USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 97-1396

IN RE: MARISOL MARTINEZ-CATALA, ET AL.,

Petitioners.

____________________

ON PETITION FOR WRIT OF MANDAMUS

____________________

Before

Boudin and Lynch, Circuit Judges,

______________

and Keeton,* District Judge.

______________

____________________

Carlos Del Valle Cruz for petitioners.

_____________________
Arlene De La Matta with
__________________
in

support of

opposition to

whom Jose R. Gaztambide was on memoran

__________________
application

for writ

of mandamus

addendum for respondents Honorable Maria D. Guzman Cardona, et al.

____________________

November 12, 1997

____________________

____________________

*Of the District of Massachusetts, sitting by designation.

BOUDIN, Circuit Judge.

______________

This

case

comes

to

us

on

petition for writ of mandamus directing the district judge to

recuse himself in

this case.

motion

without

to recuse

detailed

The district

an

judge denied the

evidentiary

hearing

submission by the opposing parties.

or

any

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.

After

BACKGROUND

the 1992 municipal

elections in

Rico, the candidate for mayor

New

the

in

of Florida affiliated with the

Progressive Party unseated

affiliated with the

Florida, Puerto

the incumbent mayor

Popular Democratic Party.

who was

According to

complaint later filed by petitioners, who are plaintiffs

the district

court, all

14

of them

were dismissed

or

demoted in

served

early January 1993.

as assistants

to

the

Some of the

mayor

and

plaintiffs had

others

had

been

employees of Florida's elder community center.

The suit was

U.S.C.

1983.

brought as a civil rights

action under 42

Plaintiffs charged that their firing violated

their constitutional free speech rights under Elrod v. Burns,

_____
_____

427 U.S. 347

and Rutan
_____

cases

ability

(1976), Branti v. Finkel, 445

______
______

v. Republican Party, 497 U.S.

_________________

limit,

of

although

new

they do

not

administration

-2-2-

U.S. 507 (1980),

62 (1990).

wholly

to

These

eliminate, the

dismiss

or

demote

employees

of

affiliation.

In

the

a motion

behalf of defendants,

the municipality

that the

positions

on

account

of party

Plaintiffs sought damages and reinstatement.

November 1995,

filed on

urged

old administration

and others.

former mayoral

that excepted

for

summary judgment

who included the

The

them from

new mayor,

summary judgment

assistants

the

was

motion

had confidential

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

the district

judge met

sides, with the

of human

without

objection,

counsel

in chambers

resources.

counsel

met

was

Then

Del

included Jose Gaztambide,

from both

Florida's interim

the judge,

separately

Carlos

a settlement,

with counsel

defendant mayor, and with

director

Plaintiffs'

an effort to reach

apparently

with

both

sides.

Valle

Cruz;

defense

who at some

earlier time

had served as a law clerk to the district judge.

Following

counsel for both

their

separate

meetings

sides met privately to

with

the

judge,

discuss settlement.

Del

Valle later

filed

penalty of perjury,

and

with

Luis

an

unsworn

describing his

Plaza, another

statement,

made

meeting with

defense

attorney.

under

Gaztambide

Crucial

language from the unsworn statement follows:

-3-3-

In

said conference,

they [the

defense attorneys]

made a settlement
the Court's

offer on the

basis on (sic)

prospective ruling on
judgment.

of

their [defense]

motion

for summary

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

containing

counsel

settlement

statement continues:

then

reviewed

offers

for

"Next to

an

each

which the

Court

would be

letter

The

each plaintiff,

for all those cases

dismissing . . . an upward

next to the names of the cases

. . and

plaintiff.

the name of

counsel Gaztambide made a downward slant

earlier

slant

the Court was yet unsure of .

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.

three

lawyers returned to

settlement of the case.

the judge

to urge

When defense counsel Plaza said that

Del Valle had an ethical obligation

offers to his

who continued

All

to report the settlement

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

then

intervened

Del Valle's statement, the

"to

express

that the

district judge

undersigned

should

`forget the Constitution,' because several of my clients were

`political

sweet potatoes' that cared more about having some

-4-4-

money

in

rights."

their

The

approximately

was

judge then

than

about

proposed a

$200,000 that "counsel

their clients."

upshot

pockets

statement just

their

Constitutional

settlement figure

of

agreed to recommend to

Del Valle did meet with his clients, but the

motion

by

Del

Valle,

described, requesting

recuse himself pursuant to 28 U.S.C.

accompanied

by

the district judge

the

to

144, 455(a) and (b).

