
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  whom Jose R. Gaztambide was on memorandum            __________________            __________________        in  support of  opposition to  application  for writ  of mandamus  and        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.  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,                                                          _____    _____            427 U.S. 347  (1976), Branti v. Finkel, 445  U.S. 507 (1980),                                  ______    ______            and Rutan  v. Republican  Party, 497 U.S.  62 (1990).   These                _____     _________________            cases  limit,  although  they do  not  wholly  eliminate, the            ability   of  a  new  administration  to  dismiss  or  demote                                         -2-                                         -2-            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:                                         -3-                                         -3-                 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                                         -4-                                         -4-            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                                         -5-                                         -5-            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.,                                                 ___ ___________________            66 F.3d 1256, 1260 (1st Cir. 1995),  cert. denied, 116 S. Ct.                                                 ____________            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                                         -6-                                         -6-            indisputable"  entitlement to relief.   In re  United States,                                                    ____________________            666 F.2d  690, 695  (1st Cir.  1981); see  13A C. Wright,  A.                                                  ___            Miller & E. Cooper, Federal Practice and Procedure   3553, at                                ______________________________            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                     _____            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                                                    _____            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.,                                                               _________            In re United States, 666 F.2d at 694.            ____________ ______                 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                                                                      ___            Cargill, 66 F.3d at 1262.   Here, the plaintiffs have invoked            _______            two separate  bases  for disqualification,  sections 144  and                                         -7-                                         -7-            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  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,                              ___ ______________    ______            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                                         -8-                                         -8-            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                                            ____________________                 1See,  e.g., Glass v. Pfeffer, 849 F.2d 1261, 1267 (10th                  __________  _____    _______            Cir.  1988);  Walberg v.  Israel,  766 F.2d  1071,  1077 (7th                          _______     ______            Cir.), cert. denied,  474 U.S. 1013 (1985);  United States v.                   ____________                          _____________            Womack, 454 F.2d 1337, 1341 (5th Cir. 1972).             ______                                         -9-                                         -9-            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                                                                 ________            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                           ____                                         -10-                                         -10-            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                                                ________            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.                                            ___ _____            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                          ___            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                                         -11-                                         -11-            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                               _____            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-                                                           ___ __________            Garcia  v. Davila, 904 F.2d 90,  100 n.10 (1st Cir. 1990), or            ______     ______            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,            ___  ________________    ______            *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                                         -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.   See Liteky  v. United States, 510  U.S. 540,                             ___ ______     _____________            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                                         -13-                                         -13-            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                 ___________            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                                                       ___________            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                                         _________   _______     ________            Clays, Inc., 797 F. Supp. 1570, 1580 (M.D. Ga. 1992).            ___________                 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,                                                                     ____            e.g.,  Town  of  Norfolk  v.  United  States  Army  Corps  of            ____   _________________      _______________________________            Engineers, 968 F.2d 1438, 1460 (1st Cir. 1992).            _________                 It might seem  odd that recusal issues should be decided            by  the very judge  whose recusal is in  question.  But there                                         -14-                                         -14-            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                                                            ________            established.  United States  v. Chantel, 902 F.2d 1018,  1023                          _____________     _______            (1st Cir. 1990).                      Rather,  section 455(a)  requires recusal  wherever            the   objective  circumstances   create   an  appearance   of                                                          __________            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                           ___________________            mean  that where the appearance of partiality exists, recusal            is  required regardless of  the judge's own  inner conviction                                         -15-                                         -15-            that  he  or she  can  decide  the  case fairly  despite  the            circumstances.   See  Chantel, 902  F.2d at  1023.   See also                             ___  _______                        ________            Liteky, 510 U.S. at 548; Blizard v. Frechette, 601 F.2d 1217,            ______                   _______    _________            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                     ______            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                                              ___  ______     ______            F.2d 993, 996 (1st Cir. 1979); Renovitch v. Kaufman, 905 F.2d                                           _________    _______            1040, 1049 n.12 (7th Cir.  1990), and plaintiffs have made no            effort  to prove  what  defense counsel  was  told.   Without                                    _______            knowing both, any comparison is hopeless.                                         -16-                                         -16-                 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                                            _____            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                                         -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  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                                                                   ______            affiliations with  a party may  persuade a judge not  to sit;            but  they are  rarely a  basis for  compelled recusal.   See,                                                                     ____            e.g., In re United States, 666 F.2d at  696; Matter of Mason,            ____  ___________________                    _______________            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                                         -18-                                         -18-            to step aside  in close cases; the "duty  to sit" concept has            been modified by amended section  455.  See Blizard, 601 F.2d                                                    ___ _______            at 1220-21; see also 13A  Wright, Miller & Cooper   3549,  at                        ________            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                                         -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.  The stay                                                        ______            of proceedings in  the district court is vacated.   Each side                                                     _______            shall bear its own costs.                 It is so ordered.                 ________________                                         -20-                                         -20-
