author: HANSEN, Circuit Judge.

text:
    In re KANSAS PUBLIC EMPLOYEES RETIREMENT SYSTEM, Petitioner.
    No. 95-4061.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 11, 1996.
    Decided June 11, 1996.

      James W. Jeans, Sr., argued, Platte City, Missouri, for appellant.
    Charles Walter German, argued, Kansas City, Missouri, for appellee.
    Before MeMILLIAN, JOHN R. GIBSON, and HANSEN, Circuit Judges.
   HANSEN, Circuit Judge.

On December 7, 1995, Kansas Public Employees Retirement System (KPERS) filed a petition seeking a writ of mandamus directing the district judge to disqualify himself under 28 U.S.C. § 455(a), (b)(1), and (b)(5)(iii). In addition, KPERS filed a motion to stay the pending district court proceedings until this court ruled on the mandamus petition. After hearing oral arguments, we denied the stay. We now deny the petition.

I.

KPERS filed the basic underlying suit in which recusal is sought in Kansas state court in 1991, seeking damages allegedly sustained in 1986 in connection with KPERS’ investments in Home Savings Association. Much of the litigation has involved attempts to control the choice of forum, with KPERS preferring a Kansas state court forum and the defendants preferring to bring this case to and keep it in federal court. After forging a winding trail, the case has again arrived at our doorstep. We set forth only those facts bearing on the issue before us — whether we should direct the district court to disqualify himself under 28 U.S.C. § 455.

On October 18, 1994, approximately two years after the case had been removed from Kansas state court to federal district court in the Western District of Missouri and assigned to the Honorable D. Brook Bartlett, United States District Judge, three parties filed motions to intervene. These parties were Boatmen’s First National Bank of Kansas City, Missouri (Boatmen’s) and the law firms of Blackwell Sanders Matheny Weary and Lombardi, L.C. (Blackwell) and Shook Hardy & Bacon, P.C. (Shook). Judge Bartlett immediately informed the parties that attorneys in Blackwell’s trust, estate, and taxation departments had provided him routine estate planning advice, had probated his deceased father’s estate, and were probating his mother’s estate, of which Judge Bartlett was a primary beneficiary. Judge Bartlett explained that the estate planning work for him was substantially complete and that he was seeking no further legal advice from the firm. The court asked the parties to anonymously submit in writing any objections to his presiding over the case by noon, November 3,1994.

On October 26, 1994, Judge Bartlett sua sponte disqualified himself from presiding over the applications to intervene and had them reassigned to another federal district judge. Judge Bartlett recused himself from deciding Boatmen’s application because he owned stock in Boatmen’s parent company. His disqualification from deciding Shook’s and Blackwell’s applications stemmed from a concern that his rulings 'on these applications would affect Boatmen’s application. Boatmen’s motion to intervene was eventually stayed, and Boatmen’s then filed a separate declaratory judgment action over which Judge Bartlett does not preside. See Boatmen’s First Nat’l Bank v. KPERS, 57 F.3d 638 (8th Cir.1995).

Noon, November 3, 1994, came and went, and no one, including KPERS, objected to the potential conflict involving Blackwell. That afternoon, however, another potential conflict arose. Shook advised the parties that it had offered a summer associate position to Judge Bartlett’s daughter, Ms. Amanda Mook.

The following day, November 4, 1994, the court informed the parties that his daughter had accepted the offer from Shook and also that his son was probably a member of KPERS because he was the assistant city manager of the City of Hays, Kansas. The judge asked for comments on these matters, but no one offered any at that time.

The court followed up with a letter to the parties on November 9, 1994, restating the facts regarding his son and daughter and inviting anonymous objections to be submitted by November 21, 1994. KPERS, in a letter of November 18, 1994, expressing concern about Judge Bartlett’s continued participation in the case because of his daughter’s relationship with Shook, stated:

Previously, we expressed no objection to Judge Bartlett’s continued role as judge in this litigation by reason of his involvement with the estate and probate attorneys at Blackwell Sanders. By itself, we did not believe that Judge Bartlett’s involvement with the Blackwell firm warranted significant concern.

(App. Pet’r at 195.) In KPERS’ letter of November 21,1994, it stated:

Judge Bartlett previously notified the parties that he had retained Blackwell, Sanders for personal estate matters. The court required the parties to file by 12:00 p.m., November 3, 1994 notice of objections to Judge Bartlett continuing to preside over the case. All parties notified the court that they did not object.

(App. Pet’r at 173.) The letter then refers to the hiring of Judge Barlett’s daughter by Shook, and continues:

Despite their previous waiver, the parties should not be precluded from asserting the Judge’s retention of Blackwell, Sanders in conjunction with Shook, Hardy’s hiring of Judge Bartlett’s daughter or the matters related to Boatmen as grounds for recusal. While each situation alone might not constitute sufficient grounds, all situations considered together might.

Id.

The court addressed the pending objection at KPERS’ specific request at a hearing on December 16, 1994. At that time, KPERS volunteered that it had submitted the November 18 and 21 letters, and asked the court to recuse himself. KPERS noted that, although Shook was not yet a party, a partner of Shook was, and the partner had brought an indemnity claim against Shook. Judge Bartlett declined to disqualify himself, because he was persuaded by KPERS’ original argument that consideration of recusal was premature until Shook’s motion to intervene had been granted.

On December 29, 1994, Judge Whipple granted Shook its motion to intervene. KPERS took no action to renew its recusal request. In denying Blackwell’s motion to intervene, Judge Whipple, considering the question of whether Judge Bartlett would have to recuse if Blackwell were allowed to intervene, made the following statement: “Considering the intervention of Blackwell Sanders, KPERS has expressly waived any objection to Judge Bartlett continuing to preside over the pending litigation.” (App. Pet’r at 210.) In the appeal to this court by Blackwell on the issue of intervention, KPERS in its brief made no issue as to whether Judge Bartlett would be required to recuse, or to request that he do so. We reversed the district court’s denial and permitted Blackwell to intervene by our decision filed July 27,1995. No motion for rehearing or suggestion for rehearing en banc was filed. So, by the end of July 1995, Blackwell’s intervention was assured, and Judge Bartlett’s daughter was working at Shook as a summer associate. Still, KPERS took no action to renew its recusal request. During the ten-month period between December 1994 and October 1995, the parties engaged in full-blown discovery, deposing more than 60 witnesses, disclosing dozens of expert witnesses, and producing millions of pages of documents. Although the parties participated in several pretrial conferences with the court, no one reasserted any issue of any potential conflict of interest on the part of Judge Bartlett during this period involving Boatmen’s, Blackwell, or Shook.

In the meantime, on July 27, 1995, we reversed the district court’s ruling on the applicable statute of limitations for this ease. Our ruling held that the ten-year statute of limitations did not apply to this case, and we remanded for a determination of which of two shorter Kansas statutes of limitations applied. KPERS v. Reimer & Koger Assocs. Inc., 61 F.3d 608 (8th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 915, 133 L.Ed.2d 845 (1996). Shortly thereafter, KPERS filed a motion asking the district court to reconsider its April 1994 holding that KPERS was acting in a proprietary capacity and was thus subject to the statute of limitations — a decision KPERS did not attempt to appeal to this court. In addition, KPERS filed duplicative suits in Kansas state court and filed its third motion to remand this ease back to state court. In response, the defendants filed motions seeking preliminary injunctions prohibiting KPERS from filing additional suits against the defendants. The district court granted the preliminary injunctions and set a hearing for October 18, 1995, to address several issues, including KPERS’ motion to remand the case to state court and KPERS’ motion for reconsideration on issues relating to the statute of limitations.

On October 5, 1995, Shook notified the parties that it had offered Judge Bartlett’s daughter a permanent position commencing September 1, 1996. On October 16, 1995, two days before the scheduled hearing, KPERS filed a motion requesting that Judge Bartlett disqualify himself, asserting the Blackwell, Boatmen’s, and Shook employment issues. Defendants opposed the motion, stating that KPERS had filed the motion as a dilatory tactic to prevent the case -from moving forward. The district judge postponed the hearing and denied KPERS’ motion to disqualify on December 5, 1995.

On December 7, KPERS filed this petition, seeking a writ of mandamus ordering Judge Bartlett to disqualify himself from this case. KPERS also filed a motion to stay the district court proceedings pending our decision on the mandamus petition. After hearing oral arguments, we denied the motion for the stay. During the time between oral arguments and our decision on the petition, Judge Bartlett’s daughter withdrew her acceptance of the associate position at Shook, deciding to reside and obtain employment in another city. We now decide the petition for a writ of mandamus.

II.

KPERS lists three reasons supporting its claim that Judge Bartlett should disqualify himself: (1) Boatmen’s is the plaintiff in a separate, but related, declaratory judgment action against KPERS, and Judge Bartlett owns stock in the parent company of Boatmen’s; (2) Blackwell has performed estate planning work for Judge Bartlett, has probated the estate of Judge Bartlett’s deceased father, and is probating the estate of the judge’s late mother, which will include the closing of a trust of which Judge Bartlett is the trustee; and (3) Judge Bartlett’s daughter had accepted during the pendency of this litigation defendant Shook’s offer of employment as an associate attorney. KPERS contends that, separately, each of these facts mandates disqualification under either 28 U.S.C. §§ 455(b)(1), 455(b)(5)(iii), or 455(a). KPERS further argues that these facts cumulatively create an appearance of impartiality such that disqualification is necessary under § 455(a).

Defendants oppose the petition for the writ, arguing that KPERS brings this petition purely as a tactical move to delay the district court’s consideration of the case and to avoid the pending decision on defendants’ motions for summary judgment on the remanded statute of limitations issue. Defendants also argue that any alleged interest Judge Bartlett has in this case is too speculative to fall within the purview of § 455(b)(5) and that no person who knows the facts and circumstances of this case would reasonably question Judge Bartlett’s impartiality.

A.

The issue of recusal is before us on petition for a writ of mandamus.

The writ of mandamus is an extraordinary remedy that should be utilized only in those ‘exceptional circumstances amounting to a judicial usurpation of power.’ A federal court may issue a writ of mandamus only when the appellant has established a ‘clear and indisputable right’ to the relief sought, the court has a nondiscretionary duty to honor that right, and appellant has no other adequate remedy.

Perkins v. General Motors Corp., 965 F.2d 597, 598-99 (8th Cir.) (quoting In re Lane, 801 F.2d 1040, 1042 (8th Cir.1986)) (alteration in original) cert. denied, 506 U.S. 1020, 113 S.Ct. 654, 121 L.Ed.2d 581 (1992).

