66 F.3d 1256 (1st Cir. 1995), 94-8042, In re Cargill

Docket Nº:94-8042.
Citation:66 F.3d 1256
Party Name:In re CARGILL, INC., Petitioner.
Case Date:October 10, 1995
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 1256

66 F.3d 1256 (1st Cir. 1995)

In re CARGILL, INC., Petitioner.

No. 94-8042.

United States Court of Appeals, First Circuit

October 10, 1995

Heard Jan. 12, 1995.

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Bernhardt K. Wruble, with whom William R. Sherman, Verner, Liipfert, Bernhard, McPherson and Hand, Washington, DC, Peter J. DeTroy, III and Norman, Hanson & DeTroy, Portland, ME, were on brief, for petitioner.

Joel C. Martin, with whom Michael K. Martin, Daniel W. Bates and Petruccelli & Martin, Portland, ME, were on brief, for plaintiffs.

Before SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and BOUDIN, Circuit Judge.

SELYA, Circuit Judge.

Petitioner, Cargill, Inc. (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

The petition arises out of a civil action brought by several former Cargill employees, represented by Daniel W. Bates and Kenneth

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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. Secs. 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 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" 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 "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

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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 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. Sec. 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 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. Sec. 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. Sec. 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. Sec. 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

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. Sec. 1651(a) (1988). Because such writs disrupt the mechanics of the judicial system--by accelerating appellate intervention, prerogative writs foster piecemeal review and 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.

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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...

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