In Re: v. Cargill, Inc.

1256 Pоols, Inc., judicial Bankruptcy Whiting 462 relief under Code v.

United States 105(a), 2309, showing judicial § 76 L.Ed.2d 515 absent a U.S. (1983) (even inevitably party possession lawmaking entails is either “nec- a secured constituting essary appropriate carry any pro- “property of the es- to out” collateral order). subject Bankruptcy § turnover tate” is 542 vision of the Code the circum- Moreover, suggested MHFA has no other presented. Accordingly, vacate stances we posses- the debtor in upon entitling basis which either MHFA to the district court decision chapter 7 could have directing sion or the trustee to turn an order the debtor over prepetition Coopers chapter avoided the transfer to 7 trustee the diverted MHFA (avoidance §§ Lybrand. e.g., monetary equivalent. & id. cash collateral or its (avoidance liens), unperfected of statu- MHFA shall not be entitled to further relief (avoidance hens), tory preferences), chapter proceedings, except in these transfers). (avoidance court, bankruptcy appro- fraudulent order of the after Moreover, period the limitations such priate hearing. notice and appear avoidance action would to have The district court оrder is vacated and 546(a)(1) (two years lapsed. id. after bankruptcy the case is remanded to the relief); Ollada, compare order for also In re proceedings court for further consistent (Bankr.E.D.Mo.1990) 114 B.R. opinion; appellant. with this costs to (§ comparable period) 542 has no limitations Berry, with In re De 59 B.R.

(Bankr.E.D.N.Y.1986) (§ 542 turnover mo-

tion must made within “reasonable

time”).20 events, may

In all MHFA have a direct against Coopers Lybrand of action

cause & bankruptcy outside the court. In re In Cf. Motocycle Partnership, dian Assocs. III Ltd. CARGILL, INC., In re Petitioner. (“[S]uch ... 161 B.R. at 868 action would only rights among involve nondebtors in a No. 94-8042. having prospects reorganization case no Appeals, United States Court of previously granted [and] have MHFA relief First Circuit. stay.”); generally

from [the automatic] see McBee, (noting In re 714 F.2d at 1326 Heard Jan. 1995. security perfected convey interest survives Oct. Decided 1995. collateral). stay ance of The automatic af protection Coopers Lybrand, forded no & Bankruptcy may

see Code and MHFA perfected directly.

seek execute its lien procedure allay

At least this a trouble aspect present

some in that Lybrand

Coopers & has never received ei hearing alleged

ther notice or a on MHFA’s $25,000.

ly superior claim to the

Ill

CONCLUSION reasons, foregoing

For decline we extraordinary

MHFA’s invitation to fashion appear preclude preferential 20. The same rationale would wise have been voidable as a transfer $5,000 compelling pay- 547; order turnover of the Bankruptcy to an "insider.” See Code principal ment the debtor made to the of its supra see 2. also note managing general partner, whiсh other- Wruble,

Bernhardt K. with whom William Sherman, Vemer, Bernhard, R. Liipfert, Hand, DC, Washington, McPherson and Pe- Norman, DeTroy, ter J. III and Hanson & Portland, ME, DeTroy, brief, on were petitioner. Martin,

Joel C. with whom Michael K. Martin, Daniel W. Bates Petruccelli & Martin, Portland, ME, brief, were plaintiffs. SELYA, Judge,

Before Circuit CAMPBELL, Judge, Senior Circuit BOUDIN, Judge. Circuit SELYA, Judge. Circuit Petitioner, Cargill, (Cargill), Inc. seeks a directing writ of mandamus District for the United States Court District previously of Maine to withdraw a decision issued and then to himself from fur- recuse underlying proceedings ther cause.1 follow, For the reasons that we decline to prerogative issue a writ.

I. BACKGROUND petition The arises out of a civil action Cargill employees, brought several former represented by Daniel Bates and Kenneth W. premises argument Any justice, judge, magistrate 1. Petitioner on the of the United disqualify proceed- States shall himself in ground judge’s impartiality might rea- impartiality might reasonably in which his sonably questioned. pro- The relevant statute questioned. vides: 455(a) (1988). 28 U.S.C. (P M), specific litigation then were this Keating Petruccelli & Martin & involved D. Nonetheless, Portland, a few pending” before him.2 firm in Maine. eight-lawyer Petruccelli, days after he had retained the ‍‌‌‌​‌‌​​‌‌​​​‌‌​​​‌​‌​‌​​​​​‌​‌​‌​​‌​‌​‌​‌​​​​​​‍Robinson-Patman complaint invokes (1988), his docket clerk to check his Act, alleges §§ asked 13-13b 15 U.S.C. pending in which P & M Cargill discharged the calendar for cases in substance brought might appeared. The clerk unwillingness plaintiffs in retaliation for their judge’s pricing practices. two such cases to the attention predatory to abide certain firm, attorney-client the rela- Washington-based a about the time that Cargill retained McPherson, Verner, Bernhard, tionship of these was the ease and ended. One Liipfert, (Verner, counsel, Although against Cargill. Petruccelli himself Liipfert), as lead and Hand Scribner, firm, Pierce, Atwood, representation in P played had no role & M’s a Portland (Pierce, Smith, judge that he Allen, plaintiffs, At- of the the decided and Lancaster dealings wood), It moved to had best disclose his with Petruccel- as local counsel. then plaintiffs experi- that the li. dismiss on the basis therefore, and, injury no antitrust enced 11, clerk, January acting the at the On standing maintain the action.

