In Re: v. Cargill, Inc.
Case Date: 10/10/1995
Court: United States Court of Appeals
Docket No: 94-8042
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UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT _________________________ No. 94-8042 IN RE CARGILL, INC., Petitioner. _________________________ ON PETITION FOR WRIT OF MANDAMUS TO THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE _________________________ Before Selya, Circuit Judge, _____________ Campbell, Senior Circuit Judge, ____________________ and Boudin, Circuit Judge. _____________ _________________________ Bernhardt K. Wruble, with whom William R. Sherman, Verner, ____________________ ___________________ _______ Liipfert, Bernhard, McPherson and Hand, Peter J. DeTroy, III and ______________________________________ ____________________ Norman, Hanson & DeTroy were on brief, for petitioner. _______________________ Joel C. Martin, with whom Michael K. Martin, Daniel W. Bates ______________ _________________ _______________ and Petruccelli & Martin were on brief, for plaintiffs. ____________________ _________________________ October 10, 1995 _________________________ SELYA, Circuit Judge. Petitioner, Cargill, Inc. SELYA, Circuit Judge. ______________ (Cargill), seeks a writ of mandamus directing a judge of the United States District Court for the District of Maine to withdraw a decision previously issued and then to recuse himself from further proceedings in the underlying cause.1 For the reasons that follow, we decline to issue a prerogative writ. I. BACKGROUND I. BACKGROUND The petition arises out of a civil action brought by several former Cargill employees, represented by Daniel W. Bates and Kenneth D. Keating of Petruccelli & Martin (P&M), an eight- lawyer firm in Portland, Maine. The complaint invokes the Robinson-Patman Act, 15 U.S.C. 13-13b (1988), and alleges in substance that Cargill discharged the plaintiffs in retaliation for their unwillingness to abide certain predatory pricing practices. Cargill retained a Washington-based firm, Verner, Liipfert, Bernhard, McPherson, and Hand (Verner, Liipfert), as lead counsel, and a Portland firm, Pierce, Atwood, Scribner, Allen, Smith, and Lancaster (Pierce, Atwood), as local counsel. It then moved to dismiss on the basis that the plaintiffs experienced no antitrust injury and, therefore, lacked standing ____________________ 1Petitioner premises his argument on the ground that the judge's impartiality might reasonably be questioned. The relevant statute provides: Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. 28 U.S.C. 455(a) (1988). 2 to maintain the action. On December 19, 1993, while Cargill's motion was pending before him, the district judge to whom the case had been randomly assigned became embroiled in what he subsequently described as a "minor controversy" relating to his efforts, and those of his wife, to purchase a new home. The judge telephoned Gerald Petruccelli, a principal partner in P&M, and sought his advice anent the real estate dispute. Petruccelli agreed to the proposed representation, telling the judge that he (Petruccelli) knew of "no impediment" to the relationship. On December 21, the two men met for about 50 minutes and discussed the judge's real estate problem. A series of telephone conversations followed over the course of the next eight days. None lasted more than five minutes. Petruccelli dealt directly with the lawyer who represented the other side in the real estate matter and, on January 6, 1994, he resolved the imbroglio to the judge's satisfaction. Petruccelli rendered a bill, dated January 7, based on his standard hourly rate. The judge paid the invoice within the week. It is undisputed that Petruccelli never represented the judge in any other matter and that the judge dealt only with Petruccelli (not with any other P&M attorney). The judge maintains that, at the time he engaged counsel, he had "no conscious awareness that Mr. Petruccelli or his firm were involved in this specific litigation then pending" 3 before him.2 Nonetheless, a few days after he had retained Petruccelli, the judge asked his docket clerk to check his calendar for pending cases in which P&M might have appeared. The clerk brought two such cases to the judge's attention at about the time that the attorney-client relationship ended. One of these was the case against Cargill. Although Petruccelli himself had played no role in P&M's representation of the plaintiffs, the judge decided that he had best disclose his dealings with Petruccelli. On January 11, the clerk, acting at the judge's direction, notified local counsel to attend a conference on the following day. The disclosure conference (a transcript of which comprises the appendix) proved to be brief. Attorneys Bates and Keating appeared for the plaintiffs, and Attorneys O'Leary and Einsiedler (both of Pierce, Atwood) appeared for Cargill. When advised of the attorney-client relationship between Petruccelli and the judge, both Bates and O'Leary quickly volunteered that their respective clients had no objection to the judge's continued participation in the case. The judge then advised the lawyers that he was grappling with Cargill's motion to dismiss which, in his view, "raise[d] some very interesting and difficult questions." He forecast that he would hand down a decision ____________________ 2This declaration, and other declarations reflecting the judge's state of mind, are extracted from the record of a conference held in this case (reprinted in the appendix), from the judge's notice to counsel (described infra), and from the _____ order denying Cargill's recusal motion. For the most part, petitioner has not challenged the factual accuracy of the judge's statements. 