2004 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

1-9-2004 

# I n Re: K e nsin g t on P r e c e de n t i al or N on-P r e c e de n t i al : P r e c e de n t i al D ock e t N o . 03-4212

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w . v i l l a no v a . e du/thir dc ir c uit_2004

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 2004 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min . C a rl s on@l a

w . v i l l a no v a . e du

. R e c omme nde d C it a t ion

" I n R e: Ke n sin g t on " (2004). 2004 D e cisio n s . P a pe r 1048. h tt p://d i g it alc ommon s .l a

w . v i l l a no v a . e du/thir dc ir c uit_2004/1048PRECEDENT IAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT

___________ No. 03-4212

___________ IN RE: KEN SINGTO N INTER NAT IONAL LIMITED and SPR ING FIEL D A SSO CIA TES , LLC , Petitioners

___________ No. 03-4526

___________

IN RE : D.K . AC QU ISIT IO N P AR TN ER S, L .P.; F ER NW OO D A SS OC IA TE S, L .P. AN D D EUT SCH E BA NK TRU ST CO MP AN Y A ME RICA S, Petiti oners

On Petiti ons for Writ s of Mandamus to the Un ited States Ban kruptcy Cou rt for the D istrict of Delaw are (Relat ed to Bankrupt cy Nos. 00-03837 and 01-01139)

___________ Argued on December 12, 2003 BE FO RE : FU EN TE S, S M ITH and GA RT H, Circuit Judges (Opinion Fi led: December 18, 2003)-1- Roy T. En glert, Jr. (argued) Robbins, Russe ll, Englert , Orseck & Untereine r 180 1 K Stre et, N .W Suite 411 Washington, DC 20006 Attorney for Peti tioner

s in 03-4212 Richard Mancino (ar gued) Marc Abra ms Willki e, Farr

& Gallagher 787 Seventh Avenue New Y ork, NY 10019-6099 Joan ne B . Wills Klehr, Harrison, Harvey, Branzburg & Ellers 919 North Market Str eet Suite 1000 Wilmington, DE 19083 Attorney s for Pet iti oners in 03- 4526 Charles O. Monk, II (argued) Saul Ewing 100 South Charles Street Balti more, MD 21201 Norman L. Pernick J. Kate Stickle s Saul Ewing 222 Delaware Avenue P.O. Box 1266, Suit e 1200 Wilmington, DE 19899 Attorneys for Respondents Owe ns Corning et al David M. Bernick (ar gued)-2- Kirk land & Ellis 200 East Randolph Dri ve Suite 6500 Chicago, I L 60601 Attorney for Respondent W.R. Grace & Co. Elihu Ins elbuch (argued) Cap lin & Drysda le 399 Park Avenue 27 th Floor New Y ork, NY 10022 M arla R . Eskin Campbell & Levine 800 North King Stre et Suite 300 Wilmington, DE 19801 Attorney s for Responde nt Offi cial Comm itt ee of Asbest

os Claimants of Owens Corning Michael J. Crames (argued) Kaye Scholar 425 Park Avenue New Y ork, NY 10022 Edwin J. Harron Young, Conaway, St argatt & Taylor P.O. Box 391, 1000 West Street Brandywine Bui lding, 17 th Floor Wilmington, DE 19899 Attorney s for Responde nt James J. M cM ona gle Daniel K. Hogan Law Offices of Daniel K. Hogan-3- 1701 Shallcr oss Avenue Suite C Wilmington, DE 19806 Sander L. Esserman Stutzman, Bromberg, Esserman & Plifka 2323 Bryan St

reet Suite 2200 Dallas, TX 75201-2689 Attorney s for Responde nt Baron & Budd Claim ants Jeffrey S. Tracht man Kramer, Levin, Naftali s & Frankel 919 Third Avenue 39 th Floor New Y ork, NY 10022 Ad am G . Lan dis Rebecca L. Butcher Landis, Rath & Cobb 919 M arket S treet Suite 600, P.O Box 2087 Wilmington, DE 19899 Attorneys for Respondent Credit Suisse First Boston Corp Neal J. Levi tsky L. Jas on C orne ll Fox Ro thsch ild 824 North Market Str eet Suite 810 Wilmington, DE 19899-2323 Henry W. Simon Robert A. Simon Simon & Simon 3327 Winthrop Avenue-4- Suite 200 Fort Worth, TX 76116 Attorneys for Respondent Waters & Kraus Michael R. Last owski Du ane M orris 1100 North Market Str eet Suite 1200 Wilmington, DE 19801 Attorney for Int

ervenor Off

icial Comm itt ee of Unsecured Credi tors of USG C orp. Mark E. Felger Jeffrey R. Waxman Cozen & O ’Connor 1201 Market Stree t Suite 1400 Wilmington, DE 19801 Attorney s for I

ntervenor

Offici al Comm itt ee of Unsecured Credi tors of Armstrong World Indus tri es, I nc. Stephen C. Neal ( argued) Coo ley Godw ard 3000 El Camino Real 5 Palo A lto Square Palo Alto, CA 94306 Daniel J. DeFranceschi Richards Lay ton & Finger One Rod ney Square P.O. Box 551 Wilmington, DE 19899 Attorneys for Amicus Curiae US G Co rp .-5- Ric har d A. Samp Washington Legal Foundat ion 20 09 Mas sa ch us ett s A ve nu e, N. W. Washington, DC 20036 Attorney for Amicus Curi ae Washington Legal Foundati on

