USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 97-1396
IN RE: MARISOL MARTINEZ-CATALA, ET AL.,
Petitioners.
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ON PETITION FOR WRIT OF MANDAMUS
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Before
Boudin and Lynch, Circuit Judges,
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and Keeton,* District Judge.
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Carlos Del Valle Cruz for petitioners.
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Arlene De La Matta with whom Jose R. Gaztambide was on memorandum
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in support of opposition to application for writ of mandamus and
addendum for respondents Honorable Maria D. Guzman Cardona, et al.
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November 12, 1997
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*Of the District of Massachusetts, sitting by designation.
BOUDIN, Circuit Judge. This case comes to us on
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petition for writ of mandamus directing the district judge to
recuse himself in this case. The district judge denied the
motion to recuse without an evidentiary hearing or any
detailed submission by the opposing parties. Thus, the raw
facts set forth below, and assumed to be true for purposes of
this opinion, are largely drawn from the petition for
mandamus and related filings by petitioners.
I. BACKGROUND
After the 1992 municipal elections in Florida, Puerto
Rico, the candidate for mayor of Florida affiliated with the
New Progressive Party unseated the incumbent mayor who was
affiliated with the Popular Democratic Party. According to
the complaint later filed by petitioners, who are plaintiffs
in the district court, all 14 of them were dismissed or
demoted in early January 1993. Some of the plaintiffs had
served as assistants to the mayor and others had been
employees of Florida's elder community center.
The suit was brought as a civil rights action under 42
U.S.C. 1983. Plaintiffs charged that their firing violated
their constitutional free speech rights under Elrod v. Burns,
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427 U.S. 347 (1976), Branti v. Finkel, 445 U.S. 507 (1980),
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and Rutan v. Republican Party, 497 U.S. 62 (1990). These
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cases limit, although they do not wholly eliminate, the
ability of a new administration to dismiss or demote
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employees of the old administration on account of party
affiliation. Plaintiffs sought damages and reinstatement.
In November 1995, a motion for summary judgment was
filed on behalf of defendants, who included the new mayor,
the municipality and others. The summary judgment motion
urged that the former mayoral assistants had confidential
positions that excepted them from the limit on political
firings and also asserted that in other cases, the assistants
had been hired illegally. Defendants said that the former
workers at the elder community center had been discharged due
to lack of funds.
On June 13, 1996, in an effort to reach a settlement,
the district judge met in chambers with counsel from both
sides, with the defendant mayor, and with Florida's interim
director of human resources. Then the judge, apparently
without objection, met separately with both sides.
Plaintiffs' counsel was Carlos Del Valle Cruz; defense
counsel included Jose Gaztambide, who at some earlier time
had served as a law clerk to the district judge.
Following their separate meetings with the judge,
counsel for both sides met privately to discuss settlement.
Del Valle later filed an unsworn statement, made under
penalty of perjury, describing his meeting with Gaztambide
and with Luis Plaza, another defense attorney. Crucial
language from the unsworn statement follows:
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In said conference, they [the defense attorneys]
made a settlement offer on the basis on (sic) of
the Court's prospective ruling on their [defense]
motion for summary judgment. Counsel Gaztambide
stated that the Court would be dismissing the case
as to five (5) of the plaintiffs, was yet unsure of
his decision as to three (3) of the plaintiffs, and
would deny the motion for summary judgment as to
the remaining six (6) plaintiffs.
Defense counsel then reviewed an earlier letter
containing settlement offers for each plaintiff. The
statement continues: "Next to the name of each plaintiff,
counsel Gaztambide made a downward slant for all those cases
which the Court would be dismissing . . . an upward slant
next to the names of the cases the Court was yet unsure of .
. . and a circle next to the names of those cases [in which]
the Court would deny the motion for summary judgment . . . ."
Del Valle objected that defense counsel had information
about "a prospective dismissal" of certain of the cases. All
three lawyers returned to the judge who continued to urge
settlement of the case. When defense counsel Plaza said that
Del Valle had an ethical obligation to report the settlement
offers to his clients, Del Valle said that his clients were
in court "because they believed in the Constitution and their
right to be made whole."
According to Del Valle's statement, the district judge
then intervened "to express that the undersigned should
`forget the Constitution,' because several of my clients were
`political sweet potatoes' that cared more about having some
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money in their pockets than about their Constitutional
rights." The judge then proposed a settlement figure of
approximately $200,000 that "counsel agreed to recommend to
their clients." Del Valle did meet with his clients, but the
upshot was a motion by Del Valle, accompanied by the
statement just described, requesting the district judge to
recuse himself pursuant to 28 U.S.C. 144, 455(a) and (b).