Our determination of whether an “indisputable and clear right” exists must take into consideration the discretion entrusted in the district court in deciding disqualification matters. In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1312 (2d Cir.1988) (“An appellate court’s power to issue a writ of mandamus upon a claim of wrongful refusal to recuse is inextricably related to the scope of review over the district court’s determination.”), cert. denied sub nom, Milken v. S.E.C., 490 U.S. 1102, 109 S.Ct. 2458, 104 L.Ed.2d 1012 (1989). In this circuit, whether disqualification is required in a particular case is committed to the sound discretion of the district judge, and we review only for an abuse of that discretion. Perkins v. Spivey, 911 F.2d 22, 33 (8th Cir.1990), cert. denied, 499 U.S. 920, 111 S.Ct. 1309, 113 L.Ed.2d 243 (1991). This is so because

[t]he judge presiding over a case is in the best position to appreciate the implications of those matters alleged in a recusal motion. In deciding whether to recuse himself, the trial judge must carefully weigh the policy of promoting public confidence in the judiciary against the possibility that those questioning his impartiality might be seeking to avoid the adverse consequences of his presiding over their case.

In re Drexel, 861 F.2d at 1312. Accordingly, we presume Judge Bartlett is impartial, and KPERS bears “the substantial burden of proving otherwise.” Pope v. Federal Express Corp., 974 F.2d 982, 985 (8th Cir.1992).

Considering together the mandamus standard and the abuse of discretion standard, the pivotal inquiry for determining whether KPERS asserts a clear and indisputable right to recusal and whether the district court had a nondiscretionary duty to honor that right is whether Judge Bartlett abused his discretion by refusing to disqualify himself fi’om this case. In pursuing this inquiry, we must bear in mind that a writ of mandamus is an extraordinary remedy requiring a showing of exceptional circumstances. Because we ultimately conclude that the petition is a last hour tactical move as to the Boatmen’s and the Blackwell matters and that the district court’s decision not to recuse does not amount to an abuse of discretion on any of the issues, we do not address the question of whether another adequate remedy exists.

B.

Title 28, U.S.C. § 455 dictates the circumstances in which a judge must disqualify himself in a proceeding.

Subsection 455(a) requires a United States judge to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). Under § 455(a), we consider whether the judge’s impartiality might reasonably be questioned by the average person on the street who knows all the relevant facts of a case. Lunde v. Helms, 29 F.3d 367, 370 (8th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1111, 130 L.Ed.2d 1076 (1995); United States v. Poludniak, 657 F.2d 948, 954 (8th Cir.1981), cert. denied sub nom, Weigand v. United States, 455 U.S. 940, 102 S.Ct. 1431, 71 L.Ed.2d 650 (1982). The words of the Senate Judiciary Committee, in recommending what became § 455(a) under the 1974 amendments to § 455, provide guidance for judges who must decide whether to disqualify themselves under § 455(a):

[I]n assessing the reasonableness of a challenge to his impartiality, each judge must be alert to avoid the possibility that those who would question his impartiality are in fact seeking to avoid the consequences of his expected adverse decision. Disqualification for lack of impartiality must have a reasonable basis. Nothing in [§ 455(a)] should be read to warrant the transformation of a litigant’s fear that a judge may decide a question against him into a “reasonable fear” that the judge will not be impartial. Litigants ought not have to face a judge where there is a reasonable question of impartiality, but they are not entitled to judges of their own choice.

S.Rep. No. 93-419, 93d Cong., 1st Sess. 5 (1973) (quoted in 13A Wright, Miller & Cooper, Federal Practice and Procedure: Juris 2d § 3549, at 623-24). Unlike objections under § 455(b), § 455(a) objections can be waived after a court gives full disclosure of the grounds for disqualification. 28 U.S.C. § 455(e).

Subsection 455(b) spells out the circumstances in which a judge must disqualify himself because of his relation to participants in a case. The specific provisions at issue here are § 455(b)(1), which requires a United States judge to disqualify himself from a ease if “he has a personal bias or prejudice concerning a party,” and § 455(b)(5)(iii), which requires recusal if the judge “or a person within the third degree of relationship to [him] ... [i]s known by the judge to have an interest that could be substantially affected by the outcome of the proceeding.” The interest described in § 455(b)(5)(iii) includes noneconomic as well as economic interests. Potashnick v. Port City Const. Co., 609 F.2d 1101, 1113 (5th Cir.), cert. denied, 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed.2d 22 (1980). Subsection 455(e) provides that a § 455(b) conflict cannot be waived.

C.

At the outset, we choose to address the defendants’ argument that KPERS brought both its district court motion to disqualify and this petition for mandamus as a part of a strategic and tactical plan to delay and prevent the district judge from ruling on the pending summary judgment motions following our July 27, 1995, ruling reversing the district court’s decision that a ten-year Kansas statute of limitations applied. After a thorough review of the record, we agree with defendants as to the Blackwell and Boatmen’s matters and find the petition as to those matters to be untimely. With regard to Shook, we believe defendants’ argument has merit, but we ultimately decline to find the petition untimely on that issue.

After our ruling that the ten-year Kansas statute of limitations does not apply to this case, KPERS undertook a flurry of actions which occupied the district court’s time to the detriment of the efficient resolution of this ease. As noted above, it filed a motion to have the court reconsider its April 1994 ruling regarding KPERS’ proprietary capacity, it filed duplicative suits in Kansas state court necessitating the issuance of preliminary injunctions against it, and it filed a third motion to remand the case to Kansas state court. In his order of October 25, 1995, on the renewed motion to remand, the district judge noted that “[s]ince the Eighth Circuit Court of Appeals’ decision on July 27, 1995, KPERS has taken a number of steps, including the filing of this motion, to delay the expeditious resolution of this case.” (App. Pet’r at 359.) When we affirmed the temporary injunctions prohibiting KPERS from pursuing the duplicative state court suits it filed after our July 27,1995, statute of limitations decision, we noted that KPERS’ purpose in filing the duplicative state suits was to obtain a favorable decision in the Kansas courts on the same statute of limitations issue we had already decided. We found the district court’s finding that, by filing the duplicative state suits, KPERS had merely tried to “ ‘carve up what was one case into separate cases with separate claims, all leading to a subversion of the RTC’s right to remove the entire case’” to be fully supported by the record and not clearly erroneous. KPERS v. Reimer & Koger Assocs., Inc., 77 F.3d 1063, 1070 (8th Cir.1996).

The basic underlying facts concerning Judge Bartlett’s stock ownership in Boatmen’s parent company and his existing relationship with Blackwell’s probate and tax lawyers were known to KPERS for over a year before it filed its petition for mandamus with us. On December 16,1994, it asked for and received a ruling from Judge Bartlett on its then pending recusal request which had asserted the Blackwell and Shook matters. KPERS sought no relief from Judge B artlett's denial of the request. Instead, as noted above, it embarked on full-scale trial preparation, knowing all along of the trial judge's stock holdings in Boatmen's parent company and the existence of the related suit against it by Boatmen's, filed December 12, 1994, pending before Judge Whipple and of any potential for collateral effect it now asserts. It waited nearly a year after Judge Bartlett disclosed his stock holdings before raising any objection about them. Although Blackwell was allowed to intervene by our July 27, 1995, decision, and although KPERS had first asserted its objection about Blackwell the previous November, it waited until two days before the scheduled October 18, 1995, hearing on its renewed motions to remand and to reconsider the question of its proprietary capacity, to again seek the judge's recusal based on the Blackwell matters. Our review of KPERS' pattern of conduct leads us to the conclusion that the defendants' allegation that KPERS' recusal motion and this petition were filed for tactical and strategic reasons, as opposed to concern about the impartiality of the trial judge, is correct. "In the real world, recusal motions are sometimes driven more by litigation strategies than by ethical concerns." In re Cargill, Inc., 66 F.3d 1256, 1262-63 (1st Cir.1995). See also In re Int'l Business Machines Corp., 45 F.3d 641, 643 (2d Cir.1995) ("[A] prompt application avoids the risk that a party is holding back a recusal application as a fall back position in the event of adverse rulings on pending matters.").

We have held in the past that even though § 455 has no express timeliness requirements, claims under § 455 will not be considered unless timely made. Holloway v. United States, 960 F.2d 1348 (8th Cir.1992); see Oglala Sioux Tribe v. Homestake Mining Co., 722 F.2d 1407, 1414 (8th Cir.1983) ("Although § 455 does not include an explicit time limitation, we believe that a timeliness requirement is appropriate. . . ."); United States v. Bauer, 19 F.3d 409, 414 (8th Cir.1994) ("This court has held that claims under § 455 'will not be considered unless timely made.' ") (quoting Holloway).

We are aware that a recent panel which exercised its authority to reassign a case on remand to a different trial judge pursuant to 28 U.S.C. § 2106 pointed out that both Holloway and Bauer were § 455(b) cases alleging actual bias. United States v. Jim Guy Tucker, 78 F.3d 1313 (8th Cir.1996). Oglala Sioux, however, which predates both Holloway and Bauer, involved both § 455(a) and (b) claims and imposed a timeliness requirement upon both. Tucker, resting primarily on the exercise of this court's supervisory powers under 28 U.S.C. § 2106, specifically holds that a § 2106 request must be timely made and that a § 2106 request made in an appellate brief satisfies § 2106's timeliness requirement. Because it was not necessary for the Tucker panel to determine whether § 455(a) has a timeliness requirement attached to it in order to determine whether the Independent Counsel's § 2106 request was timely, we believe the panel's comments, to the extent they can be construed to indicate that there is no timeliness requirement for § 455(a) challenges, are not controlling in this case.

Our reading of Oglala Sioux, Holloway, Bauer, and In re Apex Oil Co., 981 F.2d 302 (8th Cir.1992), tells us that our circuit has consistently required timely action as to § 455 in general, i.e., as to both (a) and (b). We subscribe to the view that motions to recuse should not "be viewed as an additional arrow in the quiver of advocates in the face of [anticipated] adverse rulings." TV Communications Network, Inc. v. ESPN, Inc., 767 F.Supp. 1077, 1081 (D.Colo.1991). We hold that KPERS' petition for a writ of mandamus is untimely as to the Boatmen's and Blackwell matters, that it is interposed for suspect tactical and strategic reasons, and that it can and should be denied for these reasons alone.

