                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-9-2004

In Re: Kensington
Precedential or Non-Precedential: Precedential

Docket No. 03-4212




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                                                            PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                              ___________

                              No. 03-4212
                              ___________

         IN RE: KENSINGTON INTERNATIONAL LIMITED and
             SPRINGFIELD ASSOCIATES, LLC, Petitioners

                              ___________

                              No. 03-4526
                              ___________


IN RE: D.K. ACQUISITION PARTNERS, L.P.; FERNW OOD ASSOCIATES, L.P.
   AND DEUTSCHE BANK TRUST COMPANY AMERICAS, Petitioners




                     On Petitions for Writs of Mandamus
                    to the United States Bankruptcy Court
                          for the District of Delaware
            (Related to Bankruptcy Nos. 00-03837 and 01-01139)

                              ___________

                      Argued on December 12, 2003

         BEFORE: FUENTES, SMITH and GARTH, Circuit Judges

                    (Opinion Filed: December 18, 2003)
      Roy T. Englert, Jr. (argued)
      Robbins, Russell, Englert, Orseck &
      Untereiner
      1801 K Street, N.W
      Suite 411
      Washington, DC 20006

      Attorney for Petitioners in 03-4212

      Richard Mancino (argued)
      Marc Abrams
      Willkie, Farr & Gallagher
      787 Seventh Avenue
      New York, NY 10019-6099

      Joanne B. Wills
      Klehr, Harrison, Harvey, Branzburg &
      Ellers
      919 North Market Street
      Suite 1000
      Wilmington, DE 19083

      Attorneys for Petitioners in 03-4526

      Charles O. Monk, II (argued)
      Saul Ewing
      100 South Charles Street
      Baltimore, MD 21201

      Norman L. Pernick
      J. Kate Stickles
      Saul Ewing
      222 Delaware Avenue
      P.O. Box 1266, Suite 1200
      Wilmington, DE 19899

      Attorneys for Respondents Owens
      Corning et al

      David M. Bernick (argued)

-1-
      Kirkland & Ellis
      200 East Randolph Drive
      Suite 6500
      Chicago, IL 60601

      Attorney for Respondent W.R. Grace &
      Co.

      Elihu Inselbuch (argued)
      Caplin & Drysdale
      399 Park Avenue
      27 th Floor
      New York, NY 10022

      Marla R. Eskin
      Campbell & Levine
      800 North King Street
      Suite 300
      Wilmington, DE 19801

      Attorneys for Respondent Official
      Committee of Asbestos Claimants of
      Owens Corning

      Michael J. Crames (argued)
      Kaye Scholar
      425 Park Avenue
      New York, NY 10022

      Edwin J. Harron
      Young, Conaway, Stargatt & Taylor
      P.O. Box 391, 1000 West Street
      Brandywine Building, 17 th Floor
      Wilmington, DE 19899

      Attorneys for Respondent James J.
      McMonagle

      Daniel K. Hogan
      Law Offices of Daniel K. Hogan

-2-
      1701 Shallcross Avenue
      Suite C
      Wilmington, DE 19806

      Sander L. Esserman
      Stutzman, Bromberg, Esserman & Plifka
      2323 Bryan Street
      Suite 2200
      Dallas, TX 75201-2689

      Attorneys for Respondent Baron & Budd
      Claimants

      Jeffrey S. Trachtman
      Kramer, Levin, Naftalis & Frankel
      919 Third Avenue
      39 th Floor
      New York, NY 10022

      Adam G. Landis
      Rebecca L. Butcher
      Landis, Rath & Cobb
      919 Market Street
      Suite 600, P.O Box 2087
      Wilmington, DE 19899

      Attorneys for Respondent Credit Suisse
      First Boston Corp

      Neal J. Levitsky
      L. Jason Cornell
      Fox Rothschild
      824 North Market Street
      Suite 810
      Wilmington, DE 19899-2323

      Henry W. Simon
      Robert A. Simon
      Simon & Simon
      3327 Winthrop Avenue


-3-
      Suite 200
      Fort Worth, TX 76116

      Attorneys for Respondent Waters &
      Kraus

      Michael R. Lastowski
      Duane M orris
      1100 North Market Street
      Suite 1200
      Wilmington, DE 19801

      Attorney for Intervenor Official
      Committee of Unsecured Creditors of
      USG Corp.

      Mark E. Felger
      Jeffrey R. Waxman
      Cozen & O’Connor
      1201 Market Street
      Suite 1400
      Wilmington, DE 19801

      Attorneys for Intervenor Official
      Committee of Unsecured Creditors of
      Armstrong World Industries, Inc.

      Stephen C. Neal (argued)
      Cooley Godward
      3000 El Camino Real
      5 Palo Alto Square
      Palo Alto, CA 94306

      Daniel J. DeFranceschi
      Richards Layton & Finger
      One Rodney Square
      P.O. Box 551
      Wilmington, DE 19899

      Attorneys for Amicus Curiae USG Corp.

-4-
                                                   Richard A. Samp
                                                   Washington Legal Foundation
                                                   2009 Massachusetts Avenue, N.W.
                                                   Washington, DC 20036

                                              Attorney for Amicus Curiae Washington
                                              Legal Foundation
                              __________________________

                                OPINION OF THE COURT
                              __________________________


Garth, Circuit Judge:

       We have before us two Emergency Petitions for a Writ of Mandamus. Both

Petitions allege that a district court judge who has presided over five asbestos-related

bankruptcies for the past two years has, through his association with certain advisors,

created an appearance of partiality such that he must be disqualified from any further

participation in those proceedings. The parties seeking the district court judge’s

disqualification originally moved for recusal in the Bankruptcy Court, but filed Petitions

for Mandamus in our Court after the district court judge withdrew the recusal motions

from the Bankruptcy Court and stayed discovery on those motions. The District Court

has yet to rule on the recusal motions. As originally filed, both Petitions asked us to

issue an order directing the district court judge either to: (a) recuse himself pursuant to

28 U.S.C. § 455; or (b) expedite consideration of (including discovery on) the recusal

motions pending before him.


                                             -5-
       After carefully considering all of the written submissions from the parties and

amicus curiae and following a sharply-contested hearing, we have decided to direct the

district court judge to rule on the withdrawn recusal motions. In doing so, we will vacate

the district court judge’s order staying discovery on the recusal motions and direct that

expedited discovery proceed without interruption. Because of certain temporal

exigencies explained later in this opinion, we will direct that all discovery and the district

court judge’s ruling on the recusal motions be completed no later than January 31, 2004.

We will retain jurisdiction over any further proceedings subsequent to the district court

judge’s ruling. See In re Sch. Asbestos Litig., 977 F.2d 764, 774-78 (3d Cir. 1992).

       We emphasize at the outset of this opinion that we are not ruling on the merits of

the disqualification relief sought by the Petitioners. Our decision to remand the recusal

motions to the district court judge is prompted by our overarching concern that we do not

have an adequately developed evidentiary record before us.

                                              I.

                                      A. The Parties

       This case arises from five Chapter 11 asbestos-related bankruptcies involving the

following corporate entities: Owens Corning, W.R. Grace & Co., USG Corporation,

Armstrong World Industries, Inc., and Federal-Mogul Global, Inc. (collectively, the

“Five Asbestos Cases”).




                                             -6-
      The first Petition for Mandamus was brought by Kensington International Limited

and Springfield Associates, LLC, two creditors of Owens Corning (collectively,

“Kensington”).

      The second Petition for Mandamus was filed by D.K. Acquisition Partners, L.P,

Fernwood Associates, L.P., and Deutsche Bank Trust Company Americas, three creditors

of W.R. Grace & Co. (collectively, “D.K. Acquisition Partners”).

      In response to the Petitions for Mandamus, we received Answers from Owens

Corning, the Unofficial Committee of Select Asbestos Claimants, the Baron & Budd

Claimants, W.R. Grace & Co., Waters & Kraus, LLP, a Dallas firm which filed a

response on November 10 on behalf of asbestos claimants, James J. McMonagle (Legal

Representative for Future Claimants of Owens Corning), the Official Committee of

Asbestos Creditors of Owens Corning, the Official Committee of W.R. Grace Asbestos

Claimants, and Credit Suisse First Boston (“CSFB”). We also received Replies to these

Answers.

      In addition, we received written submissions from five amicus curiae. In no

particular order, the amici are: Armstrong World Industries, Inc., the Official Committee

of Unsecured Creditors of Armstrong World Industries, Inc. et al., the Washington Legal

Foundation, USG Corporation, and the Official Committee of Unsecured Creditors of

USG Corporation et al.

                         B. The Court-Appointed Consultants


                                           -7-
       On November 27, 2001, then-Chief Judge Becker of our Court1 ordered that the

Five Asbestos Cases, which were then pending in the District of Delaware, be transferred

from the Bankruptcy Court to Senior District Court Judge Alfred M. Wolin of the

District Court of New Jersey. Chief Judge Becker explained in his order that “these

bankruptcy cases, which carry with them tens of thousands of asbestos claims, need to be

consolidated before a single judge so that a coordinated plan for management can be

developed and implemented.” Shortly after receiving the Five Asbestos Cases, Judge

Wolin re-referred them to the Bankruptcy Court, but retained jurisdiction over the

asbestos-related claims and issues.

       On December 28, 2001, Judge Wolin named five “Court Appointed Consultants”

(the “Consultants”) to assist him in the Five Asbestos Cases. The five individuals he

named were David Gross, Judson Hamlin, William Dreier, John Keefe, and Francis

McGovern, all of whom had prior experience with asbestos or mass tort litigation.2

Pursuant to Judge Wolin’s order, the Consultants were to “advise the Court and to

undertake such responsibilities, including . . . mediation of disputes, holding case

management conferences, and consultation with counsel, as the Court may delegate to


       1
        Chief Judge Becker’s term as Chief Judge of this Court ended on May 4, 2003.
He was succeeded by Chief Judge Scirica on that date.
       2
          Consultants Hamlin, Dreier, and Keefe are former judges of the Appellate
Division of the New Jersey Superior Court; Consultant McGovern is a professor of law
at Duke University; and Consultant Gross is an experienced litigator in asbestos-related
lawsuits.

                                            -8-
them individually.” The Consultants could also be delegated “certain authority to hear

matters and to advise the Court on issues that may arise in these five large Chapter 11

cases.” Judge Wolin’s order provided that he could, “without further notice, appoint any

of the Court-Appointed Consultants to act as a Special Master to hear any disputed

matter and to make a report and recommendation to the Court on the disposition of such

matter.” In connection with his order, Judge Wolin announced at a Case Management

conference that he would conduct ex parte meetings with the attorneys.