lacked direction, judge’s notified local counsel to 19, 1993, following day. Cargill’s attend a conference on the while mo- On December (a him, transcript the district The disclosure conference pending tion was before randomly comprises appendix) proved had which to bе judge to whom the ease been Attorneys Keating ap- assigned he subse- brief. Bates and became embroiled what controversy” Attorneys peared plaintiffs, “minor for the quently described as a (both wife, Pierce, efforts, O’Leary relating and those of his and Einsiedler At- to his wood) judge appeared Cargill. advised purchase a new home. The tele- When Petruccelli, attorney-client principal part- relationship of the between phoned Gerald M, sought his advice anent Petruccelli and the both Bates and ner in P & and O’Leary quickly dispute. agreed Petruccelli volunteered that their re- the real estate telling spective objection proposed representation, clients had no to the (Petruccelli) judge’s judge participation that he of “no im- continued in the case. knew relationship. lawyers that pediment” to the The then advised the he grappling Cargill’s was with motion to dis- men met for On December the two which, view, very “raise[d] miss some judge’s about 50 minutes and discussed intéresting questions.” and difficult He fore- problem. telephone real estate series of cast that he would hand down a decision the course of conversations followed over or “within а week so.” eight days. than next None lasted more five thereafter, directly Precisely Petruccelli dealt with the one week minutes. lawyer represented 39-page rescript denying Cargill’s who the other side issued and, January motion to dismiss. closed real estate matter While imbroglio he satis- his chambers and released his staff on holi- resolved bill, day through faction. Petruccelli rendered a dated leave from December 3, 1994, hourly admittedly January January he over based on his standard rate. labored during portion period judge paid The within the week. the matter some of the invoice undisputed repre- represented It that never when Petruccelli him. Petruccelli any judge in other matter and sented the filing opinion imme- The of the elicited no (not only dealt with Petruccelli later, response. diate Several weeks howev- attorney). any with other P & M er, Wruble, Verner, Liipfert Bernhardt that, partner, asserting maintains at the time he wrote letter to the court counsel, engaged judge’s contemporaneous had “no conscious because “a he uni- representation opposing that Mr. or his firm counsel is awareness Petruccelli declaration, (described infra), 2. other declarations reflect- notice to counsel and from the This mind, denying Cargill's judge's recusal motion. For the state of are extracted from order part, petitioner challenged the fac- the record of a conference held in this case most has not accuracy judge's (reprinted appendix), tual statements. from the (1988)3 obligatory later, formly regarded Roughly as a basis for two Cargill weeks recusal, moved disqualification,” proffering should withdraw several affida dismiss, motion, denying Cargill’s the motion to vits. like Wruble’s his order letter of February responsibility of all for the made it clear that relieve himself jurist. position reassign supposed appearance it to another An- rested on a is, ticipating predictable impropriety, reaction to this de- existence circum Pierce, mand, suggested Cargill At- stances in which Wruble believed that judge’s impartiality acquiescence reasonably of no moment. wood’s was 455(a), prior questioned. lacked notice of the quoted Since local counsel See 28 U.S.C. and, advance, supra note 1. purpose of the conference did not then now, hence, opportunity claim of plain had no to consult ad- actual bias. The counsel, opposed client or lead tiffs the recusal motion. vance with either the their wrote, opposition, they principal argu had not afforded made two Wruble (1) petitioner “adequate representation time for a considered ments: Petruccelli’s did Thus, response” impropriety to the disclosure. there create an meaning 455(a), § no waiver. within the of 28 could be “effective” U.S.C. (2) and, event, any Cargill any had waived things fewer than three did no objection judge’s continuing to the role in the First, receiving communique. upon Wruble’s plaintiffs hinged case. The the latter conten postponed he a scheduled status conference 455(e), tion on 28 U.S.C. a statute that Second, any party in the case. he directed specifically permits accept to sought who his recusal to file a formal motion parties’ appear waiver of a section Third, composed to that effect. he and ance-of-impropriety ground disqualifica for statement, as a notice served denominated long tion preceded by as the waiver “is counsel, to in which he denied “that full disclosure on the record of the basis for required any a decisiоn on waiver of Court disqualification.” objection partic- to the Court’s continued 12, 1994, ipation May to be made at the conference.” The On the district court denied judge explained that he meant the disclosure Cargill subsequently the recusal motion. nature, informational in petition conference to be filed its mandamus this court. We is, “to counsel of the circumstances of plaintiffs respond, advise invited the set a brief- schedule, representation Mr. Petruceelli’s and afford argument. and entertained oral opportunity counsel an to confer with clients II. THE they NATURE OF MANDAMUS

and other counsel to decide whether request wanted to move for recusal or other appellate empow Federal courts are But, action the court.” wrote the prerogative ered to issue writs that are “nec though give he counsel a full intended essary appropriate respec aid of their him month which to advise of their clients’ Act, jurisdictions” tive under the All 28 Writs positions respect with to the disclosed mat- 1651(a) (1988). Because such writs U.S.C. and, mind, thought with this in it sensi- ter — disrupt judicial sys the mechanics of the only ble to summon local counsel to the dis- intervention, by accelerating appellаte tem — closure conference —he did not do so be- prerogative piecemeal writs foster review cause, revelation, immediately following his relationship disturb historic between counsel, respective acting both for their appellate they trial and should “be courts — clients, objec- spontaneously disclaimed stintingly brought only in used to bear participation tion to his continued case. extraordinary Doughty v. situations.” Un 25, 1994, London, February Lloyd’s, at 6 F.3d On asked derwriters Cir.1993). (1st certify interlocutory ap district court to for 865 Mandamus is such writ. medicine, peal denying strong 19 order the mo It is and should neither be 1292(b) casually dispensed freely. prescribed tion to dismiss. See 28 U.S.C. nor denial, rewardingly eventually so. 3. The district court denied this mo- nor could it do assign tion. Petitioner does not error to the Corp., 618 F.2d principles, tional Business Mach. these with Consistent (2d Cir.1980). However, pre- usual are issuance of the writ the standards showing of seeking requisites mandamus must to mandamus relief —a high. petitioner requested relief is a clear entitlement both clear entitlement that there show both it, irreparable accompa- requested, irreparable and that harm without the relief likely equities— if the writ is withheld. of the harm will occur nied a favorable balance Horn, merely judicial F.3d States v. because dis- See United do not vanish (1st 866; Cir.1994); Doughty, day. 6 F.3d at In re of the qualification is the business (1st Pearson, 969; 657 & n. 4 Cir. Cooper, 990 F.2d e.g., Allied-Signal, 891 F.2d at 1993). Sometimes, specific show 834; even these at In re United F,2d enough justify a court’s use of ings words, are not fact at 694. In other the mere analysis, a power. In the final its mandamus petition for mandamus is directed that a remedy exceptional mandamus is an writ of securing the trial removal does not granted only in exercise of and “is higher court will entertain ensure that v. Illinois sound discretion.” Whitehouse petition. Co., 366, 373, R. Cent. U.S. context, In this 99 L.Ed. III. DISCUSSION equity informs the court’s discretion. See record, perscrutation After careful Court, 426 Kerr v. States Dist. U.S. United quest man- petitioner’s we conclude that 2119, 2124, 394, 403, 48 L.Ed.2d 725 96 S.Ct. go unrequited. Cargill has damus should (1976); Helvering, v. 301 U.S. United States clearly indisput- neither that it is shown 855, 857, 540, 543, 81 L.Ed. 1272 57 S.Ct. that it an ably entitled to the writ nor faces Dern, 352, (1937); v. 289 United States U.S. irreparable harm it intolerable risk of should (1933); 359, 614, 617, 77 L.Ed. 1250 53 S.Ct. appellate in the be forced to await review 866;

