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In re School Asbestos Litigation

filed: October 8, 1992; As Amended October 23, 1992. As Corrected November 9, 1992.

IN RE SCHOOL ASBESTOS LITIGATION; PFIZER INC., PETITIONER
v.
THE HONORABLE JAMES MCGIRR KELLY, NOMINAL RESPONDENT, BARNWELL SCHOOL DISTRICT NO. 45, SCHOOL DISTRICT OF LANCASTER, MANHEIM TOWNSHIP SCHOOL DISTRICT, LAMPETER-STRASBURG SCHOOL DISTRICT, BOARD OF EDUCATION OF THE MEMPHIS CITY SCHOOLS, AND A CONDITIONALLY CERTIFIED CLASS, RESPONDENTS, LAC D'AMIANTE DU QUEBEC, LTEE, INTERVENOR; KAISER CEMENT CORPORATION, PETITIONER V. THE HONORABLE JAMES MCGIRR KELLY, NOMINAL RESPONDENT, SCHOOL DISTRICT OF LANCASTER, MANHEIM TOWNSHIP SCHOOL DISTRICT, LAMPETER-STRASBURG SCHOOL DISTRICT, RESPONDENTS, LAC D'AMIANTE DU QUEBEC, LTEE, INTERVENOR; ACANDS, INC., PETITIONER V. THE HONORABLE JAMES MCGIRR KELLY, NOMINAL RESPONDENT, BARNWELL SCHOOL DISTRICT NO. 45, BOARD OF EDUCATION OF THE MEMPHIS CITY SCHOOLS, AND A CONDITIONALLY CERTIFIED CLASS, RESPONDENTS, LAC D'AMIANTE DU QUEBEC, LTEE, INTERVENOR; ASTEN GROUP, INC. PETITIONER V. THE HONORABLE JAMES MCGIRR KELLY, NOMINAL RESPONDENT, BARNWELL SCHOOL DISTRICT NO. 45, BOARD OF EDUCATION OF THE MEMPHIS CITY SCHOOLS, AND A CONDITIONALLY CERTIFIED CLASS, RESPONDENTS, LAC D'AMIANTE DU QUEBEC, LTEE, INTERVENOR; W.R. GRACE & CO. - CONN., PETITIONER V. THE HONORABLE JAMES MCGIRR KELLY, NOMINAL RESPONDENT, BARNWELL SCHOOL DISTRICT NO. 45, SCHOOL DISTRICT OF LANCASTER, MANHEIM TOWNSHIP SCHOOL DISTRICT, LAMPETER-STRASBURG SCHOOL DISTRICT, BOARD OF EDUCATION OF THE MEMPHIS CITY SCHOOLS, AND A CONDITIONALLY CERTIFIED CLASS, RESPONDENTS; ASTEN GROUP, INC., DANA CORPORATION, PFIZER, INC., PITTSBURGH CORNING CORPORATION, AND W.R. GRACE & CO. - CONN., PETITIONERS V. THE HONORABLE JAMES MCGIRR KELLY, NOMINAL RESPONDENT, BARNWELL SCHOOL DISTRICT NO. 45, SCHOOL DISTRICT OF LANCASTER, MANHEIM TOWNSHIP SCHOOL DISTRICT, LAMPETER-STRASBURG SCHOOL DISTRICT, BOARD OF EDUCATION OF THE MEMPHIS CITY SCHOOLS, AND A CONDITIONALLY CERTIFIED CLASS, RESPONDENTS; GEORGIA-PACIFIC CORPORATION, PETITIONER V. THE HONORABLE JAMES MCGIRR KELLY, NOMINAL RESPONDENT, SCHOOL DISTRICT OF LANCASTER, MANHEIM TOWNSHIP SCHOOL DISTRICT, LAMPETER-STRASBURG SCHOOL DISTRICT, AND A CONDITIONALLY CERTIFIED CLASS, RESPONDENTS; KAISER CEMENT CORPORATION, PETITIONER V. THE HONORABLE JAMES MCGIRR KELLY, NOMINAL RESPONDENT, SCHOOL DISTRICT OF LANCASTER, MANHEIM TOWNSHIP SCHOOL DISTRICT, LAMPETER-STRASBURG SCHOOL DISTRICT, RESPONDENTS



On Petitions for Writ of Mandamus to the United States District Court for the Eastern District of Pennsylvania. (Dist. Ct. Master File No. 83-00268)

Before: Becker, Hutchinson, and Alito, Circuit Judges

Author: Becker

Opinion OF THE COURT

BECKER, Circuit Judge.