The motion for recusal was filed on June 17, 1996.

no action

had been taken

on the motion after

When

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

he

had, "as

section 455.

is customary,

The district

discussed

judge stated that

separately with

each

party's counsel the perceived strengths and weaknesses of the

case . . . ."

not

The opinion continued:

tell either party

"The undersigned

definitively what his

did

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

order directing the district judge to rule.

for an

But the mandamus

-5-5-

petition

also requested that

this court order

the district

judge to recuse himself.

court

asked the

merits of

whether

parties to

the recusal

review

complied;

Accordingly, on May 23, 1997, this

by

defense

file

claims and

mandamus

counsel

was

memoranda addressing

the overhanging

warranted.

relied largely

on

the

question

Del

Valle

the district

judge's decision.

On June

and partial

summary

dismissed

6, 1997, the

district court issued

judgment disposing

judgment

filed

certain claims

evidentiary hearing

August 1997.

by

of the

the

and, as

for later

pending motions

defendants.

to

an opinion

The

for

court

others, scheduled

in June and

At the request of plaintiffs,

a trial

an

date in

this court then

granted a stay of further proceedings in the district court.

II.

DISCUSSION

In this case, there is

of right.

is

Ordinarily,

reviewable

only

a district judge's refusal to

on

collateral order doctrine

unusual

situations,

no final judgment appealable

appeal

of a

final

does not apply.

interim

review of

as

recuse

judgment;

the

Nevertheless, in

such

refusal is

available through writ of mandamus.

See In re Cargill, Inc.,

___ ___________________

66 F.3d 1256, 1260 (1st Cir. 1995),

cert. denied, 116 S. Ct.

____________

1545 (1996) (collecting cases).

The

usual first requirement

matter is that the party

for mandamus in

a recusal

seeking the writ show a "clear

-6-6-

and

indisputable"

666 F.2d

entitlement to relief.

690, 695

(1st Cir.

In re United States,
____________________

1981); see
___

13A C. Wright,

Miller & E. Cooper, Federal Practice and Procedure

______________________________

661

(2d

ed.

1984).

interferes with the

Interlocutory

review,

ordinary processes of trial

and absent interlocutory

review, many issues wash

A.

3553, at

after

all,

and appeal;

out along

the way.

given

But over

a clear
_____

recuse,

the years, appeals courts have

error by

the district

a stronger argument

judge in

held that

refusing to

exists for immediate

review by

mandamus.

Mandamus is

a discretionary

merits clearly favor

for

lack of

equities.

writ and,

even where

the petitioner, relief may

irreparable injury

or

based on

be withheld

a balance

These are malleable concepts and often

degree.

Some

recusal

may

opinions suggest that

itself

equitable bar, because

warrant

relief,

of

matters of

a clear entitlement
_____

immediate

the

absent

to

an

public confidence is enhanced where

a clearly disqualified judge is removed

In re United States, 666 F.2d at 694.

____________ ______

swiftly.

See, e.g.,
_________

In

all events,

in recusal

always withheld--we do not

demonstrates that

two separate

bases

mandamus is

almost

say always--unless the petitioner

it is "clearly"

Cargill, 66 F.3d at 1262.

_______

cases,

entitled to relief.

See
___

Here, the plaintiffs have invoked

for disqualification,

-7-7-

sections 144

and

455, whose procedural

incidents differ widely.

We consider

them separately and in order.

Section 144.
____________

This provision begins

with a

core one-

sentence paragraph:

Whenever
district

court

party
makes

to
and

any
files

proceeding
a

timely

in

a
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

here in dispute),

such affidavit

sets forth a timeliness

requirement (not

provides that the party can

in any case,

and

requires a

only file one

certificate of

counsel of record that the affidavit is made in good faith.

Section

district

144 is

unusual because

judge accept the

requires that

affidavit as true

may contain averments that are false

so to the judge.

it

the

even though it

and may be known to

be

See United States v. Kelley, 712 F.2d 884,

___ ______________
______

889 (1st Cir. 1983).

