Freedman, Circuit Judge. Kalodner, Circuit Judge, concurring. McLaughlin, Circuit Judge, dissenting. Hastie, Circuit Judge, dissenting.
These three petitions for writs of mandamus or prohibition, or both, were argued together and will be disposed of in one opinion.
On October 4, 1960, an Electra airplane crashed into Boston Harbor a few seconds after takeoff on its scheduled flight to Philadelphia. Numerous suits for the deaths and injuries which resulted were brought in the United States District Courts for the Eastern District of Pennsylvania and the District of Massachusetts. The various defendants in these proceedings were Eastern Airlines, Inc., the owner and operator of the plane, Lockheed Aircraft Corp., the manufacturer of the plane, General Motors Corporation, the maker of its engines, and the United States of America, which had general supervisory authority.*fn1
The death and injury of Pennsylvania residents in the Massachusetts plane crash presented the increasingly familiar problem of the applicable rule of damages. Pennsylvania's Wrongful Death and Survival Acts*fn2 are compensatory, without limitation on the amount of recovery, whereas the Massachusetts Death Act*fn3 is based on the degree of culpability and fixes recovery at a minimum of $2,000 and a maximum of $20,000.
All of the actions pending in the Eastern District of Pennsylvania were assigned to Judge Francis L. Van Dusen. On motion of the defendants under 28 U.S.C. § 1404 (a) Judge Van Dusen ordered the actions transferred to the District of Massachusetts. Popkin v. Eastern Air Lines, Inc., 204 F. Supp. 426 (E.D. Pa. 1962).
The plaintiffs sought review of the transfer order by petitions in this court for mandamus or prohibition*fn4 directing Judge Van Dusen to vacate and set aside his order. We ordered the respondent Judge to file separate answers or one consolidated answer to the petitions, and granted leave to the defendants to intervene.*fn5 An answer was filed by Judge Van Dusen, and after argument we held that the Judge did not have power to transfer the death actions. The basis of the decision was that the plaintiffs were not qualified to sue in Massachusetts as personal representatives at the time the death actions were brought in Pennsylvania. The actions therefore were held not to be such as "might have been brought" (28 U.S.C. § 1404(a)) in Massachusetts and hence did not meet the requirement for transfer there.*fn6 Barrack v. Van Dusen, 309 F.2d 953 (3 Cir. 1963).
The respondents in this court, including Judge Van Dusen, then obtained certiorari (Van Dusen, United States District Judge, et al. v. Barrack, Administratrix, et al., 372 U.S. 964, 10 L. Ed. 2d 128, 83 S. Ct. 1088 (1963)), and after argument the Supreme Court reversed the judgment of this court on the ground that the limiting words of § 1404(a) did not apply to incapacity to sue under the law of the State of the transferee forum. It went on to hold that a transfer of the action to Massachusetts would work no change in the applicable substantive law and accordingly the Massachusetts District Court would be required to apply the damage rule which would prevail under Pennsylvania's conflict of laws doctrine.*fn7 Because this newly announced principle might affect a number of elements relevant to the order of transfer, such as the feasibility of consolidating the Pennsylvania and Massachusetts cases, the need for witnesses on various elements of damage and their convenience, and the appropriateness of the trial of a diversity case in a forum familiar with the applicable state law, the Supreme Court remanded the cause to the District Court so that it might reconsider the motion to transfer. Van Dusen, United States District Judge, et al. v. Barrack, Administratrix, et al., 376 U.S. 612, 11 L. Ed. 2d 945, 84 S. Ct. 805 (1964).
On remand to the District Court the plaintiffs moved that Judge Van Dusen disqualify himself under 28 U.S.C. § 455*fn8 from sitting in any further proceedings in the pending actions. Judge Van Dusen denied the motion. Once again plaintiffs seek review by a petition for mandamus or prohibition, or both, in which the Judge is the sole respondent.
The parties have assumed the availability of mandamus for review of Judge Van Dusen's order. Although we held in Green v. Murphy, 259 F.2d 591 (3 Cir. 1958), that mandamus will not lie for review of the denial of a claim of personal bias and prejudice made under 28 U.S.C. § 144, we believe that mandamus is the appropriate remedy here. The Green case is inapplicable for two reasons. There the interlocutory order was one which later would be reviewable on appeal from the final judgment, whereas, if the present cases are transferred there will be no final judgment in this circuit and any review here must be interlocutory.*fn9 Secondly, the present case is before us on a claim of disqualification resulting from matters which were brought into existence by order of this court. This we have the duty to correct and we do so in the exercise of our supervisory authority and in aid of our appellate jurisdiction, both well recognized grounds for mandamus.*fn10
We turn then to the claims of the petitions. There is no dispute regarding the facts, which Judge Van Dusen with commendable forthrightness spread upon the record after a review of his files. The Judge had designated the attorneys for defendants as his counsel, had consulted with them concerning his answer to the petitions for mandamus and had made suggestions for change in their draft.*fn11 He later joined as a petitioner in the application to the Supreme Court for certiorari. Petitioners assert that the Judge is disqualified from acting further in these cases because of the "letter" and "spirit" of 28 U.S.C. § 455, which provides: "Any . . . judge of the United States shall disqualify himself in any case in which he . . . has been of counsel . . . or is so related to or connected with any party or his attorney as to render it improper, in his opinion, for him to sit on the trial . . . or other proceedings therein."
Petitioners make no claim that Judge Van Dusen had any connection with any of the parties to the action. It is asserted, however, that his giving of advice to his own counsel, who also were attorneys for the defendants, and perhaps also his relationship to his counsel while they were attorneys for the defendants, amounted to his being "of counsel", or at least to his having had a relationship to or connection with attorneys for the parties defendant within the meaning of the statute.
On behalf of the respondent it is argued that petitioners may not be heard to complain because it is they who made the Judge the sole respondent and so cast on him the need to answer their petitions, a need which, because of the many cases involved, made it inevitable that he be represented by counsel who were already familiar with the litigation. Similarly, it is said that the petitioners could have avoided making the Judge the respondent in mandamus by seeking review of the order of transfer under the Interlocutory Appeals Act, 28 U.S.C. § 1292(b).
The conclusion we have reached makes it unnecessary to decide whether Judge Van Dusen's conduct falls within the prohibition of 28 U.S.C. § 455. For in any case, in view of the existing circumstances in this case, which have led us to adopt a new procedure in mandamus, he should not participate in the further course of this litigation. A review of the evolution of mandamus makes it clear that the continuance of the same form of practice in all mandamus cases is undesirable. Cases where the relief sought is directed against the judge individually on grounds extrinsic to the ...