I. INTRODUCTION

Before us are eight petitions for mandamus brought by various defendants shortly before trial was scheduled to begin in this nationwide products liability class action. The trial, which has been stayed pending resolution of these petitions, will concern over 30,000 school districts' claims that the defendants are liable for expenses incurred in eliminating the alleged danger caused by asbestos-containing products in their school buildings. The class action is founded on diversity jurisdiction and will be adjudicated according to the laws of fifty-four jurisdictions.

Petition No. 91-1887, filed by Pfizer, Inc. and supported by numerous other defendants, challenges the refusal of the district Judge, the Honorable James McGirr Kelly, to disqualify himself from the case.*fn1 Pfizer's petition first notes that Judge Kelly, pursuant to a previously established procedure, approved an ex parte request by the plaintiffs for $50,000 from a settlement fund to support a scientific conference on a key merits issue -- the hazards of asbestos in place. The core allegation of the petition is that Judge Kelly attended, and had many of his expenses paid for, the resulting conference, which was an allegedly one-sided event at which most of the plaintiffs' expected expert witnesses presented views similar to those they intended to express at trial.

According to the petition, Judge Kelly acknowledged the resulting appearance of impropriety, but, instead of disqualifying himself, he barred experts who appeared at the conference from providing any expert testimony at trial. Pfizer submits that this remedy is inadequate, and that the sole remedy under 28 U.S.C. § 455(a) for the appearance of partiality is disqualification. Pfizer also claims that Judge Kelly had to disqualify himself under 28 U.S.C. § 455(b) because by attending the conference he obtained personal knowledge of disputed facts.

In its petition, Pfizer asks only that we order Judge Kelly to disqualify himself. Two companion petitions, No. 91-1943 filed by ACandS, Inc. and No. 91-1981 filed by Asten Group, Inc., argue additionally that specific rulings adverse to them, which were issued after defendants first requested Judge Kelly to disqualify himself are tainted by the appearance of partiality and must be vacated. Another petition, No. 91-1917 filed by Kaiser Cement Corp., requests that we order the district court (1) to discontinue its process of approving, ex parte, the class plaintiffs' use of escrowed settlement funds to defray litigation costs and (2) to unseal all the plaintiffs' past applications for use of such funds and the district court's rulings thereon.

Rejecting the contrary contention of the class plaintiffs, we conclude that mandamus is a proper means to force a district Judge to disqualify himself or herself under 28 U.S.C. § 455. Furthermore, although we believe that Judge Kelly acted with integrity at all times, we also believe that the circumstances surrounding his attendance at the conference created an appearance of partiality that required disqualification under 28 U.S.C. § 455(a). A writ of mandamus disqualifying him shall therefore issue.

Such an order inevitably raises the question of what, if any, further remedy would be appropriate. We conclude, however, that none of Judge Kelly's past orders need be vacated at this time. Furthermore, although we recommend that the newly assigned district Judge delegate the task of reviewing the plaintiffs' spending requests to a magistrate Judge or a special master not otherwise involved in the case, we see no need to abolish the ex parte approval process altogether or to require the unsealing of past funding requests and the court orders approving them.

Two other mandamus petitions, No. 91-2105 filed by W.R. Grace & Co. - Conn. and No. 92-1053 filed by Georgia-Pacific Corp., request that we order the district court to adjudicate the merits of their respective motions for summary judgment. The district court refused to consider those motions on the ground that they were untimely, even though the court had not fixed any deadlines for filing such motions and had not set a firm trial date. We conclude that mandamus is a proper means to require a district court that has refused to consider the merits of an issue to do so. We further hold that a district court may only refuse to consider the merits of a summary judgment motion on grounds of untimeliness if it has previously set reasonable time limits on such motions or if the motion is made less than ten days from a formally fixed trial date so as to violate the ten day requirement of Federal Rule of Civil Procedure 56(c). While the Conclusions we reach on these points are holdings because they are immediately binding on the parties before the court and address rulings that otherwise would govern the case (i.e., they are not merely advisory), we realize that we cannot issue a writ of mandamus to a non-party, the newly assigned district Judge. Accordingly, no writ of mandamus will issue with respect to the future consideration of the motions for summary judgment.