However, penalties for perjury and the

certificate of counsel tend to discourage outright falsehood.

And

the possibility remains,

statute,

that the

although not developed

transferee judge

might

hold a

in the

hearing,

conclude that the affidavit was false and transfer the action

back to the original judge.

Nevertheless,

courts have

procedure--automatic transfer

responded

based

solely

to the

on

draconian

one

side's

affidavit--by

insisting on a

firm showing in

the affidavit

-8-8-

that the judge does have

a party, and also by

procedural

a personal bias or prejudice toward

insisting on strict compliance with the

requirements of the

are various bases

section.1

at law for recusal, the

And,

while there

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.

paragraph requires the

"the

facts and

the

prejudice exists" and

record

faith."

stating

Section

affidavit of "a party"

reasons

for the

belief

144's second

setting forth

that bias

a separate "certificate of

that it

[the

affidavit]

or

counsel of

is made

in

Here, there was neither an affidavit of a party

good

nor

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

missing

as an affidavit.

certificate

of

counsel

28

U.S.C.

may

also

1746.

be

The

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

____________________

1See, e.g., Glass v. Pfeffer, 849 F.2d 1261, 1267 (10th

__________ _____
_______
Cir.

1988);

Walberg v.
_______

Cir.), cert. denied,

____________

Israel,
______

766 F.2d

474 U.S. 1013 (1985);

Womack, 454 F.2d 1337, 1341 (5th Cir. 1972).

______

-9-9-

1071,

1077 (7th

United States v.
_____________

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

"a

expected that

party" would possess the necessary knowledge showing (for

example)

In

drafters of the statute

personal hostility of the judge against that party.

this case, plaintiffs'

counsel was much

closer than his

clients to being a firsthand witness to the events.

to

us

to

statute to

satisfy the

allow

underlying

Del Valle

to

purpose

make the

It seems

of the

recusal

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

________

contacts as

such; absent objection, separate

the context of settlement agreements

And,

in pressing each side to

situation,

judges

often

impression of apparent

dangers in

discussions in

are common occurrences.

take a reasonable view of its

give

the

parties

the

strengths and weaknesses.

this practice, of

course, but clients

court's

There are

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

____

-10-10-

how the judge planned to rule on the summary judgment motions

and

on

the

implication

that the

judge

gave

no

similar

information

obviously

to plaintiffs'

give

negotiations.

indiscretion

reasonable

(whether

one

side

We

could

will

at

inference of

toward a

counsel.

If

so,

substantial

assume

arguendo
________

least

bias

party or

arguably

or

this

advantage

that

be

might require

in

such

grounds

prejudice toward

counsel

would

an

for

someone

further

information).

Under

alleged

in

section 144, recusal must be based upon the facts

the

affidavit,

district judge's own

motions were

to be

have

later denial that

decided.

But, by the same token,

that

so we

section requires

to

disregard

the

he revealed how

the

See Kelly,
___ _____

712 F.2d at

889.

automatic removal of the judge under

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.

inquiries can

As

explained below, "mights"

always be

pursued

under section

and further

455--where,

however, the affidavit itself can be challenged.

The

that it

difficulty with

does not show

___

intended disposition of

to defense

counsel.

defense counsel

made

Del Valle's

unsworn statement

that the district judge

any of the summary

The statement does

such a

claim.

-11-11-

is

revealed his

judgment motions

not even

Instead, the

say that

remarks

attributed to

quoted in full

to convey

defense counsel--the pertinent ones

above--show only that defense

the impression

that he knew

have been

counsel sought

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

judge intended to rule on the pending motions.

We turn next to the judge's alleged statement

of

the plaintiffs

understand this term

Garcia
______

"political

appointed

sweet

potatoes."

to mean political hack,

v. Davila, 904 F.2d 90,

______

as the district

see
___

were

judge put

it in

that some

We

see Rodriguez___ __________

100 n.10 (1st Cir. 1990), or

another instance,

"people

to more or less useless jobs as political favors,"

Rodriguez-Garcia v. Davila, No. 87-1411, 1988 WL 124046,

________________
______

*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

there

is no

evidence that

the statement

a predisposition,

was improper.

-12-12-

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.

554

See Liteky
___ ______

(1994).

Here, the

summary judgment

v. United States, 510

_____________

district judge

filing in

that

the judge

knew

the

had before

which the defendants

the bona fides of various plaintiffs.

individual

U.S. 540,

him the

challenged

There is no indication

plaintiffs

from

any

context other than the current judicial proceedings.

Judges

proceedings.

constantly

form

personal

It may be wiser not

opinions

during

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

under the

is

a different

objective standard

question,

of section

properly

455 and

raised

addressed

below.

There is even less to the claim that the judge

personal bias or

the

prejudice when he said, if he did say, that

plaintiffs should

"forget the

dramatic the phrase may sound

was

showed a

here used as part

Constitution."

However

in the abstract, in context it

of a perfectly permissible suggestion

by the district judge, namely,

that counsel ask his

-13-13-

clients

whether

than

they were more

in an

interested in a

opportunity to

monetary settlement

express principle.

Judges

say

something of the sort in many settlement conferences.

Section 455.
___________

more

In its

present version section 455 is the

modern and complete recusal statute

federal

affidavit

judges.

There is

or any other

no threshold

format for raising

and applies to all

requirement

of an

a recusal issue.

In fact,

the judge is

necessary, even

anything

engage

the

expected to recuse sua sponte, where

___________

if no party has requested

it.

Nor is there

to prevent the party seeking recusal from trying to

in discovery incident

allowance

discretion

of

of the

such

court.

to a recusal

discovery

is

See, e.g.,
_________

motion, although

within

the

Cheeves v.
_______

sound

Southern
________

Clays, Inc., 797 F. Supp. 1570, 1580 (M.D. Ga. 1992).

___________

On the

compelled

other hand,

automatically

under section 455,

a judge

to accept

the allegations

made by the party seeking recusal.

as true

is not

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

e.g.,
____

on appeal,

normally for abuse

Town of Norfolk
_________________

v.

of discretion.

See,
____

United States Army Corps of

_______________________________

Engineers, 968 F.2d 1438, 1460 (1st Cir. 1992).

_________

It might seem

by

the very judge

odd that recusal issues should be decided

whose recusal is in

-14-14-

question.

But there

are

other considerations

expedition and

at work,

a concern to

including

a desire

for

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.

taken together, the provisions of section 455

455(a).

Thus,

tend to strike

a reasonable balance.

In

455(a)

our case, the

and section

plaintiffs have invoked

455(b)(1), which

prejudice language of section 144.

focus

repeats

both section

the bias

and

For present purposes, we

on the impartiality language of section 455(a) because

it covers the same ground

455(a) is in

and reaches even further.

no way limited to "personal"

Section

bias or prejudice

"concerning a party" and--unlike sections 144 and 455(b)(1)--

does

not

require

established.

that

bias

United States
_____________

or

prejudice

in fact
________

v. Chantel, 902 F.2d 1018,

_______

be

1023

(1st Cir. 1990).

Rather,

the

objective

partiality.

based

on

is

circumstances

This does not

an

speculation."

mean

section 455(a)

requires recusal

create

an

wherever

appearance
__________

of

mean that required recusal can be

"unsupported, irrational,

or

highly

tenuous

In re United States, 666 F.2d at 694.

___________________

It does

that where the appearance of partiality exists, recusal

required regardless of

the judge's own

inner conviction

-15-15-

that

he

or she

circumstances.

can

See
___

decide

the

Chantel, 902
_______

case fairly

F.2d at

despite

1023.

the

See also
________

Liteky, 510 U.S. at 548; Blizard v. Frechette, 601 F.2d 1217,

______
_______
_________

1220 (1st Cir. 1979).

With

this

sharpest

not

we

revisit

claim, namely, that the

the plaintiffs

summary judgment

unlike section

affidavit.

to show that

only

gloss,

how he

motions.

144, is

first

and

judge told the defense but

planned to

As we

rule on

have

not limited to

the pending

said, section

455,

facts alleged

in an

But Del Valle's statement was itself insufficient

the judge made the alleged

additional pertinent fact

judge's

plaintiffs'

denial
______

that

he

did

disclosure; and the

beyond the statement

so, hardly

of

help

is the

to

the

plaintiff.