The motion for recusal was filed on June 17, 1996. When
no action had been taken on the motion after eight months,
plaintiffs, on February 26, 1997, filed a motion requesting a
ruling. When again there was no response, plaintiffs on
April 19, 1997, filed a petition for writ of mandamus in this
court. Ten days later, on April 29, 1997, the district court
issued an opinion and order denying the motion for recusal.
In the 28-page opinion and order, the district court
concluded that disqualification was not required under either
section 144 or section 455. The district judge stated that
he had, "as is customary, discussed separately with each
party's counsel the perceived strengths and weaknesses of the
case . . . ." The opinion continued: "The undersigned did
not tell either party definitively what his decision would
be--he merely gave both parties his preliminary impression of
the possibilities for success as to each claim."
This decision mooted plaintiffs' request to us for an
order directing the district judge to rule. But the mandamus
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petition also requested that this court order the district
judge to recuse himself. Accordingly, on May 23, 1997, this
court asked the parties to file memoranda addressing the
merits of the recusal claims and the overhanging question
whether review by mandamus was warranted. Del Valle
complied; defense counsel relied largely on the district
judge's decision.
On June 6, 1997, the district court issued an opinion
and partial judgment disposing of the pending motions for
summary judgment filed by the defendants. The court
dismissed certain claims and, as to others, scheduled an
evidentiary hearing for later in June and a trial date in
August 1997. At the request of plaintiffs, this court then
granted a stay of further proceedings in the district court.
II. DISCUSSION
In this case, there is no final judgment appealable as
of right. Ordinarily, a district judge's refusal to recuse
is reviewable only on appeal of a final judgment; the
collateral order doctrine does not apply. Nevertheless, in
unusual situations, interim review of such a refusal is
available through writ of mandamus. See In re Cargill, Inc.,
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66 F.3d 1256, 1260 (1st Cir. 1995), cert. denied, 116 S. Ct.
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1545 (1996) (collecting cases).
The usual first requirement for mandamus in a recusal
matter is that the party seeking the writ show a "clear and
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indisputable" entitlement to relief. In re United States,
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666 F.2d 690, 695 (1st Cir. 1981); see 13A C. Wright, A.
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Miller & E. Cooper, Federal Practice and Procedure 3553, at
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661 (2d ed. 1984). Interlocutory review, after all,
interferes with the ordinary processes of trial and appeal;
and absent interlocutory review, many issues wash out along
the way. But over the years, appeals courts have held that
given a clear error by the district judge in refusing to
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recuse, a stronger argument exists for immediate review by
mandamus.
Mandamus is a discretionary writ and, even where the
merits clearly favor the petitioner, relief may be withheld
for lack of irreparable injury or based on a balance of
equities. These are malleable concepts and often matters of
degree. Some opinions suggest that a clear entitlement to
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recusal may itself warrant immediate relief, absent an
equitable bar, because public confidence is enhanced where
a clearly disqualified judge is removed swiftly. See, e.g.,
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In re United States, 666 F.2d at 694.
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In all events, in recusal cases, mandamus is almost
always withheld--we do not say always--unless the petitioner
demonstrates that it is "clearly" entitled to relief. See
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Cargill, 66 F.3d at 1262. Here, the plaintiffs have invoked
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two separate bases for disqualification, sections 144 and
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455, whose procedural incidents differ widely. We consider
them separately and in order.
Section 144. This provision begins with a core one-
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sentence paragraph:
Whenever a party to any proceeding in a
district court makes and files a timely and
sufficient affidavit that the judge before whom the
matter is pending has a personal bias or prejudice
either against him or in favor of any adverse
party, such judge shall proceed no further therein,
but another judge shall be assigned to hear such
proceeding.
A second paragraph sets forth a timeliness requirement (not
here in dispute), provides that the party can only file one
such affidavit in any case, and requires a certificate of
counsel of record that the affidavit is made in good faith.
Section 144 is unusual because it requires that the
district judge accept the affidavit as true even though it
may contain averments that are false and may be known to be
so to the judge. See United States v. Kelley, 712 F.2d 884,
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889 (1st Cir. 1983). However, penalties for perjury and the
certificate of counsel tend to discourage outright falsehood.
And the possibility remains, although not developed in the
statute, that the transferee judge might hold a hearing,
conclude that the affidavit was false and transfer the action
back to the original judge.