4 "within a week or so." Precisely one week thereafter, the judge issued a 39- page rescript denying Cargill's motion to dismiss. While the judge closed his chambers and released his staff on holiday leave from December 24, 1993 through January 3, 1994, he admittedly labored over the matter during some portion of the period when Petruccelli represented him. The filing of the opinion elicited no immediate response. Several weeks later, however, Bernhardt Wruble, a Verner, Liipfert partner, wrote a letter to the court asserting that, because "a judge's contemporaneous representation by opposing counsel is uniformly regarded as a basis for obligatory disqualification," the judge should withdraw his order denying the motion to dismiss, relieve himself of all responsibility for the case, and reassign it to another jurist. Anticipating the predictable reaction to this demand, Wruble suggested that Pierce, Atwood's acquiescence was of no moment. Since local counsel lacked prior notice of the purpose of the January 12 conference and, hence, had no opportunity to consult in advance with either the client or lead counsel, Wruble wrote, the judge had not afforded petitioner "adequate time for a considered response" to the disclosure. Thus, there could be no "effective" waiver. The judge did no fewer than three things upon receiving Wruble's communique. First, he postponed a scheduled status conference in the case. Second, he directed any party who sought 5 his recusal to file a formal motion to that effect. Third, he composed and served a statement, denominated as a notice to counsel, in which he denied "that the Court required a decision on waiver of any objection to the Court's continued participation to be made at the conference." The judge explained that he meant the disclosure conference to be informational in nature, that is, "to advise counsel of the circumstances of Mr. Petruccelli's representation and afford counsel an opportunity to confer with clients and other counsel to decide whether they wanted to move for recusal or request other action by the court." But, wrote the judge, though he intended to give counsel a full month in which to advise him of their clients' positions with respect to the disclosed matter and, with this in mind, thought it sensible to summon only local counsel to the disclosure conference he did not do so because, immediately following his revelation, both counsel, acting for their respective clients, spontaneously disclaimed any objection to his continued participation in the case. On February 25, 1994, Cargill asked the district court to certify for interlocutory appeal the January 19 order denying the motion to dismiss. See 28 U.S.C. 1292(b) (1988).3 ___ Roughly two weeks later, Cargill moved for recusal, proffering several affidavits. Cargill's motion, like Wruble's letter of February 13, made it clear that Cargill's position rested on a ____________________ 3The district court eventually denied this motion. Petitioner does not assign error to the denial, nor could it rewardingly do so. 6 supposed appearance of impropriety, that is, the existence of circumstances in which Cargill believed that the judge's impartiality might reasonably be questioned. See 28 U.S.C. ___ 455(a), quoted supra note 1. Cargill did not advance, then or _____ now, any claim of actual bias. The plaintiffs opposed the recusal motion. In their opposition, they made two principal arguments: (1) Petruccelli's representation did not create an appearance of impropriety within the meaning of 28 U.S.C. 455(a), and, in any event, (2) Cargill had waived any objection to the judge's continuing role in the case. The plaintiffs hinged the latter contention on 28 U.S.C. 455(e), a statute that specifically permits a judge to accept the parties' waiver of a section 455(a) appearance-of-impropriety ground for disqualification as long as the waiver "is preceded by a full disclosure on the record of the basis for disqualification." On May 12, 1994, the district court denied the recusal motion. Cargill subsequently filed its mandamus petition in this court. We invited the plaintiffs to respond, set a briefing schedule, and entertained oral argument. II. THE NATURE OF MANDAMUS II. THE NATURE OF MANDAMUS Federal appellate courts are empowered to issue prerogative writs that are "necessary or appropriate in aid of their respective jurisdictions" under the All Writs Act, 28 