Rosen v. Sugarman

Decision Date04 March 1966
Docket NumberDockets 30202,30267.
Citation357 F.2d 794
PartiesAlex L. ROSEN, Petitioner, v. Honorable Sidney SUGARMAN, Judge of the United States District Court for the Southern District of New York, Respondent.
CourtU.S. Court of Appeals — Second Circuit

Alex L. Rosen, New York City, pro se.

Robert M. Morgenthau, U. S. Atty. for Southern Dist. of New York (Arthur S. Olick and Ezra H. Friedman, Asst. U. S. Attys., of counsel), for respondent, Judge Sugarman.

Charles Seligson, Examiner, and Melvin L. Robbins, New York City, respondents.

Before FRIENDLY and HAYS, Circuit Judges, and DOOLING, District Judge.*

FRIENDLY, Circuit Judge:

This is yet another chapter in the extensively litigated reorganization of Nazareth Fairgrounds & Farmers' Market, Inc., under Chapter X of the Bankruptcy Act, which has been pending in the District Court for the Southern District of New York for over twelve years. A plan of reorganization having been confirmed in July 1965, Judge Sugarman, who has been in charge of the proceedings almost since their inception, began hearings with respect to allowances on October 19. One of the applications was that of Alex L. Rosen, Esq., attorney for the debtor in possession. On November 22, Mr. Rosen filed an affidavit for disqualification pursuant to 28 U.S.C. § 144, alleging that Judge Sugarman had a personal bias and prejudice against him; the affidavit prayed that the judge proceed no further and that another judge be assigned. Judge Sugarman declined to disqualify himself, and Rosen sought review both by appeal and, in the alternative, by petition for mandamus or prohibition.

I.

We confront at the outset the question whether we have jurisdiction either to entertain the appeal or to issue a writ. Rather obviously an order refusing disqualification is not a "final decision," 28 U.S.C. § 1291, in the broad sense of bringing the litigation to an end. Neither is it "final" in the more limited sense that unless it is reviewed now, by the very nature of things it never can be; the issue would remain open on an appeal from an order fixing allowances if one were permitted. See Bankruptcy Act § 250. The argument for appealability thus must rest on a claim that, nonetheless, an order of a judge refusing to disqualify himself falls "in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated," Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). The argument is not altogether unpersuasive, especially in this context where appeal from a final decision on the merits will not lie as of right. Dickinson Industrial Site, Inc. v. Cowan, 309 U.S. 382, 60 S.Ct. 595, 84 L.Ed. 819 (1940). However, since we conclude that we have power to issue mandamus, which is better adapted to prompt disposition of such claims, we are content to disregard the contrary intimation in In re Lisman, 89 F.2d 898 (2 Cir. 1937), and join other courts of appeals in holding that an order denying an application for disqualification of a judge is not a final decision appealable under 28 U.S.C. § 1291. Collier v. Picard, 237 F.2d 234 (6 Cir. 1956); General Tire & Rubber Co. v. Watkins, 331 F.2d 192, 198 (4 Cir.), cert. denied, 377 U.S. 952, 84 S.Ct. 1629, 12 L.Ed.2d 498 (1964). The order thus being interlocutory, it is plain that no appeal lies under 28 U.S.C. § 1292(a), or under 28 U.S.C. § 1292(b) in the absence of a certification by the district court and the grant of leave by us. And although interlocutory orders in proceedings in bankruptcy are often appealable under § 24 of the Bankruptcy Act without regard to the limitations of § 1292, this order is not since it does not substantially determine rights in the debtor's estate, see In re Chicago Rapid Transit Co., 200 F.2d 341, 343 (7 Cir. 1953). The appeal must therefore be dismissed.

The Examiner, appointed by Judge Sugarman under § 168 of the Bankruptcy Act,1 insists that mandamus likewise is never available to direct a judge to recuse himself, and the Assistant United States Attorney appearing on the judge's behalf says that it "ordinarily" is not. We have held that in an appropriate case mandamus could issue to order such disqualification, In re Lisman, supra; Foster v. Medina, 170 F.2d 632 (2 Cir. 1948), cert. denied, 335 U.S. 909, 69 S.Ct. 412, 93 L.Ed. 442 (1949) — a view supported by a majority of the circuits. See Hurd v. Letts, 80 U.S.App. D.C. 233, 152 F.2d 121 (1945); In re Union Leader Corp., 292 F.2d 381 (1 Cir.), cert. denied, 368 U.S. 927, 82 S.Ct. 361, 7 L.Ed.2d 190 (1961); Henry v. Speer, 201 F. 869 (5 Cir. 1913); Minnesota & Ontario Paper Co. v. Molyneaux, 70 F.2d 545 (8 Cir. 1934); Gladstein v. McLaughlin, 230 F.2d 762 (9 Cir. 1955); United States v. Ritter, 273 F.2d 30 (10 Cir. 1959), cert. denied, 362 U.S. 950, 80 S.Ct. 863, 4 L.Ed.2d 869 (1960). But see Green v. Murphy, 259 F.2d 591 (3 Cir. 1958);2 Albert v. United States District Court, 283 F.2d 61 (6 Cir. 1960), cert. denied, 365 U.S. 828, 81 S.Ct. 713, 5 L. Ed.2d 706 (1961); Korer v. Hoffman, 212 F.2d 211 (7 Cir. 1954). The Supreme Court's decision in La Buy v. Howes Leather Co., 352 U.S. 249, 254-255, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957), made clear that the power conferred on courts of appeals to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law," 28 U.S.C. § 1651(a), is not confined, as urged in the dissent in that case, to instances where the action of the district court will "frustrate or impede the ultimate exercise by the Court of Appeals of its appellate jurisdiction granted in some other provision of the law." 352 U.S. at 264, 77 S.Ct. at 317. Once the area for use of the prerogative writs is recognized to be not so narrowly restricted, we can think of few situations more appropriate for mandamus than a judge's clearly wrongful refusal to disqualify himself.

"The very special, challenging and often sensational charge of partiality in the administration of justice which is initiated by a formal affidavit of prejudice against a judge should receive final adjudication at first opportunity, if only in the interest of public confidence in the courts. Moreover, a trial is not likely to proceed in a very satisfactory way if an unsettled claim of judicial bias is an ever present source of tension and irritation. Only a final ruling on the matter by a disinterested higher court before trial can dispel this unwholesome aura. Thus, if an appellate court refuses, when properly petitioned, to prevent a disqualified judge from trying a case, or to say that the challenged judge is not disqualified, this postponement of decision hurts the administration of justice, even though the court reserves the right to pass upon the matter after trial. Such considerations far outweigh the objections to piecemeal appeals which ordinarily militate against deciding on mandamus an issue which can be reviewed after trial. Another normal objection to mandamus, its character as a challenge addressed to the judge himself, has no force here because the affidavit of prejudice has already challenged the judge in the most personal way imaginable." Green v. Murphy, supra, 259 F.2d at 595 (Hastie, J., concurring).

To be sure, writs in such cases should be issued sparingly and only when the facts alleged clearly call for relief, lest mandamus to review refusals of disqualification become a potent weapon for harassment and delay. However, it would ill serve the proper administration of justice to deny the power of an appellate court to issue the writ in an appropriate case.

II.

The principles governing the disposition of affidavits for disqualification under what is now 28 U.S.C. § 144 were laid down in Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921). Although the facts stated in the affidavit are to be taken as true, the judge may inquire into their legal sufficiency. Indeed he must do so. There is "as much obligation upon a judge not to recuse himself when there is no occasion as there is for him to do so when there is," In re Union Leader Corp., 292 F.2d 381, 391 (1 Cir.), cert. denied, 368 U.S. 927, 82 S.Ct. 361, 7 L.Ed.2d 190 (1961); see also Tucker v. Kerner, 186 F.2d 79, 85 (7 Cir. 1950) — an obligation especially strong in a case like the present where the request for disqualification was not made at the threshold of the litigation and the judge has acquired a valuable background of experience. To be sufficient an affidavit must show "the objectionable inclination or disposition of the judge"; it must give "fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment." 255 U.S. at 33-35, 41 S.Ct. at 233.

Application of these principles, not easy in any case, is peculiarly difficult when the bias and prejudice are alleged to have stemmed not from any history antecedent to the litigation or from the judge's contacts outside the courtroom, but from conflicts arising in the course of the very proceeding in which his impartial decision must be made. The task is even more delicate where, as here, the issue before the judge is the award of allowances to an attorney claiming bias, where the attorney's conduct in the prior proceeding is relevant to that determination and the attorney's own interests are at stake. A judge is not to be faulted as biased or prejudiced because he has considered that the effective discharge of his responsibility over proceedings before him, a responsibility particularly great in a reorganization case, has demanded the consistent rejection of an attorney's contentions or strong measures to prevent what he regards as inexcusable waste of time. Moreover,...

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