Nevertheless, courts have responded to the draconian
procedure--automatic transfer based solely on one side's
affidavit--by insisting on a firm showing in the affidavit
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that the judge does have a personal bias or prejudice toward
a party, and also by insisting on strict compliance with the
procedural requirements of the section.1 And, while there
are various bases at law for recusal, the only one governed
by section 144 and subject to its procedural advantages for
the recusing party are "personal bias or prejudice."
We start with procedural issues. Section 144's second
paragraph requires the affidavit of "a party" setting forth
"the facts and the reasons for the belief that bias or
prejudice exists" and a separate "certificate of counsel of
record stating that it [the affidavit] is made in good
faith." Here, there was neither an affidavit of a party nor
a certificate of counsel--only a single unsworn statement of
counsel setting forth facts under penalty of perjury. The
papers are thus doubly defective.
Still, an unsworn statement under penalty of perjury has
the same effect as an affidavit. 28 U.S.C. 1746. The
missing certificate of counsel may also be redundant
(although it still should have been supplied) where, as here,
the motion and unsworn statement are both signed by counsel,
making counsel subject to the good faith strictures of Fed.
R. Civ. P. 11. One might be more concerned about the lack of
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1See, e.g., Glass v. Pfeffer, 849 F.2d 1261, 1267 (10th
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Cir. 1988); Walberg v. Israel, 766 F.2d 1071, 1077 (7th
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Cir.), cert. denied, 474 U.S. 1013 (1985); United States v.
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Womack, 454 F.2d 1337, 1341 (5th Cir. 1972).
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any affidavit or statement from "a party," especially in view
of the tradition of construing section 144 strictly in light
of its drastic consequences.
But probably the drafters of the statute expected that
"a party" would possess the necessary knowledge showing (for
example) personal hostility of the judge against that party.
In this case, plaintiffs' counsel was much closer than his
clients to being a firsthand witness to the events. It seems
to us to satisfy the underlying purpose of the recusal
statute to allow Del Valle to make the necessary filing
rather than to insist that the plaintiffs themselves repeat
the same facts on a hearsay basis.
Starting with defense counsel's alleged inside knowledge
of the judge's intentions, the problem is not one of ex parte
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contacts as such; absent objection, separate discussions in
the context of settlement agreements are common occurrences.
And, in pressing each side to take a reasonable view of its
situation, judges often give the parties the court's
impression of apparent strengths and weaknesses. There are
dangers in this practice, of course, but clients are often
well served by settlements, and settlements often result from
realistic appraisals of strengths and weaknesses.
Rather, the claim of bias or prejudice here rests
primarily on the inference, drawn by plaintiffs' counsel,
that the judge told defense counsel more or less definitively
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how the judge planned to rule on the summary judgment motions
and on the implication that the judge gave no similar
information to plaintiffs' counsel. If so, this would
obviously give one side a substantial advantage in
negotiations. We will assume arguendo that such an
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indiscretion could at least arguably be grounds for a
reasonable inference of bias or prejudice toward someone
(whether toward a party or counsel might require further
information).
Under section 144, recusal must be based upon the facts
alleged in the affidavit, so we have to disregard the
district judge's own later denial that he revealed how the
motions were to be decided. See Kelly, 712 F.2d at 889.
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But, by the same token, automatic removal of the judge under
that section requires averment of facts showing that the
judge "has" a personal bias or prejudice, not that the judge
might have such a bias or prejudice or that grounds exist for
further inquiry. As explained below, "mights" and further
inquiries can always be pursued under section 455--where,
however, the affidavit itself can be challenged.
The difficulty with Del Valle's unsworn statement is
that it does not show that the district judge revealed his
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intended disposition of any of the summary judgment motions
to defense counsel. The statement does not even say that
defense counsel made such a claim. Instead, the remarks
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attributed to defense counsel--the pertinent ones have been
quoted in full above--show only that defense counsel sought
to convey the impression that he knew how the judge would
rule, while carefully refraining from explaining how he knew.
The unsworn statement itself shows that both plaintiffs'
counsel and defense counsel had come from separate settlement
conferences where (in common experience) judges often discuss
the strengths and weaknesses of the claims. There is nothing
in the unsworn statement to indicate that defense counsel was
doing more than making an intelligent prediction, perhaps
puffing a bit to enhance his bargaining position. This does
not prove that the judge revealed to defense counsel how the
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judge intended to rule on the pending motions.