Doughty, 6 F.3d at United States v. Moreover, Cargill’s ordinary course. failure (1st 595, Cir.1989), Patterson, 600 882 F.2d action, timely learning to take after of 1027, 110 737, 107 denied, cert. 493 U.S. S.Ct. judge’s disclosure and Maine counsel’s ensu- (1990); In re Fed. L.Ed.2d 755 First Sav. & objection, tips equitable of waiver (4th Ass’n, 135, F.2d 139-40 Cir. Loan 860 argues persuasively against balance and issu- States, 1988); Vishnevsky v. 581 F.2d United ance of the Amt. (7th Cir.1978). 1249, 1255 appropriate in an We have held judicial may disqualification an issue turn first to the matter of enti We sufficiently extraordinary situation present a Assuming, requested. tlement to the relief unsheathing justify of our mandamus arguendo, judge’s relationship with Inc., power. Allied-Signal, 891 See In re (1st denied, appearance impro an 967, Cir.1989), Petruccelli created F.2d 969 cert. 495 455(a)— 2561, priety adequate 957, to animate section 110 109 L.Ed.2d 744 U.S. S.Ct. (1st Cargill’s (1990); 833, probably think that it did Cooper, and we In re 821 F.2d 834 4— Cir.1987); 690, disqualification entitlement to an order of In re United 666 F.2d (1st Cir.1981); questionable. Regardless of wheth see also In re Intema- remains lawyer appearing disqualification requirement before the 4. The of section attenuated when triggered, despite judge law firm as the the lack of actual is member of same ‍‌‌‌​‌‌​​‌‌​​​‌‌​​​‌​‌​‌​​​​​‌​‌​‌​​‌​‌​‌​‌​​​​​​‍is counsel, personal judge's part, person, judge’s if a but not the same indi- bias off the reasonable circumstances, vidual, cautionary many knowing of the same factors are all the would play. e.g., judge’s impartiality. Liljeberg 2 Administrative Office of See v. Health still in 847, 861-62, Courts, Judiciary Acquisition Corp., the U.S. Guide to Policies and Servs. 486 U.S. 2203-04, (1995) 2194, (expressing the view that 100 L.Ed.2d 855 Procedures V-32 108 S.Ct. (1988). relationship agree judge attorney-client that a "where an exists be- Most observers lawyer argued by attorney and the case, whose law firm should not hear a case who, an tween the time, representing appears should recuse at the same remittal”). principle personal Wright, This would seem to in a matter. See 13A Charles absent where, here, Cooper, particular the law & Practice force Arthur Miller Edward Federal (1984) (citing judge's lawyer § and the is a name and Procedure cases). at 614 firm is small partiality partner. Although neys’ see, judgments, the actions of its local counsel effected a tactical e.g., Brody er v. Coll., fully disqualifying circum valid waiver President & Fellows Harvard (1st 10, 12 Cir.1981) stance, Cargill the silence of and its lead F.2d (holding, partic on facts, transpired learning after what had ular counsel client would not be allowed may very missing guess waiver”), added the ele “to attorney’s well have second cert. denied, ment, waiver, given it life. ratified the 455 U.S. (1982), below.

We elucidate L.Ed.2d 148 and waivers based on fare, see, e.g., silence are standard United statute, 455(e), The relevant 28 U.S.C. Nobel, (3d States v. Cir. contemplates may plainly party that a waive 1982) 455(e) (finding waiver under based ground аppearance-of-impropriety an for dis- party’s timely objection failure to make a qualification. The statute itself does not de- once disqualification fully the basis for was prerequisites fine the form or of such a waiv- disclosed), denied, cert. er; only imposes the condition that (1983). S.Ct. 77 L.Ed.2d 1348 “preceded by full waiver be disclosure on However, disqualification.” the record of the basis for Cargill asseverates that no valid 455(e). transcript given of the waiver U.S.C. could be its Maine counsel 12 conference leaves no doubt that exactly because the failed to follow procedures governing such a disclosure occurred. The laid disqualifica- waivers of relationship out the nature of his with Pe- tion dictated the Code of Conduct for truecelli, citing (CCUSJ), Judges book and verse. This disclo- United adopted by States unequivocal sure was then followed the Judicial Conference of the United States counsel, part following promulgation by statement on the the American Bar court, unprompted by CCUSJ, to the effect that Association. reprinted in 150 object did contin- F.R.D. 307 Canon 3D of the CCUSJ ued service in the case. Local parties counsel re- allows a to hear а ease ported developments lawyers these agree lead counsel and their contin- ended, immediately only after the conference and ued service not after disclosure of cer- Verner, Liipfert promptly disqualification in turn informed tain (including ap- bases for Yet, nearly pearance impropriety), the client. a month thereaf- of but also after hav- ter, Cargill express any opportunity failed to discomfiture been afforded “an to confer presence judge[.]” with the waiver. outside the of the Id. at Here, transpired 313. at what the disclosure Although question we leave the ultimate requirement conference met the first of Can- open appeal, for resolution on an end-of-case 3D, but not the second. think unqualified we that local counsel’s as- sent, However, Cargill’s subsequent arguendo combined with si- even if we assume that time, period noncompliance original lence for a substantial creates this rendered the ineffective,5 sturdy validity foundation on which the of waiver counsel thereafter had rest, ample opportunity the waiver and that the resultant for consultation with the client, uncertainty presence judge, yet undercuts claim that it outside the of the waiver, plainly requested Cargill, is knowing entitled to the relief. of the did not stated all, ground it position. judge’s depar- After is common that civil alter its When litigants ordinarily weighed are bound their attor- ture from the CCUSJ 436, Cook, 639, Although point, 5. we need not decide the we v. 237 Ga. 229 S.E.2d 438-39 every noncompliance (1976) (similar; law); doubt that instance of with construing Georgia Com automatically justifies post-hoc the CCUSJ invali- Keigney, Mass.App.Ct. monwealth v. 3 329 dation of a waiver that meets the otherwise test (1975) (Goodman, J., N.E.2d concur 455(e). Certainly, of section the case law on the law). (similar; ring) construing Massachusetts point transpicuously e.g., is less than clear. Notwithstanding importance we attach to the Nobel, (explaining 696 F.2d at 237 that "it is desirability assuring CCUSJ and the obvious 455(e) judge pro- [section ] sufficient under if the canons, judicial compliance with the we think a relationship vides full disclosure his or her at strong argument can be made that not all in early enough timely a time of a form the basis noncompliance stances of with the CCUSJ are motion at or before trial and under circum- disqualifiers. automatic coercion"); stances which avoid subtle Haire extraordinary for the exer- situation suitable explanation and Car- along with balance jurisdiction.” In re cise of our mandamus in local counsel’s knowing acquiescence gill’s at 694. 666 F.2d waiver, to be United call seems to us express a chain reac- This closeness sets quite close. has been that rationale these cases Our to conclude It leads us first tion in motion. may in the courts re “[pjublic confidence may well be en- waiver that the contested disposed at quire question that such least, constitutes, forceable, at In re possible opportunity.” Un the earliest stumbling on the road to re- block potential (1st Corp., F.2d Leader ion inexorably first conclusion leads cusal. The denied, Cir.), cert. petitioner has conclusion: to a second (1961). However, we have 7 L.Ed.2d 190 that it endeavor to demonstrate failed its “com philosophy that this does not cautioned to the “clearly indisputably” entitled rejected entertaining every affidavit mit us to it seeks. relief that made it clear prejudice,” and we have petition seeks a sure, even when a mandamus attempted has to ex- To be actu judge’s recusal based on an assertion of away apparent its ratification plain bias, discretionary “a al mandamus remains factu- taken its local counsel both position affidavits) equitable origins its are legal- writ.” Id. Because (through ally a series of nature, remedy a the writ should issue to compli- ly (through its insistence on literal 3D). wrong, promote one—and it should not explana- not to Its factual ance with Canon granted in aid of those who do not come may may not “be legal hold tions and theories run, scarcely into court with clean hands.” United States long but that is water in the Fisher, v. U.S. not —and do not —decide the point. We need junc- waiver at this merits of the equity caution principles In this merely present purposes ture. It suffices for exercising out for against discretion to reach sufficiently that the issue is clouded to note To disqualification issue here and now. petitioner’s eventual entitlement explain why, must the reader that we remind district recu- requested redress —the weapon. Precisely potent mandamus is a Pearson, problematic.6 See 990 F.2d sal —is wallop, packs the writ a considerable because 4; Cooper, at 834. & n. at 656 tempted employ litigants are sometimes value, strategic regardless of the mer for its B Allied-Signal, their cause. its of 970; In re Drexel Burnham Lambert suggests that recusal оf a F.2d Petitioner (2d Inc., 1307, Cir.1988), which, 861 F.2d 1312-16 presents special a circumstance even denied, of to the cert. 490 U.S. S.Ct. the absence clear entitlement relief, pos interlocutory Ignoring this requested re- 104 L.Ed.2d warrants when, now, way suggestion sibility petition a for manda of mandamus. This view disqualification a In in which mus seeks the is not without force.7 eases major shortly point a sought recusal based on asser- after the decides parties have bias, against petitioner would be to blink reali of actual we have stated that “the the tions world, In judicial disqualification presents ty. an the real recusal motions are issue of discretionary indisputable enti- choose to withhold relief. 6. Because we find no clear and relief, requested generally Mfg. we need not con- tlement Instrument Co. v. Precision prong Cargill Co., satisfied the second sider whether Mach. Automotive Maintenance by showing irrepara- a of the mandamus test 806, 814, 993, 997, (1945) 89 L.Ed. 1381 note, however, although ble harm. We that (explaining that of unclean hands the doctrine litigating always some harm in there is equity doors of a court of to one "closes the nought, repeatedly that harm has been held in- inequitableness bad relative tainted with faith sufficient, itself, justify mandamus relief. relief”); Texaco to the matter in which he seeks Assocs., e.g., In re Bushkin 864 F.2d Rico, Department Consumer Puerto Inc. v. Af- (1st Cir.1989). 243-44 (1st Cir.1995) ("It fairs, is old 60 F.3d upon equity called to do should hat that a court however, vein, we can envision 7. In the same always petitioning party consider whether which, showing ordinarily despite cases in a that hands.”). has acted in bad faith or with unclean entitlement, litigant a has would amount to clear deplorably petitioned that court acted so by litigation sometimes driven strate- in hopes locating more shelf sympathetic a more gies than ethical concerns. trier. circumstances, In appellate such straitened course, Vemer, Of Liipfert tries strenuous- especially tribunals must be alert to the dan- ly explain away this chain of events. The gers manipulation. ill can afford to Courts attorneys firm’s regaled us with de- permit mandamus to be used as a tactic to scriptions of both busy their travel schedules

jettison impartial judge whose slant on a and the inclement weather that struck the ease, rulings, jeopardizes as evidenced capitol during nation’s January of 1994. But party’s chances for ultimate success. See even we were to take these excuses at fаce Corp., In re United Shoe Mach. 276 F.2d value, they simply are justify not sufficient to (1st Cir.1960) (“We permit cannot a liti- the firm’s silently by decision to sit until the gant to test the mind of the trial like a judge had showed his hand. boy testing temperature of the water in toe, pool with his and if found to his We it believe is self-evident once (citation liking, plunge.”) decides to take a Cargill was aware of the surrounding details omitted); quotation and internal marks cf. Petruccelli’s relationship with the Reilly v. United 160 should at a bare minimum have told the court (1st Cir.1988) (explaining that “when a trial that it options wanted time to rethink its judge announces a course of proposed action sought delay issuance court’s litigants erroneous, which believe to be (which imminent). opinion it knew to be parties detrimentally expe- affected must act probability, all it would have taken no more ditiously to call the error to the at- telephone than a call or a facsimile transmis- defect, tention or to cure the not lurk in the place Thus, sion matters on putting hold.9 waiting bushes to ask for another trial when situation, the most favorable face it is curdles”). litigatory By token, their milk like apparent that and its lead counsel spawn courts cannot public per- afford neglected immediacy to act with that ception lawyers litigants will benefit obviously required. circumstances by undertaking such machinations. Our need to exercise discretion also de- just up This case runs flag. such a red mands that we take point a related into compel While the record does not finding account. The at case is different hand than petitioner attorneys and its delayed lead precedents our earlier respects. several any attempt to retract Maine counsel’s waiv- First, it does not a claim involve of actual part plot er as of a to await the results bias, and, thus, it important ingre- lacks decision, one impending chronology past dient that in suggestive. prompted often us to The scenario lends itself to the judicial disqualification undertake review of following description: Cargill, armed with all practicable orders at the earliest relevant facts no than time. See later Leader, knowing Union judge planned F.2d 384. When issu- to de- key cide necessary promote public motion the writ is during case week,8 following “appearance-of-im- by avoiding held its confidence the courts un- the propriety” seemly arguments spеctacle and “invalid waiver” of trial before a biased reserve, initiative, any deferred recusal the need for immediate relief mani- ruling dismiss, awaited the on the motion to fest. See In re United 666 F.2d at ruling greatly found that to disappointing, where, be 694. These concerns are lessened as pulled here, and then option the recusal off the there sugges- is neither a trace nor a 8. petition- The various Cargill suggests affidavits the submitted 9. that it have offended the er to the district court that on Wednes- establish judge by taking such We think its con- action. day, January day very the that the disclosure lawyers cerns are overblown: run such a risk held, Pierce, conference was Atwood informed every they judge's time seek a recusal. Vemer, Liipfert transpired, had what includ- event, advocacy sport trial nois for the timorous. judge’s plan issue his to decision in approximately corporate one week. official Friday, was told of the no later than situation January 14. obvious, backward, case, Second, overlook in this over bias.

