Corrugated Container Antitrust Litigation, In re, Nos. 79-3369

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before TJOFLAT, FAY and FRANK M. JOHNSON, Jr.; FRANK M. JOHNSON, Jr.
• Citation: 614 F.2d 958
• Parties: 1980-1 Trade Cases 63,265 In re CORRUGATED CONTAINER ANTITRUST LITIGATION. STEERING COMMITTEE et al., Plaintiffs-Appellees, v. MEAD CORPORATION et al., Defendants-Appellants. In re CORRUGATED CONTAINER ANTITRUST LITIGATION. In re The MEAD CORPORATION, Petitioner.
• Docket Number: 79-3653,Nos. 79-3369
• Decision Date: 31 March 1980

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614 F.2d 958 1980-1 Trade Cases 63,265 In re CORRUGATED CONTAINER ANTITRUST LITIGATION.
STEERING COMMITTEE et al., Plaintiffs-Appellees,
v.
MEAD CORPORATION et al., Defendants-Appellants.
In re CORRUGATED CONTAINER ANTITRUST LITIGATION.
In re The MEAD CORPORATION, Petitioner. Nos. 79-3369, 79-3653. United States Court of Appeals,
Fifth Circuit. March 31, 1980.

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Mandell & Wright, Stephen D. Susman, Houston, Tex., for Chairman of Steering Committee.

Howrey & Simon, Alan M. Wiseman, Robert F. Ruyak, Harold F. Baker, Ann Irene Killilea, Washington, D.C., for Mead Corp.

Sullivan & Cromwell, William R. Norfolk, New York City, for Crown Zellerbach Corp.

Eckert, Seamans, Cherin & Mellott, Cloyd R. Mellott, Pittsburgh, Pa., for Georgia-Pacific Corp.

Skadden, Arps, Slate, Meagher & Flom, Leslie H. Arps, Kenneth A. Plevan, New York City, for Westvaco Corp.

Kohn, Milstein & Cohen, Jerry S. Cohen, Washington, D.C., for Steering Committee.

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Howrey & Simon, Harold F. Baker, Robert L. Green, Jr., Ann I. Killilea, Robert F. Ruyak, Alan M. Wiseman, Washington, D.C., Butler, Binion, Rice, Cook & Knapp, Fletcher Etheridge, Houston, Tex., for defendants-appellants.

Stephen D. Susman, Houston, Tex., for Adams Extract Co., et al.

Appeals from the United States District Court for the Southern District of Texas.

On Petition for Writ of Mandamus to the United States District Court for the Southern District of Texas.

Before TJOFLAT, FAY and FRANK M. JOHNSON, Jr., Circuit Judges.

FRANK M. JOHNSON, Jr., Circuit Judge:

For the third time this Court is called upon to determine the appropriateness of a trial court ruling in this multidistrict civil antitrust litigation. See In re Corrugated Container Antitrust Litigation, 606 F.2d 319 (5th Cir. 1979) (appeal dismissed without published opinion), petition for cert. filed, 48 U.S.L.W. 3500 (U.S. Dec. 21, 1979) (No. 79-972) (Corrugated I ); In re Corrugated Container Antitrust Litigation, 611 F.2d 86 (5th Cir. 1980) (Corrugated II ). As in the other two circumstances, the district court decision and our consideration of the matter precedes trial of the litigation, the scope of which defendants appropriately characterize as "gargantuan." The fact that the parties have once more sought the involvement of this Court in the litigation further supports our prediction in Corrugated II that "(b) efore the litigation is completed, the case will undoubtedly present numerous opportunities for parties dissatisfied with some aspect of a court ruling to claim entitlement to appellate review." 611 F.2d at 89. The case, not yet tried and far from completion, has apparently already presented those "numerous opportunities." See also In re Int'l Bus. Machines Corp., No. 79-3070, slip op. 1409, 1413 n.2, (2d Cir. Feb. 25, 1980) (IBM ).

The present controversy arises out of the refusal of the district judge, upon motion, to disqualify himself from further participation in the litigation. In No. 79-3369 defendants seek review of the district court's determination on appeal; in No. 79-3653 they request this Court to exercise its power to issue a writ of mandamus. Guided by the principles we found controlling in Corrugated II, we dismiss the appeal for want of an appealable order. Further, we deny the request for a writ of mandamus. Alternatively, we hold that under applicable statutory and case law the district judge's refusal to disqualify himself was fully justified. ¹

I. APPEALABILITY: No. 79-3369

In the present situation defendants-appellants urge, as they did in Corrugated II, that the district court decision of which they complain is an appealable final order under 28 U.S.C. § 1291 within the meaning of the doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Once again, their reliance on Cohen is misplaced.