Finally, two petitions, No. 92-1014 filed jointly by Asten Group, Dana Corp., Pfizer, Pittsburgh Corning Corp., and W.R. Grace ("the joint petition"), and No. 92-1084 filed by Kaiser Cement, challenge the district court's orders governing Phase I of the trial. Under the Phase I plan, the initial issue for trial is whether or not the defendants conspired and/or acted in concert to conceal the dangers of asbestos. The joint petition alleges that the district court lacks jurisdiction to try that issue first because, there having been no determination of liability for the underlying products liability tort, there can be no case or controversy with regard to the defendants' joint and several liability for that underlying tort. The petition also alleges that the Phase I plan would violate the defendants' Seventh Amendment rights because different juries would be called upon to decide inextricably interwoven factual issues.

Kaiser Cement's petition alleges that the district court plans to try this diversity case according to a composite legal standard made up of the strictest standard from each of the jurisdictions (that is, the liability provisions least favorable to plaintiffs), instead of trying the claims from each jurisdiction according to the tort law of that jurisdiction. This scheme was originally suggested by the plaintiffs as a means of making the class action more manageable. Kaiser Cement, however, believes that such a scheme would violate the Supreme Court's ruling in Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 814-23, 105 S. Ct. 2965, 2976-80, 86 L. Ed. 2d 628 (1985), that due process requires courts hearing multistate class actions to apply the substantive law of a state with a significant interest in having its law applied to a particular claim. Kaiser Cement fears that, even if it won a judgment under the strictest-state standard, absent class members from more "lenient" jurisdictions might successfully attack the judgment collaterally on the ground that they had the right to try their claims under their own, more favorable laws.

We conclude that deciding these issues now would be premature since the case will be transferred to a newly assigned district Judge who might adopt a different manner of trying the case. We will therefore deny these petitions without prejudice to the petitioners' right to raise these issues should they arise again.

II. PROCEDURAL HISTORY OF THE OVERALL LITIGATION

This case was first filed in early 1983 and has been before this court numerous times. The district court consolidated what had originally been four separate suits based on diversity jurisdiction (three from Pennsylvania and one from South Carolina), and certified a nationwide opt-out class action for compensatory damages under Federal Rule of Civil Procedure 23(b)(3) and a mandatory class action on punitive damages under Rule 23(b)(1)(B). In re Asbestos School Litigation, 104 F.R.D. 422 (E.D. Pa. 1984). On appeal, we vacated the certification of the mandatory class action for punitive damages but, with some reluctance, affirmed the certification of the opt-out class action for compensatory damages. In re School Asbestos Litigation, 789 F.2d 996 (3d Cir. 1986).

Since then, discovery and pretrial litigation has continued on a massive scale, and the district court has issued hundreds of pretrial orders, several of which have previously come before this court on collateral-order appeals or on petitions for mandamus. Among other things, we have rejected defendants' challenges to the district court's jurisdiction, In re School Asbestos Litigation, 921 F.2d 1310 (3d Cir. 1990) (denying mandamus petitions seeking to require the district court to dismiss the class action complaints for lack of subject matter jurisdiction), and have refused to decertify the class action, In re School Asbestos Litigation, 921 F.2d 1338 (3d Cir. 1990) (ruling that mandamus does not lie to force the decertification of a class action when interlocutory appeal is available).*fn2

After numerous delays, the case was nearly ready to go to trial in 1991. By September of that year, the district court had reformulated its original plan for the first phase of the trial, deciding to try only whether the defendants conspired or acted in concert to conceal information about the hazards of asbestos-containing products. Other issues, such as the level at which various kinds of friable asbestos are dangerous in school buildings,*fn3 whether statutes of limitations preclude certain claims, whether plaintiffs can identify particular defendants' products as present in their schools, and whether the defendants' products were defective, were reserved for later phases. In order to keep trial manageable, the district court elected to hold several Phase I trials, each involving about a dozen defendants. At a pretrial conference in early December 1991, the court set February 3, 1992, as the date of jury selection in the first of the Phase I trials.