U.S.C. 1651(a) (1988). Because such writs disrupt the mechanics of the judicial system by accelerating appellate intervention, prerogative writs foster piecemeal review and 7 disturb the historic relationship between trial and appellate courts they should "be used stintingly and brought to bear only in extraordinary situations." Doughty v. Underwriters at _______ ________________ Lloyd's, London, 6 F.3d 856, 865 (1st Cir. 1993). Mandamus is ________________ such a writ. It is strong medicine, and should neither be prescribed casually nor dispensed freely. Consistent with these principles, the standards for issuance of the writ are high. A petitioner seeking mandamus must show both that there is a clear entitlement to the relief requested, and that irreparable harm will likely occur if the writ is withheld. See United States v. Horn, 29 F.3d 754, 769 ___ ______________ ____ (1st Cir. 1994); Doughty, 6 F.3d at 866; In re Pearson, 990 F.2d _______ _____________ 653, 657 & n.4 (1st Cir. 1993). Sometimes, even these specific showings are not enough to justify a court's use of its mandamus power. In the final analysis, a writ of mandamus is an exceptional remedy and "is to be granted only in the exercise of sound discretion." Whitehouse v. Illinois Cent. R. Co., 349 U.S. __________ _____________________ 366, 373 (1955). In this context, equity informs the court's discretion. See Kerr v. United States Dist. Court, 426 U.S. 394, ___ ____ _________________________ 403 (1976); United States v. Helvering, 301 U.S. 540, 543 (1937); _____________ _________ United States v. Dern, 289 U.S. 352, 359 (1933); Doughty, 6 F.3d _____________ ____ _______ at 866; United States v. Patterson, 882 F.2d 595, 600 (1st Cir. _____________ _________ 1989), cert. denied, 493 U.S. 1027 (1990); In re First Fed. Sav. _____ ______ ______________________ & Loan Ass'n, 860 F.2d 135, 139-40 (4th Cir. 1988); Vishnevsky v. ____________ __________ United States, 581 F.2d 1249, 1255 (7th Cir. 1978). _____________ We have held that, in an appropriate case, an issue of 8 judicial disqualification may present a sufficiently extraordinary situation to justify the unsheathing of our mandamus power. See In re Allied-Signal, Inc., 891 F.2d 967, 969 ___ _________________________ (1st Cir. 1989), cert. denied, 495 U.S. 957 (1990); In re Cooper, _____ ______ ____________ 821 F.2d 833, 834 (1st Cir. 1987); In re United States, 666 F.2d ___________________ 690, 694 (1st Cir. 1981); see also In re International Business ___ ____ _____________________________ Mach. Corp., 618 F.2d 923, 927 (2d Cir. 1980). However, the ___________ usual prerequisites to mandamus relief a showing of both clear entitlement to the requested relief and irreparable harm without it, accompanied by a favorable balance of the equities do not vanish merely because judicial disqualification is the business of the day. See, e.g., Allied-Signal, 891 F.2d at 969; Cooper, ___ ____ _____________ ______ 821 F.2d at 834; In re United States, 666 F.2d at 694. In other ___________________ words, the mere fact that a petition for mandamus is directed at securing the trial judge's removal does not ensure that the higher court will entertain the petition. III. DISCUSSION III. DISCUSSION After careful perscrutation of the record, we conclude that petitioner's quest for mandamus should go unrequited. Cargill has shown neither that it is clearly and indisputably entitled to the writ nor that it faces an intolerable risk of irreparable harm should it be forced to await appellate review in the ordinary course. Moreover, Cargill's failure to take timely action, after learning of the judge's disclosure and Maine counsel's ensuing waiver of objection, tips the equitable balance and argues persuasively against issuance of the writ. 9 A A We turn first to the matter of entitlement to the relief requested. Assuming, arguendo, that the judge's ________ relationship with Petruccelli created an appearance of impropriety adequate to animate section 455(a) and we think that it probably did4 Cargill's entitlement to an order of disqualification remains questionable. Regardless of whether the actions of its local counsel effected a fully valid waiver of the disqualifying circumstance, the silence of Cargill and its lead counsel after learning what had transpired may very well have added the missing element, ratified the waiver, and given it life. We elucidate below. The relevant statute, 28 U.S.C. 455(e), plainly contemplates that a party may waive an appearance-of-impropriety ground for disqualification. The statute itself does not define ____________________ 4The disqualification requirement of section 455(a) is triggered, despite the lack of any actual bias on the judge's part, if a reasonable person, knowing all the circumstances, would question the judge's impartiality. See Liljeberg v. Health ___ _________ ______ Servs. Acquisition Corp., 486 U.S. 847, 861-62 (1988). Most _________________________ observers would agree that a judge should not hear a case argued by an attorney who, at the same time, is