                            C. The G-I Holdings Bankruptcy

       Two months earlier, the Bankruptcy Court for the District of New Jersey had

appointed Judson Hamlin, one of the Consultants, to serve as the “Legal Representative

of Present and Future Holders of Asbestos-Related Demands” in still another asbestos-

related bankruptcy case captioned In re G-I Holdings Inc. The G-I Holdings case is not

related to the Five Asbestos Cases and Judge Wolin has played no role in the G-I

Holdings proceedings. The G-I Holdings bankruptcy does, however, share one common

characteristic with the Five Asbestos Cases assigned to Judge Wolin: it too faced a wave

of asbestos lawsuits. See Official Comm. of Asbestos Claimants of G-I Holding, Inc. v.

Heyman, 277 B.R. 20, 24-28 (S.D.N.Y. 2002) (explaining that, “[b]eginning in the late

1970’s, large numbers of claimants began to bring lawsuits [against G-I Holdings]

seeking compensation for bodily injury, death and related harms inflicted by asbestos and

products containing asbestos”). We have also been told that many of G-I Holdings’


                                            -9-
significant creditors, as well as asbestos-claimant creditors, also have claims against the

debtors in the Five Asbestos Cases.

       Mr. Hamlin was not the only Consultant who participated in the G-I Holdings

bankruptcy. Less than one month after Judge Wolin appointed the five Consultants, Mr.

Hamlin filed an application in G-I Holdings seeking the Bankruptcy Court’s approval to

engage David Gross, another Consultant, as his local counsel. In connection with that

application, Mr. Gross submitted an affidavit to the G-I Holdings Bankruptcy Court

disclosing his appointment as a Consultant to Judge Wolin in the Five Asbestos Cases.

Mr. Hamlin’s application was met with no objection and the Bankruptcy Court approved

Mr. Gross as Mr. Hamlin’s counsel.

                            D. Kensington’s Recusal Motion

       Almost two years later, Kensington filed a motion in the Bankruptcy Court

seeking to recuse Judge Wolin from further participation in the Owens Corning

bankruptcy. Kensington, which claims that it only recently learned about Messrs. Gross

and Hamlin’s participation in the G-I Holdings bankruptcy, asserted that Judge Wolin

was precluded under 28 U.S.C. § 455 from continuing to preside over the Owens

Corning bankruptcy by virtue of the fact that two of his Consultants had conflicts of

interest. In connection with that motion, Kensington sought discovery of W.R. Grace &

Co., Messrs. Hamlin and Gross, and their law firms. CSFB, an agent for banks holding




                                            -10-
approximately $1.6 billion in pre-petition claims against Owens Corning and certain of

its subsidiaries, filed papers supporting Judge Wolin’s recusal.

       Three days later, the debtors in the W.R. Grace bankruptcy filed an application in

the Bankruptcy Court to appoint Mr. Hamlin as the Legal Representative for Future

Asbestos Claimants of W.R. Grace & Co. The application disclosed that Mr. Hamlin

was already serving as a Consultant to Judge Wolin in the Five Asbestos Cases

(including, of course, the W.R. Grace bankruptcy).

       On October 23, 2003, Judge Wolin entered an order staying all discovery in

connection with Kensington’s recusal motion. The order explained that recusal motions

are often brought for improper purposes and that all discovery should be stayed until

Kensington’s motion could be tested by the adversarial process. Judge Wolin also

announced in his order that he intended to issue a Case Management Order in the near

future governing further proceedings on the recusal motion.

                          E. Kensington’s Mandamus Petition

       Dissatisfied with Judge Wolin’s decision to sua sponte stay discovery on the

recusal motion, Kensington filed an Emergency Petition for a Writ of Mandamus with us

on October 28, 2003. Kensington’s petition asked us to issue a Writ of Mandamus

“directing Judge Wolin either (a) to disqualify himself under 28 U.S.C. § 455, or (b) to

withdraw his October 23[, 2003] order suspending briefing and discovery on the recusal




                                           -11-
motion, and instead allow expedited discovery and an expedited briefing and hearing

schedule on the motion.”

       On October 30, 2003, we issued an order staying “all proceedings affected by”

Kensington’s mandamus petition (with the exception of the recusal motion) and

establishing a briefing schedule. Our order invited Judge Wolin to respond to

Kensington’s petition.

       Meanwhile, Judge Wolin issued a Case Management Order on October 28, 2003

which left his stay of discovery order in place, but directed each of the five Consultants

to submit affidavits setting forth certain information relating to their activities in the Five

Asbestos Cases and the G-I Holdings bankruptcy. The order also established a briefing

schedule on Kensington’s recusal motion.

                             F. The District Court’s Responses

       In response to our invitation, Judge Wolin submitted three written responses to

Kensington’s petition. In his first response, Judge Wolin announced that he would

“judge the Motion to Recuse on the law and facts presented after all of the parties have

been heard in full” and that he would seek to resolve the motion as quickly as possible.

Judge Wolin also explained that he had recently finished a four-week bench trial in the

Owens Corning bankruptcy case concerning the issue of “substantive consolidation.”