We also believe the timing of KPERS' petition as to Judge Bartlett's daughter's then prospective employment at Shook is suspect. When the judge disclosed in November 1994 his daughter's summer associate position with Shook, KPERS noted its concerns in a letter to the court, arguing that summer employment created a conflict because such positions often ripen into permanent positions. At that point, although KPERS expressed its concerns, KPERS felt an objection would be premature until Shook was actually a party in the case. Three days later, in a November 21,1994, letter, KPERS changed its stance and actually objected to the conflict. The court declined to disqualify himself, stating that he was persuaded by KPERS’ original position that disqualification would be premature until Shook was indeed a party in this case.

Approximately one month later, in December 1994, Shook was allowed to intervene. Instead of renewing its motion, KPERS engaged in full-blown discovery for the next ten months and gave no indication that it was concerned about judge Bartlett’s impartiality during that time. For example, KPERS filed an amended complaint against Shook and made no mention of any conflict of interest. KPERS also deposed Shook’s witnesses and disclosed five experts it intended to have testify against Shook. In mid-October 1995, after we issued an opinion that may render KPERS’ cause of action against Shook untimely under the relevant statute of limitations, KPERS finally complained about the alleged conflict involving Judge Bartlett’s daughter.

Given these facts, we believe KPERS’ argument regarding Shook may be tainted with the same tactical motives as the arguments regarding the alleged conflicts with Blackwell and Boatmen’s. Nonetheless, we note the factual development occurring in October 1995—Ms. Mook’s acceptance of Shook’s offer of permanent employment. Within two weeks of this development, and two days before a scheduled hearing on its renewed motions implicating the statute of limitations and seeking remand to state court, KPERS’ alleged concern about Judge Bartlett’s impartiality re-emerged. Because Ms. Mook’s then prospective permanent employment at Shook at least altered the landscape slightly, we give KPERS the benefit of the doubt and do not find the request for disqualification untimely as to the Shook matter.

D.

Although we hold the conflict issues involving Blackwell and Boatmen’s to be untimely, we turn to the reasons advanced by KPERS for disqualification, addressing each specific contention regarding Boatmen’s, Blackwell, and Shook, respectively.

KPERS’ first contention centers on Judge Bartlett’s financial interest not in Boatmen’s itself, but in the parent company of Boatmen’s. The judge indisputably has such an interest. Accordingly, he disqualified himself from presiding over Boatmen’s motion to intervene, and when Boatmen’s motion was later stayed and Boatmen’s filed a separate, related declaratory judgment action, that case was not assigned to Judge Bartlett. The question here, however, is whether Judge Bartlett’s ownership of stock in the parent company of Boatmen’s constitutes a conflict of interest under § 455(b)(5)(iii) or (a) in this case, where neither Boatmen’s nor its parent company is involved.

KPERS contends that a conflict exists because Judge Bartlett’s rulings in this case' may have a collateral effect upon issues in Boatmen’s separate declaratory judgment action. The issues in Boatmen’s declaratory judgment action arise out of Boatmen’s separate and distinct contractual obligations as trustee under trust indentures covering the Home Savings debentures purchased by KPERS and are not presented in the case pending before Judge Bartlett. Apart from its general assertion that there are overlapping issues between the two eases, KPERS has not shown the identicality of the issues involved sufficient to indicate that Judge Bartlett’s rulings in this case will, or are likely to, result in preclusive effect. While it is true that Boatmen’s cited Judge Bartlett’s decision concerning the proprietary nature of KPERS to Judge Whipple in resisting KPERS’ Eleventh Amendment defense, Boatmen’s did not assert the decision under a collateral estoppel theory, and Judge Whipple was certainly free to come to a contrary conclusion. Having no specific allegation before us of a common remaining issue in the two separate cases, we do not view this case as one involving potential collateral estoppel.

KPERS also seems to argue that the possible persuasive authority of this case on the separate action brought by Boatmen’s creates a § 455(b)(5)(iii) conflict. KPERS’ argument essentially invites us to speculate on whether a district judge would decide issues in a case before him a particular way in hopes of persuading a different judge presiding over a separate case to reach the same decision. This speculation, as noted above, would not be based on any identified, remaining overlapping issue. We decline to accept KPERS’ invitation to engage in such unsupported conjecture. We are confident that Judge Whipple will independently assess the merits of the arguments in the case before him. At best, Judge Bartlett’s alleged financial interest in this case in these circumstances is simply too remote, speculative, and contingent to be “an interest that could be substantially affected by the outcome of the proceeding” before him. 28 U.S.C. § 455(b)(5)(iii).

Furthermore, we are reluctant to fashion a rule requiring judges to recuse themselves from all cases that might remotely affect nonparty companies in which they own stock. We believe such a rule would paint with too broad a stroke. By way of example, a judge holding stock in General Motors should not have to recuse from a case involving Ford Motor Company because some ruling he may make might be used as persuasive authority in a case against GM. Cf. In re Placid, 802 F.2d 783, 786-87 (5th Cir.1986) (rejecting argument that recusal is required when judge owns stock in nonparty bank and case before him may have impact on banking industry). As a general matter, the administratively daunting task of identifying such tangential “interests” outweighs any benefit of eliminating, the remote possibility of consequential bias.

The only authority KPERS cites to support its collateral estoppel argument is In re Aetna Casualty & Surety Co., 919 F.2d 1136 (6th Cir.1990). In Aetna, seven separate cases were brought by the FDIC against Aetna. All of them were consolidated for trial. All of them involved the interpretation of the same provisions of Aetna’s blanket banker’s bond. Because the trial judge’s daughter was a member of a law firm involved in four of the cases, the judge originally disqualified himself. His daughter had participated in depositions when the cases were consolidated. The trial judge later separated out for trial before him the three cases where his daughter’s firm was not involved, and Aetna sought his recusal. A majority of the judges of the Sixth Circuit joined Judge Kennedy’s concurring opinion holding that because his daughter had been involved in the consolidated cases, the trial judge should not have severed the cases for trial, and should have remained out of all the cases, relying on § 455(b)(5)(ii). KPERS draws upon dicta in Aetna, stating that because a decision in any one of the cases might be used collaterally in all the rest, an additional reason for questioning the trial judge’s impartiality existed. We do not find the Aetna dicta to be persuasive authority here, and our research has revealed no other authority for the proposition that a judge’s interest in a nonparty company can create a conflict of interest mandating recusal under § 455(b)(5)(iii).

Given the facts of this case, we hold that KPERS has not carried its substantial burden of proving that Judge Bartlett’s stock ownership in Boatmen’s parent company creates a § 455(b)(5)(iii) conflict. See Pope, 974 F.2d at 985. KPERS has not proven that Judge Bartlett’s stock ownership in the parent company of Boatmen’s would be substantially affected by the outcome of this case where neither Boatmen’s nor its parent is a party. Cf. Oglala Sioux, 722 F.2d at 1414 (holding that, in an action determining title to certain Black Hills property, the district judge was not required to recuse because he owned property in the vicinity).

KPERS’ claim that the judge’s interest in Boatmen’s parent company creates an apparent conflict under § 455(a) also fails. Judge Bartlett disclosed his ownership of stock in Boatmen’s parent company on October 26, 1994. Prom that time until almost a year later, conferences were held in which the parties and the court discussed various aspects of this case. Not once during this period of time did KPERS question the court’s appearance of impartiality due to the separate case involving Boatmen’s. Considering these facts, an informed person would not now reasonably question Judge Bartlett’s ability to preside fairly over this case because of his interest in a nonparty company. An informed person might instead reasonably question the sincerity of KPERS’ belated concern.

KPERS’ second allegation of a conflict of interest concerns Judge Bartlett’s relationship with Blackwell. As we noted above, Judge Bartlett disclosed to all of the parties in October 1994, when Blackwell sought to intervene, that probate and tax lawyers in Blackwell had rendered legal advice and services to him both for his personal estate planning and in the probate of his parents’ estates. He informed them that while the work was nearly done, some matters remained to be completed and that his mother’s estate remained open and Blackwell’s representation was continuing as to the estate. He offered each party the opportunity to object to his continued handling of the ease. KPERS made no objection, and in fact has acknowledged that it not only made no objection, but it expressly waived any such conflict. See KPERS letter of November 18, 1994, App. Pet’r at 195 (“Previously, we expressed no objection to Judge Bartlett’s continued role as judge in this litigation by reason of his involvement with the estate and probate attorneys at Blackwell Sanders.”), and Pl.’s Supp. Resp. to the Pets, to Intervene at 14, n. 6 (“Even though KPERS expressly waived the Blackwell Sanders conflict....”).

Despite its previous express waiver, and its admissions against its own interests that it “did not believe that Judge Bartlett’s involvement with the Blackwell firm [by itself] warranted significant concern,” KPERS now argues that Judge Bartlett should be disqualified because of his involvement with the Blackwell probate and tax lawyers under both § 455(a) and (b)(1) (a judge should disqualify himself “where he has a personal bias or prejudice concerning a party____”). We believe the § 455(a) objection has been expressly waived by KPERS, and we are not persuaded that Judge Bartlett’s role as a trustee of his late mother’s real estate trust (the closing of which was part of the probate matters handled by Blackwell) requires a different result. What is important is that the relationship between Judge Bartlett and Blackwell and the fact that some matters remained to be fully completed were disclosed and any potential conflict waived.

With respect to the § 455(b)(1) actual personal bias or prejudice challenge, KPERS points to no specific instances where Judge Bartlett has demonstrated bias or prejudice in favor of Blackwell. See Liteky v. United States, 510 U.S. 540, -, 114 S.Ct. 1147, 1155, 127 L.Ed.2d 474 (1994) (distinguishing between the reality of bias or prejudice prohibited by § 455(b)(1) and the appearance of bias prohibited by § 455(a)). Instead, it relies upon the nature of the relationship discussed above. If KPERS was concerned that Judge Bartlett had a personal bias or prejudice in favor of Blackwell, that concern would have been triggered by the judge’s initial disclosure in October 1994, of his then existing involvement with some of Blackwell’s lawyers. While it is true that a § 455(b)(1) objection cannot be waived, it is still subject to the timeliness requirement of our cases. Here, Blackwell was permitted to intervene by our July 27, 1995, decision, and yet KPERS waited until October to raise the issue it had known about for a year. This delay, considered in the light of the numerous activities KPERS then engaged in, such as the filing of additional actions in Kansas, gives us substantial reason to conclude that the present challenge was tactically motivated and untimely, and we so hold.

