Without dissent, a three-judge panel of the 5th U.S. Circuit Court of Appeals late Monday turned aside contentions that a lower court judge who ruled against the survivors was biased.
Scores of Branch Davidian members, including leader David Koresh, were killed in 1993 when government agents stormed their compound after a weeklong standoff. Survivors had been pursuing a $675 million wrongful death claim for years.
In September 2000 in Waco, U.S. District Judge Walter Smith rejected their lawsuit, backing the government contention that agents did not use excessive force in their tear gas assault on the compound. Smith found the Davidians themselves set the fire that killed nearly 80 men, women and children.
Michael Caddell, an attorney for the survivors, said he would ask the U.S. Supreme Court to review the case.
"I'd like to think there's some place we can get a fair hearing. The 5th Circuit opinion refuses to recognize clear bias. It is clear that Judge Smith was biased to the Davidians. It is unfortunate that the 5th Circuit could not recognize that," Caddell said.
Justice Department attorney Charles Scarborough said the agency would have no comment.
The appeal before the 5th Circuit basically dealt with one question: Was Smith biased because of remarks he made during the trial and his past relationships with government attorneys?
"We conclude that appellants' allegations do not reflect conduct that would cause a reasonable observer to question Judge Smith's impartiality," Chief 5th Circuit Judge Edith Jones wrote for the panel.
The Davidians had argued that Smith's comments on and off the bench showed "deep-seated antagonism" and "preconceptions" about the group, whose beliefs encompassed fierce hostility toward the government.
As an example, the survivors said Smith had called one Branch Davidian follower "crazy" and a murderer.
But government attorneys said Smith "displayed patience and diligence wading through enormously complicated legal and factual claims."
On Feb. 28, 1993, federal agents stormed the Branch Davidian compound looking for stockpiled automatic weapons and hand grenades. Four federal agents and three Davidians were killed in the clash.
For 51 days, the government attempted to get cult followers to leave the compound. On April 19, agents fired tear gas rounds into the compound and fire destroyed it.