representing the judge in a personal matter. See 13A Charles Wright & Arthur Miller, ___ Federal Practice and Procedure 1349, at 614 (1984) (citing ________________________________ cases). Although the appearance of partiality is attenuated when the lawyer appearing before the judge is a member of the same law firm as the judge's personal counsel, but not the same individual, many of the same cautionary factors are still in play. See, e.g., 2 Administrative Office of the U.S. Courts, ___ ____ Guide to Judiciary Policies and Procedures V-32 (1995) __________________________________________________ (expressing the view that "where an attorney-client relationship exists between the judge and the lawyer whose law firm appears in the case, the judge should recuse absent remittal"). This principle would seem to have particular force where, as here, the law firm is small and the judge's lawyer is a name partner. 10 the form or prerequisites of such a waiver; it only imposes the condition that the waiver be "preceded by a full disclosure on the record of the basis for disqualification." 28 U.S.C. 455(e). The transcript of the January 12 conference leaves no doubt that such a disclosure occurred. The judge laid out the nature of his relationship with Petruccelli, citing book and verse. This disclosure was then followed by an unequivocal statement on the part of Cargill's counsel, unprompted by the court, to the effect that Cargill did not object to the judge's continued service in the case. Local counsel reported these developments to lead counsel immediately after the conference ended, and Verner, Liipfert in turn promptly informed the client. Yet, for nearly a month thereafter, Cargill failed to express any discomfiture with the waiver. Although we leave the ultimate question open for resolution on an end-of-case appeal, we think that local counsel's unqualified assent, combined with Cargill's subsequent silence for a substantial period of time, creates a sturdy foundation on which the validity of the waiver might rest, and that the resultant uncertainty undercuts Cargill's claim that it is plainly entitled to the requested relief. After all, it is common ground that civil litigants ordinarily are bound by their attorneys' tactical judgments, see, e.g., Brody v. President & ___ ____ _____ ___________ Fellows of Harvard Coll., 664 F.2d 10, 12 (1st Cir. 1981) ___________________________ (holding, on particular facts, that client would not be allowed "to second guess his attorney's waiver"), cert. denied, 455 U.S. _____ ______ 11 1027 (1982), and waivers based on silence are standard fare, see, ___ e.g., United States v. Nobel, 696 F.2d 231, 237 (3d Cir. 1982) ____ _____________ _____ (finding waiver under 455(e) based on party's failure to make a timely objection once the basis for disqualification was fully disclosed), cert. denied, 462 U.S. 1118 (1983). _____ ______ However, Cargill asseverates that no valid waiver could be given by its Maine counsel because the judge failed to follow exactly the procedures governing waivers of disqualification dictated by the Code of Conduct for United States Judges (CCUSJ), adopted by the Judicial Conference of the United States following promulgation by the American Bar Association. See CCUSJ, ___ reprinted in 150 F.R.D. 307 (1992). Canon 3D of the CCUSJ allows _________ __ a judge to hear a case if the parties and their lawyers agree to the judge's continued service not only after disclosure of certain bases for disqualification (including appearance of impropriety), but also after having been afforded "an opportunity to confer outside the presence of the judge[.]" Id. at 313. ___ Here, what transpired at the disclosure conference met the first requirement of Canon 3D, but not the second. However, even if we assume arguendo that this ________ noncompliance rendered the original waiver ineffective,5 counsel ____________________ 5Although we need not decide the point, we doubt that every instance of noncompliance with the CCUSJ automatically justifies post-hoc invalidation of a waiver that otherwise meets the test of section 455(e). Certainly, the case law on the point is less than transpicuously clear. See, e.g., Nobel, 696 F.2d at 237 ___ ____ _____ (explaining that "it is sufficient under [section 455(e)] if the judge provides full disclosure of his or her relationship at a time early enough to form the basis of a timely motion at or before trial and under circumstances which avoid any subtle 12 thereafter had ample opportunity for consultation with the client, outside the presence of the judge, yet Cargill, knowing of the stated waiver, did not alter its position. When the judge's departure from the CCUSJ is weighed in the balance along with his explanation and Cargill's knowing acquiescence in local counsel's express waiver, the call seems to us to be quite close. This closeness sets a chain reaction in motion. It leads us first to conclude that the contested waiver may well be enforceable, and constitutes, at the least, a potential stumbling block on the road to recusal. The