Next, we address KPERS’ third allegation of a conflict—Judge Bartlett’s daughter’s prospective employment with Shook. Although Ms. Mook recently withdrew her acceptance of Shook’s offer of employment, Judge Bartlett presided over this case and rendered at least two decisions denying reconsideration of previously decided issues before Ms. Mook’s withdrawal of her acceptance. We therefore address this issue on the merits.

We begin our analysis on this issue by observing that an employment relationship between a party and a judge’s son or daughter does not per se necessitate a judge’s disqualification. See Datagate, Inc. v. Hewlett-Packard Co., 941 F.2d 864, 871 (9th Cir.1991), cert. denied, 503 U.S. 984, 112 S.Ct. 1667, 118 L.Ed.2d 388 (1992); Hewlett-Packard Co. v. Bausch & Lomb, Inc., 882 F.2d 1556, 1568 (Fed.Cir.1989), cert. denied, 493 U.S. 1076, 110 S.Ct. 1125, 107 L.Ed.2d 1031 (1990). Rather, the determination of whether a conflict exists in a given situation is factually bound.

Upon careful review of these facts, we do not find an actual conflict under § 455(b)(5)(iii). First, Ms. Mook was not and would not, as a future employee of Shook, be involved in the present litigation. Cf. Hunt v. American Bank & Trust Co. of Baton Rouge, 783 F.2d 1011, 1016 (11th Cir.1986) (‘We do not believe that a law clerk’s acceptance of future employment with a law firm would cause a reasonable person to doubt the judge’s impartiality so long as the clerk refrains from participating from the cases involving the firm in question.”). Second, the actual employment relationship between Shook and Ms. Mook was not to ripen until September 1996. As the facts of this case demonstrate, many circumstances can change during the intervening period between the time a law student accepts an offer to work as an associate and the time the student graduates and actually goes to work. Third, Ms. Mook was to be a salaried employee with traditional employee benefits, not a partner whose income is directly related to the profit margin of the firm and could be substantially affected by the outcome of this case. See Potashnick, 609 F.2d at 1113 (distinguishing a partner’s interest in a case from a salaried associate’s interest); United States ex rel. Weinberger v. Equifax Inc., 557 F.2d 456, 463-64 (5th Cir.1977), cert. denied, 434 U.S. 1035, 98 S.Ct. 768, 54 L.Ed.2d 782 (1978) (same). In addition, Shook is only one of a number of defendants; if KPERS prevails, Shook’s share of the damages would likely be covered by the insurance the briefs show it has and almost certainly not affect the salary or benefits of a first-year associate. Given these facts and the contingencies they create, we find it extremely unlikely that any loss Shook could suffer in this case would trickle down to Ms. Mook. We therefore find that Ms. Mook did not have a financial interest in this case. Moreover, Ms. Mook’s personal future was not dependent on Shook’s success or failure, as her credentials evidently place her in a position where she could obtain employment with other law firms. We therefore reject KPERS’ assertion that Ms. Mook has any other interest in Shook that could be substantially affected by the outcome of this case. Cf. Weinberger, 557 F.2d at 463-64 (holding that when judge’s son is an associate with law firm representing defendant, but is not actively participating in the case, judge need not recuse himself), cert. denied, 434 U.S. 1035, 98 S.Ct. 768, 54 L.Ed.2d 782 (1978).

KPERS’ argument that Ms. Mook’s employment with Shook creates an apparent conflict under § 455(a) is a more difficult issue, for even if no actual conflict exists, we must be confident that an informed person would not reasonably believe the judge’s impartiality was compromised. Upon careful review of this entire record, however, we believe KPERS has failed to show that a denial of a motion to recuse under these facts would be an abuse of discretion, and keeping in mind the procedural context of this case, we do not believe KPERS has made the showing necessary to warrant the extraordinary remedy of a writ of mandamus. We again note that we view this situation through the eyes of a reasonable person informed of all the facts of this case, including: (1) that Ms. Mook has not and will not be personally involved in this litigation; (2) that in KPERS’ first motion for recusal, which the judge denied, KPERS viewed summer employment as the equivalent of permanent employment because the former often ripens into the latter, and consequently there is little in the way of changed circumstances to support the present challenge; (3) that KPERS did not even challenge Judge Bartlett’s ruling on KPERS’ first Shook objection; (4) that during the next ten months, including the summer of Ms. Mook’s employment with Shook, KPERS approached the pretrial litigation with Shook in the ease as a party as if no conflict existed; (5) that prior to his decision on the recusal motion, no one, including KPERS, suggests that Judge Bartlett exhibited any apparent personal bias for or against any party; (6) that when KPERS’ second challenge of the potential conflict finally emerged, it appeared only after KPERS was facing a potentially fatal decision on a motion for summary judgment; (7) that Ms. Mook was not actually employed with Shook at the time KPERS brought this petition; and (8) that Ms. Mook had accepted an offer to join the firm prospectively only as a first-year, salaried associate, not a partner with substantial interests in the profit margin of the firm. Considering all of this, as well as the procedural history we traced in Section I of this opinion, we do not believe KPERS has provided us with the necessary showing that an informed person would question the judge’s impartiality, particularly when it is now clear that Ms. Mook will not be employed by Shook at all.

Finally, KPERS argues that all of these facts cumulatively create an appearance of a conflict of interest in violation of § 455(a). To the contrary, considering all of the facts and the procedural context of this case, including KPERS’ delay and motivation, the big picture reveals to a reasonable person a complex case involving an inordinate number of pretrial motions, an underlying struggle between the parties to determine the choice of forum, a tactical move made by a party who fears a looming adverse decision, and an experienced district judge who is attempting to efficiently resolve the case.

III.

Because we find KPERS’ petition to be untimely as to the Blackwell and Boatmen’s challenges, and because none of KPERS’ allegations meet the substantial showing necessary to establish a clear and indisputable right to recusal and a nondiscretionary duty on the district judge to disqualify himself, we deny the petition for a writ of mandamus.

      .The Honorable D. Brook Bartlett, Chief Judge, United States District Court for the Western District of Missouri.

      .For more details on the facts of the underlying suit, see KPERS v. Reimer & Koger Assocs., Inc., 77 F.3d 1063 (8th Cir.1996) (affirming district court’s enjoining KPERS from filing lawsuits in Kansas based on same claims sued on in federal court); KPERS v. Reimer & Koger Assocs., Inc., 61 F.3d 608 (8th Cir.1995) (reversing district court's decision that 10-year Kansas statute of limitations applied and remanding for determination of which of two shorter statutes apply), cert. denied, - U.S. -, 116 S.Ct. 915, 133 L.Ed.2d 845 (1996); KPERS v. Reimer & Koger Assocs., Inc., 60 F.3d 1304 (8th Cir.1995) (reversing the district court’s denial of Blackwell’s application to intervene); KPERS v. Reimer & Koger Assocs., Inc., 4 F.3d 614 (8th Cir.1993) (affirming district court’s order denying KPERS' motion to remand the case to state court), cert. denied, - U.S. -, 114 S.Ct. 2132, 128 L.Ed.2d 862 (1994).

      . By this time, Judge Bartlett had already spent a great deal of time on this case. (Tr. of Procéedings of 6/30/94, at 191 (stating that the court had already spent more time on this case than any other case but one in 10 years).)

      . Shook and Blackwell moved to intervene after KPERS notified them of KPERS’ intention to file a separate suit against them in state court.

      . All that remained was a transfer of some insurance to a new trust.

      . The Honorable Dean Whipple, United States District Judge for the Western District of Missouri.

      . KPERS appealed this ruling, we affirmed the injunction order. KPERS v. Reimer & Koger Assocs., Inc., 77 F.3d 1063 (8th Cir.1996).

      . KPERS also asserts that because Judge Bartlett is a former partner of Blackwell, his impartiality appears to be questionable. We first note that Judge Bartlett has had no opportunity to respond to this argument, because KPERS did not raise this issue below. Second, we question KPERS' assertion that its Kansas City attorneys did not know of Judge Bartlett’s prior affiliation with Blackwell, a Kansas City firm, and in any event. the information was easily accessible. See Almanac of the Federal Judiciary, vol. 1, at 41 (1995). Finally, Judge Bartlett terminated his partnership with Blackwell when he was appointed to the bench in 1981. In our view, the intervening 15 years are sufficient to erase any appearance of partiality stemming from his prior firm membership.

      . We note that subsection (f) of § 455 provides a procedure by which a conflict stemming from a financial interest in a party may be cured, as long as that interest would not be substantially affected by the outcome of the case. Because Judge Bartlett presided over the case and rendered decisions after the alleged conflict appeared or was discovered, we do not believe § 455(f) is applicable to this case, if indeed it covers a § 455(b)(5)(iii) conflict, a question on which we do not comment.


source: Caselaw Access Project

author: McMILLIAN, Circuit Judge.

license: Public Domain

text:
    Kelly THOMASON; Randy Thomason, Appellants, v. SCAN VOLUNTEER SERVICES, INC.; Lynn Sims, individually and in her official capacity as County Director of SCAN Volunteer Services, Inc.; Geneva Wordlaw, individually and in her official capacity as a Case Worker for SCAN Volunteer Service, Inc.; Dr. Russell Steele, Appellees.
    No. 95-1908.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 16, 1995.
    Decided June 11, 1996.

      Jess Askew, III, argued, Little Rock, AR, for appellants.
    Gena H. Gregory, argued, Little Rock, AR (Brian A. Brown, on the brief), for appellees.
    Before McMILLIAN, FLOYD R. GIBSON, and LOKEN, Circuit Judges.
   McMILLIAN, Circuit Judge.

Kelly Thomason (Thomason), and her husband, Randy Thomason (together plaintiffs), appeal from a final judgment entered in the United States District Court for the Eastern District of Arkansas dismissing their due process claim against defendants SCAN Volunteer Services, Inc. (SCAN), Lynn Sims, and Geneva Wordlaw (collectively defendants) pursuant to 42 U.S.C. § 1983. Thomason v. SCAN Volunteer Servs., No. LR-C-93-893 (E.D.Ark. Mar. 8, 1995) (judgment). For reversal, plaintiffs argue that the district court erred in holding that defendants did not violate plaintiffs’ constitutional rights as a matter of law, and, even if defendants did violate plaintiffs’ rights, defendants are protected by qualified immunity. Id., slip op. at 7 (Feb. 13, 1995) (memorandum and order granting summary judgment). For the reasons discussed below, we affirm.