tion of actual merely because sharp tactics countenance aggrieved earlier claims to party who now judge. they stated are directed at waiver of the express an had made This, too, disqualification. ground for perception. public calculus of

changes the IY. CONCLUSION Petitioner has least, go need no further. course We Last, petitioner’s far from but requirements the conventional merely neither met conniving or of conduct—whether that, in us mandamus relief nor satisfied for our assessment slipshod—influences of this unique circumstances places matter handling of the equities. Its our an affirmative exercise of equities favor Charybdis: we do Seylla and between us deny peti- Consequently, we run a risk of discretion. petition, we not entertain tion, right prejudice to deeply without inquire too into a seeming hesitant chooses, error, if it in an yet, claim of so judicial power; if we raise its possible abuse of appeal.10 appearance end-of-case despite the petition entertain created, we Cargill has sandbagging that petition ‍‌‌‌​‌‌​​‌‌​​​‌‌​​​‌​‌​‌​​​​​‌​‌​‌​​‌​‌​‌​‌​​​​​​‍mandamus is for a writ of eroding public confidence run a risk of denied. litigant for its by seeming to reward a courts follows; dissenting opinion fol- —Appendix gamesmanship. appendix— lows nature of manda the fundamental Given mus, jurisdiction in the exercise of declining APPENDIX preferable. discretion seems our informed might mere coincidence that the Though it CONFERENCE CHAMBERS delay seeking to set aside the waiver by allowing Cargill’s advantage worked blowing way the wind was be to see which very simple THE This is a mat- COURT: recusal, urge deciding whether fore ter, I think. At least the reason sufficiently judge-shopping is appearance of conference, you get all so don’t have to equities counsel pronounced that re it, Mr. Bates is excited about is because See, Apple Hosp. & e.g., v. Jewish straint. in this matter and I have a disclo- counsel (2d Cir.1987) Ctr., F.2d

Medical sure that I must make to counsel. may not hold back (noting that a “movant 19th, 1993, Approximately on December wait, against hedging its bets the eventu I course while Mrs. Carter and were Co., outcome”); Phillips v. Amoco Oil al house, looking got I in a for a new Cir.1986) (11th (“Counsel, 1464, 1472 F.2d contract, controversy party in a with a support a knowing the facts claimed to sale, controversy. purchase and a minor partiality recusal Petruccelli, I, date, on that called Gerald wait, raising recusal issue may not lie in him if he partner, Mr. Bates’s and asked ruling only learning after of the court’s on perhaps repre- give could me advice denied, 1016, 107 merits.”), cert. 481 U.S. if it to that. sent me came sim 95 L.Ed.2d 500 We S.Ct. on December 20th and impression He called me back ply cannot afford to nourish institution, courts, had decided there was no will bend said that he as dispositive frequently disqualifying refusing found that difference 10. Just as orders analogous e.g., Allied in Chem. circumstances. effectively disqualify "can counsel be reviewed Inc., Daiflon, Corp. v. appeal judgment of a final as on an interlocu- 188, 189-90, (1980) (per 66 L.Ed.2d 193 S.Ct. curiam); Richardson-Merrell, Roller, tory appeal,” Inc. v. Assocs., In re Bushkin 2757, 2765, S.Ct. moreover, (1st Cir.1989). And, the fact that (1985), why we reason orders L.Ed.2d 340 see no lengthy trial has intervened will not rob pertaining judicial disqualification cannot be appeal Warrob, Inc., e.g., v. of its effectiveness. Stauble effectively man- reviewed at that time and in that (1st Cir.1992) (vacat- 977 F.2d 690 oddly configured. Nor is this scenario An ner. appeal following 35-day ing judgment on direct right, appeal trial, is a matter of while despite end-of-case denial of the circuit court's earlier ground). same Courts mandamus relief on the mandamus is a matter of discretion. representation impediment very to this of me. with motions which raise some inter- esting questions expect and difficult I him 21 for about I met with on December that within a I week or so will in a minutes, 45 to 50 we discussed the matter. position that, resolving file decision so quick I him that I wanted a resolu- told go the matter can I apologize forward. practice preach. what I tion —I should having up held the matter long but telephone conferences with him I had very tough things, these are not matters of 22, 28, about the matter on December impression, first and I don’t have lot of piece. I four or five minutes guidance by judges better than I. him that he understand from had tele- you. MR. O’LEARY: Thank during period phone conferences MR. appreciate BATES: We it. attorney time with another and on you THE very COURT: Thank much. 6th, 1994, my the matter was resolved to matter, Graffam, matter, Another 7th, Mr. satisfaction. On Petrueeelli trial, your scheduled for which inis office 10th, rendered to me his bill and on the side, you might just on the other talk with paid in that bill was full. n them it, Kayatta, Bill apprise about him of understanding I at the conference that happened what has and tell him that mat- him had with on the 21st December was ter is also scheduled for conference for the rate, pay I that would the usual usual fee purpose same so he can have a chance to computed hourly at the usual rate for the reflect on it. hours of devotion to the ease that he would MR. I BATES: don’t know that this needs charge any stranger off the street. And part to be a I record. know that very I was serious about and I’m sure Gerry told going me that he was to call Bill that he was and I think the bill was entire- Kayatta, and did so. me, ly satisfactory I one to have no Gerry THE COURT: did call and tell me expect reason to that it is to him. So we that he had called someone to see if that any have no kind of debt of kind to each create, representation would if his very other out of this brief transaction. any problem create I and didn’t know what you morally I will tell that I am certain in lawyer case was about or who the was. my own mind that this series of events will Ultimately he called me back and told me any way my ability way affect impediment that he. no had found to his decided, properly I would find it to be even representation. if the event had not occurred. appreciate MR. I O’LEARY: the disclo- However, code, under the the canons of sure. conduct, judicial arguably I perhaps, felt [End conference] perhaps I proper, but felt that it was re- CAMPBELL, Judge, Senior Circuit quired, proper that I but least disclose it (dissenting). anyone any objection my and see if has close, excеedingly While continuing to serve as the who will regret agree that I cannot with the court. ultimately decide this case. opinion persuasive The court’s would be Speaking plaintiff, MR. BATES: for the written before the Judicial Conference of the absolutely objection. no we have adopted United States had Canon 3D of the THE COURT: The record should also Judges. Code Conduct United States reflect that I never had conversation opinion pay But the court’s seems to me to anyone Mr. with Bates or else of Mr. too little attention to the district court’s fail- Petruccelli’s office. ure to have observed the Canon. Canon 3D Speaking MR. O’LEARY: for the de- provides, fense, objection. no there is judge disqualified by the terms Canon you THE COURT: I wanted to know this. 3C(1), specifi- except circumstances (a) (e) That’s all I have. We been some cally through set out in subsections dealing may, withdrawing pro- time —I have been in the course of from instead of in to follow Canon 3D basis of the matter —omitted ceeding, on the record the disclose developed to ways. 3D was basic Canon parties the and their disqualification. If disquali- that otherwise offset the criticism op- and an lawyers such disclosure after parties’ judges sometimes secured the fied presence the to outside portunity confer of to continue in cases agreement to allow them agree writing in or on the judge, all the of by taking advantage of counsel’s natural re- judge should not be dis- that the record they judge willing luctance to offend a before whom judge then and the qualified, appear. original lan- frequently had to The judge may participate in the participate, by special guage 3D was drafted a agreement of Canon shall be proceeding. the Bar proceed- committee of the American Association in record of the incorporated added). justice chief chaired the former ing. (emphasis California, Tray- Supreme Court of Justice squarely to the situation applies Canon 3D Traynor emphasized be- nor. Justice here, sought parties’ in has which occur, must fore a valid waiver could counsel mandatory disqualification un- waiver of his opportunity to confer with their receive an 456(a). expressly Congress § allows der judge’s presence. The clients outside the disqualifica- accept a of his judge to waiver special committee also believed that 455(a) lаck (appearance § of tion under as counsel had to be involved in client as well 455(b) § although not under impartiality) decision, “parties are less the waiver as the facts, (bias, knowledge financial personal judicial likely pressure to feel than counsel 455(e). etc.). interest, § But See U.S.C. ” Broadening in case].... remain [to 455(e) than that specifies § no more while Clarifying the and Grounds Judicial “by preceded a full disclosure such waiver be Hearing Disqualification: on S. 1061/.Before disqualifica- of the basis for on the record Courts, and the Suhcomm. Civil Liberties tion,” judiciary subject to its own is also the House the Administrative Justice of imposes additional condi- Canon 3D which Comm, Judiciary, Cong., on the 93d 2d Sess. that were not followed here. For tions that reason, disagree parties I that the ever effec- 455(a) duty imposed by § tively waived part dispel in coun- The Canon serves judge disqualify that the himself. immediately by failing that sel’s sense judge’s presence continued endorse the First, points two at the outset. make case, might annoy counsel concede, judge’s my colleagues seem to Canon, prejudice their cause. Under the lawyer, employment, as his own of the senior opportunity be an counsel must extended representing plain- partner of law firm disqualification consider the issue outside major considering was tiffs at the time he presence, hence free from the fear lawsuit, plaintiffs’ gave dispositive motion any hesitancy to endorse the that impartial- rise to a reasonable of his may personally presence continued held 455(a). ity hardly under While this was against him. major go, matters it was indiscretion as such gives rise to an the kind conduct present never stated impropriety. Our court is that local counsel was free to withdraw and applicability apparent agreement as to the disqualification and co- discuss with his client 455(a). However, the district because counsel. The knew or should otherwise, and because the issue court felt prior at time that counsel had no known this consideration, my I have stated rea- deserves opportunity to discuss the issue with his finding applies in an sons for judge had not disclosed the sub- client. The 455(a) re- appendix to this dissent. Section ject Local of the conference advance. disqualify himself sua quired the day express inquiry the counsel had made sponte accepted unless he received January meеting previous as to what the parties. appropriate from the waiver nothing. about and could learn therefore, Counsel, could not have discussed point proceedings second with his client and lead counsel January 12 conference —at which the issue meeting. to the candidly commendably prior When he came disclosed counsel, conference, sought pressures local had to react on the that of to counsel ease the moment, acquiesce to knowing what that inhered in the spur pro- of the without “old” cess. rights judge prepared recognize, to was knowing judge whether the would

