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February 15, 1996

SHARON ROHRBACH, et al., Plaintiffs,
AT&T NASSAU METALS CORP., et al., Defendants.

The opinion of the court was delivered by: VANASKIE


 This case stems from the operation of a metals reclamation facility located in Foster Township, Luzerne County, Pennsylvania. Plaintiffs claim to have been injured as a result of exposure to various substances deposited at the site. Defendants American Telephone and Telegraph Company and AT&T Nassau Metals Corporation (collectively referred to herein as "AT&T") are alleged to have "arranged to have material which contained hazardous substances" transported to the site in question.

 After superintending this rancorous litigation for more than four years, the Honorable James F. McClure, Jr., by Memorandum and Order dated November 22, 1994, granted plaintiffs' motion for recusal. His decision was based on 28 U.S.C. § 455(a), which, in pertinent part, provides that "any . . . judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." While granting the request for recusal, Judge McClure summarily rejected plaintiffs' request that he vacate the orders that he had entered during the course of this protracted litigation. The case was subsequently reassigned to me.

 AT&T moved for reconsideration of the recusal decision. (Dkt. Entry 842.) Plaintiffs moved for reconsideration of Judge McClure's refusal to vacate the orders he had entered in this matter. (Dkt. Entry 844.)

 By Order filed May 15, 1995, I denied the AT&T motion for reconsideration of the disqualification ruling. (Dkt. Entry 863.) In a Memorandum and Order filed on May 17, 1995, I granted plaintiffs' motion for reconsideration and vacated all prior rulings made by Judge McClure in this case. *fn1"

 On June 1, 1995, AT&T moved for reconsideration of the decision to vacate Judge McClure's orders. For the reasons set forth herein, AT&T's motion will be granted.


 As AT&T recognizes, the issue before a court on a motion for reconsideration is whether its ruling rested on manifest errors of law or fact or is undermined by new precedent or newly discovered evidence. In this case, AT&T has neither presented new case authority nor submitted previously undiscovered facts. Accordingly, AT&T bears the burden of showing that the decision to vacate Judge McClure's orders rested on clearly erroneous factual findings or "'a whole-sale disregard, misapplication or failure to recognize controlling precedent. '" (AT&T Brief in Support of Motion for Reconsideration (Dkt. Entry 874) at 5 (emphasis in original), quoting In re: August, 1993 Regular Grand Jury, 854 F. Supp. 1403, 1407 (S.D. Ind. 1994)).

 A. The Standard of Review Applied to Judge McClure's Ruling on the vacatur Issue.

 AT&T argues that the narrow standard of review governing reconsideration motions was ignored in deciding to consider de novo Judge McClure's ruling on the vacatur issue. This argument must be rejected for three reasons.

 First, the May 17, 1995 Memorandum and Order specifically acknowledged the strictures of judicial review on a motion for reconsideration. See 902 F. Supp. at 527. The limitations governing motions for reconsideration were thus not ignored.

 Second, the narrow scope of review was not mis-applied. Judge McClure's decision on the vacatur issue did not evidence a reasoned application of the three-part test to be applied determining the appropriate relief after it has been determined that recusal is warranted under 28 U.S.C. § 455, *fn3" Judge McClure's treatment of the vacatur issue consisted entirely of the following:

Such a notion is absurd. A number of discovery and scheduling matters, dispositive motions, etc., have been considered by the Court. Vacating all of our prior orders essentially would restart the case in its entirety. [November 22, 1994 Memorandum (Dkt. Entry 736) at 11.]

 Clearly, Judge McClure's reasoning does not reflect a careful consideration of the risk of injustice to the parties by allowing his orders to remain intact; the risk that denial of vacatur will lead to unjust results in other cases; and the risk of undermining public confidence in the administration of justice.

 AT&T insists that proper application of the requisite balancing approach can be deduced from Judge McClure's ruling. *fn4" On the question of "prejudice to the parties," AT&T observes that Judge McClure's disavowal of any impropriety or actual bias precludes risk of injustice to the parties. Neither an admission of bias or actual evidence of bias, however, is essential to establish a risk of injustice if the rulings of an otherwise disqualified judicial officer remain undisturbed. As the Supreme Court observed in Liljeberg, 486 U.S. at 859, "scienter is not an element of a violation of § 455(a)." In Liljeberg, the Supreme Court vacated an otherwise final judgment even though the disqualifying circumstance was not appreciated by the judge whose original judgment was initially upheld on appeal. The Court did so as a remedy for the original judge's failure to disqualify himself based on an appearance of partiality. The Court did not require, as AT&T argues, evidence that the decision of the disqualified judge was "infected by bias." (AT&T Brief in Support of its Motion for Reconsideration (Dkt. Entry 874) at 8.) Accordingly, Judge McClure's disavowal of actual bias does not reflect a proper consideration of the question of whether there is a risk of injustice to the parties if decisions otherwise tainted by an appearance of partiality remain undisturbed.

 As to the question of whether Judge McClure actually considered that the risk of denying vacatur in this case could lead to unjust results in other cases, AT&T points to Judge McClure's reference to two related cases pending in the Pennsylvania state courts and his assertion that the recusal motion may have been motivated by summary judgment rulings adverse to the plaintiffs. AT&T contends that Judge McClure's decision sent a message that "a litigant cannot escape the decisions of a judge . . . acting without any actual bias by repeatedly making unsupported allegations of bias so that they eventually create a potential perception where a judge with a 'heightened sensitivity' is obliged to recuse himself." (AT&T Brief in Support of Motion for Reconsideration (Docket Entry 874) at 10; emphasis in original.) As noted above, however, actual bias is not a prerequisite to a vacatur decision. As made clear in Liljeberg, the risk of injustice in other cases in denying vacatur concerns the impact that such a drastic remedy in this case has on future cases to encourage prompt disclosure of possible grounds for disqualification and an early determination of whether there exist grounds warranting recusal. There is nothing in Judge McClure's analysis that suggests he considered this issue at all.

 Nor can it be said, contrary to AT&T's assertion, that Judge McClure gave any consideration to the impact of the denial of a decision to vacate on the public confidence in the administration of justice. Judge McClure recused himself "because an objective person might perceive an appearance of impropriety" in his failure to disclose his financial interest in a local telephone exchange carrier. (November 22, 1994 Memorandum (Docket Entry 736) at 11.) There is nothing in his opinion to suggest that he considered whether an objective person might believe that his prior rulings, especially discretionary orders pertaining to discovery, are tainted by those very facts that would cause an objective person to perceive an appearance of impropriety.

 In short, the decision to consider the question of vacatur de novo was not based upon a patent misapplication of the standards governing motions for reconsideration. Because Judge McClure's decision on this issue did not reflect a balancing of the pertinent ...

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