In the meantime, over the course of several months, six of the current mandamus petitions were filed in this court. On January 17, 1992, after a motions panel of this court referred the mandamus petitions requesting disqualification to a merits panel for Disposition, the district court stayed proceedings pending decision on the petitions. In an effort to clear roadblocks to trial in the event that he was not disqualified, Judge Kelly advised the parties to file immediately any other contemplated mandamus petitions. Following this invitation, two more petitions for mandamus were filed. We consolidated the eight petitions into three groups: (1) those relating to disqualification and the ex parte process of approving plaintiffs' use of settlement funds (discussed in Parts IV and V); (2) those relating to the district court's refusal to consider summary judgment motions relevant to Phase I on the ground of untimeliness (discussed in Part VI); and (3) those relating to the Phase I trial plan itself (discussed in Part VII).

III. GENERAL STANDARDS REGARDING THE AVAILABILITY OF MANDAMUS

Although we will discuss separately the availability of mandamus relief for each group of grievances in this case, a preliminary summary of the standards generally governing the availability of mandamus is in order.

Federal courts of appeals have the power to issue extraordinary writs under the All Writs Act, 28 U.S.C. § 1651(a) (1988). As the adjective "extraordinary" implies however, courts of appeals must be chary in exercising that power: "Mandamus must not be used as a mere substitute for appeal." Westinghouse Electric Corp. v. Republic of Philippines, 951 F.2d 1414, 1422 (3d Cir. 1991). Mandamus is disfavored because its broad use would threaten the policy against piecemeal appeals. Kerr v. United States District Court, 426 U.S. 394, 403, 96 S. Ct. 2119, 2124, 48 L. Ed. 2d 725 (1976). Accordingly, the petitioner must ordinarily have no other adequate means to obtain the desired relief, id., and the petitioner must show a "clear and indisputable" right to issuance of the writ, Will v. United States, 389 U.S. 90, 96, 88 S. Ct. 269, 274, 19 L. Ed. 2d 305 (1967). Even then, exercise of our power is largely discretionary. Kerr, 426 U.S. at 403, 96 S. Ct. at 2124.

The traditional use of mandamus has been "to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so." Roche v. Evaporated Milk Association, 319 U.S. 21, 26, 63 S. Ct. 938, 941, 87 L. Ed. 1185 (1943). Even under that formulation, however, "courts have not confined themselves to any narrow or technical definition of the term 'jurisdiction.'" United States v. Santtini, 963 F.2d 585, 594 (3d Cir. 1992). See Mallard v. United States District Court, 490 U.S. 296, 309, 109 S. Ct. 1814, 1822, 104 L. Ed. 2d 318 (1989). Mandamus may lie to prevent a district court from usurping a power that it lacks and to rectify clear abuses of discretion. Mallard, 490 U.S. at 309, 109 S. Ct. at 1822. Mandamus may be especially appropriate to further supervisory and instructional goals, and where issues are unsettled and important. See Sporck v. Peil, 759 F.2d 312, 315 (3d Cir. 1985); United States v. Christian, 660 F.2d 892, 895-97 (3d Cir. 1981); Rapp v. Van Dusen, 350 F.2d 806, 810 (3d Cir. 1965) (in banc).

Although the above considerations are well established, "application of the 'black letter' rules for when mandamus will be issued has not been unwavering." Maloney v. Plunkett, 854 F.2d 152, 155 (7th Cir. 1988). Some flexibility is required if the extraordinary writ is to remain available for extraordinary situations. "The writ is a safety valve (one of several safety valves, in fact) in the final-judgment rule, and its proper use cannot be wholly reduced to formula." Id. Nevertheless, at oral argument in this case, the plaintiffs have insisted that we established a bright-line, procedural rule in Rapp v. Van Dusen, our seminal case addressing the procedures to be followed in mandamus cases. There we wrote:

In view of the extent of relief now afforded by the Interlocutory Appeals Act, 28 U.S.C. § 1292(b), and the principle which ordinarily limits the writ of mandamus to cases where no other remedy is available, petitions for the writ should allege that an unsuccessful request was made for certification under § 1292 (b), or why such an application was inappropriate in the circumstances.

350 F.2d at 813 (footnote omitted).

According to the plaintiffs, we held in Rapp that, unless a petitioner seeks certification for an interlocutory appeal under subsection 1292(b) or specifically alleges why certification was not possible, we will not consider a mandamus petition, no matter how meritorious the petition might otherwise be. In this case, no petitioner has sought certification of an interlocutory appeal, and although several of the petitions specifically alleged that interlocutory appeal was not a viable means to secure relief, not all did.*fn4 However, we do not interpret Rapp so rigidly, and observe that neither Federal Rule of Appellate Procedure 21 nor any decision, Rule, or Internal Operating Procedure of this court has codified such a requirement.