without It is true that the Code of Judicial Conduct objected, if and with- recuse himself counsel statutory, is not nor does the Judicial Confer- that, from the court without out reassurance ence of the United adopted States which offense, given local counsel would be specific statutory grant Code hold a of au- chance to consider this matter with his client thority binding to enact ethical rules. How- presence. express outside the court’s ever, the Conference is itself a creature of Canon, language conditioning of the a waiver statute. by U.S.C. 331. Chaired opportunity par- upon an to confer with the Justice, the Chief the Conference is the one judge’s presence, ties and counsel outside the body recognized speaking administratively not, circumstances, put was in these into judiciary. for the entire federal adoption Its play. 3D, suggest, gives Canon I the Canon great persuasive weight. Additionally, the sure, hindsight, to be local counsel could provisions of Canon 3D emanated from a sought by request- have to save the situation model ethical code drafted the American ing time to talk to lead counsel and his Bar adopted Association and in one or anoth- request judge client —a indicates he version, by many er important, states. It is However, granted. without the would think, I to our credibility, institutional that advice, judge’s advance counsel would not procedures set out Canon 3D of the necessarily expected rights be to know of his Judges Code Conduct for United States be 3D, under Canon or indeed to know that seriously. taken Moreover, Canon 3D existed at all. counsel may have felt where the stated As, view, my no waiver occurred that the disclosed conduct would not affect acquiescence force of local counsel’s on Janu- ability his to decide and indicated ary arises whether some withdraw, willingness no clear to hesitan- equitable kind of de facto waiver or bar cy simply duty be an irritant. The implied should be from failure to extend the benefits of this Canon to the object promptly par- continued parties upon judge. rests Here ticipation once its local counsel had told it of provisions did not mention the Cargill disclosures. also learned rights Canon nor indicate what he would January 12 at the conference that the recognize. ruling. was about to hand down his If Car- gill participate, my did not want the circumstances, plain In such I think it that colleagues Cargill required believe was fact, no waiver occurred on 12. In there, protest then and rather than strate- January 12 the scenario at the conference blew, gically waiting to see how the wind exactly was the one that Canon 3D was objecting only after the —as did— change. intended to The drafters of Canon against had it. ruled thought simply 3D that a who an- facts, disqualifying question. certainly nounced indicated de- This is close There is serve, weight my colleagues’ sire continue to and solicited and view accepted attorneys may orаl from misusing purely waivers the Canon now for present, might exercising strategic purposes. implied, a “velvet It can be more- blackjack.” over, Broadening Clarifying fully having that the district court re- Disqualification: sincerely, in question, Grounds Judicial vealed the conduct Hearing Canon, incorrectly on S. Subcomm. under the relied on local 1064. Before Courts, withdrawn, approval, Civil Liberties and the Administra- counsel’s as sanc- Comm, tioning tive Justice the House on the court’s continuance case. differ, Judiciary, Cong., may 93d 2d Sess. Can- But while reasonable minds 3D, by requiring discussion with believe that the court’s failure to follow Can- and, judge’s presence procedures clients outside the on 3D’s waiver so clouded future requiring acquiescence inappropriate the clients’ make it to read as well as events as to sure, Cargill, diligently had to act challenge to be Cargill’s failure to into