first conclusion leads inexorably to a second conclusion: that petitioner has failed in its endeavor to demonstrate that it is "clearly and indisputably" entitled to the relief that it seeks. To be sure, Cargill has attempted to explain away its apparent ratification of the position taken by its local counsel both factually (through a series of affidavits) and legally (through its insistence on literal compliance with Canon 3D). Its factual explanations and legal theories may or may not hold water in the long run, but that is scarcely the point. We need not and do not decide the merits of the waiver question at this juncture. It suffices for present purposes merely to note ____________________ coercion"); Haire v. Cook, 229 S.E.2d 436, 438-39 (Ga. 1976) _____ ____ (similar; construing Georgia law); Commonwealth v. Cagney, 329 ____________ ______ N.E.2d 778, 781 (Mass. 1975) (Goodman, J., concurring) (similar; construing Massachusetts law). Notwithstanding the importance we attach to the CCUSJ and the obvious desirability of assuring judicial compliance with the canons, we think a strong argument can be made that not all instances of noncompliance with the CCUSJ are automatic disqualifiers. 13 that the issue is sufficiently clouded that petitioner's eventual entitlement to the requested redress the district judge's recusal is problematic.6 See Pearson, 990 F.2d at 656 & n.4; ___ _______ Cooper, 821 F.2d at 834. ______ B B Petitioner suggests that recusal of a judge presents a special circumstance which, even in the absence of clear entitlement to the requested relief, warrants interlocutory review by way of mandamus. This suggestion is not without force.7 In cases in which parties have sought recusal based on assertions of actual bias, we have stated that "the issue of judicial disqualification presents an extraordinary situation suitable for the exercise of our mandamus jurisdiction." In re _____ United States, 666 F.2d at 694. _____________ ____________________ 6Because we find no clear and indisputable entitlement to the requested relief, we need not consider whether Cargill satisfied the second prong of the mandamus test by a showing of irreparable harm. We note, however, that although there is always some harm in litigating for nought, that harm repeatedly has been held insufficient, in itself, to justify mandamus relief. See, e.g., In re Bushkin Assocs., 864 F.2d 241, 243-44 ___ ____ _____________________ (1st Cir. 1989). 7In the same vein, however, we can envision cases in which, despite a showing that ordinarily would amount to clear entitlement, a litigant has acted so deplorably that the petitioned court might choose to withhold discretionary relief. See generally Precision Instrument Mfg. Co. v. Automotive ___ _________ _______________________________ ____________ Maintenance Mach. Co., 324 U.S. 806, 814 (1945) (explaining that _____________________ the doctrine of unclean hands "closes the doors of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief"); Texaco Puerto Rico, ____________________ Inc. v. Department of Consumer Affairs, 60 F.3d 867, 880 (1st ____ ________________________________ Cir. 1995) ("It is old hat that a court called upon to do equity should always consider whether the petitioning party has acted in bad faith or with unclean hands."). 14 Our rationale in these cases has been that "[p]ublic confidence in the courts may require that such a question be disposed of at the earliest possible opportunity." In re Union ____________ Leader Corp., 292 F.2d 381, 384 (1st Cir.), cert. denied, 368 ____________ _____ ______ U.S. 927 (1961). However, we have cautioned that this philosophy does not "commit us to entertaining every rejected affidavit of prejudice," and we have made it clear that, even when a mandamus petition seeks a judge's recusal based on an assertion of actual bias, mandamus remains "a discretionary writ." Id. Because its ___ origins are equitable in nature, the writ should issue to remedy a wrong, not to promote one and it should not "be granted in aid of those who do not come into court with clean hands." United States v. Fisher, 222 U.S. 204, 209 (1911). _____________ ______ In this case, principles of equity caution against exercising discretion to reach out for the disqualification issue here and now. To explain why, we must remind the reader that mandamus is a potent weapon. Precisely because the writ packs a considerable wallop, litigants are sometimes tempted to employ it for its strategic value, regardless of the merits of their cause. See Allied-Signal, 891 F.2d at 970; In re Drexel Burnham Lambert ___ _____________ ____________________________ Inc., 861 F.2d 1307, 1312-16 (2d Cir. 1988), cert. denied, 490 ____ _____ ______ U.S. 1102 (1989). Ignoring this possibility when, as now, a petition for mandamus seeks the disqualification of a judge shortly after the judge decides a major point against the petitioner would be to blink reality. In the real world, recusal motions are sometimes driven more by litigation strategies than 15 by ethical concerns. In