__________________________ OPINI ON OF THE COURT

__________________________

Ga rth, Circu it Judge : We have bef ore us two E mergency Petitions for a Writ o f Mandamus. B oth Petitions allege that

a district court judge who has presided over five asbestos- related bankrup tcies for the pa st two years has, through his association w ith certain adviso rs, created an appearance of parti ality such that he must be disqualifie d from any further participation in those proceedings. The part ies seeking the distri ct court judge’s disquali ficati on originally moved for r

ecusal in the Bankr

uptcy Court, but fi led Petitions for Mandam

us in our Court

after t he distr ict cour t judge withdr

ew the re cusal m

otions from the Bankruptcy

Court and staye d discovery on those m otions. The District Court has yet to rule on the recu sal motions. As orig inally filed, both Petitio ns asked us to issue an order directing the d istrict court jud ge either to: (a) recu se himself pursuan t to 28 U.S.C. § 455; or (b) expedite consideration of (including discovery on) the re cusal motio ns p end ing bef ore h im.-6-

After ca refully consider ing all of t

he writt en submi ssions fr

om the pa rtiesand amicus curiae and following a sharply -contes ted hear

ing, we have

decided t o direct the district court ju dge to rule o n the withd rawn recusal motio ns. In doin g so, we will v acate the district court judge’s order s taying discovery on the re cusal motions and direct that expedited discovery

proceed without interruption. Because of certain temporal

ex ig en ci es ex pl ai ne d l at er in th is op in io n, we wi ll di re ct th at al l d is co ve ry and the district court judge ’s ruli

ng on the rec usal motions be completed no later than Janua ry 31, 2004. We will retain jurisdiction over any further proceedings subsequent to the district c ourt judge’s ru ling. See In re Sch. Asb estos Litig., 977 F.2 d 764, 7 74-78 (3 d Cir. 199 2). We em phasize at the out set of thi s opinion tha t we are not ruling on t

he mer its of the disqualification reli ef sought by the Petiti oners. Our decision to rema nd the recusal motionsto the dis trict

court judge i s prompt

ed by our overar

ching conce

rn that we

do not have an ad equately developed evidentiary record bef ore us. I. A. The Parties This cas e aris es from

five Chapte

r 11 asbes tos-related ba

nkruptcie s involving t

he following cor

porate entitie s: Owens Cor ning, W.R. Grace &

Co., USG Corpora

tion, Armst rong World I

ndustrie s, Inc. , and Feder al-Mogul Gl obal, Inc . (coll ectively , the “Five Asbesto s Cases”).-7-

The first Petition for Mandamus was brought by Kensington International Limite d

an d S pr in gf ie ld As so ci at es , L LC , t wo cr ed it or s o f O we ns Co rn in g ( co ll ec ti ve ly,

“ Kensington ”). The second Pe

tition for Mandamuswas file d by D. K. Acquisition Part ners, L. P, Fernwood Associates, L.P., and Deutsche Bank Trust Company Americas, three creditors of W.R. Grac e & Co. (collectively, “ D.K. Acqu isition Partn ers ”). In respons e to the Pe

titionsfor Mandam

us, we re ceived Ans wers from Owens Corning, the

Unofficial

Commi ttee of Select As bestos Cl aima nts, the Baron & Budd Claimants, W .R. Grac e & Co., W aters& Kraus, LLP, a Dall as firm which file d a response on November 10 on behalf of asbestos claimants, James J. McMonagle (Legal Representative

for Future Cl aima

nts of Owens Cor

ning), the Official Commi ttee of AsbestosCreditor s of Owens Corning, the Offic ial Com mitt ee of W.R. Grace As bestos Claimants, and Cred it Suisse First Bo ston (“CSF B”). We also received Replies to these Answers. In addition, we received written submissions from five amicus cur iae . In no particular order, t

he amici are: Armst

rong World Industries, Inc., the Official Committee of Unsecured Creditors of Armstrong World Industries, I nc. et al., the W ashington Legal Foundation, USG Cor

poration, and the Offic ial Com mitt ee of Unsec ured Creditors of USG Co rporation et al. B. The Cou rt-Appoin ted Consu ltants1 Chief Jud ge Becker’s term as Ch ief Judge o f this Cou rt ended on May 4, 2003.

He was succeeded by

Chief Judge Scirica on that date.