The petitioners note that this portion of Rapp was technically dictum. We will not ignore it on that ground, for Rapp was an in banc decision consciously intended to alter the way mandamus proceedings operate in this circuit. Our primary concern in Rapp was to reduce the participation of district Judges in mandamus proceedings. The petition at issue there (actually the second petition in that case) was based on an entanglement created by the first petition, which concerned the transfer of the case to another circuit. In response to that first petition, "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. He later joined as a petitioner in the application to the Supreme Court for certiorari." Id. at 810 (footnote omitted). In the second petition, the petitioners sought to disqualify the district Judge on the basis of the improper appearance created by his association with the opposing party in responding to the first petition.

To avoid the appearance of partiality that arose when the real party in interest (the prevailing party in the district court) consulted with and represented the district Judge in mandamus proceedings, we set out a prospective procedure whereby the district Judge would be a nominal, as opposed to the actual, respondent where mandamus is sought to secure interlocutory review of the merits of a judicial decision. Id. at 812-13.*fn5 The statement quoted above, evincing a preference for the use of §§ 1292(b), is therefore properly read in connection with, and consistent with, our goal of minimizing district Judges' participation as litigants. We note in this regard that one of the respondent's arguments in Rapp was that the petitioners should not be heard to complain because they had created the situation themselves by failing to seek review of the transfer through an interlocutory appeal, thereby assuring that Judge Van Dusen would be the sole respondent to the first petition. Id. at 810.

Additionally, we sought by our statement to reduce the frequency of resort to mandamus by reinforcing the general duty of petitioners seeking extraordinary writs to show that alternative means of appeal are inadequate. Our choice of "should allege" rather than "must allege," however, confirms that we did not intend our statement to establish an inflexible pleading requirement.

We reiterate our preference for an explanation in the petition for why interlocutory appeal is not an adequate alternative. Where interlocutory appeal seems a practical but untried avenue, we will ordinarily deny a petition for mandamus. See In re School Asbestos Litigation, 921 F.2d at 1342. We decline, however, to dismiss any of the petitions in this case out of hand for failure to address the availability of interlocutory appeal. Rather, we will consider the availability of alternate avenues of redress with regard to each of the petitioners' claims.

IV. THE PETITIONS RELATING TO DISQUALIFICATION

We now consider the petitions of Pfizer, ACandS, and Asten Group, which request that we direct Judge Kelly to disqualify himself because of his attendance at a conference on the hazards of asbestos in place. The conference, which was sponsored by an organization of scientists called the Collegium Ramazzini, took place in early June 1990 and was entitled "The Third Wave of Asbestos Disease: Exposure to Asbestos in Place. Public Health Control" (the "Third Wave Conference," for short).

A.

Mandamus as a Means to Review a District Judge's Failure to Disqualify Himself or Herself

Initially, we must determine whether a mandamus petition is a proper means for a court of appeals to review a district Judge's refusal to disqualify himself or herself from a case. The plaintiffs contend that Green v. Murphy, 259 F.2d 591 (3d Cir. 1958) (in banc), and City of Pittsburgh v. Simmons, 729 F.2d 953 (3d Cir. 1984), hold that mandamus does not lie for that purpose, but that a refusal to disqualify is reviewable only after final judgment. The petitioners respond that even though Green and its progeny have held that appeal after final judgment suffices where actual bias is alleged under 28 U.S.C. § 144 (1988),*fn6 this court has never taken a position on the use of mandamus to enforce the broader command of 28 U.S.C. § 455, which additionally requires disqualification upon the appearance of partiality.

Section 455 is addressed directly to judicial officers, requiring them to act sua sponte when confronted with situations requiring their disqualification. Subsection (a) provides:

Any Justice, Judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

Subsection (b), in turn, lists a number of specific circumstances in which a Judge is required to disqualify himself or herself. Most relevantly, disqualification is required when there is "a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding." 28 U.S.C. § 455(b)(1). While the parties may, after full disclosure on the record, waive the grounds of disqualification under subsection (a), a Judge may not accept a waiver of the grounds listed in subsection (b).*fn7

The petitioners urge us to adopt the consensus position of our sister circuits and hold that mandamus is a proper means of challenging a district Judge's refusal to disqualify himself or herself under section 455. As we shall explain, we agree with the petitioners.