such straitened circumstances, appellate tribunals must be especially alert to the dangers of manipulation. Courts can ill afford to permit mandamus to be used as a tactic to jettison an impartial judge whose slant on a case, as evidenced by his rulings, jeopardizes a party's chances for ultimate success. See In re United Shoe Mach. Corp., 276 F.2d 77, 79 (1st ___ _____________________________ Cir. 1960) ("We cannot permit a litigant to test the mind of the trial judge like a boy testing the temperature of the water in the pool with his toe, and if found to his liking, decides to take a plunge.") (citation and internal quotation marks omitted); cf. Reilly v. United States, 863 F.2d 149, 160 (1st Cir. 1988) ___ ______ ______________ (explaining that "when a trial judge announces a proposed course of action which litigants believe to be erroneous, the parties detrimentally affected must act expeditiously to call the error to the judge's attention or to cure the defect, not lurk in the bushes waiting to ask for another trial when their litigatory milk curdles"). By like token, courts cannot afford to spawn a public perception that lawyers and litigants will benefit by undertaking such machinations. This case runs up just such a red flag. While the record does not compel a finding that petitioner and its lead attorneys delayed any attempt to retract Maine counsel's waiver as part of a plot to await the results of the judge's impending decision, the chronology is suggestive. The scenario lends itself to the following description: Cargill, armed with all the 16 relevant facts no later than January 14 and knowing that the judge planned to decide the key motion in the case during the following week,8 held its "appearance-of-impropriety" and "invalid waiver" arguments in reserve, deferred any recusal initiative, awaited the ruling on the motion to dismiss, found that ruling to be greatly disappointing, and then pulled the recusal option off the shelf in hopes of locating a more sympathetic trier. Of course, Verner, Liipfert tries strenuously to explain away this chain of events. The firm's attorneys have regaled us with descriptions of both their busy travel schedules and the inclement weather that struck the nation's capitol during January of 1994. But even if we were to take these excuses at face value, they are simply not sufficient to justify the firm's decision to sit silently by until the judge had showed his hand. We believe it is self-evident that, once Cargill was aware of the details surrounding Petruccelli's relationship with the judge, it should at a bare minimum have told the court that it wanted time to rethink its options and sought a delay in the issuance of the court's opinion (which it knew to be imminent). In all probability, it would have taken no more than a telephone ____________________ 8The various affidavits submitted by the petitioner to the __________________ district court establish that on Wednesday, January 12, the very day that the disclosure conference was held, Pierce, Atwood informed Verner, Liipfert of what had transpired, including the judge's plan to issue his decision in approximately one week. A corporate official was told of the situation no later than Friday, January 14. 17 call or a facsimile transmission to place matters on hold.9 Thus, putting the most favorable face on the situation, it is apparent that Cargill and its lead counsel neglected to act with the immediacy that the circumstances obviously required. Our need to exercise discretion also demands that we take a related point into account. The case at hand is different than our earlier precedents in several respects. First, it does not involve a claim of actual bias, and, thus, it lacks one important ingredient that in the past often prompted us to undertake review of judicial disqualification orders at the earliest practicable time. See Union Leader, 292 F.2d at 384. ___ ____________ When issuing the writ is necessary to promote public confidence in the courts by avoiding the unseemly spectacle of trial before a biased judge, the need for immediate relief is manifest. See ___ In re United States, 666 F.2d at 694. These concerns are _____________________ lessened where, as here, there is neither a trace nor a suggestion of actual bias. Second, in this case, the party who now claims to be aggrieved earlier had made an express waiver of the stated ground for disqualification. This, too, changes the calculus of public perception. Last, but far from least, petitioner's course of conduct whether conniving or merely slipshod influences our assessment of the equities. Its handling of the matter places us ____________________ 9Cargill suggests that it might have offended the judge by taking such action. We think its concerns are overblown: lawyers run such a risk every time they seek a judge's recusal. In any event, trial advocacy is no sport for the timorous. 