2 Consultan ts Hamlin, Dreier, and Keefe are fo rmer 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 lit igator in asbestos-related lawsuits. -8- On November 27, 2001, then-Chief Judge Becker of our Co urt 1 ordered t hat the Five Asbestos Cases, which were then pending in the Distri ct of Delaware, be transferr ed from the Bankruptcy

Court to Seni or Distr

ict Court Judge Alfre d M. Wolin of t he District Court o f New Jersey. Chief Ju dge Becker explained in his order that “th ese bankruptcy

cases , which ca

rry with them

tens of thous ands of asbe stos cl aims , need to be consolida ted before

a single judge so that

a coordina

ted plan for

management c an be developed a

nd imple mente d.” Shortl

y a fter re ceiving t

he Five Asbe stos Cas es, Judge Wolin re -refer

red them to the Bankr

uptcy Court, but r

etaine d jurisdic tion over t he asbestos-related claims and issues. On December 2 8, 2001 , Judge Wolin named five “Co urt Appo inted Con sultants” (the “Cons ultants ”) to as sist him in the Five Asbes tos Case s. The five individual s he named were Dav id Gross, Jud son Hamlin, William Dreier, Joh n Keefe, an d Francis McGovern, a

ll of whom ha

d prior expe

rience with asbe stos or m

ass tor t liti gation. 2 Pursuant to Judge Wolin ’s order, the Co nsultants were to “advise the Co urt and to undertake su ch responsib ilities, including . . . mediation of d isputes, hold ing case management conf erences, and co nsultation w ith counsel, as th e Court may delegate to-9-

them individually .” The Consultants could also be delegated “cer tain authority

to hear matt ers and t o advise t he Court on is sues tha

t may arise in these five lar ge Chapter

11

cases .” Judge Wolin’s or der provide d that he c ould, “wit hout further

notice, appoint any of the Court-Appointed Consultants to act as a Special Maste r to hear any

disputed matter a nd to make a report and recomm endation to the Court on the disposition of such matt er.” I n connecti on with his or

der, Judge

Wolin announc ed at a Ca se Management conferen ce that he wo uld cond uct ex parte meetings with the atto rneys. C. The G-I Holdin gs Bankruptcy Two months earlier, the Bankruptcy Court for the District of New Jersey had appointed J

udson Hamlin, one of the Consultant s, to se

rve as t he “Legal Representative of Present an d Future H olders of A sbestos-Related D emands” in still anoth er asbestosrelat ed bankruptc y c ase ca

ptioned In re G-I

Holdings Inc . The G-I Holdin gs case i s not related to the Five Asbestos Cas es and Judge Wolin has play ed no role in the G-I Holdingsproceedings. The G-I Holdings bankruptcy

does, howeve

r, shar e one com

mon charac teris tic wit

h the Five As bestos Ca ses as signed to J udge Wolin: it too fac ed a wave of asbestos law suits. See Official Comm. of Asbestos Claimants of G-I Holding, Inc. v. Heyman, 277 B.R . 20, 24-2 8 (S.D.N.Y . 2002) (ex plaining th at, “[b]eg inning in the late 1970’s, larg e numbers of c laimants began to b ring lawsuits [ against G-I Holdings ] seeking c ompensa

tion for bodil

y injury , death a

nd relat ed harm s inflic ted by

asbest os and produc ts c ontaining a sbes tos” ). W e have als o been

told t hat m any of G-I Holdin gs’-10-

signific ant cre ditors, as well as asbe stos-c laimant cre ditors, also have claim s agains t the debtors in th e Five Asbesto s Cases. Mr. Hamlin was not the only Consultant who participated in the G-I Holdings bankruptcy. Lessthan one month after Judge Wolin appointed the five Consultants, Mr. Hamlin filed an a

pplicat ion in G-I Holdings

seeking the B ankruptcy Court’s ap proval 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 h is appointment as a C onsultant to Judge Wolin in the Five A sbestos Cases. Mr. Hamlin’s applic ation was met with no objection and the Bankruptcy Court approved Mr. Gross as Mr. H amlin’s counsel. D. Kensington ’s Recus al Motion Almost two years later, Kensington filed a motion in the Bankruptcy Court seeking to recuse Judge Wolin from further part icipation in the Owens Corning bankrup tcy. Kensington , which claims that it on ly recently learned abo ut Messrs. Gross and Hamlin’s partic ipation in the G-I Holdings bankrup tcy, asserted that Judge Wolin was precluded under 28 U.S.C. § 455 from continuing to preside over the Owens Corning bankruptcy

by vi rtue of the

fact tha t two of his Cons ultantshad conflic ts of interest. In conn ection with th at motion, Kensington sought discovery of W.R. Grac e & Co., Mess rs. Ham

lin and Gros s, and the

ir law fi rms. CSFB, an agent

for banks holding-11-

approximately

$1.6 billi on in pre-pe

tition c laim s agains t Owens Corning and certain of its subsidiaries, filed papers supp orting Jud ge Wolin’s recu sal. Three days later, the debtors in the W.R. Grace bankrup tcy filed an application in the Bankruptcy Court to appoint Mr. Ham lin as the Legal Representa tive for Future Asbestos Claimants o f W.R. Grace & C o. The app lication disclosed that Mr. Hamlin was already

serving as a Consultant to Judge Wolin in the Five Asbestos Case s (including, of course, the W.R. Grace bankruptcy). On Octob er 23, 200 3, