. Unlike a lawyer-Mend representing a party in a ease before the judge, the Senator did not appear before the Special Division. A closer analogy to Advisory Opinion No. 11, and one that must be fairly common, would be a judge’s sitting on a case involving the constitutionality of a statute a Senator-friend sponsored. If judges may decide such cases without violating their ethical duties — and we have no doubt they may — the circumstances here pose even less concern, if only because the Special Division was not adjudicating the merits of a controversy between opposing parties. And if the judge’s relationship with the Senator is not disqualifying, we do not believe his wife’s employment as the Senator’s receptionist can be. Of course one might say that the judge, because of his wife’s position, would be grateful to the Senator and inclined to act or vote in a way the Senator would approve. But the same could be said in cases involving statutes the Senator endorsed or issues the Senator supports or opposes. Such cases doubtless come before this judge, when he is sitting as a circuit judge, yet no reasonable person would think he should recuse himself in those cases. Moreover, the fact that the Senator and the judge are close Mends undercuts any suggestion that the judge would take action in order to curry favor and insure his wife’s continued employment. The judge’s wife was not in a policy-making position; she was employed as a receptionist and there is nothing to indicate that she had any involvement in formulating the Senator’s stance on the need for an independent counsel.

The complainant relies heavily on Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988), but we think the case has nothing to do with the situation before us. The main issue in Liljeberg was whether § 455(a) could “be violated based on an appearance of partiality, even though the judge was not conscious of the circumstances creating the appearance of impropriety.” Id. at 858, 108 S.Ct. at 2201. The Court distinguished § 455(a) from § 455(b)(4), holding that scienter is not an element of a § 455(a) violation and that a “judge’s lack of knowledge of a disqualifying circumstance ... does not eliminate the risk that ‘his impartiality might reasonably be questioned’ by other persons.” 486 U.S. at 859, 108 S.Ct. at 2202. Of course it is quite impossible to expect judges to disqualify themselves based on facts they do not know. Nevertheless, the Court ruled that the judge should have disqualified himself and vacated the judgment he had rendered after he realized that an organization with which he was affiliated had a stake in the litigation. Id. at 861, 108 S.Ct. at 2203. According to the Court, this was the proper interpretation of § 455 because “the provision can also, in proper eases, be applied retroactively.” Id. The Court indicated that some violations of § 455(a) might be harmless, but that there should not be “an absolute prohibition against any relief in cases involving forgetful judges.” Id. at 862, 108 S.Ct. at 2204.

The situation here does not involve disqualifying circumstances the judge forgot and then belatedly remembered. The judge knew of his wife’s employment and he knew of his friendship with the Senator. The issue framed in the complaint is not lack of knowledge, but whether those two circumstances created an appearance of impartiality.

In a supplement to his petition, the complainant brings United States v. Tucker, 78 F.3d 1313 (8th Cir.1996), to our attention. Concerned that the close relationship between the district judge and individuals who were under criminal investigation created a risk that the judge might not be perceived as impartial, the court of appeals in Tucker reassigned the case to a different judge on remand. Id. at 1324-25. Tucker would resemble this matter only if the Senator were the subject of a criminal proceeding over which the Special Division judge was presiding. Then there could be room for supposing the judge’s rulings might be affected. The district judge in Tucker at one time may have so viewed his situation; published reports quoted him as saying he would recuse if anything came up regarding his Mends. Id. at 1323. The Special Division judge, of course, has made no such public comments and there is no reason why any reasonable observer would have thought his participation in the appointment of the independent counsel, a matter in which his judgment was confined to choosing someone to fill a post the Special Division had the duty to fill, amounted to conduct prejudicial to the effective and expeditious administration of the Special Division’s business.

Complaint dismissed.

TATEL, Circuit Judge, with whom WALD, Circuit Judge, and KESSLER, District Judge,

join, concurring:

I agree that the judge’s failure to recuse himself from participating in the appointment of the independent counsel did not constitute “conduct prejudicial to the effective and expeditious administration of the business of the courts” under 28 U.S.C. § 372(e)(1). I write separately to underscore two principles that are implicit in the Council’s opinion.