18 between Scylla and Charybdis: if we do not entertain the petition, we run a risk of seeming hesitant to inquire too deeply into a possible abuse of judicial power; yet, if we entertain the petition despite the appearance of sandbagging that Cargill has created, we run a risk of eroding public confidence in the courts by seeming to reward a litigant for its gamesmanship. Given the fundamental nature of mandamus, declining jurisdiction in the exercise of our informed discretion seems preferable. Though it might be mere coincidence that the delay in seeking to set aside the waiver worked to Cargill's advantage by allowing it to see which way the wind was blowing before deciding whether to urge recusal, the appearance of judge- shopping is sufficiently pronounced that the equities counsel restraint. See, e.g., Apple v. Jewish Hosp. & Medical Ctr., 829 ___ ____ _____ ____________________________ F.2d 326, 334 (2d Cir. 1987) (noting that a "movant may not hold back and wait, hedging its bets against the eventual outcome"); Phillips v. Amoco Oil Co., 799 F.2d 1464, 1472 (11th Cir. 1986) ________ _____________ ("Counsel, knowing the facts claimed to support a 455(a) recusal for appearance of partiality may not lie in wait, raising the recusal issue only after learning of the court's ruling on the merits."), cert. denied, 481 U.S. 1016 (1987). We simply _____ ______ cannot afford to nourish the impression that the courts, as an institution, will bend over backward, overlook the obvious, and countenance sharp tactics merely because they are directed at a judge. IV. CONCLUSION IV. CONCLUSION 19 We need go no further. Petitioner has neither met the conventional requirements for mandamus relief nor satisfied us that, in the unique circumstances of this case, the equities favor an affirmative exercise of our discretion. Consequently, we deny the petition, without prejudice to Cargill's right to raise its claim of error, if it so chooses, in an end-of-case appeal.10 The petition for a writ of mandamus is denied. The petition for a writ of mandamus is denied. _____________________________________________ Appendix follows; dissenting opinion follows appendix ____________________ 10Just as orders disqualifying or refusing to disqualify counsel "can be reviewed as effectively on appeal of a final judgment as on an interlocutory appeal," Richardson-Merrill, Inc. ________________________ v. Koller, 472 U.S. 424, 438 (1985), we see no reason why orders ______ pertaining to judicial disqualification cannot be effectively reviewed at that time and in that manner. Nor is this scenario oddly configured. An end-of-case appeal is a matter of right, while mandamus is a matter of discretion. Courts have frequently found that difference dispositive in analogous circumstances. See, e.g., Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34 ___ ____ ___________________ _____________ (1980) (per curiam); In re Bushkin Assocs., 864 F.2d 241, 244 ______________________ (1st Cir. 1989). And, moreover, the fact that a lengthy trial has intervened will not rob an appeal of its effectiveness. See, ___ e.g., Stauble v. Warrob, Inc., 977 F.2d 690 (1st Cir. 1992) ____ _______ _____________ (vacating judgment on direct appeal following 35-day trial, despite the circuit court's earlier denial of mandamus relief on the same ground). 20 APPENDIX APPENDIX CHAMBERS CONFERENCE CHAMBERS CONFERENCE January 12, 1994 January 12, 1994 THE COURT: This is a very simple matter, I THE COURT: think. At least the reason for the conference, so you don't have to get all excited about it, is because Mr. Bates is counsel in this matter and I have a disclosure that I must make to counsel. Approximately on December 19th, 1993, while Mrs. Carter and I were in the course of looking for a new house, I got in a controversy with a party in a contract, a purchase and sale, a minor controversy. I, on that date, called Gerald Petruccelli, Mr. Bates's partner, and I asked him if he could give me advice and perhaps represent me if it came to that. He called me back on December 20th and said that he had decided there was no impediment to this representation of me. I met with him on December 21 for about 45 to 50 minutes, we 21 discussed the matter. I told him that I wanted a quick resolution - I should practice what I preach. I had telephone conferences with him about the matter on December 22, 23, 28 and 29, four or five minutes a piece. I understand from him that he had telephone conferences during that period of time with another attorney and on January 6th, 1994, the matter was resolved to my satisfaction. On the 7th, Mr. Petruccelli rendered to me his bill and on the 10th, that bill was paid in full. The understanding at the conference that I had with him on the 21st of December was that I would pay the usual rate, usual fee computed at the usual hourly rate for the hours of devotion to the case that he would charge to any stranger off the street. And I was very serious about that, and I'm sure that he was and I think the bill was entirely satisfactory one to me, and I have no reason to expect that it is to him. So we have no kind of debt of any kind to each other out of this very brief transaction. 