Thirty-four years ago in Green, this court, sitting in banc, sharply divided over the use of mandamus to rectify the alleged failure of a district Judge to disqualify himself for actual bias under 28 U.S.C. § 144. Chief Judge Biggs, writing for four of the seven Judges, refused to consider the merits of the complaint on a petition for mandamus, holding that appeal from final judgment was an adequate means of relief. 259 F.2d at 594. The reach of the majority opinion is somewhat unclear, however. Much of the language appears to endorse a blanket rule that refusals to disqualify under section 144 are not reviewable on mandamus. The case, however, can also be read as a holding "under the circumstances there present." Id. See also id. at 595 (Hastie Concurring) ("We understand the majority opinion to say that in extraordinary enough circumstances it might be proper for this court to use mandamus or prohibition to prevent a district Judge from arbitrarily or scandalously disregarding his plain duty to disqualify himself from hearing a case under Section 144 of Title 28 of the United States Code, but that such circumstances do not appear in this case.").*fn8

Green remains the law of this circuit, and this panel may not question it. See Third Circuit Internal Operating Procedure 9.1. Further, contrary to the petitioners' suggestion, our in banc decision in Rapp v. Van Dusen, 350 F.2d 806 (3d Cir. 1965), did not overrule or narrow Green. Rather, it distinguished Green on two grounds. First, our opinion in Green was premised on the availability of appeal to cure the alleged harm to the petitioner. Green, 259 F.2d at 594 ("We think that the remedy which can be afforded the petitioner by appeal is adequate for this court can strike down a judgment of conviction if we should find that the affidavit filed by the petitioner was legally sufficient to disqualify Judge Murphy under the provisions of Section 144."). In Rapp, however, we explained that if the cases were transferred, as the district Judge had ordered, there would be no opportunity to review the final judgment. Rapp, 350 F.2d at 810. Second, we acknowledged that the impropriety in Rapp had arisen as a result of our own order requiring the district Judge to participate as respondent in the earlier mandamus action. We accordingly felt obligated to correct the impropriety that we had caused and "did so in the exercise of our supervisory authority." Id. at 810, 814. Neither ground of distinction applies here.

The petitioners also suggest that our decision to consider the merits in Rapp but not in Green supports a distinction between petitions brought under section 455, as in Rapp,*fn9 and those brought under section 144, as in Green. Neither Rapp nor subsequent decisions of this court have either endorsed or rejected such a distinction. The plaintiffs argue against a distinction based on City of Pittsburgh v. Simmons, 729 F.2d 953 (3d Cir. 1984), where we cited Green and held that "a refusal to recuse is reviewable only after final judgment," id. at 954. The petition there, however, did not identify whether the motion for disqualification was based on section 144 or on section 455. Accordingly, our Discussion in City of Pittsburgh should not be read as having taken any position on section 455 petitions given that Green was a section 144 case.

In Moody v. Simmons, 858 F.2d 137, 143-44 (3d Cir. 1988), without mentioning Green or City of Pittsburgh v. Simmons, we held that mandamus lay to challenge the district Judge's continued nonministerial actions after having announced the necessity of, and his intention to, disqualify himself under section 455. Although Moody can be read broadly to state that mandamus is appropriate "to vacate the orders of a Judge who acted when he should have recused," id. at 143, because we did not grapple with our earlier precedents, Moody is better read narrowly as authorizing mandamus when a district Judge continues to sit despite previously having expressed the intent to disqualify himself or herself.

In short, while Green still precludes the use of mandamus to correct a district Judge's failure to disqualify himself or herself for actual bias under 28 U.S.C. § 144, we are satisfied that neither Green nor our subsequent cases have decided whether mandamus lies to enforce the broader commands of 28 U.S.C. § 455.

The plaintiffs submit that review after final judgment is an adequate remedy for a section 455 violation as well as for section 144. However, we find a crucial difference between the two statutes and will not extend Green to the section 455 context. Section 144 concerns the interests of the individual litigant. Section 455, in contrast, concerns a wider range of interests. In addressing the mere appearance of partiality, section 455 addresses not only fairness to the litigants but also the public's confidence in the judiciary, which may be irreparably harmed if a case is allowed to proceed before a Judge who appears to be tainted. See Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 859-60, 108 S. Ct. 2194, 2202, 100 L. Ed. 2d 855 (1988); H.R. Rep. No. 93-1453, 93d Cong., 2d Sess. 5 (1974), reprinted in 1974 U.S.C.C.A.N. 6351, 6355. While review after final judgment can (at a cost) cure the harm to a litigant, it cannot cure the additional, separable harm to public confidence that section 455 is designed to prevent.

