                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-12-2009

In Re: Ali Waris
Precedential or Non-Precedential: Non-Precedential

Docket No. 09-1809




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Recommended Citation
"In Re: Ali Waris " (2009). 2009 Decisions. Paper 1373.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1373


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DLD-160                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 09-1809


                                  IN RE: ALI WARIS,
                                                   Petitioner


                      On a Petition for Writ of Mandamus from the
           United States District Court for the Eastern District of Pennsylvania
                       (Related to E.D. Pa. Civ. No. 07-cv-03344)


                     Submitted Pursuant to Rule 21, Fed. R. App. P.
                                    April 16, 2009

                 Before: BARRY, AMBRO and SMITH, Circuit Judges

                              (Opinion filed: May 12, 2009)


                                        OPINION


PER CURIAM

       Ali Waris, the plaintiff in the matter of Waris v. Heartland Home Healthcare, 07-

cv-03344 (E.D. Pa), has filed a mandamus petition pursuant to 28 U.S.C. § 1651. Waris

seeks an order disqualifying the District Judge from presiding over the matter and

vacating the District Judge’s entry of judgment in the defendant’s favor.

       Waris filed an employment discrimination complaint pro se in the Montgomery

County Court of Common Pleas in July 2007, alleging that Heartland Home Health Care
(“Heartland”) discriminated against him on account of his age, race, and national origin.

Heartland removed the matter to federal court. Heartland and Waris filed cross-motions

for summary judgment, and Waris filed motions to vacate, stay, and recuse pursuant to 28

U.S.C. §§ 144 and 455(a). The District Court denied Waris’s recusal motion in

December 2008, and in February 2009, the Court entered final judgment for Heartland

and closed the case. The District Court subsequently denied Waris’s post-judgment

motions. See Fed. R. App. R. 4(a)(4).

       Waris filed a petition for a writ of mandamus in this Court on March 24, 2009,

requesting that we “vacate the purported ‘Final Order’” in his case pursuant to Rules

60(b) (3)(4) and (6) of the Federal Rules of Civil Procedure. He also requested that the

District Judge be compelled to recuse himself pursuant to 28 U.S.C. §§ 455 and 144, due

to an appearance of impropriety. We note that, on March 27, 2009, Waris filed a timely

notice of appeal from the District Court’s judgment.

       Mandamus is an appropriate remedy in extraordinary circumstances only. Kerr v.

United States District Court, 426 U.S. 394, 402 (1976); Sporck v. Peil, 759 F.2d 312, 314

(3d Cir. 1985). “[M]andamus must not be used as a mere substitute for appeal.”

Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1422 (3d Cir.

1991). A petitioner must ordinarily have no other means to obtain the desired relief, and

he must show a “clear and indisputable” right to issuance of the writ. In re School

Asbestos Litig., 977 F.2d at 772. “Even then, exercise of our power is largely



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discretionary.” Id.

       Waris’s judicial bias and impropriety claims reiterate the claims he brought under

28 U.S.C. §§ 144 and 455(a) in the District Court. Claims of actual judicial bias pursuant

to § 144 are not appropriate for mandamus. Green v. Murphy, 259 F.2d 591, 594 (3d Cir.

1958) (en banc). Hence, if Waris raises it, the § 144 claim should be addressed in his

appeal. Waris’s § 455(a) claims, however, may be addressed via mandamus, see

Alexander v. Primerica Holdings, 10 F.3d 155, 163 (3d Cir. 1993), or on appeal, see e.g.,

Clemmons v. Wolfe, 377 F.3d 322, 328 (3d Cir. 2004). Waris waited until the District

Court proceedings had ended before seeking mandamus relief. We conclude that

mandamus relief is not appropriate because Waris has an available remedy — i.e., his

pending appeal. In re Briscoe, 448 F.3d 201, 212-13 (3d Cir. 2006). Moreover, an appeal

would avoid piecemeal litigation, as Waris may raise, in that proceeding, his judicial bias

claims as well as challenge the merits of the District Court’s order granting summary

judgment.

       Accordingly, we will deny Waris’s petition for mandamus. Waris’s motions for

oral argument and for leave to submit evidence are denied.




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