We turn next to the judge's alleged statement that some
of the plaintiffs were "political sweet potatoes." We
understand this term to mean political hack, see Rodriguez-
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Garcia v. Davila, 904 F.2d 90, 100 n.10 (1st Cir. 1990), or
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as the district judge put it in another instance, "people
appointed to more or less useless jobs as political favors,"
see Rodriguez-Garcia v. Davila, No. 87-1411, 1988 WL 124046,
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*2 (D.P.R. Nov. 9, 1988). Under section 144, the question
again is whether such a reference shows personal bias or
prejudice.
Assuming that the statement does show a predisposition,
there is no evidence that the statement was improper. A
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judge is ordinarily entitled to form a view of the parties
that is favorable or unfavorable, so long as it derives from
information in the case; there may be exceptions but they are
"rare" indeed. See Liteky v. United States, 510 U.S. 540,
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554 (1994). Here, the district judge had before him the
summary judgment filing in which the defendants challenged
the bona fides of various plaintiffs. There is no indication
that the judge knew the individual plaintiffs from any
context other than the current judicial proceedings.
Judges constantly form personal opinions during
proceedings. It may be wiser not to express such views, and
almost always prudent to avoid epithets, but disqualification
is almost never required where the judge's opinions are based
on the proceedings. Inaccurate findings based on those
opinions may lead to reversal on appeal but not to recusal.
Whether the words used by the district judge suggest a lack
of impartiality is a different question, properly raised
under the objective standard of section 455 and addressed
below.
There is even less to the claim that the judge showed a
personal bias or prejudice when he said, if he did say, that
the plaintiffs should "forget the Constitution." However
dramatic the phrase may sound in the abstract, in context it
was here used as part of a perfectly permissible suggestion
by the district judge, namely, that counsel ask his clients
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whether they were more interested in a monetary settlement
than in an opportunity to express principle. Judges say
something of the sort in many settlement conferences.
Section 455. In its present version section 455 is the
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more modern and complete recusal statute and applies to all
federal judges. There is no threshold requirement of an
affidavit or any other format for raising a recusal issue.
In fact, the judge is expected to recuse sua sponte, where
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necessary, even if no party has requested it. Nor is there
anything to prevent the party seeking recusal from trying to
engage in discovery incident to a recusal motion, although
the allowance of such discovery is within the sound
discretion of the court. See, e.g., Cheeves v. Southern
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Clays, Inc., 797 F. Supp. 1570, 1580 (M.D. Ga. 1992).
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On the other hand, under section 455, a judge is not
compelled automatically to accept as true the allegations
made by the party seeking recusal. To the extent that facts
are in dispute, factual determinations are made by the judge
whose recusal is in question, and the same judge also decides
whether the facts trigger disqualification, subject always to
review on appeal, normally for abuse of discretion. See,
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e.g., Town of Norfolk v. United States Army Corps of
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Engineers, 968 F.2d 1438, 1460 (1st Cir. 1992).
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It might seem odd that recusal issues should be decided
by the very judge whose recusal is in question. But there
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are other considerations at work, including a desire for
expedition and a concern to discourage judge shopping. In
addition, one of the grounds for recusal under section 455 is
the far-reaching direction that the judge recuse himself or
herself "in any proceeding in which his [or her] impartiality
might reasonably be questioned." 28 U.S.C. 455(a). Thus,
taken together, the provisions of section 455 tend to strike
a reasonable balance.
In our case, the plaintiffs have invoked both section
455(a) and section 455(b)(1), which repeats the bias and
prejudice language of section 144. For present purposes, we
focus on the impartiality language of section 455(a) because
it covers the same ground and reaches even further. Section
455(a) is in no way limited to "personal" bias or prejudice
"concerning a party" and--unlike sections 144 and 455(b)(1)--
does not require that bias or prejudice in fact be
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established. United States v. Chantel, 902 F.2d 1018, 1023
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(1st Cir. 1990).
Rather, section 455(a) requires recusal wherever
the objective circumstances create an appearance of
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partiality. This does not mean that required recusal can be
based on an "unsupported, irrational, or highly tenuous
speculation." In re United States, 666 F.2d at 694. It does
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mean that where the appearance of partiality exists, recusal
is required regardless of the judge's own inner conviction
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that he or she can decide the case fairly despite the
circumstances. See Chantel, 902 F.2d at 1023. See also
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Liteky, 510 U.S. at 548; Blizard v. Frechette, 601 F.2d 1217,
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1220 (1st Cir. 1979).
With this gloss, we revisit plaintiffs' first and
sharpest claim, namely, that the judge told the defense but
not the plaintiffs how he planned to rule on the pending
summary judgment motions. As we have said, section 455,
unlike section 144, is not limited to facts alleged in an
affidavit. But Del Valle's statement was itself insufficient
to show that the judge made the alleged disclosure; and the
only additional pertinent fact beyond the statement is the
judge's denial that he did so, hardly of help to the
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plaintiff.
Plaintiffs now attack the judge's statement that he gave
both sides a preliminary appraisal: Del Valle now claims in
his mandamus memorandum that in the settlement conference
with the judge he was told virtually nothing even about
likely outcomes. But new assertions of fact by counsel in
appellate briefs come too late, see Hurney v. Carver, 602
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F.2d 993, 996 (1st Cir. 1979); Renovitch v. Kaufman, 905 F.2d
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1040, 1049 n.12 (7th Cir. 1990), and plaintiffs have made no
effort to prove what defense counsel was told. Without
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knowing both, any comparison is hopeless.
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We return now, under the standard of section 455(a), to
the district court's alleged remark that some of the
plaintiffs were "political sweet potatoes." As already
noted, a judge is normally free to develop views from the
record as the case proceeds, and there is no showing here
that the judge's assessment came from any other source.
Further, the judge's supposed comment--like his alleged
admonition to "forget the Constitution"--was in context
little more than a warning to plaintiffs' counsel, quite
relevant to the settlement then being urged, that some of his
clients might do better by compromise than at trial.
Two other assertions remain to be addressed. In his
unsworn statement, plaintiffs' counsel referred to the fact
that one of the defense counsel had once clerked for the
judge, an issue unrelated to party bias or prejudice but
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perhaps pertinent to appearance of partiality. And on
appeal, plaintiffs' counsel widens his claims slightly by
saying that the district judge had once been actively
connected with political causes opposed by the Popular
Democratic Party. Neither ground is expressly offered as an
independent basis for recusal, and for good reason.
It is common knowledge in the profession that former law
clerks practice regularly before judges for whom they once
clerked. Courts often have prophylactic rules that forbid a
former law clerk from appearing in that court for a year or
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more after the clerkship, see, e.g., 1st Cir. R. 46, but no
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such rule is claimed to have been violated in this case. And
any lawyer who studies a judge's past rulings can make an
informed guess as to how the judge is likely to approach an
issue.
So, too, appointees to the bench have sometimes had a
former active connection with a political party. But many
judges also sit, usually after a self-imposed cooling off
period, on cases involving former clients (assuming always no
current financial ties and that the judge did not work on the
same or a related matter while in practice). Former
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affiliations with a party may persuade a judge not to sit;
but they are rarely a basis for compelled recusal. See,
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e.g., In re United States, 666 F.2d at 696; Matter of Mason,
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916 F.2d 384, 386 (7th Cir. 1990).
All this being said, the whole is sometimes greater than
the sum of the parts. The cumulative effect of a judge's
individual actions, comments and past associations could
raise some question about impartiality, even though none
(taken alone) would require recusal. And, while the abuse of
discretion standard is a forgiving one, perhaps in an extreme
case the cumulative effect would warrant reversal on direct
appeal if the judge refused to recuse.
But the primary condition of mandamus is that the
petitioner be clearly entitled to relief. Judges may choose
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to step aside in close cases; the "duty to sit" concept has
been modified by amended section 455. See Blizard, 601 F.2d
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at 1220-21; see also 13A Wright, Miller & Cooper 3549, at
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611. But mandamus requires a case not merely close to the
line but clearly over it; and the line itself is especially
blurred where no incident is sufficient and the claim is one
of cumulative effects. This case is certainly not so clearly
over the line as to justify the shortcut of mandamus.
III. CONCLUSION
When this case returns to the district court, section
144 will be out of the picture; Del Valle's statement was
insufficient on its face to show bias or prejudice, so it
fails regardless of mandamus requirements, and only one such
affidavit may be filed in an action. The situation is
otherwise under section 455(a); our decision, resting as it
does partly upon the mandamus standard, does not
automatically prevent the further development of the record,
nor an appeal after a final judgment.
The possibility left open may carry some suggestion of
reproof. We therefore note that as yet no showing exists
that the district judge gave any improper advantage in his
disclosures to defense counsel, which is the closest that
plaintiffs have come to a specific and serious charge. Our
only present stricture is that a district judge, however
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busy, ought not let a recusal motion alleging personal bias
and prejudice sit dormant for eight months.
The petition for a writ of mandamus is denied. The stay
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of proceedings in the district court is vacated. Each side
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shall bear its own costs.
It is so ordered.
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