We are not alone in our decision not to extend precedents concerning review of section 144 rulings to expanded section 455. Before SCA Services, Inc. v. Morgan, 557 F.2d 110 (7th Cir. 1977) (per curiam), the Seventh Circuit had (like us) taken the minority position that mandamus did not lie to review section 144 rulings. Nevertheless, it ruled in Morgan that "the specificity and legislative intent of section 455 are sufficiently different from section 144 to warrant a departure from our previous position." Id. at 117. We agree.

We also note that Congress's great concern for the public's confidence in the judiciary has led it to adopt 28 U.S.C.A. § 372(c) (West, 1992) (most recently revised by the Judicial Discipline and Removal Reform Act of 1990, Pub. L. No. 101-650, tit. IV, § 402, 104 Stat. 5122, 5122-23). Under that provision, "any person," even a non-litigant, may complain to the chief Judge of a circuit about the conduct of a Judge "prejudicial to the effective and expeditious administration of the business of the courts" or about the Judge's mental or physical inability to discharge the duties of office.*fn10

Nor do we believe that interlocutory appeal will ordinarily be an adequate remedy for a district Judge's refusal to disqualify himself or herself. For a district Judge to certify an order under 28 U.S.C. § 1292(b), he or she must be of the opinion that such order [(1)] involves a controlling question of law as to which [(2)] there is substantial ground for difference of opinion and that [(3)] an immediate appeal from the order may materially advance the ultimate determination of the litigation.

All three of those requirements pose obstacles to the use of interlocutory appeal to review a district Judge's refusal to disqualify himself or herself.

Perhaps in some cases the necessity of disqualification can be deemed a "controlling question of law," notwithstanding that it is a fact-intensive, somewhat discretionary issue collateral to the merits. Even so, a district Judge's refusal to disqualify necessarily indicates a belief that his or her partiality cannot reasonably be questioned. In many, if not all, cases, that will in turn suggest that the district Judge believes that there is no "substantial ground for difference of opinion" regarding the need to disqualify. Furthermore, disqualification may slow, not speed, the progress of a case to final judgment. Finally, as a practical matter, some district Judges may consider a demand for disqualification as a personal attack (even if the motion is not meant as such) and may, therefore, be less inclined to certify the issue if they believe that disqualification is not required.*fn11

Accordingly, although we do not rule out the use of interlocutory and final appeals to review disqualification decisions,*fn12 we also refuse to rule out the use of mandamus petitions on the ground that those other avenues provide a presumptively adequate means of relief. Moreover, we believe section 455 reflects Congress's view that the adjudication of a case by a Judge with an actual or apparent bias is an "abuse of judicial power," Roche, 319 U.S. at 31, 63 S. Ct. at 944, because it is a threat to the integrity of the judicial system. Interlocutory review of disqualification issues on petitions for mandamus is both necessary and appropriate to ensure that Judges do not adjudicate cases that they have no statutory power to hear, and virtually every circuit has so held. See, for example, In re United States, 666 F.2d 690, 694 (1st Cir. 1981); In re IBM Corp., 618 F.2d 923, 926-27 (2d Cir. 1980); In re Rodgers, 537 F.2d 1196, 1197 n.1 (4th Cir. 1976) (per curiam); In re Corrugated Container Antitrust Litigation, 614 F.2d 958, 961 n.4 (5th Cir. 1980); In re Aetna Casualty and Surety Co., 919 F.2d 1136, 1139-43 (6th Cir. 1990) (en banc); SCA Services, Inc. v. Morgan, 557 F.2d 110, 117 (7th Cir. 1977); Liddell v. Board of Education, 677 F.2d 626, 643 (8th Cir. 1982); In re Cement Antitrust Litigation, 673 F.2d 1020, 1025 (9th Cir. 1982); Bell v. Chandler, 569 F.2d 556, 559 (10th Cir. 1978).*fn13 See also Mitchell v. Sirica, 163 U.S. App. D.C. 373, 502 F.2d 375, 387-90 (D.C. Cir. 1974) (MacKinnon Dissenting in case where majority did not reach this issue).*fn14

B.

The Facts Surrounding the Conference on the Hazards of ...


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