too much judge. Delay challenge to the during it wished participation judge’s continued the Cargill’s oppo- become unfair to would soon ruling on the the court’s prior to the week nent, money to invest who would continue procedure of the purpose primary motion. A upon in into the lawsuit reliance remove, and effort at to in is outlined the Canon judge ques- in of the the continued service lessen, judge’s pressure of the the least to objection Cargill’s raising of an tion. But quickly not if a waiver is resentment feared to a after the decision seems within month lessening of pressure This volunteered. given that initial acceptable to be the me The Canon happened here. would not have Cargill. In that of the not error was attor- anticipates that the court will reassure validity my saying, recognize the so right speak their neys in advance of Cargill may colleagues’ concern that well judge’s presence. of the their clients out are, and acting strategically, and that courts counsel that judge will inform Also that the be, two at the reluctant to allow bites should or, granted, not if waiver is he will withdraw weighed the apple. against But this must be In least, regard. in this of his intentions 3D. nonobservanee Canon case, by Cargill learned the time present the grounds disqualifica- judge’s stated for of the 455(a) view, and, applied my § in no As tion, judge already made the decision had 455(e), occurred under sufficient waiver point, Cargill himself. At that not to recuse Liljeberg question remedy arises. repudiation of local no its had assurancе Acquisition Corp., 486 U.S. v. Health Serv. It acquiescence would be honored. counsel’s 2203-05, 847, 862-64, angering the to decide whether to risk had (1988), Supreme Court L.Ed.2d futilely at a time when the matter judge wrote: a to have been settled and decision seemed 455(a)] that a violation [§ conclusion on motion was imminent. its not, however, inqui- does end our occurred law, ry. As in other areas of the there is sure, Cargill’s local counsel could To be surely room for harmless error committed differently. It is often true —and have acted by busy judges inadvertently who overlook by posi- a bound properly so—that client is disqualifying a circumstance. There need by attorney. or not taken his tions taken remedy every viola- not be a draconian clear, however, that at- 3D makes it Canon 455(a).... §of conclude that tion We alone, standing torney acquiescence, is not judgment determining whether a should be a coun- enough to constitute waiver. Local 455(a), vacated for a violation of acquiescence Cargill’s reluc- sel’s followed injustice appropriate to consider the risk of object cannot be disassociated from tance to parties particular judge’s implement initial failure to produce will risk that the denial relief provision provision Canon —a cases, injustice in other and the risk of responsible explaining and im- himself is undermining public’s confidence in the 3D, plementing in the first instance. Canon judicial process. setting requirements for a out the Inc., Allied-Signal, In re See also disqualifica- a valid of his own secure waiver (1st Cir.1989). 974, 975-76 tion, grist is not mere for the adversarial Rather, brought in at this mill. it is a rule of conduct the For new not, view, juncture my apply. be draconi- supposed to know and While Car- situation, remedy, for unwarranted gill’s might have saved the nor license counsel sure, not too attacks on courts. To be responsibility for the error should that arose here —the brief use of the easily be shifted to the shoulders of one of firm partner law in the same law parties. Given the altered situation con- senior Cargill plaintiffs cast retained not monumental fronting once the die had been —was 12,1 likely waived disposed quite to find that would have been am Moreover, Cargill proper proceeding. acquies- local counsel’s earlier ratified judge quickly by taking evidencing integrity, his simply no action before the cence called a conference and revealеd all the rele- court’s decision. Nonetheless, vant facts. reten-

tion of Mr. at the time of Petruecelli pending did lawsuit create the required him to recuse himself under 28 455(a) impartiality; lack of section re- U.S.C. receipt absent parties’ quired step aside unless he waiver. That provides statute that a proper parties. received waivers from the disqualify “shall himself in any proceeding in here, As this did not occur and as the case is impartiality which reasonably be stage, still at an I early think it be would questioned.” (emphasis supplied). leg- The judge reasonable for another to enter the history islative 455(a) indicates that section imposes case. price While this some small was meant to lessen the “duty traditional sit,” and, on plaintiffs, justified the court and it is as Supreme the Court has indicat- ed, demonstrating to require the need to avoidance of observe the Can- even the appear- partiality. ance of Liljeberg on. v. Health Serv. Acquisition Corp., 847, 860-61, 486 U.S. 108 I would requiring add had mandamus 2194, 2202-03, (1988). S.Ct. 100 L.Ed.2d 855 judge granted, a new been would have may Recusal required be even in the absence open been to this court to let the stand partiality actual if there is an objectively judge’s ruling former dismissal reasonable basis for doubting the im- motion. Whether to do this would have been Id.; partiality. see Code Judicial Conduct question, but, a close however that issue (1973) (“[A] Canon 2 judge should avoid im- resolved, were bringing in of a new propriety and impropriety emphasized would have pro- Canon 3D activities.”) in all (emphasis supplied). precatory. cedures are not The Committee on the Codes and Conduct of the Judicial Conference of the United I States seriously my do not too colleagues’ take stated that suggestion may this issue be revisited attorney-client where an relationship years exists several appeal down the road on direct lawyer between the and the whose judgment from final plain rendered in law appears firm in tiffs’ By favor. then there would be over should recuse absent remittal. whelming equities plaintiffs’ in not to favor Courts, Administrative Office of the U.S. require undergo them expense and Judiciary Guide to Policies and Procedures retrying burden of the case before a different (1993). V-25 judge. The Supreme Court has stated “that proper in The determining standard for judgment ascertaining whether a should whether impartiality might a reason 455(a), be vacated for a violation of it is 455(a) аbly questioned under is whether appropriate injustice to consider the risk of the charge impartiality of lack of grounded is parties.” Liljeberg, 486 U.S. at on facts that would create a reasonable 108 S.Ct. at 2205. Mandamus has been doubt, in the mind of the or even properly recognized as the usual proper necessarily litigant, that of the but rather remedy raising for resolving promptly a person. mind of the reasonable judicial disqualification such as Cowden, United States v. 545 F.2d See, e.g., this. Alexander v. Primerica Hold (1st Cir.1976), denied, cert. Inc., 155, 163 (3d ings, Cir.1993); 10 F.3d S.Ct. 51 L.Ed.2d 585 Section (1st re United 455(a) requires contextual, case-by-case Cir.1981). expect that would court’s analysis. imply bright-line It does not rule decision, which has been rendered after the any judge disqualifying person who ever has most careful consideration all members of attorney al dealings with an firm rep whose panel, will end the matter. litigants judge. resents ‍‌‌‌​‌‌​​‌‌​​​‌‌​​​‌​‌​‌​​​​​‌​‌​‌​​‌​‌​‌​‌​​​​​​‍before the same existing subject judge- case law on the Appendix Judge Campbell’s Dissent attorney dealings exceedingly rests on fact- reasons, For following I conclude that specific judgments, with different outcomes judge’s relationship with Mr. Petruecelli different situations.11 Co., Co., See In re (5th 11. City Placid Oil Cir.1986); Potashnick v. Port 802 F.2d 783 Constr. Petruccelli, retaining Mr. this, personally principles seem certain Having said high regard had judge indicated he ordinarily disquali- clear. may Judges professional abilities. latter’s attorney in the if an fied to sit do, respect propriety, indicate and often with were, same at the him or her case before Here, attorney’s competence. howev- time, actively representing the er, by retaining partner of this the senior Wright, 13A Charles personal matter. See legal while personal firm for advice small Cooper, Federal Miller & Edward Arthur dispositive motion having under advisement (1984); § 3549 at 614 and Procedure Practice being handled other members a case Texaco, 1110-12; Potashnick, F.2d at cf. firm, appearance that gave the court And while the situation F.2d at 657. affinity for that may particular had a he being where more attenuated special perhaps firm some close and by the same at- represented not personally attorneys in relationship. the same Other attorney’s torney by someone else but by reasonably offended ease could have been firm, at least cause for the latter situation outside, might appeared, have from the what that, concern, there can be no doubt relationship be- to have been a confidential situations, overlap such can cre- many factual Mr. át that Petruccelli tween calling for appearance partiality of ate the Also, ending particular time. even after the 455(a). § The members of under withdrawal judge’s attorney-client relation- of the own advising Committee the Judicial Conference if, in ship, might an wonder outside observer of the proper interpretation judges as to the manner, unconsciously, consciously some or 2 much. See have said as Code of Conduct job judge’s appreciation for a well done Procedures, Judiciary Policies Guide might possibly by plaintiffs law firm affect supra, V-25. pending handling of the case. present factors in the Weighing all the attorney-client judge’s relation- The brief whatso- I no doubt case—in which entertain ended, true, it is ship with Mr. Petruccelli integrity judge’s personal ever as to the —I judge’s in the case before the decision person that a reasonable nonetheless believe however, against Cargill. The had viewing circumstances have all the period during motion worked on impartiality judge. of the questioned the Moreover, relationship. relation- of that was, ruling contrary judge’s The to the only days ship ended ten before the deci- believe, an discretion. In re abuse of period two sion —a too short to insulate the (1st 690, F.2d 697 Cir. 666 United Any appearance of events from one another. 1981) (a judge’s federal decision on whether prior partiality that existed to the time the himself or herself is committed to to recuse meaningful- representation ceased cannot be discretion). judge’s sound ly of separated from the court’s decision Jan- uary 19. personal legal services The received partner of Petruccelli & Mar-

