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 weekslong standoff. Survivors have been pursuing a 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.

The appeal before the 5th Circuit basically dealt with one question: Was Smith biased against the Davidians 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.

Attorneys for the survivors did not immediate return calls seeking comment Tuesday morning.

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.

AP-ES-07-15-03 0947EDT