Background

It is undisputed that SCAN, a not-for-profit corporation located and operating in Pulaski County, Arkansas, had at all relevant times the power under Arkansas state law to investigate allegations of suspected child abuse, to refer such abuse to the state prosecuting authorities, to remove victims of suspected parental abuse from their homes, and to seek protective custody for such victims by order of the Juvenile Court of Pulaski County, Arkansas. Joint Appendix at 3 (Complaint ¶ 6). SCAN operates under the direction of the Arkansas Department of Human Services, Division of Children and Family Services (DHS/DCF). Lynn Sims and Geneva Wordlaw were at all relevant times employees of SCAN.

At approximately 1:44 p.m. on December 19, 1990, Andrea Goin, the director of services at SCAN, received a telephone call from Shaun Wilfong at DHS/DCF. Wilfong informed Goin that she (Wilfong) had received by facsimile transmission some documente from a Little Rock physician, Dr. William R. Collie, and that she was, in turn, sending those documents to Goin, also by facsimile transmission. These documents concerned plaintiffs’ eight-month-old infant, Anthony Thomason (Anthony). According to Gobi's deposition testimony, Wilfong did not indicate that she had received any information regarding Anthony other than the documentation which she had received from Dr. Collie and was passing along to Goin. Id. at 151. Goin received the facsimile transmission from Wilfong shortly after their telephone conversation ended. The transmitted documents included, in their entirety, three items: a letter from Dr. Thomas G. DiSessa to Dr. Collie dated October 25,1990; a letter from a Dr. DiSessa to Dr. Collie dated December 14, 1990; and an article from the Journal of Pediatrics, which Dr. DiSessa had attached to his December 14 letter to Dr. Collie. Joint Appendix at 205-15. The medical journal article discussed a rare psychological disorder called “Munchausen by Proxy” believed to be displayed by parents (typically mothers) who subject their young children to potentially life-threatening and diagnostically elusive forms of physical abuse in order to draw sympathy and attention to themselves.

In his letter dated December 14, 1990, Dr. DiSessa indicated that he had been treating Anthony since October 25,1990, when Anthony was brought to Dr. DiSessa’s outpatient clinic for a second opinion following treatment at Little Rock Children’s Hospital for tachycardia (rapid heart rate). He further stated that Thomason, Anthony’s mother, “has intermittently reported that the child has had apnea.” In late October 1990, the letter continued, he (Dr. DiSessa) received a phone call from Thomason in which she reported that Anthony had undergone recurrent episodes of paleness, grayness, and sweatiness, and she requested that Anthony be admitted to the hospital for observation. Anthony was admitted to LeBonheur Hospital for a period from November 5, 1990, to November 9, 1990. Referring to that hospital stay, Dr. DiSessa’s letter stated “during the 5 day admission, there [were] no episodes of paleness, grayness, duskiness, blueness or apnea noted by our nursing staff.” Anthony was sent home with an “event recorder.” Since that time, the letter continued, Thomason “has phoned in 8 separate events.” According to the readings from the recorder, these reported events correlated with heart rates of “normal sinus rhythm with no evidence of a supraventricular tachycardia arrhythmia”; these “traces” had been sent for review to Dr. Paul Gillett, a “world renowned pediatric cardiac electrophysiologist.” The final two paragraphs of Dr. DiSessa’s December 14 letter stated the following:

On December 13th, mother again called my office with the following concerns. Her concerns were those of fast heart rate,, paleness, grayness, clamminess and sweating. In addition, the mother reported that the baby had a severe apnea episode producing blueness approximately a week to 10 days ago. After the baby required a substantial amount of stimulation, mother failed to seek medical attention for this apnea episode.
This failure to seek medical attention for the apnea episode is a great concern to me. The mother’s general affect has also been of great concern to a number of physicians here at LeBonheur Hospital. Mother has been described by at least two physicians as being dysfunctional.... My greatest fear is that this child may fall into the category of children recently reported in the Journal of Pediatrics ... [which] reported 27 infants who suffered “recurrent apnea and sudden infant death” who were in reality suffered repetitively [sic] suffocation events by their mother. These events began between ages in 1 and 3 months of age and went on until the child died between 6 and 12 months later. I believe that this possibility needs to be explored. Unfortunately, my distance precludes that I explore it effectively. If your familiarity with this family substantiates this suspicion, I would like to recommend that you refer this case to Arkansas Social Services for further exploration.

Id. at 205-06.

According to Gobi’s deposition testimony, during her telephone conversation with Wilfong, she began filling out a form with the preprinted title “Division of Children and Family Services Child Abuse and Neglect Reporting,” which she completed sometime after receiving the facsimile transmission from Wilfong. At the bottom of page 1 of this form, she wrote: “Dr. DiSessa (Pediatrics at U of Tennessee and LeBonheur Children’s Medical Center) reports that the mother is intermittently smothering the baby.” Id. at 147-50; 201.

The decision was made by SCAN personnel, including Goin, that Anthony should be removed from the home and taken to a hospital for a medical evaluation. This task was assigned to Wordlaw. According to Word-law, she was told by Goin to go to plaintiffs’ home “immediately.” Id. at 70. At that time, all the information that Wordlaw had received about Anthony’s ease was Goin’s verbal indication that SCAN had received a report, including some medical information, that the mother had smothered the baby. Id. at 69-71. Having no other information and having not reviewed any of the documentation, Wordlaw went to plaintiffs’ home at approximately 4:30 p.m. When Wordlaw arrived at plaintiffs’ residence, Thomason was home with her three children. Wordlaw identified herself as an evaluator with the Pulaski County SCAN office and informed Thomason that SCAN had received a report that “her child was being smothered and that she was the alleged perpetrator.” Id. at 72. Thomason became very upset, denied the accusation, and telephoned her mother-in-law, who promptly came to the house. Id. at 72-73. Having told Thomason that the decision had been made by SCAN to take the baby to the hospital, Wordlaw removed Anthony from the home and took him to Arkansas Children’s Hospital.

Two days later, on December 21, 1990, SCAN submitted an ex parte application to the Pulaski County Chancery Court, along with a supporting affidavit signed by Word-law, recommending that Anthony be placed in the custody of the State of Arkansas Division of Children and Family Services. Wordlaw’s affidavit was written by herself, Andrea Goin, and one or two other individuals. Id. at 83 (deposition of Geneva Word-law); id. at 176 (deposition of Andrea Goin). At the time she signed the affidavit, Word-law had not reviewed any medical records concerning Anthony other than the two letters written by Dr. DiSessa. Id. at 85. Wordlaw’s affidavit included the statement “Medical records and physicians concur that Anthony Thomason showed evidence of ‘intermittent smothering.”’ Id. at 104. On the same day that the application and affidavit were received by the state court, the court entered an ex parte order removing Anthony from the custody of his parents and placing him in protective custody with the state. Anthony remained in the state’s custody through the Christmas and New Year holidays until a hearing was held on January 2, 1991. During that time, he stayed at Arkansas Children’s Hospital. Following the January 2, 1991, hearing, in which plaintiffs had the opportunity to present their side of the ease, the state court quashed the ex parte order and returned Anthony to his parents subject to certain conditions, including that Anthony was to remain hospitalized for seven more days at plaintiffs’ cost and that Thomason was to undergo some counseling. At a final hearing held on January 29, 1991, the state court dismissed SCAN’s petition on grounds of insufficient evidence of abuse.

Plaintiffs brought this § 1983 action for compensatory and punitive damages, alleging that the removal of Anthony from their home, and their two-week separation from Anthony as a result of the state court’s ex parte order, deprived them of their liberty interest in the care, custody, and management of their child, in violation of their substantive due process rights. Plaintiffs sued SCAN, as well as Wordlaw and Lynn Sims (the county director of SCAN), in their individual and official capacities. Plaintiffs also asserted a supplemental state law tort claim. SCAN, Wordlaw, and Sims moved for summary judgment arguing that their conduct did not constitute state action for purposes of 42 U.S.C. § 1983 and, even if it did, defendants were immune from suit. The district court granted their motion, stating “[ajssuming without deciding that the defendants’ actions were state action, the plaintiffs’ Section 1983 action still fails because there was no deprivation of a constitutionally protected right. Even if there were a constitutional deprivation, the defendants would.be protected by qualified immunity and possibly by the Eleventh Amendment.” Slip op. at 7. Thereafter, the district court entered judgment for defendants. Thomason v. SCAN Volunteer Servs., (Mar. 8, 1995) (judgment). Plaintiffs appealed.

Discussion

We review a grant of summary judgment de novo. The question before the district court, and this court on appeal, is whether the record, when viewed in the light most favorable to the non-moving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986); Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir.1992); St. Paul Fire & Marine Ins. Co. v. FDIC, 968 F.2d 695, 699 (8th Cir.1992). In the present ease, the district court held that plaintiffs were not deprived of their constitutional rights as a matter of law and, therefore, no liability could attach to SCAN or its employees, either in their individual or in their official capacities.

To begin, as to defendant Lynn Sims, who was sued in her individual capacity and in her official capacity as county director of SCAN, plaintiffs have not identified any specific or concrete facts supporting their claim that she caused a deprivation of their constitutional rights. In fact, her name is not mentioned anywhere in plaintiffs’ statement of facts on appeal. Nor are we able to infer such facts from the evidence in the record. Because there is no evidence suggesting either that defendant Sims was personally or directly involved in the alleged violation of plaintiffs’ constitutional rights, or that, in her capacity as a supervisor, she knew about the allegedly unlawful conduct and facilitated, approved, condoned, or deliberately ignored the conduct, we hold that the district court did not err in granting summary judgment on plaintiffs’ claims against her both in her individual and in her official capacities. Cf. Ripson v. Alles, 21 F.3d 805, 808-09 (8th Cir.1994) (where individual was arrested by a police officer without probable cause, the police chief was entitled to summary judgment dismissing the arrestee’s § 1983 claims against him because his only connection to the unlawful conduct was that he was the supervisor of the arresting officer).