That trial was necessary because Owens Corning had proposed a plan of reorganization

which, if adopted, would substantively consolidate Owens Corning and its debtor-


                                             -12-
subsidiaries into a single bankruptcy estate. It is alleged that Kensington and CSFB have

opposed substantive consolidation because it would significantly reduce their aggregate

recovery.3 Judge Wolin stated in his response that he was preparing an opinion on

substantive consolidation, but had not yet issued the opinion when Kensington filed its

motion seeking his recusal. Judge Wolin also maintained that he had no information

regarding the G-I Holdings bankruptcy.

      In his second response, Judge Wolin addressed the suggestion made by D.K.

Acquisition Partners that his ex parte communications with the Consultants and various

attorneys somehow required his recusal.4 Judge Wolin explained that he had announced

at his initial Case Management conference on December 20, 2001, that the size and

complexity of the Five Asbestos Cases would require him to have ex parte

communications. The purpose of the ex parte communications, according to Judge

      3
        Owens Corning has explained that:
      Unlike Owens Corning’s other major unsecured creditors, which have
      direct claims against the parent company alone, [Kensington and CSFB
      have] guarantees from certain Owens Corning subsidiaries. If these
      subsidiary guarantees are enforceable, [they] will receive a greater
      proportionate recovery than that received by other unsecured creditors.
      Substantive consolidation would eliminate this claimed disproportionate
      recovery by [Kensington and CSFB].

      4
         Around the same time that Judge Wolin filed his second response, USG
Corporation filed a motion in the Bankruptcy Court seeking his recusal. Unlike some of
the other parties seeking Judge Wolin’s removal, USG Corporation argued that the
extensive ex parte communications between Judge Wolin and the Consultants (as well as
other persons) provide an independent basis for Judge Wolin’s disqualification under
both 28 U.S.C. § 455(a) and (b)(1).

                                          -13-
Wolin, “was to ensure that each committee or corporate constituency was afforded the

opportunity to provide to the Court insights as to why, in the competition for limited

dollars, its claim was just.” Judge Wolin also wrote that, “[g]iven that these meetings

occurred on a regular basis without complaint and given that the December 20, 2001 case

management conference alerted all concerned that ex parte meetings were part of the

District Court’s case management plan, it strikes a discordant note that the conduct of ex

parte conferences would be the ground for a recusal motion.”

       In his third response, Judge Wolin again defended his Case Management methods

and, in particular, his decision to allow ex parte communications. Judge Wolin

explained that the public disclosure of proprietary or other sensitive information in the

context of a bankruptcy proceeding can have significant economic ramifications and

therefore “it was the expressed intent of the District Court to provide access to any and

all interested parties free of the constraint of damning admissions in a public arena.”

Judge Wolin also recommended, for the first time, that we -- the Court of Appeals --

decide the merits of Kensington’s Petition for Mandamus without further delay, although

he stood ready to decide the recusal motions if we found the record to be insufficient.

                             G. The Consultants’ Affidavits

       In compliance with Judge Wolin’s order, each of the Consultants filed affidavits

in the District Court on November 14, 2003 describing their activities in the Five

Asbestos Cases. Mr. Gross stated in his affidavit that Judge Wolin had been aware “[a]t


                                            -14-
all relevant times” of Mr. Gross’s role in the G-I Holdings bankruptcy case. Mr. Gross

also explained that his role in the Five Asbestos Cases was essentially “that of a

settlement facilitator” and that he had never “assisted in any way in Judge Wolin’s

decision-making function” or “discussed with Judge Wolin . . . any legal or factual issues

before the Court or likely to come before the Court in any of the five bankruptcies

assigned to Judge Wolin, or, . . . in the G-I Holdings case.”

       Mr. Hamlin explained in his affidavit that his assignments as a Consultant to

Judge Wolin “consisted of reviewing appeals from the Delaware Bankruptcy Court and

submitting a draft opinion in each of the [Five Asbestos Cases],” a role Mr. Hamlin

likened “to that of a magistrate [judge] in providing recommended findings of fact and

conclusions of law to a district judge.” Mr. Hamlin asserted that he had prepared only

one draft opinion in the Owens Corning bankruptcy and that Judge Wolin had not used

that particular opinion. Mr. Hamlin also stated that he “did not discuss any substantive

issues in the [Owens Corning] case with Judge Wolin at any time.”

                                     H. The Answers

       On November 21, 2003, Answers to the mandamus petitions were filed. The

following opposed Kensington’s efforts to disqualify Judge Wolin: Owens Corning

Corp., the Official Committee of Asbestos Creditors in Owens Corning, James

McMonagle (the Legal Representative for Owens Corning’s Asbestos Claimants), and

the Baron & Budd Claimants. CSFB supported Judge Wolin’s disqualification.


                                            -15-
                    I. D.K. Acquisition Partners’ Mandamus Petition

       On November 14, 2003, the same day that the Consultants submitted their

affidavits to the District Court, D.K. Acquisition Partners filed a motion in the W.R.

Grace bankruptcy case seeking Judge Wolin’s recusal. A week later, D.K. Acquisition

Partners filed an emergency petition with us seeking the same relief sought by

Kensington.

       We ordered that D.K. Acquisition Partners’ mandamus petition be consolidated

with the Kensington petition. We have since received Answers to D.K. Acquisition

Partners’ petition from W.R. Grace & Co., the Official Committee of W.R. Grace

Asbestos Claimants, and the Unofficial Committee of Select W.R. Grace Asbestos

Claimants.

                                        J. Hearing

       On December 12, 2003, we held the hearing scheduled by our order of November

21, 2003. Both parties and amici were heard and various arguments and representations

urged, on the one hand, that we disqualify Judge Wolin and, on the other hand, that we

deny disqualification. Among the representations which we have taken into

consideration insofar as expediting our ruling and Judge Wolin’s ruling is Mr.

Inselbuch’s representation that since the filing of these cases close to 30,000 asbestos

claimants had died of mesothelioma and lung cancer and that 15 victims “will die today

as a matter of statistics.” Hence, he claimed delay was fatal.


                                            -16-
                                             II.

       We turn now to the governing legal standards. Kensington and D.K. Acquisition

Partners both seek Judge Wolin’s disqualification under 28 U.S.C. § 455(a).5

Kensington stated in its Petition for Mandamus that it was also seeking Judge Wolin’s

disqualification under § 455(b)(1),6 but it has relied primarily on § 455(a).

                      A. Standards Governing Writs of Mandamus

       We have the power to issue writs of mandamus under the All Writs Act, 28 U.S.C.

§ 1651(a), which provides that “[t]he Supreme Court and all courts established by Act of

Congress may issue all writs necessary or appropriate in aid of their respective

jurisdictions and agreeable to the usages and principles of law.” See Haines v. Liggett

Group Inc., 975 F.2d 81 (3d Cir. 1992). A writ of mandamus is, however, an

extraordinary form of relief. See In re Federal-Mogul Global, Inc., 300 F.3d 368, 379

(3d Cir. 2002). “As the adjective ‘extraordinary’ implies, . . . courts of appeals must be

chary in exercising that power: ‘[M]andamus must not be used as a mere substitute for

appeal.’” In re Sch. Asbestos Litig., 977 F.2d 764, 772 (3d Cir. 1992) (quoting

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


       5
         § 455(a) provides in its entirety that “[a]ny justice, judge, or magistrate judge of
the United States shall disqualify himself in any proceeding in which his impartiality
might reasonably be questioned.”
       6
         § 455(b)(1) provides that a judge must disqualify himself “[w]here he has a
personal bias or prejudice concerning a party, or personal knowledge of disputed
evidentiary facts concerning the proceeding.”

                                            -17-
1991)). If, in effect, an appeal will lie, mandamus will not. “Even when the petitioner

shows that there is no other adequate means to obtain the desired relief, and also has

shown a ‘clear and indisputable’ right to issuance of the writ, the exercise of our power is

largely discretionary.” Alexander v. Primerica Holdings, Inc., 10 F.3d 155, 163 (3d Cir.

1993) (quoting Will v. United States, 389 U.S. 90, 96 (1967) (citation omitted)).

                  B. Mandamus as a Means For Disqualifying a Judge

       “Mandamus is a proper means for this court to review a district court judge’s

refusal to recuse from a case pursuant to 28 U.S.C. § 455(a), where the judge’s

impartiality might reasonably be questioned.” 7 Alexander, 10 F.3d at 163. Indeed,

“[v]irtually every court of appeals has recognized the necessity and propriety of

interlocutory review of disqualification issues on petitions for mandamus ‘to ensure that

judges do not adjudicate cases that they have no statutory power to hear.’” Alexander, 10

F.3d at 163 (quoting School Asbestos, 977 F.2d at 778). Less well established, however,

is the inclination of a court of appeals to entertain a mandamus petition seeking a district

court judge’s disqualification when the district court judge has not yet ruled on a motion

for recusal pending before him.



       7
          In City of Pittsburgh v. Simmons, 729 F.2d 953, 954 (3d Cir. 1984), we relied
on our long-standing precedent that a denial of recusal did not constitute a final order and
thus appellate jurisdiction could not be entertained. That case did not, however, specify
the statutory recusal that was being sought. In School Asbestos, Judge Becker of our
Court held that a Petition for Mandamus predicated on § 455 would be entertained by
this Court. See School Asbestos, 977 F.2d at 775.

                                            -18-
                     C. Standard for Disqualification under § 455(a)

       Whenever a judge’s impartiality “might reasonably be questioned” in a judicial

proceeding, 28 U.S.C. § 455(a) requires that the judge disqualify himself. The test for

recusal under § 455(a) is whether a reasonable person, with knowledge of all the facts,

would conclude that the judge’s impartiality might reasonably be questioned. Edelstein

v. Wilentz, 812 F.2d 128 (3d Cir. 1987).

       It is of no consequence that the judge is not actually biased because § 455(a)

“concerns not only fairness to individual litigants, but, equally important, it concerns ‘the

public’s confidence in the judiciary, which may be irreparably harmed if a case is

allowed to proceed before a judge who appears to be tainted.’” Alexander v. Primerica

Holdings, Inc., 10 F.3d 155, 162 (3d Cir. 1993) (quoting School Asbestos, 977 F.2d at

776) (emphasis added).