First, Canons 2 and 3 of the Code of Conduct for United States Judges apply to judges’ activities on the Special Division. Canon 2 provides that “[a] judge should avoid impropriety and the appearance of impropriety in all activities”; Canon 3 requires that “[a] judge should perform the duties of the office” — which includes all “duties prescribed by law” — “impartially and diligently.” Code of Conduct for United States Judges Canons 2-3, reprinted in 2 Administrative Office of the United States Courts, Guide to Judiciary Policies and Procedures, ch. II, at 1-2, 1-9 (1993 ed.) (emphasis added). Second, in determining whether a judge on the Special Division has violated 28 U.S.C. § 372(c)(1), the Judicial Council may base its decision on whether the judge has violated one of these general canons. See Hastings v. Judicial Conference, 829 F.2d 91, 106 (D.C.Cir.1987); S.Rep. No. 362, 96th Cong., 1st Sess. 9 (1979); Code of Conduct for United States Judges Canon 1 cmt. reprinted in 2 Administrative Office of the United States Courts, Guide to Judiciary Policies and Procedures, ch.I, at 1-1 to 1-2. While not finding sanctionable conduct in this instance, the Judicial 'Council today thus affirms that judges may be held accountable for failing to avoid the appearance of impropriety whether performing their traditional judicial roles or serving on the Special Division.

I also write separately because I am not entirely comfortable with certain aspects of the Council’s analysis of whether the judge’s conduct created an “appearance of impropriety.” In particular, I do not agree that “the circumstances here pose even less concern” than a “judge’s sitting on a ease involving the constitutionality of a statute the Senator-friend sponsored.” Majority op. at 704 (emphasis added). In my view, the circumstances here present greater concern, although still not enough to create an appearance of impropriety.

An appearance of impropriety exists only when a reasonable person, “with knowledge of all the relevant circumstances that a reasonable inquiry would disclose,” would believe that “the judge’s ability to carry out [his] responsibilities with integrity, impartiality, and competence was impaired.” Code of Conduct for United States Judges Canon 2(a) cmt., reprinted in 2 Administrative Office of the United States Courts, Guide to Judiciary Policies and Procedures, ch.I at 1-3. Accordingly, the risk of an appearance of bias exists only when there is genuine risk of actual bias. Generally speaking, judges cannot appear biased if they have no opportunity for wrongdoing, such as when they perform purely ministerial tasks with full public disclosure, or if they have no incentive for wrongdoing, such as when neither a judge, nor anyone a judge knows, has a personal stake in the matter. In contrast, an appearance of impropriety would exist if a judge not only had an opportunity for impropriety, because the judge exercised discretion, but also had a strong incentive for impropriety, because, for example, the judge or the judge’s spouse had a direct financial stake in the matter before the court.

Like most judicial activities, Special Division proceedings provide some opportunity for actual impropriety. Whether or not the opportunity is less than in a merits panel, see Majority op. at 704 (stating that there is less concern “if only because the Special Division was not adjudicating the merits of a controversy between opposing parties”), an opportunity for impropriety exists because the special panel exercises some degree of discretion. Although the Special Division can appoint an independent counsel only upon the Attorney General’s recommendation, it has considerable latitude in deciding whom to appoint and in defining the initial scope of the counsel’s jurisdiction. See 28 U.S.C. § 593(b)(2)-(3) (1994). While not at issue here, the Special Division also has authority to expand the independent counsel’s jurisdiction or to appoint another independent counsel to pursue matters arising during the course of an investigation, see § 593(c)(2)(C), to terminate an independent counsel’s investigation, see § 596(b)(2), to award attorneys’ fees, see § 593(f), and to release information to Congress and the public, see §§ 592(e), 593(b)(4), 593(g), 594(h)(2). The Special Division also exercises its discretion without all of the institutional safeguards — such as oral argument in open court and the obligation to follow precedent — that help to assure impartiality in more conventional judicial proceedings.

With respect to the incentive for wrongdoing, because this case involves not only a social relationship between the judge and the Senator', but also a professional relationship between the judge’s wife and the Senator, I think the incentive for wrongdoing is potentially greater than when a judge reviews a statute sponsored by a Senator-friend. The wife’s employment poses additional potential risks: that a judge might want to tilt the scales in order to do a favor either (1) for his wife, because she had a professional interest in the matter, or (2) for the Senator, in return for employing the judge’s wife. Notwithstanding these potential risks, I agree that the incentives here were insufficient to create an appearance of impropriety under Canon 2.

By itself, the judge’s friendship with the Senator poses an insufficient incentive for wrongdoing to lead a reasonable observer to doubt the judge’s impartiality. Reasonable observers understand that federal judges may in the course of their lives have established friendships with those serving in the other branches of government; reasonable observers also presume that federal judges, like the vast majority of uneleeted public officials, are able to disregard the political views of their friends and carry out their responsibilities in a fair and impartial manner. See United States v. Jordan, 49 F.3d 152, 157-58 & n. 6 (5th Cir.1995) (friendship between judge and a person with an interest in the case does not necessarily result in an appearance of impropriety); United States v. Murphy, 768 F.2d 1518, 1537-38 (7th Cir.1985) (an ordinary friendship between judge and lawyer appearing in case does not create an appearance of impropriety).

The only additional circumstance that could affect the judge’s impartiality is the professional relationship between the judge’s wife and the Senator. While a reasonable person could believe that a judge acted to further his wife’s professional interests when the wife has been involved in the matter before the court, see 2 Administrative Office of the United States Courts, Guide to Judiciary Policies and Procedures, eh. 5, § 3.2-2(a), (a-1), (f), (l), no one has alleged that the judge’s wife in this case was involved either directly or in a supervisory capacity in developing the Senator’s stance on the appointment of the independent counsel. Nor could a reasonable person possibly believe that the wife’s initial or continued employment hinges on the judge’s decisions. No one has alleged that the Senator customarily makes employment decisions based on how his employees’ spouses perform their jobs, or that he has done so in this case.

In sum, because the alleged relationships with the Senator would not cause a reasonable person to doubt the judge’s impartiality, I agree that the judge’s failure to recuse himself did not constitute “conduct prejudicial to the effective and expeditious administration of the business of the courts.”

      . Suppose the judge’s wife worked not as a receptionist for a Senator, but as an associate for a law firm representing a litigant in proceedings before the Special Division. Between the two situations, one would think the latter raised far more serious problems. Yet even the wife's employment as an associate would not require the judge to recuse himself according to the longstanding view of the Committee on Codes of Conduct of the Judicial Conference of the United States. In Advisory Opinion No. 58, adopted August 9, 1978, the Committee determined that there would be no appearance of impropriety so long as the associate-spouse had not worked on the case and did not stand to profit from it, as would a partner in the firm. Seven Justices of the Supreme Court, in a 1993 joint policy statement on recusal, basically adopted the same approach regarding close relatives of the Justices. See Jeffrey M. Shaman et al„ Judicial Conduct and Ethics 120 (1995).

      . 28 U.S.C. § 455(b)(4) provides that a judge shall disqualify himself if “[h]e knows that he, individually or as a fiduciary, or his spouse ..., 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.”


author: COFFIN, Senior Circuit Judge.

text:
    UNITED STATES of America, Appellant, v. Amado Fernandez VENTURA and Milagros A. Cedeno, Defendants, Appellees.
    No. 95-1871.
    United States Court of Appeals, First Circuit.
    Heard Feb. 27, 1996.
    Decided May 30, 1996.

      David S. Kris, Brookline, MA, with whom Guillermo Gil, United States Attorney, Antonio R. Bazan, Assistant United States Attorney, and Nina Goodman, Washington, DC, were on brief for appellant.
    Linda BaeMel, New York City, with whom Carlos Ramirez Fiol, San Juan, PR, was on brief for appellees.
    Before TORRUELLA, Chief Judge, COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.
   COFFIN, Senior Circuit Judge.

After deplaning at San Juan International Airport, defendants Amado Fernandez Ventura and Milagros Cedeno were questioned by Customs agents and arrested for illegally transporting money, in violation of 31 U.S.C. § 5316. They filed a motion to suppress all inculpatory statements made in the absence of Miranda warnings, which was granted. The government appealed. Having concluded that the district court applied an erroneous legal test, we remand for reconsideration of the suppression motion under the proper standard.

BACKGROUND

Facts

Because of his frequent travel between St. Maarten and Puerto Rico, Fernandez was on a “lookout” list kept by the Customs Service. On November 12, 1994, after clearing immigration, Fernandez was taken to a secondary Customs inspection area. One agent asked Fernandez if he was carrying any money; Fernandez responded “$8000.” Another agent searched his suitcase, discovered women’s lingerie, and asked whom it belonged to. Fernandez answered “mi mujer,” which colloquially means “my wife” or “my woman.” Fernandez was directed to find her.

Cedeno, Fernandez’s girlfriend, had already cleared customs but was still within the customs area. Fernandez, while accompanied by an agent, located Cedeno and returned with her to the secondary inspections area. On the way there, the agent asked Cedeno whether she was carrying any money. She replied that she was carrying approximately $9,000.

A search of the defendants revealed that the actual amount in their possession was $16,166. In response to further questioning, Fernandez revealed that the money belonged to his money exchange company, of which he was president. The agents then placed the couple under arrest and read them their Miranda rights.

The defendants were charged with failing to report the transportation of monetary instruments in excess of $10,000 in violation of 31 U.S.C. § 5316, and making false statements to the Customs Service in violation of 18 U.S.C. § 1001. Upon their motion alleging a Miranda violation, the court suppressed all statements made by the defendants after Cedeno was asked whether she was carrying any money. See United States v. Fernandez Ventura, 892 F.Supp. 362 (D.P.R.1995).

The District Court’s Opinion

The district court delineated four relevant inquiries for determining whether the rule enunciated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), has been violated:

1. Was the person in “custody”?
2. Was the person “interrogated”?
3. Had the Fifth Amendment right against self-incrimination attached?
4. Had the Sixth Amendment right to counsel attached?

Under the court’s analysis, a violation occurs when “each element (custody, un-Mirandized interrogation, and attached Fifth and Sixth Amendment rights) ... exist[s] simultaneously.”

The court considered each factor. It stated that custody “depends exclusively upon whether a reasonable person in the defendant’s position would have felt free to leave.” Because “Customs is an inherently coercive environment [in that] an individual is never free to simply walk away,” the court concluded that defendants were in “custody.” In the court’s view, “interrogation” was satisfied because “[t]he parties do not dispute that all of the questioning conducted by Customs officers in this ease constituted ‘interrogation’ as defined and explained in Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).”

Most of the court’s analysis focused on whether the rights to silence and counsel had attached. The court held that “in the context of Customs interrogation, these rights attach when the questioning has ceased to be purely investigatory and has become accusatory.” Elaborating further, the court explained

[This] has both an objective and subjective element. The objective element[ ] requires that officers provide Miranda warnings when there exists probable cause to make an arrest.... The subjective element requires that officers provide Miranda warnings when it is apparent that the interrogating officer’s purpose in questioning is not purely investigatory.

As applied in the Customs setting:

when the questioning extends beyond that asked of the average Customs interrogee at either primary or secondary inspection, we infer that the interrogation has become sufficiently focused upon the interrogee to require Miranda warnings.

Applying the facts to these legal standards, the court concluded that the “interrogation turned accusatorial at the time Inspector Fisher asked Cedeno whether she was carrying any money.” At that point, the “investigation had clearly narrowed to a particular crime with particular defendants, based on what we infer to have been substantial, particularized suspicions.” Accordingly, the court determined, all ensuing statements violated Miranda, and were properly suppressed.

DISCUSSION

The government claims that the court’s test for a Miranda violation was legally erroneous. Defendants concede that the court’s approach was novel, but argue that, taken as a whole, it comports with settled precedent. Our task in this appeal is straightforward: to set forth the Miranda test as derived from Supreme Court and First Circuit caselaw and assess whether the district court followed it. Our standard of review is de novo. See United States v. Lewis, 40 F.3d 1325, 1332 (1st Cir.1994).

Miranda warnings must be given before a suspect is subjected to custodial interrogation. United States v. Taylor, 985 F.2d 3, 7 (1st Cir.1993). The custodial interrogation inquiry necessarily demands determination of its two subsidiary components: 1) custody and 2) interrogation. See Illinois v. Perkins, 496 U.S. 292, 297, 110 S.Ct. 2394, 2397-98, 110 L.Ed.2d 243 (1990) (“It is the premise of Miranda that the danger of coercion results from the interaction of custody and official interrogation.”).

The custody determination is the initial and, generally, the central inquiry: it is “the touchstone to the need for Miranda warnings.” United States v. Quinn, 815 F.2d 153, 160 (1st Cir.1987). Since Miranda, the Court has enunciated several general definitions of custody, but the ultimate inquiry is whether there was “a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” Thompson v. Keohane, 511 U.S. 318, -, 116 S.Ct. 457, 465, 133 L.Ed.2d 383 (1995) (quotation marks and citations omitted); Stansbury v. California, 511 U.S. 318, -, 114 S.Ct. 1526, 1529, 128 L.Ed.2d 293 (1994) (per curiam) (same).

In order to assess the “restraint on freedom of movement,” a court must examine all the circumstances surrounding the interrogation. This test is objective: the only relevant inquiry is “how a reasonable man in the suspect’s shoes would have understood his situation.” Stansbury, 511 U.S. at -, 114 S.Ct. at 1529 (quoting Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 3151-52, 82 L.Ed.2d 317 (1984)). The subjective beliefs held by the interrogating officers or the person being interrogated are not germane. Id.

Relevant circumstances include “whether the suspect was questioned in familiar or at least neutral surroundings, the number of law enforcement officers present at the scene, the degree of physical restraint placed upon the suspect, and the duration and character of the interrogation.” United States v. Masse, 816 F.2d 805, 809 (1st Cir.1987) (quoting United States v. Streifel, 781 F.2d 953, 961 n. 13 (1st Cir.1986)). See also United States v. Pratt, 645 F.2d 89, 90-91 (1st Cir.1981) (discussing factors in the context of a secondary customs search).

Determining what constitutes custody can be a “slippery” task. See Oregon v. Elstad, 470 U.S. 298, 309, 105 S.Ct. 1285, 1293, 84 L.Ed.2d 222 (1985). Through case by case development, however, courts have carved out certain circumstances as legally insufficient to constitute custody. See, e.g., Berkemer, 468 U.S. at 437-40, 104 S.Ct. at 3148-50 (routine traffic stops not subject to dictates of Miranda); United States v. Tajeddini, 996 F.2d 1278, 1288 (1st Cir.1993) (routine Customs questioning); Pratt, 645 F.2d at 90-91 (same). Indeed, in the Customs context, we have stated that questions from officials are. especially understood to be a necessary and important routine for travelers arriving at American entry points. See Pratt, 645 F.2d at 90. See also United States v. Moya, 74 F.3d 1117, 1120 (11th Cir.1996). This understanding cuts against the potentially coercive aspect of the Customs inquiry, and lessens the need for Miranda warnings.

In Pratt, we made clear that even secondary inspection does not per se constitute custodial interrogation. We acknowledged that though “[a]ny person required to submit to a secondary customs search may apprehend some increased level of official suspicion[,] ... this perception ... is not sufficient by itself to apply coercive pressures equivalent to custodial questioning.” 645 F.2d at 90. There, we found that the limited and routine nature of the questioning and short duration of the encounter militated against requiring Miranda warnings. The line between routine Customs questioning and custodial interrogation is not easily drawn, but it requires careful examination of all the circumstances.

The other component of custodial interrogation is, of course, interrogation. Interrogation refers to both express questioning and its “functional equivalent,” which includes “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980) (footnotes omitted). Again the inquiry is objective: how would the officer’s statements and conduct be perceived by a reasonable person in the same circumstances? See Taylor, 985 F.2d at 7. Here, quite clearly, if defendants were in custody, the officers’ express questions constituted interrogation.

In summary, Miranda warnings ensure that an individual subject to custodial interrogation has a “full opportunity to exercise the privilege against self-incrimination.” Miranda, 384 U.S. at 467, 86 S.Ct. at 1624. To find custodial interrogation, the court must first examine all the circumstances surrounding the exchange between the government agent and the suspect, then determine from the perspective of a reasonable person in the suspect’s shoes whether there was 1) a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest and 2) express questioning or its functional equivalent.

We will not dwell on all the problems in the district court’s version of the Miranda inquiry, but point out a few significant errors. First, the court took the ultimate factual and legal question — were defendants in custody? — and treated it in a per se manner: because travelers “may not simply walk away from an interrogating officer,” they are in custody. This is simply wrong. Individuals subject to routine traffic stops or customs inspections, circumstances which are not custodial, are rarely free to leave while being questioned by an officer. The relevant inquiry, however, as stated above, is whether there was an arrest or restraint on freedom of movement of the degree associated with a formal arrest.

The court’s further assertion that “all reasonable people would agree that Customs is an inherently custodial setting, regardless of the circumstances of the interrogation,” is directly contrary to our decisions in Tajeddini and Pratt and runs counter to the proper approach articulated by the Supreme Court. A custody determination requires inquiry into all circumstances surrounding the interrogation. See Keohane, — U.S. at - & n. 11, 116 S.Ct. at 465 & n. 11.

Finally, we note that the court, relying on outmoded circuit opinions, discussed certain factors, such as whether there was probable cause to make an arrest and the officers’ focus on the defendants, which are not relevant to a Miranda inquiry. At one time, certain courts found these factors relevant, see, e.g., United States v. Henry, 604 F.2d 908, 915 (5th Cir.1979) (articulating a four-factor test for custody that included these factors), but subsequent Supreme Court decisions rejected this approach. See, e.g., Berkemer, 468 U.S. at 442, 104 S.Ct. at 3151-52 (emphasizing the objective nature of the inquiry). Indeed, in light of these cases, the Fifth Circuit repudiated its four-factor test, announcing that “[pjrobable cause and focus become material to the custody inquiry only when they influence a reasonable person’s perception of the situation.” United States v. Bengivenga, 845 F.2d 593, 596-97 (5th Cir.1988) (en banc) (footnote omitted).

Defendants argue that the court’s test, taken as a whole, is consistent with our precedent. We disagree. Although there may be tests which, though formulated differently, approximate the proper standard, this is not one of them. Accordingly, we remand this case to the district court for application of the correct legal test. On remand, the court may take additional evidence on the relevant factual issues. See Streifel, 781 F.2d at 962.

The order suppressing evidence is vacated. We remand to the district court for proceedings consistent with this opinion.

      . This specific formulation was first articulated in California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (per curiam) and Minnesota v. Murphy, 465 U.S. 420, 430, 104 S.Ct. 1136, 1143-44, 79 L.Ed.2d 409 (1984). It served to clarify the Court’s conception that Miranda applied after a “person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 444, 86 S.Ct. at 1612 (footnote omitted).

      . In Keohane, the Court made clear that the ultimate determination of custody is a mixed question of fact and law. The initial examination of the “totality of the circumstances” is factual. The second inquiry, however — whether, objectively, these circumstances constitute the requisite “restraint on freedom of movement of the degree associated with a formal arrest” — requires the “application of the controlling legal standard to the historical facts.” - U.S. at - & n. 11, 116 S.Ct. at 465 & n. 11.

      . This is not an exhaustive list. Other courts have identified other factors significant to a custody determination. See Sprosty v. Buchler, 79 F.3d 635, 641 (7th Cir.1996) (citing cases).

      . However, an officer's knowledge " 'concerning the unusual susceptibility of a defendant to a particular form of persuasion might be an important factor in determining' what the [officer] reasonably should have known.” Pennsylvania

        v. Muniz, 496 U.S. 582, 601, 110 S.Ct. 2638, 2650, 110 L.Ed.2d 528 (1990) (quoting Innis, 446 U.S. at 302 n. 8, 100 S.Ct. at 1690 n. 8).

      . We note that not all questioning of in-custody suspects constitutes interrogation triggering the Miranda protections. For example, many courts recognize a “routine booking interrogation” exception to the Miranda rule. See United States v. Doe, 878 F.2d 1546, 1551 (1st Cir.1989) (citing cases). Requesting biographical information— name, address, etc. — rarely elicits an incriminating response and serves a legitimate administrative need. Id. If, however, the officer seeks to elicit information that may incriminate, the exception does not apply. Id. We express no opinion on whether this narrow Miranda exception applies in the Customs setting.