Turning to the claims against SCAN and Wordlaw, we are guided by our recent decision in Manzano v. South Dakota Dep’t of Social Servs., 60 F.3d 505 (8th Cir.1995) (Manzano), in which we described the constitutional right of parents in the care and control of their children as follows:

Our court has recognized the liberty interest which parents have in the care, custody, and management of their children. Myers v. Morris, 810 F.2d 1437, 1462 (8th Cir.) (Myers) (citing Lehr v. Robertson, 463 U.S. 248, 258, 103 S.Ct. 2985, 2991-92, 77 L.Ed.2d 614 (1988)), cert. denied, 484 U.S. 828, 108 S.Ct. 97, 98 L.Ed.2d 58 (1987); see Lux by Lux v. Hansen, 886 F.2d 1064, 1066-67 (8th Cir.1989) (Lux); Fitzgerald v. Williamson, 787 F.2d 403, 407 (8th Cir.1983). However, we have at the same time indicated that this right is not absolute. Myers, 810 F.2d at 1462; see Martinez v. Mafchir, 35 F.3d 1486, 1490 (10th Cir.1994) (Martinez) (“The right to familial integrity, however, has never been deemed absolute or unqualified.”); accord Hodge v. Jones, 31 F.3d 157, 163 (4th Cir.) (Hodge), cert. denied, — U.S. -, 115 S.Ct. 581, 130 L.Ed.2d 496 (1994); Doe v. Louisiana, 2 F.3d 1412, 1417 (5th Cir.1993) (Doe), cert. denied, — U.S. -, 114 S.Ct. 1189, 127 L.Ed.2d 539 (1994); Frazier v. Bailey, 957 F.2d 920, 929 (1st Cir.1993) (Frazier). As we stated in Myers, “the liberty interest in familial relations is limited by the compelling governmental interest in the protection of minor children, particularly in circumstances where the protection is considered necessary as against the parents themselves.” 810 F.2d at 1462. Moreover, as the First Circuit has correctly noted, “[t]he right to family integrity clearly does not include a constitutional right to be free from child abuse investigations.” Watterson v. Page, 987 F.2d 1, 8 (1st Cir.1993) (Watterson).
The need to continually subject the assertion of this abstract substantive due process right to a balancing test which weighs the interest of the parent against the interests of the child and the state makes the qualified immunity defense difficult to overcome. Moreover, the requirement that the right be clearly established at the time of the alleged violation is particularly formidable. See Martinez, 35 F.3d at 1490; Hodge, 31 F.3d at 164; Frazier, 957 F.2d at 930; Myers, 810 F.2d at 1462-63.... Our court has not gone so far as to say that there are no “clearly established” substantive due process rights held by parents in the context of child abuse investigations. However, in Myers, we did recognize the problem of defining such rights. 810 F.2d at 1462-63. More generally, this need to balance competing interests makes the Siegert approach difficult to apply in child abuse cases involving the right to familial integrity.[ ] In these types of cases, it is nearly impossible to separate the constitutional violation analysis from the clearly established right analysis. See Martinez, 35 F.3d at 1490; Doe, 2 F.3d at 1417; Frazier, 957 F.2d at 929-31.
Clearly, our precedents provide that, when a state official pursuing a child abuse investigation takes an action which would otherwise unconstitutionally disrupt familial integrity, he or she is entitled to qualified immunity, if such action is properly founded upon a reasonable suspicion of child abuse.

Manzano, 60 F.3d at 509-11 (footnote omitted).

In the present case, it is beyond genuine dispute that Dr. DiSessa, in his letter dated December 14, 1990, expressed his own suspicion that Thomason was engaging in a life-threatening form of child abuse. This suspicion, although based solely upon circumstantial evidence, was rationally drawn from Anthony’s medical history, specific acts by Thomason which Dr. DiSessa described, and other physicians’ alleged concern regarding Thomason’s “affect.” Defendants reasonably could have assumed that Dr. DiSessa was highly knowledgeable and experienced in these matters and lacked any motive to lie. Moreover, from defendants’ perspective, the medical journal article may have lent additional credibility to Dr. DiSessa’s theory of abuse. Therefore, we have little difficulty in holding that defendants, upon receiving the facsimile transmission of Dr. DiSessa’s letters and the accompanying medical journal article, formed a reasonable suspicion of abuse which would justify some degree of interference with plaintiffs’ rights as the parents of Anthony.

The difficulty in the present case is not whether such a reasonable suspicion can be found, but rather, whether the actions taken by defendants and the resulting disruption to plaintiffs’ familial relations with Anthony were so disproportionate under the circumstances as to rise to the level of a constitutional deprivation. Viewing the evidence in the light most favorable to plaintiffs, the evidence demonstrates that, upon receiving Shaun Wilfong’s phone call, the copies of Dr. DiSessa’s letters, and the medical journal article, Wordlaw (at Andrea Goin’s directions) proceeded to plaintiffs’ residence with the intent to remove Anthony from plaintiffs’ home without so much as a telephone call either to Dr. DiSessa or to Dr. Collie to verify the source of the documents. Moreover, without even reviewing the purported evidence of abuse in SCAN’s possession, Wordlaw appeared at plaintiffs’ doorstep and inaccurately asserted to Thomason that SCAN had “received a report [that] her child was being smothered and that she was the alleged perpetrator,” Joint Appendix at 72 (deposition of Geneva Wordlaw). Finally, in seeking and obtaining an ex parte protecfive custody order from the state court, Wordlaw submitted a signed affidavit that arguably mischaracterized Dr. DiSessa’s letters and exaggerated the strength of defendants’ evidence of abuse.

Nevertheless, while we recognize that plaintiffs are justified in feeling that more background investigation could have been done and that Wordlaw handled the initial encounter with Thomason in an unprofessional manner, we hold that plaintiffs’ constitutional rights were not violated as a result of the removal of Anthony from their home. In Manzano, we observed that, in the child abuse context, the abstract substantive due process right to familial integrity must be continually subjected to “a balancing test which weighs the interest of the parent against the interests of the child.” 60 F.3d at 510. In the present case, the constitutional inquiry requires weighing the interest of plaintiffs not to have the state physically remove their eight-month-old child from their home against the state’s interests in immediately removing the child from a potentially life-threatening abusive home setting for medical evaluation and protection. We recognize that the parents’ private interest in this type of acutely sensitive situation is “of the highest order.” Doe v. Hennepin County, 858 F.2d 1325, 1330 (8th Cir.1988) (Henley, J., concurring), cert. denied, 490 U.S. 1108, 109 S.Ct. 3161, 104 L.Ed.2d 1023 (1989). We also recognize the vital importance of curbing overzealous suspicion and intervention on the part of health care professionals and government officials, particularly where such overzealousness may have the effect of discouraging parents or caretakers from communicating with doctors or seeking appropriate medical attention for children with real or potentially life-threatening conditions. The consequences of such a chilling effect could be devastating. Our holding today is therefore limited to the facts of this ease. Where a treating physician has clearly expressed his or her reasonable suspicion that life-threatening abuse is occurring in the home, the interest of the child (as shared by the state as parens patriae) in being removed from that home setting to a safe and neutral environment outweighs the parents’ private interest in familial integrity as a matter of law. Because no constitutional violation occurred in the present case, defendants Wordlaw and SCAN cannot be held liable under § 1983 for the removal of Anthony from plaintiffs’ home.

Finally, Wordlaw and SCAN are absolutely immune from liability for their participation in the ex parte proceedings in state court that led to the award of temporary protective custody of Anthony to the state. To the extent Wordlaw and SCAN are sued for initiating the judicial proceedings, Wordlaw’s role was functionally comparable to that of a prosecutor. See Myers v. Morris, 810 F.2d 1437, 1452 (8th Cir.) (Myers) (prosecutor is absolutely immune for initiating neglect proceedings in family court) (citing Mazor v. Shelton, 637 F.Supp. 330, 334-35 (N.D.Cal.1986) (role of social worker in filing proceedings to protect abused minors is functionally comparable to prosecutor’s initiation of the judicial process, thus warranting absolute immunity)), cert denied, 484 U.S. 828, 108 S.Ct. 97, 98 L.Ed.2d 58 (1987). To the extent Wordlaw and SCAN are sued because Wordlaw made arguably false statements in her affidavit in her role as a witness before the state court, the doctrine of absolute witness immunity applies. See Manzano, 60 F.3d at 512 (absolute immunity applied to state officials who testified in support of family court’s temporary protective order restricting the plaintiffs unsupervised visitation with his daughter); Myers, 810 F.2d at 1466 (absolute immunity extends to witness’s acts of providing reports and recommendations to family court); cf. Briscoe v. LaHue, 460 U.S. 325, 342-46, 103 S.Ct. 1108, 1119-21, 75 L.Ed.2d 96 (1983) (absolute witness immunity rests on functional category and thus bars § 1983 claim alleging that police officer’s perjured testimony resulted in a constitutional deprivation).

Conclusion

For the foregoing reasons, the judgment of the district court is affirmed.

      . The Honorable Susan Webber Wright, United States District Judge for the Eastern District of Arkansas.

      . Defendants argue that Thomason in fact voluntarily consented to the removal of Anthony from plaintiffs’ home. They refer to Wordlaw's deposition statement that Thomason was "in agreement” after Wordlaw "told [Thomason] that [she, Wordlaw,] needed to take the child to the hospital.” Defendants also rely on the fact that Tho-mason provided Wordlaw with a car seat when Wordlaw did not have one. Brief for Appellees at xii (citing Joint Appendix at 74, 77. (deposition of Geneva Wordlaw)). We hold that defendants have not established beyond genuine dispute that Thomason voluntarily consented to the removal of Anthony from plaintiffs' home. If anything, the evidence indicates that Wordlaw never gave Thomason a choice in the matter. See Joint Appendix at 75, 77 (Deposition of Geneva Word-law: “Q. You didn't both decide in conjunction with one another; you decided to take the child to the hospital, is that right? A. Yes, I did. Well, SCAN did.”; "Q. And when you got to the Tho-mason home you knew at that moment when you knocked on the door you were going to take the child to the hospital, is that right? A. Yes.") Having been told that her eight-month-old child was being taken to the hospital, Thomason's insistence that he ride in a car seat does not suggest that she voluntarily consented to Word-law’s removal of him from the home.

      . Plaintiffs’ additional claims against three doctors were dismissed without prejudice. Thomason v. SCAN Volunteer Servs., No. LR-C-93-893 (E.D.Ark. Mar. 7, 1995) (order); id. (Aug. 22, 1994) (order). Plaintiffs do not appeal the district court's dismissal of the doctors.

      . We also note that Dr. DiSessa’s letter of December 14, 1990, stated that he had sent the evaluation "traces” from Anthony’s event recorder to Dr. Paul Gillett, a "world renowned pediatric cardiac electrophysiologist.” Joint Appendix at 206. SCAN personnel also could have attempted to contact Dr. DiSessa to ascertain whether Dr. Gillett had rendered an opinion.

      . As noted above, the affidavit stated ”[m]edical records and physicians concur that Anthony Tho-mason showed evidence of 'intermittent smothering.' " Joint Appendix at 104. In the present appeal, defendants continue to maintain the accuracy of this statement, arguing:
      [B]y the time the affidavit was prepared on December 21, SCAN had the benefit of medical opinion of the Children At Risk team at the Arkansas Children’s Hospital. The doctors on the team agreed that there was a reasonable basis to believe that Anthony was being intermittently smothered and that the mother, Mrs. Thomason, was suffering from a psychological condition known as Munchausen by Proxy. (JA 174 — 175) Thus, when the affidavit was prepared, physicians (plural) did concur.
      Brief for Appellees at 11-12. The citation provided by defendants to support the above-quoted language refers to the following deposition testimony of Andrea Goin (not any of the doctors):
      Q. Okay. Were there any doctors that agreed the mother was smothering the child?
      A. If you’re asking if they said in those words, "The mother is smothering the child” at that point, no.
      Q. To your knowledge had any doctor ever told you or wrote on any piece of paper that you know of or knew of at the time that the mother was smothering the child?
      A. What I remember from the meeting was the consensus in the meeting that the only way to know for sure, because there was not any medical reason that had been found for apnea, the only way to know for sure whether or not that was happening would be for the child to be in a neutral setting.
      Q. The doctors didn't know if it was happening or not, is that right? Based on what you remember from that meeting?
      A. What I remember, I do not believe that anyone was willing to state beyond a shadow of a doubt at that point that that was happening.
      Q. Did any doctor at that meeting or any medical professional at that meeting offer an opinion that Kelly Thomason was suffering from Munchausen’s by Proxy?
      A. As I said previously, that was discussed and that possibility was a part of that conversation.
      Q. Did any doctor or medical professional at that meeting say or offer any sort of medical opinion that Kelly Thomason was suffering from Munchausen’s by Proxy?
      A. It was stated that that was a possibility.
      Joint Appendix at 174 — 75.
      Thus, even Goin did not state that the doctors found a "reasonable basis” to believe that Anthony was being intermittently smothered or that Kelly Thomason was afflicted with Munchausen by Proxy, much less that they "concurred” or "agreed” that such a reasonable basis existed. All she said was that the doctors discussed these matters as possibilities.

      . Wordlaw would also be protected by qualified immuniiy from personal liability for damages arising out of her actions in removing Anthony from plaintiffs' home. In Myers v. Morris, 810 F.2d 1437, 1463 (8th Cir.), cert. denied, 484 U.S. 828, 108 S.Ct. 97, 98 L.Ed.2d 58 (1987), this court held that a prosecutor and sheriff's deputies were protected by qualified immuniiy for the removal of children from their homes upon receiving evidence of potential sexual abuse by their parents. In so holding, this court observed that there was no legal precedent suggesting that "acting upon a reasonable belief that children are endangered by continued presence in their homes must be deferred until the completion of additional investigation." Id.


author: JOHN R. GIBSON, Circuit Judge.

text:
    BERGER TRANSFER & STORAGE, Plaintiff-Appellee, v. CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND; Central States, Southeast and Southwest Areas Health and Welfare Fund; Marion Winstead, Trustee of said Funds; Robert Sansone, Trustee of said Funds; R. Jerry Cook, Trustee of said Funds; Harold D. Leu, Trustee of said Funds; Howard McDougall, Trustee of said Funds; Robert Baker, Trustee of said Funds; R.V. Pulliam, Trustee of said Funds; Arthur H. Bunte, Jr., Trustee of said Funds, Defendants-Appellants.
    No. 95-2965.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 14, 1996.
    Decided June 18, 1996.

      Thomas M. Weithers, Rosemont, IL, argued (Albert M. Madden, on the brief), for appellant.
    Andrew R. Clark, Minneapolis, MN, argued (Carole Clark Isakson, on the brief), for appellee.
    Before FAGG, JOHN R. GIBSON, and WOLLMAN, Circuit Judges.
   JOHN R. GIBSON, Circuit Judge.

The Central States, Southeast and Southwest Areas Pension and Health and Welfare Funds appeal the district court’s judgment in favor of Berger Transfer and Storage. The Funds appeal the court’s decision that the owner-operators driving for Berger Transfer are independent contractors. The Funds argue that the district court erred in applying the common-law test for determining independent contractor status, and in holding that issue preclusion did not prevent it from deciding this issue. The Funds also appeal the district court’s holding that the Minnesota six-year statute of limitations applied. We affirm.

Berger Transfer, a trucking company, enters into “Contractor Operating Agreements” with owner-operators engaged in its long distance hauling. After the owner-operator leases his tractor to Berger Transfer, the company then executes a sublease to Allied Van Lines.

The collective bargaining agreement in effect between May 1982 and September 1988 required Berger Transfer to make pension contributions for its employees, first to the Minneapolis Employees Benefit Association and then to the Central States, Southeast and Southwest Areas Pension and Health and Welfare Funds.

Following an audit, the Funds determined that Berger Transfer had not made payments into the Funds on behalf of all owner-operators. The Funds demanded payment on behalf of these individuals, asserting that they were all employees. Berger Transfer filed this action for declaratory judgment, asking the district court to declare the owner-operators to be independent contractors, to enjoin the Funds from collecting contributions for these individuals, and to apply the Minnesota statute of limitations in the event the owner-operators were found to be employees. The Funds counterclaimed, seeking to recover all contributions owed to it by Berger Transfer.

The district court granted partial summary judgment, holding that the six-year Minnesota statute of limitations applied. Following a bench trial, the court held that the owner-operators were independent contractors, and entered judgment in favor of Berger Transfer. The Funds appeal.

I.

The Funds argue that issue preclusion prevents the district court from deciding whether the Berger Transfer owner-operators were employees or independent contractors. The funds argue that an earlier Minnesota workers’ compensation decision, which held that a Berger Transfer owner-operator was an employee, prevents relitigation of this issue. See Hansford v. Berger Transfer, Findings and Order, OAH ID No. 080985, at 8 (Minn. Office of Admin. Hearings Workers Compensation Section May 2,1991), aff'd as modified, 46 W.C.D. 303 (Minn. Workers’ Comp. Ct.App.1991), aff'd, 482 N.W.2d 225 (Minn.1992).

The district court concluded that the factual issues in this case differed from those decided in the workers’ compensation ease. The court ruled that the Funds had failed to introduce any evidence showing that Berger Transfer treated all of its owner-operators in the same manner as the owner-operator in the workers’ compensation case. The court noted that the Funds acknowledged that not all owner-operators were classified the same. Thus, the court concluded that, while the findings in Hansford might provide evidence in this ease, they did not prevent Berger Transfer from litigating the question of whether all owner-operators, as a group, were employees or independent contractors.

The Funds ask us to reverse the district court’s decision not to apply offensive nonmutual issue preclusion to prevent litigation of the employee-independent contractor question in this case. See Setter v. A.H. Robins Co., 748 F.2d 1328, 1330 (8th Cir.1984) (discussing the parameters of offensive nonmutual issue preclusion). We reverse the district court’s decision not to apply offensive nonmutual issue preclusion only for an abuse of discretion. Id.

Before [issue preclusion] will bar relitigation of a factual issue in a subsequent proceeding, the prior determination must satisfy a four-part test:
(1) the issue sought to be precluded must be the same as that involved in the prior action;
(2) the issue must have been litigated in the prior action;
(3) the issue must have been determined by a valid and final judgment; and
(4) the determination must have been essential to the prior judgment.
The party asserting [issue preclusion] bears the burden of proving that a prior decision satisfies all four elements of the test. If the party against whom the earlier decision is being asserted did not have a full and fair opportunity to litigate the issue in question [issue preclusion] does not apply.

Farmland Indus. v. Morrison-Quirk Grain, 987 F.2d 1335, 1339 (8th Cir.1993) (internal citations omitted) (quoting Johnson v. Miera (In re Miera), 926 F.2d 741, 743 (8th Cir.1991)).

Only when a party has had a full and fair opportunity to litigate an issue in the first proceeding do “the benefits of preclusion outweigh the countervailing due process concerns present whenever a party is es-topped from raising a claim.” Simmons v. O’Brien, 77 F.3d 1093, 1095-96 (8th Cir.1996). If application of offensive issue preclusion would be unfair to a defendant, a trial judge should not allow the use of offensive issue preclusion. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331, 99 S.Ct. 645, 651-52, 58 L.Ed.2d 552 (1979). When the defendant has little incentive to defend vigorously in the first suit, later application of offensive nonmutual issue preclusion may be inappropriate. See id. at 330, 99 S.Ct. at 651.

As the district court stated, the Funds made no effort to show that the status of all Berger Transfer owner-operators was identical to that of the owner-operator in the workers’ compensation case. Further, the workers’ compensation case involved a single injured owner-operator in an entirely different legal setting. We are convinced that it would be unfair to extend the finding in the workers’ compensation case to this ERISA case. See Parklane Hosiery Co., 439 U.S. at 331, 99 S.Ct. at 651-52; De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 234 (7th Cir.1983) (refusing to apply offensive issue preclusion when the first case offered little incentive to contest the issue of whether the defendant was a farm labor contractor). The district court did not abuse its discretion in refusing to apply offensive nonmutual issue preclusion here.

II.

The parties disagree regarding the standard of review that we must apply to the ruling that the owner-operators are independent contractors. Berger argues that this is a question of fact to be reviewed under the clearly erroneous standard, relying on Sargent v. Commissioner, 929 F.2d 1252, 1254 (8th Cir.1991) (stating that in tax cases, employer-employee relationship is a mixed question of law and fact to be reviewed under the clearly erroneous standard). We believe that the context in which Sargent arises limits its applicability to this case.

In Short v. Central States, Southeast & Southwest Areas Pension Fund, 729 F.2d 567, 571 (8th Cir.1984), we stated that “[w]hether a given individual is an employee or independent contractor is a question of law, which must be decided by reviewing the particular facts of each case.” We then looked to the common-law test for distinguishing employees from independent contractors, relying primarily on the enumeration of factors in the Restatement (Second) of Agency, § 220 (1957). Id. at 572. We balanced these factors to reach the ultimate legal conclusion as to whether the owner-operators were employees or independent contractors. No specific attack was made on the factors weighed to reach the ultimate conclusion in the case, so it was unnecessary to state whether the particular factual issues being weighed would, if attacked, be reviewed as questions of law or questions of fact.