       In Haines v. Liggett Group Inc., 975 F.2d 81 (3d Cir. 1992), where a mandamus

petition filed by leading tobacco companies charged that the district court judge had

disqualified himself when he stated that the tobacco industry concealed smoking risks

and “despite some rising pretenders, . . . may be the king of concealment and

disinformation,” we held that “[i]mpartiality and the appearance of impartiality in a

judicial officer are the sine qua non of the American legal system” and that “[a]ny

tribunal permitted by law to try cases and controversies not only must be unbiased but

also must avoid even the appearance of bias.” Id. at 98 (quoting Lewis v. Curtis, 671


                                            -19-
F.2d 779, 789 (3d Cir. 1982)). We went on to say in Haines that the district court judge

in question had “been a distinguished member of the federal judiciary for almost 15 years

and [was] no stranger to this court; he [was] well known and respected for magnificent

abilities and outstanding jurisprudential and judicial temperament.” Id. Judge Wolin is

no different -- he exhibits the same admirable qualities and talents.

       We went on to say in Haines that:

       On the basis of our collective experience, we would not agree that [the
       district court judge was] incapable of discharging judicial duties free from
       bias or prejudice. Unfortunately, that is not the test. It is not our subjective
       impressions of his impartiality gleaned after reviewing his decisions these
       many years; rather, the polestar is “[i]mpartiality and the appearance of
       impartiality.”

Id.

                   D. Standard for Disqualification under § 455(b)(1)

       Whereas § 455(a) is a catchall disqualification provision, § 455(b)(1) is more

narrow in that it requires a judge to disqualify himself only if “he has a personal bias or

prejudice concerning a party, or personal knowledge of disputed evidentiary facts

concerning the proceeding.” 28 U.S.C. § 455(b)(1); see also Liteky v. United States, 510

U.S. 540, 548 (1994) (describing § 455(a) as a “‘catchall’ recusal provision, covering

both ‘interest or relationship’ and ‘bias or prejudice’ grounds”). Unlike disqualification

under § 455(a), however, which may be waived by the parties, the grounds for

disqualification under § 455(b)(1) generally cannot be waived. See 28 U.S.C. § 455(e).



                                             -20-
       As noted above, Kensington’s mandamus petition relies on both § 455(a) and

§ 455(b)(1). D.K. Acquisition Partners’ petition was brought under § 455(a).

                                             III.

       In light of these standards, we now examine the arguments presented by the

parties and amicus curiae both in support of, and in opposition to, Judge Wolin’s recusal.

                       A. Arguments in Support of Disqualification

       The parties asking for Judge Wolin’s disqualification first seek to demonstrate that

Messrs. Gross and Hamlin’s dual roles in the Five Asbestos Cases and G-I Holdings gave

rise to potential and actual conflicts of interest. In doing so, these parties contend,

among other things, that:

       •      It is highly likely that a significant number of the future asbestos claimants
              in G-I Holdings will also be future claimants in the Five Asbestos Cases, 8
              thus creating a conflict between Messrs. Gross and Hamlin’s duty to
              zealously represent their clients, on the one hand, and their duty to give
              Judge Wolin neutral advice, on the other;

       •      Messrs. Gross and Hamlin never disclosed to the parties in the Five
              Asbestos Cases that they were representing the asbestos claimants in G-I
              Holdings;

       •      Messrs. Gross and Hamlin repeatedly used their positions as advisors to
              Judge Wolin to advocate their clients’ partisan interests in G-I Holdings;



       8
          The Petitioners claim that, “[b]ecause asbestos claimants frequently claim to
have been exposed to asbestos-containing products produced by more than one
manufacturer, or are unsure of the identity of the manufacturer who produced the product
that allegedly caused their injuries, it is not uncommon for asbestos claimants to assert
claims against different manufacturers.”

                                             -21-
       •      Messrs. Gross and Hamlin challenged and criticized in G-I Holdings an
              expert witness who is likely to testify in Owens Corning;

       •      There were numerous instances in which Messrs. Hamlin and Gross, as
              partisan advocates for the asbestos claimants in G-I Holdings, met ex parte
              with James McMonagle, the Legal Representative for Future Asbestos
              Claimants in Owens Corning, to discuss “common futures issues;” and

       •      The debtors in W.R. Grace applied to the Bankruptcy Court to have Mr.
              Hamlin appointed as the legal representative for future asbestos claimants
              -- an application which, if granted, would give rise to another conflict.

       Building on that argument, the Petitioners next contend that, through his close

association with the Consultants, Judge Wolin was “tainted” by association with Messrs.

Gross and Hamlin, such that a reasonable person might question his impartiality. The

Petitioners emphasize that it matters not whether Judge Wolin actually knew of the

conflicts, but only that, as a result of Messrs. Hamlin and Gross’s dual and conflicting

roles, a reasonable person might question Judge Wolin’s partiality. The Petitioners also

point out that the Washington Legal Foundation, the only party with no direct interest in

this case, supports Judge Wolin’s recusal.9

       The Petitioners also emphasize that Judge Wolin apparently knew all along that

Messrs. Hamlin and Gross were serving as partisans on behalf of the future claimants in

G-I Holdings, but did not make a disclosure to the parties. The Petitioners argue that the

appearance of impropriety was further fostered by the extensive ex parte communications


       9
         Owens Corning challenges the Washington Legal Foundation’s purported non-
interested party status, claiming that it is “allied” with the commercial creditors and
regularly campaigns for asbestos tort reform in the media, courts, and U.S. Congress.

                                              -22-
between Judge Wolin and the Consultants. Taken together, the Petitioners contend that

these factors conclusively demonstrate that Judge Wolin’s impartiality might be

questioned, thereby mandating his removal.

                         B. Arguments Against Disqualification

       The parties opposing Judge Wolin’s disqualification argue first and foremost that

the Petitions for Mandamus should be denied because they are untimely. See United

States v. York, 888 F.2d 1050, 1055 (5th Cir. 1989) (stating that timeliness requirement

“prohibits knowing concealment of an ethical issue for strategic purposes”). The premise

underlying this argument is that the Petitioners knew, or reasonably should have known,

about Messrs. Gross and Hamlin’s roles in G-I Holdings long ago, but chose not to act

on that information until recently. Those parties point out, for example, that (a) Messrs.

Gross and Hamlin’s participation in G-I Holdings was a matter of public record and was

widely reported in the asbestos litigation trade press; and (b) that certain law firms

representing the creditors in the Owens Corning bankruptcy received notice of Messrs.

Gross and Hamlin’s participation in G-I Holdings.10




       10
           Kensington and D.K. Acquisition Partners vigorously dispute any suggestion
that they deliberately delayed filing their respective Petitions for Mandamus. Kensington
flatly states that it had “no knowledge” of Messrs. Gross and Hamlin’s participation in
G-I Holdings until two weeks before it filed its recusal motion. For its part, D.K.
Acquisition Partners claims that it first learned about Messrs. Gross and Hamlin’s role in
G-I Holdings when Kensington filed its recusal motion.

                                            -23-
       In addition to the timeliness argument, the parties opposing the mandamus

petitions contend that:

       •      Kensington’s petition for mandamus is merely a litigation tactic intended to
              derail the Owens Corning bankruptcy, as evidenced by the “barrage of
              motions and lawsuits” purportedly filed by Kensington beginning in
              October 2003;

       •      The petitions for mandamus have failed to demonstrate that Judge Wolin’s
              association with Messrs. Gross and Hamlin requires his recusal; and

       •      The complexity of the Five Asbestos Cases required a novel case
              management approach, thus justifying the use of advisors with broad
              powers and ex parte communications.11

       Finally, certain parties have tried to impress upon us that even if Judge Wolin

must be disqualified from the Owens Corning bankruptcy, it does not necessarily follow

that he must also be disqualified from presiding over the remaining four bankruptcies.

For example, W.R. Grace & Co. believes the parties in the W.R. Grace bankruptcy

should await a ruling in the Owens Corning bankruptcy before concluding whether

similar relief should be extended to the W.R. Grace bankruptcy. In a similar vein,



       11
          We must confess that we have struggled to define the role and position of the
“Consultants.” To the best of our knowledge, the Consultants’ roles and positions are
truly novel in terms of the powers they were assigned. See, e.g., Fed. R. Civ. P. 53(a)
(authorizing district courts to appoint “masters”); Fed. R. Evid. 706 (permitting “court-
appointed experts”); 28 U.S.C. § 636(b)(1) (permitting referrals to magistrate judges);
see also December 1, 2003 Amendment to Fed. R. Civ. P. 53 (providing, inter alia, that a
“Master must not have a relationship to the parties, counsel, action, or court that would
require disqualification of a judge under 28 U.S.C. § 455”).
          At oral argument, we asked Owens Corning’s attorney if he had ever heard of a
judge appointing this kind of a “hybrid” advisor. He replied that he had not.

                                           -24-
Armstrong World Industries submitted a Statement solely to emphasize that Judge Wolin

and the Consultants played a minimal role in the Armstrong bankruptcy.

                                             IV.

       After reviewing the written submissions from the parties, the District Court, and

amicus curiae, and after hearing oral argument on December 12, 2003, we will, while

retaining jurisdiction, remand this matter to Judge Wolin so that he can, in the first

instance, decide (following expedited discovery) whether he should recuse himself from

one or more of the Five Asbestos Cases. Our recital of the parties’ arguments as they are

presented in this opinion are not to be taken or interpreted as expressions or inclinations

of this Court respecting the issue of recusal or disqualification.

       First and foremost, we are concerned that the existing record is inadequate and

incomplete. We are reluctant to act in a complex situation such as this one, where so

many vital interests are at stake, without a developed evidentiary record. We do not fault

the parties. Judge Wolin’s stay of discovery order prevented the parties from developing

evidence of the circumstances which they allege give rise to the recusal motions.

       Hence, a remand allowing for discovery is necessary because the primary inquiry

to which we must respond pursuant to 28 U.S.C. § 455(a) is “whether a reasonable

person knowing all the circumstances would harbor doubts concerning the judge’s

impartiality” -- an inquiry which necessarily requires that we know all the circumstances.

Jones v. Pittsburgh Nat’l Corp., 899 F.2d 1350, 1356 (3d Cir. 1990) (emphasis added).


                                            -25-
Accordingly, we require in order to discharge our judicial function that the evidentiary

record in this case be developed.

       In its Reply brief, Kensington asserted that, in light of the extensive briefing and

scheduled oral argument, there was “no need to remand this case for further factfinding”

and that we could “and should enter a recusal order on the existing record.” Briefs

without an evidentiary basis and oral argument are, however, a poor substitute for a

developed evidentiary record which can result from an adversarial discovery process.

       Among other things, discovery in this case may shed light on such matters as

(i) the full extent of the Consultants’ activities in the Five Asbestos Cases; (ii) Messrs.

Gross and Hamlin’s activities in G-I Holdings; (iii) the timeliness of the Petitions for

Mandamus; and (iv) the extent to which recusal, if warranted in one of the bankruptcies,

must be held to extend to the other bankruptcies. Because discovery is not an exercise

which this Court can reasonably conduct, but is more the function of the District Court,

we will vacate the stay Judge Wolin entered in his October 23, 2003 order and remand

this matter to Judge Wolin so that his recusal ruling, which we direct that he make, may

benefit from the discovery engaged in by the parties.12


       12
           In remanding this matter to Judge Wolin, we are deviating slightly from the
relief requested by Kensington. In its Reply brief, Kensington requested that, in the event
we decided additional factfinding was required, we remand the motion for recusal to a
different judge for resolution. Kensington believed this was necessitated by certain
remarks Judge Wolin made in his written responses to the mandamus petitions, including
his statement that the timing of D.K. Acquisition Partners’ recusal motion “speaks
volumes as to the legitimacy of the Motion for Recusal of the District Court.”

                                             -26-
       Second, our decision to remand is impelled in large part by the standards

governing the issuance of a writ of mandamus. It is well established that a writ of

mandamus will issue only if the party seeking the writ has “no other adequate means to

attain the desired relief.” In re Sharon Steel Corp., 918 F.2d 434, 436 (3d Cir. 1990).

Clearly that standard cannot be met where a motion seeking the district judge’s

disqualification -- the same relief sought in the mandamus petitions -- is pending in the

district court.

       Finally, our decision to remand this matter to Judge Wolin is guided by the

principle that “[d]iscretion is confided in the district judge in the first instance to

determine whether to disqualify himself . . . [because the] judge presiding over a case is

in the best position to appreciate the implications of those matters alleged in a recusal

motion.” In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1312 (2d Cir. 1988)




          We decline to remand this matter to a different judge because we do not
believe Judge Wolin’s written responses demonstrate that he will be unable to render an
impartial decision on the recusal motions. Indeed, Judge Wolin stated in his first
response that, “[i]n order to preclude any unwarranted conclusion” that he was
prematurely deciding the substantive merits of the motion to recuse, he would restrict his
responses to procedural matters. Moreover, we harbor serious reservations about
assigning a § 455 disqualification motion to a different judge, particularly at this stage of
the proceedings. See, e.g., Bernard v. Coyne, 31 F.3d 842, 843 (9th Cir. 1994) (holding
that responsibility for deciding § 455 recusal motion lies solely with judge to whom
motion is directed); Njie v. Lubbock County, 999 F. Supp. 858, 860 (N.D. Tex. 1998)
(concluding that if recusal motion is made under § 455, “the judge whose impartiality is
being questioned rules on the motions”). Compare 28 U.S.C. § 144 (requiring “another
judge” to rule on recusal motion if supporting affidavit meets threshold “sufficiency”
test).

                                              -27-
(citation omitted). This principle rings particularly true where, as here, the district court

judge has presided over (i) an extraordinarily complex litigation (ii) involving a

multitude of parties (iii) for an extended period of time. Judge Wolin has been intimately

involved in these proceedings for the past two years and, as demonstrated by his written

responses, has acquired a familiarity with the issues beyond ours. Accordingly, he is in

the best position to understand “the implications of those matters alleged in [the] recusal

motion[s].” Id.

       We realize, of course, that our decision to remand this matter to Judge Wolin will

result in some delay, which causes us great concern. Not only can delay have unintended

(and undesirable) ramifications for the debtors-in-bankruptcy; it can have a much more

personal effect on the asbestos claimants who have filed claims against the debtors-in-

bankruptcy and their related entities.13 We nevertheless believe that a short delay so that

an evidentiary record may be developed is to be preferred rather than making an ill-

informed decision on allegations alone.14 In an attempt to reduce the delay, however, we

       13
          At oral argument, the attorney representing the Official Committee of Asbestos
Claimants in Owens Corning represented to the Court that approximately 30,000 of the
asbestos claimants in the Five Asbestos Claimants have died from asbestos-related
diseases since the cases were filed and that statistics would reveal that 15 asbestos-related
victims would die each day.
       14
          We inquired at oral argument about the effect Judge Wolin’s disqualification
would have on the Five Asbestos Cases. Owens Corning’s counsel replied that assigning
another judge to the Owens Corning bankruptcy would set the proceedings in Owens
Corning back at least one year.
          By expediting the filing of this opinion and by ordering compliance with our
directions which establish a deadline or outside date of January 31, 2004, we believe any

                                             -28-
will order that expedited discovery and Judge Wolin’s ruling on the recusal motions be

completed no later than January 31, 2004. While this might ordinarily be deemed too

short a time for discovery, we believe that it is manageable under the district court

judge’s guidance and supervision. Indeed, Kensington’s attorney advised us at oral

argument that expedited discovery probably could be completed in two to three weeks.

                                                V.

       For the foregoing reasons, we will (i) vacate the discovery stay imposed by Judge

Wolin in his order of October 23, 2003; (ii) direct that expedited discovery proceed

without interruption, objections, or extensions; and (iii) direct Judge Wolin to rule on the

recusal motions pending before him no later than January 31, 2004. This panel will

retain jurisdiction in the event proceedings subsequent to Judge Wolin’s ruling are

required.

TO THE CLERK:

       Please file the foregoing opinion.



                                                     /s/ Leonard I. Garth
                                                     Circuit Judge




delay is minimal, but in this case essential.