22 I will tell you that I am morally certain in my own mind that this series of events will not in any way affect my ability in the way I would find it to be properly decided, even if the event had not occurred. However, under the code, the canons of judicial conduct, I felt arguably perhaps, but I felt that it was proper, perhaps required, but at least proper that I disclose it and see if anyone has any objection in my continuing to serve as the judge who will ultimately decide this case. MR BATES: Speaking for the plaintiff, we MR BATES: have absolutely no objection. THE COURT: The record should also reflect THE COURT: that I never had any conversation with Mr. Bates or anyone else of Mr. Petruccelli's office. MR. O'LEARY: Speaking for the defense, there MR. O'LEARY: is no objection. 23 THE COURT: I wanted you to know this. THE COURT: That's all I have. We have been for some time - I have been in the course of dealing with motions which raise some very interesting and difficult questions and I expect that within a week or so I will be in a position to file a decision resolving that, so the matter can go forward. I apologize having held the matter up that long but these are very tough things, not matters of first impression, and I don't have a lot of guidance by better judges than I. MR. O'LEARY: Thank you. MR. O'LEARY: MR. BATES: We appreciate it. MR. BATES: THE COURT: Thank you very much. Another THE COURT: matter, the Graffam, matter, is scheduled for trial, which is in your office on the other side, you might just talk with them about it, Bill Kayatta, apprise him of what has happened and tell him that matter is also scheduled for conference for the same purpose so he can have a chance to reflect on it. 24 MR. BATES: I don't know that this needs to MR. BATES: be a part of the record. I know that Gerry told me that he was going to call Bill Kayatta, and did so. THE COURT: Gerry did call and tell me that THE COURT: he had called someone to see if that would create, if his representation would create any problem and I didn't know what case it was about or who the lawyer was. Ultimately he called me back and told me that he had found no impediment to his representation. MR. O'LEARY: I appreciate the disclosure. MR. O'LEARY: [End of conference] 25 CAMPBELL, Senior Circuit Judge, (dissenting). _______________________ While the question is exceedingly close, I regret that I cannot agree with the court. The court's opinion would be persuasive if written before the Judicial Conference of the United States had adopted Canon 3D of the Code of Conduct for ___________________ United States Judges. But the court's opinion seems to me to ____________________ pay too little attention to the district court's failure to have observed the Canon. Canon 3D provides, A judge disqualified by the terms of Canon 3C(1), except in the circumstances specifically set out in subsections (a) through (e) may, instead of withdrawing from the proceeding, disclose on the record the basis of disqualification. If __ the parties and their lawyers after such _________________________________________ disclosure and an opportunity to confer _________________________________________ outside of the presence of the judge, all ____________________________________ agree in writing or on the record that the judge should not be disqualified, and the judge is then willing to participate, the judge may participate in the proceeding. The agreement shall be incorporated in the record of the proceeding. (emphasis added). Canon 3D applies squarely to the situation here, in which a judge has sought the parties' waiver of his mandatory disqualification under 455(a). Congress expressly allows a judge to accept a waiver of his disqualification under 455(a) (appearance of lack of impartiality) although not under 455(b) (bias, personal knowledge of facts, financial interest, etc.). See 28 U.S.C. 455(e). But while 455(e) ___ specifies no more than that such waiver be preceded "by a full disclosure on the record of the basis for -26- 26 disqualification," the judiciary is also subject to its own Canon 3D which imposes additional conditions that were not followed here. For that reason, I disagree that the parties ever effectively waived the duty imposed by 455(a) that the judge disqualify himself. I make two points at the outset. First, as my colleagues seem to concede, the judge's employment, as his own lawyer, of the senior partner of the law firm representing plaintiffs at the time he was considering a major dispositive motion in plaintiffs' lawsuit, gave rise to a reasonable question of his impartiality under 455(a). While this was hardly a major indiscretion as such matters go, it was the kind of conduct that gives rise to an appearance of impropriety. Our court is in apparent agreement as to the applicability of 455(a). However, because the district court felt otherwise, and because the issue deserves consideration, I have stated my reasons for finding that 455(a) applies in an appendix to this dissent. Section 455(a) required the judge to disqualify himself sua sponte unl |