It is evident that the district court’s findings underlying each of the common-law factors are factual findings, while the ultimate conclusion as to whether an individual is an employee or an independent contractor is a question of law. The standard of review has been well expressed as follows:

The existence and degree of each factor is a question of fact while the legal conclusion to be drawn from those facts—whether workers are employees or independent contractors—is a question of law. Thus, a district court’s findings as to the underlying factors must be accepted unless clearly erroneous, while review of the ultimate question of employment status is de novo.

Dole v. Snell, 875 F.2d 802, 805 (10th Cir.1989) (deciding employee-independent contractor status under Fair Labor Standards Act) (quoting Brock v. Superior Care, Inc., 840 F.2d 1054, 1059 (2d Cir.1988)); see also Henderson v. Inter-Chem Coal Co., 41 F.3d 567, 571 (10th Cir.1994); Martin v. Selker Bros., Inc., 949 F.2d 1286, 1292 (3d Cir.1991); Waxman v. Luna, 881 F.2d 237, 240 (6th Cir.1989).

Some years after we decided Short, the Supreme Court held that a common-law test should be applied to determine who qualifies as an employee under ERISA. Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 323-24, 112 S.Ct. 1344, 1348-49, 117 L.Ed.2d 581 (1992). The Court instructed:

In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party’s right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.

Id. (quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52, 109 S.Ct. 2166, 2178-79, 104 L.Ed.2d 811 (1989) (footnotes omitted)). As the district court recognized, “[s]ince the common-law test contains ‘no shorthand formula or magic phrase that can be applied to find the answer, ... all of the incidents of the relationship must be assessed and weighed with no one factor being decisive.’” Id. at 324, 112 S.Ct. at 1349 (quoting NLRB v. United Ins. Co. of Am., 390 U.S. 254, 258, 88 S.Ct. 988, 991, 19 L.Ed.2d 1083 (1968)).

The district court recognized that the proper inquiry was the hiring party’s right to control the manner and means by which a task is accomplished. The court then balanced the Darden factors on each side of the employee-independent contractor question to reach its conclusion.

The court noted that the owner-operator agreement specifically provided that the owner-operator was responsible for determining the means used to provide transportation services to Berger Transfer. The owner-operators were responsible for hiring and supervising drivers and other workers, loading and unloading the trucks, purchasing and maintaining the leased equipment, paying operating expenses such as fuel and repairs, and paying workers’ compensation and withholding employment taxes for drivers.

The district court also found that the owner-operators possessed “considerable autonomy regarding when and how long they would work.” For example, owner-operators could refuse to take trip assignments, and they frequently refused assignments offered by the company dispatcher. They were not penalized for refusing a trip, but were instead offered another assignment. In addition, the company paid the owner-operators a percentage of the revenue from each trip, and the owner-operators were not on Berger Transfer’s payroll. The company reported the owner-operators’ income to the Internal Revenue Service on Form 1099, instead of on Form W-2 which is used to report employee earnings.

The district court next examined the nature of Berger Transfer’s control over the leased tractor and the owner-operator. The court noted that because federal regulations required exclusive contract language in the Contractor Operating Agreement, it was neeessary to look at the actual nature of the relationship to determine the extent of Berger Transfer’s control. The court found that it was not uncommon for owner-operators to make trips for other carriers, as often as once or twice a month. The court also noted that although Berger Transfer may have stated that owner-operators were required to paint their trucks in Allied Van Lines colors and wear Allied uniforms, in practice they were not required to do so. Further, owner-operators were required to pay for the license obtained by Berger Transfer. The court concluded its findings by stating that the Funds had produced no evidence of restrictions on the owner-operators’ personal use of their tractors, or on soliciting business from other brokers. The record failed to show that Berger Transfer had ever unilaterally terminated an owner-operator or retained control of a tractor after the owner-operator wished to no longer drive for the company.

The Funds argue that the district court erred in its analysis because it is the existence of the right to control, not the exercise of that right which is determinative of employee or independent contractor status. Darden, 503 U.S. at 323, 112 S.Ct. at 1348, establishes the fundamental inquiry as whether the hiring party has the “right to control the manner and means by which the product is accomplished.” In so deciding, we must consider the common-law factors and assess “all of the incidents of the relationship ... with no one factor being decisive.” Id. at 324, 112 S.Ct. at 1349 (quoting United Ins. Co. of Am., 390 U.S. at 258, 88 S.Ct. at 991). The district court recognized these principles in its opinion, and we believe that they were properly applied throughout. Further, the district court’s findings of fact regarding the relationship between Berger Transfer and the owner-operators were not clearly erroneous.

The Funds rely on Yeldell v. Tutt, 913 F.2d 533, 541-42 (8th Cir.1990), which dealt with a jury instruction submitting the question of the existence of a master-servant relationship to the jury. Yeldell has limited applicability to the issues before us. It is the actual nature of the relationship that is determinative. Yeldell, 913 F.2d at 542. “Self-serving statements concerning how an individual is characterized, unrelated and unsupported by the actual working relationship, fall[ ] well short of the mark.” Richardson v. Central States, Southeast & Southwest Areas Pension Fund, 645 F.2d 660, 663 (8th Cir.1981).

Darden sets out a nonexhaustive list of factors for a district court to consider in its analysis. See Darden, 503 U.S. at 324, 112 S.Ct. at 1348-49; Loomis Cabinet Co. v. Occupational Safety & Health Review Comm’n, 20 F.3d 938, 942 (9th Cir.1994). In its opinion, the district court expressly discusses the following Darden factors: the source of the instrumentalities or tools; the hired party’s role in hiring and paying assistants; the extent of the hired party’s discretion over when and how long to work; the method of payment; the tax treatment of the hired party; and the duration of the relationship between the parties. In addition, our review of the record makes it clear that the district court also considered the other relevant Darden factors, such as the skill required; the right to assign additional projects to the hired party; whether the work was part of the regular business of the hired party; and the provision of employee benefits. Following this detailed analysis, the court held that after “[viewing all of the factors presented by the evidence in this case,” the owner-operators were not employees under the common-law test.

The Funds now argue that “the district court focused solely on the factors that it believed supported a finding that the owner-operators were independent contractors.”

The Funds argue that the district court failed to consider that Berger Transfer had previously contributed into the Funds on behalf of four of its drivers, and later certified their employment status to allow them to begin collecting pensions. The Funds consider this a significant admission by Berger Transfer that the owner-operators are actually employees. Berger Transfer flatly denies that it made contributions on behalf of these owner-operators. The company explains that the owner-operators made these contributions themselves, as part of a grandfather agreement in existence since 1958. The district court made no findings regarding these issues.

The Funds also argue that because Berger Transfer provided training programs and assessed penalties for violating company rules, we should find that the owner-operators are employees. Further, the Funds believe that the integration present between the operations of Berger Transfer and the owner-operators establishes the existence of an employer-employee relationship. The Funds argue that the owner-operators are responsible for the entire long haul operation of Berger Transfer, which is atypical of the usual supplemental nature of the work performed by independent contractors. In addition, Berger Transfer received revenue when the owner-operators performed work directly for Allied, which the Funds assert would not be the ease if the owner-operators were independent contractors.

We have carefully considered each of these arguments in our decision. Under Darden, these are facts to be weighed with all of the other evidence in the record in reaching a conclusion on the employee-independent contractor issue. While some of these facts may favor employee status, they do not compel such a conclusion. Certainly, in our weighing of the evidence, they do not tip the scale in that direction.

Finally, the core of the Funds’ argument is that the district court erred in its conclusion, because this case is indistinguishable from Short, 729 F.2d at 567-74, which also decided if owner-operators were employees under ERISA. The panel in Short, 729 F.2d at 573-74, also applied the common-law test with many of the factors being the same as here. As the district court noted, the panel in Short found the existence of an exclusive contract a significant factor in the common-law analysis. Short, 729 F.2d at 574 (discussing Munts v. Fitzsimmons, 25 Ill.App.3d 109, 323 N.E.2d 153 (1975)). In Short, 729 F.2d at 574, both drivers “operated under exclusive contracts and each drove for their employers for several years.” Here, the district court found that the owner-operators would sometimes drive for other companies. We believe this to be a key distinction between this ease and Short. See Short, 729 F.2d at 574 (noting that the existence of an exclusive contract becomes “crucial when the factor of exclusive employment is weighed with the other factors indicating employee status and against the factors indicating independent contractor status”). While Short provides an excellent framework for our analysis, the result must be distinguished on its facts.

Having carefully reviewed the record and “all of the incidents of the relationship,” Darden, 503 U.S. at 324, 112 S.Ct. at 1349, between Berger Transfer and the owner-operators, we conclude that the district court did not err in holding that the owner-operators are independent contractors. We affirm the judgment of the district court. Since we conclude that the owner-operators were independent contractors, we need not reach the statute of limitations question.

      . The Honorable Richard H. Kyle, United States District Judge for the District of Minnesota.

      . Berger Transfer did not challenge this finding among the several issues raised on appeal in that case.

      . The issue preclusion requested is nonmutual because the Funds were not a party in the workers' compensation case. See Setter, 748 F.2d at 1330. It is offensive, because the Funds seek to impose liability on Berger Transfer by preventing the company from litigating an issue decided against it in the previous workers' compensation case. Id.

      . On several occasions during the life of the pension plans, non-employee owner-operators made self-contributions into the Funds. When these individuals were discovered, the Funds would refund the amount of the ineligible contributions. At least two of these refunds involved claims of individuals associated with Berger Transfer.

      . At trial, the president of Berger Transfer testified that a grandfather agreement existed, allowing some owner-operators to contribute to the plan on their own behalf. He indicated that he had been informed that an employee who was covered by the plan in 1958 could continue to make self-contributions to the plan after becoming an independent contractor. He testified that he was told to simply list that individual as an employee on the company’s contribution sheet, make the contribution on behalf of the individual, and then deduct the contribution from that person’s earnings. This was the method followed in submitting the four individuals’ self-contributions under what he believed the grandfather agreement to be.
      In a 1976 letter to employers, which addressed the ongoing problem of owner-operator self-contributions, the plan administrator explained the Funds understanding of the 1958 exception as follows:
      As a general rule, no self-contributions are permitted.
      In 1958, there existed in the Household Goods section a specific problem, which was resolved by agreement between the Union and Employers which provided that drivers then employed by a participant, who purchased a truck from the employer or elsewhere and continued to operate for that employer, could make self-contributions.

      . The status of these individuals and their continued right to receive pension payments are not properly before us, and we decline to address this question on the basis of the record before us.