To determine under the rule of Cohen the appealability of a district judge's denial of a motion for disqualification, little discussion beyond that in Corrugated II is necessary. ² Disqualification questions are

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fully reviewable on appeal from final judgment. Davis v. Board of School Comm'rs, 517 F.2d 1044, 1051 (5th Cir. 1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976); 13 C. Wright, A. Miller, and E. Cooper, Federal Practice and Procedure § 3553 at 384; see, e. g., Potashnick v. Port City Constr. Co., 609 F.2d 1101, 1107-15 (5th Cir. 1980); United States v. Clark, 605 F.2d 939, 941-42 (5th Cir. 1979); Whitehurst v. Wright, 592 F.2d 834, 837-38 (5th Cir. 1979); King v. United States, 576 F.2d 432, 436-37 (2d Cir.), cert. denied, 439 U.S. 850, 99 S.Ct. 155 (1978); United States ex rel. Weinberger v. Equifax, Inc., 557 F.2d 456, 463-64 (5th Cir. 1977); United States v. Partin, 552 F.2d 621, 636-40 (5th Cir.), cert. denied, 434 U.S. 903, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977). Precisely because disqualification issues are reviewable following entry of judgment, as a threshold matter the Cohen doctrine is unavailing. In Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978), the Supreme Court explained that, as a prerequisite to appealability under the Cohen rule, "the order must . . . be effectively unreviewable on appeal from a final judgment." See Corrugated II, supra, 611 F.2d at 88; Ruiz v. Estelle, 609 F.2d 118, 119 (5th Cir. 1980). ³

II. MANDAMUS: No. 79-3653

In addition to their claim that the decision of the district court is immediately appealable under the Cohen doctrine, defendants "out of an abundance of caution" also petition for a writ of mandamus. The contention does not merit extended discussion. We refuse issuance of the writ. ⁴

As this Court recently stated in United States v. Denson, 603 F.2d 1143 (5th Cir. 1979) (en banc), "Countless expressions can be found in the jurisprudence to support the black-letter proposition that mandamus is

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an extraordinary remedy for extraordinary causes." 603 F.2d at 1146. "(O)nly exceptional circumstances amounting to a judicial 'usurpation of power' will justify this extraordinary remedy." Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967). Moreover, "(t)he Supreme Court has repeatedly stated . . . that issuance of a writ of mandamus lies in large part within the discretion of the court." United States v. Denson, supra, 603 F.2d at 1146; see Helstoski v. Meanor, 442 U.S. 500, 504, 99 S.Ct. 2445, 2447, 61 L.Ed.2d 30, 35 (1979) (quoting Kerr v. United States District Court, 426 U.S. 394, 403, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725 (1976)). In the present case we decline to exercise our discretion to issue the writ and we do so without need of a comprehensive examination of the record.

For nearly one hundred years, it has been clear that " '(t)he general principle which governs proceedings by mandamus is, that whatever can be done without the employment of that extraordinary writ, may not be done with it.' " Helstoski v. Meanor, supra, 442 U.S. at 505, 99 S.Ct. at 2448, 61 L.Ed.2d at 35 (quoting Ex parte Rowland, 104 U.S. 604, 617, 26 L.Ed. 861 (1882) (emphasis added by the court)). "(A)s a general rule 'appellate review should be postponed . . . until after final judgment . . ..' Will v. United States, supra, 389 U.S. at 96 (88 S.Ct. at ---); Parr v. United States, 351 U.S. 513, 520-21 (76 S.Ct. 912, 917, 100 L.Ed. 1377) (1956). . . . (T)he party seeking issuance of the writ (of mandamus must) have no other adequate means to attain the relief he desires . . .." Kerr v. United States District Court, supra, 426 U.S. at 403, 96 S.Ct. at 2124. As discussed above, full review awaits these defendants upon appeal from final judgment.

On this ground alone we refuse to issue the writ. Additionally, however, we note that the writ of mandamus "is an order directing a public official . . . to perform a duty exacted by law," United States v. Denson, supra, 603 F.2d at 1146, and "will not issue to correct a duty that is to any degree debatable . . .." Id. at 1147 n.2. The party seeking the writ carries the burden of proving a "clear and indisputable" right to issuance of the writ. Kerr v. United States District Court, supra, 426 U.S. at 403, 96 S.Ct. at 2124; Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 384, 74 S.Ct. 145, 148, 98 L.Ed. 106 (1953). As will become clear in the discussion that follows, defendants manifestly cannot demonstrate a "clear and indisputable" right to issuance of the writ. The legal duty of the district judge to disqualify himself is not merely debatable it is nonexistent.

III. DISQUALIFICATION THE MERITS ⁵

Mead, Westvaco, Georgia-Pacific, and Crown Zellerbach, appellants-petitioners here, as manufacturers of corrugated containers and corrugated sheets, are defendants in one or more of forty-four class actions and eleven non-class civil actions consolidated for pretrial proceedings ⁶ in the United States District Court for the Southern District of Texas and assigned to the Honorable John V. Singleton, Jr., now chief judge of that district. ⁷ These four parties are among the few remaining that have not settled out of the litigation.

Extensive scrutiny of the corrugated container industry gave rise to the massive litigation of which a relatively narrow controversy is herein considered. A two-year grand jury investigation of the industry resulted in criminal felony indictments against nine individuals and nine corporations, including Mead, and misdemeanor indictments against an additional seventeen individuals and five corporations. Defendants Westvaco, Georgia-Pacific, and Crown Zellerbach were not indicted. Judge Singleton,

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after having stayed further proceedings in the civil litigation, presided over the criminal trials of those indicted defendants who elected to stand trial. A jury acquitted the criminal defendants of all charges on April 27, 1979. On August 30, 1979, Mead filed an affidavit of bias and motion...