Plaintiffs now attack the judge's statement that he gave

both sides a preliminary appraisal:

his mandamus

memorandum

that in

Del Valle now claims in

the settlement

conference

with

the

judge he

was

told virtually

likely outcomes.

But new

appellate briefs

come too

nothing

even about

assertions of fact by

counsel in

late, see
___

Hurney v.
______

Carver, 602
______

F.2d 993, 996 (1st Cir. 1979); Renovitch v. Kaufman, 905 F.2d
_________
_______

1040, 1049 n.12 (7th Cir.

effort

to prove

what

1990), and plaintiffs have made no

defense counsel
_______

knowing both, any comparison is hopeless.

-16-16-

was

told.

Without

We

the

return now, under the standard of section 455(a), to

district

plaintiffs

noted, a

court's

were

"political

judge is

record as

the case

that

judge's

the

Further,

the

admonition

little

to

alleged

sweet

normally free to

assessment came

"forget

supposed

the

a warning

that

potatoes."

from

of

As

the

already

from the

is no

showing here

any

other source.

comment--like

Constitution"--was

to

some

develop views

proceeds, and there

judge's

more than

remark

his

alleged

in

context

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

that

once clerked

one of

judge,

the defense

an issue

perhaps

unrelated to

pertinent to

appeal, plaintiffs'

saying

that

connected

the

with

Democratic Party.

counsel had

party bias
_____

appearance

counsel

district

political

of

causes

Neither ground

had

for the

prejudice but

partiality.

widens his

judge

or

fact

And

on

claims slightly

by

once

opposed

been

by

the

actively

Popular

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

-17-17-

more after the

clerkship, see, e.g., 1st Cir.

_________

R. 46, but no

such rule is claimed to have been violated in this case.

And

any lawyer

who studies

informed guess as to

a judge's past

rulings can

how the judge is likely

make an

to approach an

issue.

So, too, appointees

former

to the bench

active connection with

judges also

sit, usually

have sometimes had

a political party.

after a

But many

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

related

affiliations with

but

they are

matter

a party may

rarely a

while

in

practice).

persuade a judge not

basis for

compelled recusal.

e.g., In re United States, 666 F.2d at

____ ___________________

916 F.2d 384, 386 (7th Cir. 1990).

Former
______

to sit;

See,
____

696; Matter of Mason,

_______________

All this being said, the whole is sometimes greater than

the sum

of the parts.

individual

raise

actions,

some

The cumulative

comments

question about

and

effect of

a judge's

past associations

impartiality,

(taken alone) would require recusal.

even though

could

none

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

petitioner be clearly entitled to relief.

-18-18-

is

that

the

Judges may choose

to step aside

in close cases; the "duty

been modified by amended section

at 1220-21; see also 13A

________

611.

a case not

over it; and the line

blurred where no incident is

of cumulative effects.

See Blizard, 601 F.2d

___ _______

Wright, Miller & Cooper

But mandamus requires

line but clearly

455.

to sit" concept has

3549,

at

merely close to the

itself is especially

sufficient and the claim is one

This case is certainly not so clearly

over the line as to justify the shortcut of mandamus.

III.

When

144 will

this case returns

be out

its face

court, section

Del Valle's

to show bias

statement was

or prejudice,

so it

regardless of mandamus requirements, and only one such

affidavit

may be

filed

otherwise under section

does

to the district

of the picture;

insufficient on

fails

CONCLUSION

partly

upon

in

an action.

The situation

455(a); our decision, resting

the

mandamus

standard,

automatically prevent the further development of

does

is

as it

not

the record,

nor an appeal after a final judgment.

The possibility left

reproof.

We therefore

that the district

open may carry some

note that as

judge gave any

yet no

suggestion of

showing exists

improper advantage in

his

disclosures to

defense counsel,

plaintiffs have come

only

which is

the closest

to a specific and serious

present stricture

is that

charge.

district judge,

that

Our

however

-19-19-

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.

______

of proceedings in

the district court is vacated.

_______

shall bear its own costs.

It is so ordered.
________________

The stay

Each side

-20-20-