from the senior important emphasize that 28 It is U.S.C. tin, firm, eight-member a small close § appearance is concerned with the upon court a dismissal motion 860-61, time the ruled impartiality. Liljeberg, 486 U.S. at Cargill, would had it been resolved for Disqualification at 2202-03. 108 S.Ct. put personal prejudice separate- Petruccelli & Martin’s client out of or actual bias 455(b)(1). ly The seems problem simply is not covered court. The denied, Co., (D.Ala.1980); (5th Cir.), F.Supp. Smith v. Sikor 449 U.S. 516 84 609 F.2d 1101 820, cert. (C.D.Cal.1976). (1980); Aircraft, sky F.Supp. 22 Texaco 420 661 101 S.Ct. 66 L.Ed.2d Jones, Chandler, Cir.1965), (10th (10th Varela v. 746 F.2d 1413 v. 354 F.2d 655 cert. See also I.B.T., Cir.1984); denied, & Sons Co. v. 581 15 L.Ed.2d S.J. Groves 383 U.S. Cir.1978); Dusen, (3d (7th (1966); Equi v. Rapp 806 F.2d 1241 United States 853 v. Van Cir.1977), Co., Inc., (5th Cir.1965); fax, de 557 F.2d 456 cert. In re Snowshoe 137 B.R. 619 nied, mem., (4th (D.W.Va.1991), S.Ct. 54 L.Ed.2d F.2d 639 98 953 aff'd Cruz, (1978); 1992); Georgetown Apt., B.R. F.Supp. In re Park 143 Carbana v. Cir. 1992). mem., (1st (9th (D.P.R.1984), Allied-Signal, In re Cir. Cir. BAP 767 F.2d 905 Cf. aff’d Inc., (1st Cir.1989). 1985); Indus., Caterpillar Inc. v. 891 F.2d 974 Miller Tractor appearance aspect to have overlooked the Yet question is, at issue objectively, emphasized the statute when he at the Janu- whether the reasonably gave circumstances ary certainty 12 conference his moral that his question rise to a judge’s impartiality. handling of the case not be affected so, If disqualify shall himself. An relationship with Mr. Petruceelli. The purpose express rewrite of 455 just was not question whether he was biased was to subjective abandon the standard of prejudiced, impartiality or but whether his statute, the older depended which had large- might reasonably questioned, a related ly judge’s on personal view of whether he According but different matter.12 or she could impartially. behave Unfortu- Report accompanying House amendments to nately, the circumstances here created a situ- ation where a reasonable observer could en- (a) Subsection of the amended section 455 tertain doubts as to the impartiality. catch-all, general, contains the [of Can- obviously himself had concerns disqualify 3C] that a shall himself about the happened, what had any proceeding impartiali- which ‘his leading him to call the conference of ty’ might reasonably questioned. This purpose for the disclosing what had up objective standard, sets rather than transpired. subjective set forth in standard statute_ That a impartiality existing general This stan- under existed does not mean that designed dard is promote public confi- committed a impropriety. serious impartiality judicial dence in the judge explained The that he did not immedi- effect, process by saying, in there is a ately focus on the fact that Mr. Petruccelli’s reasonable factual doubting basis for firm, partners and associates were involved judge’s impartiality, disqualify he should pending the case aware, before him. Once judge preside himself and let another over judge commendably disclosed the rela- language ease. The also has the effect tionship. This speaks loudly action as to removing ‘duty the so-called to sit’ judge’s personal integrity. remains, fact gloss which has become a existing on the however, that a reasonable observer could statute.... objectively question judge’s impartiality 93-1453, H.Rep. No. Cong., 93d 2d Sess. particular circumstances. The (1974), reprinted in 1974 U.S.C.C.A.N. was, therefore, required to remove himself 6354-6355. unless he had parties’ received the waiver. sure, To be drafters the statute concerned, also my colleagues were are as

here, that by litigants the statute be used purely strategic purposes. The House

Report cautions that the new test should not by judges used sitting avoid difficult Disqualification controversial cases. impartiality always

lack of must have “a rea- (emphasis basis.” Id original).

sonable completely 12. Section reprinted 455 was rewritten Con- in 1974 U.S.C.C.A.N. 6353. The gress in 1974 so as to with the conform then-new spon- Code Judicial was drafted under Conduct Code Judicial Conduct which the Judicial Con- sorship Bar American Association adopted ference of the United States had in 1973 committee chaired former California Chief being applicable judges. to all federal Section Roger Traynor. Justice J. The other committee nearly duplicate 455 was ‍‌‌‌​‌‌​​‌‌​​​‌‌​​​‌​‌​‌​​​​​‌​‌​‌​​‌​‌​‌​‌​​​​​​‍amended so as members included Potter Justice Stewart of the 3C, Code’s Canon with the intention that federal Court, Supreme Judge Irving U.S. R. Kaufman of [i.e.j judges longer subject “would no to dual Circuit, Appeals the U.S. Court of for the Second statutory governing Code and qualification standards their Judge Gignoux Edward T. of the U.S. Dis- particular proceeding.” to sit ain trict Court for the District Maine. 93-1453, H.Rep. (1974), Cong., No. 2d 93d Sess.

Case Details

Case Name: In Re: v. Cargill, Inc.

Court Name: Court of Appeals for the First Circuit

Date Published: Oct 10, 1995

Citation: 66 F.3d 1256

Docket Number: 94-8042

Court Abbreviation: 1st Cir.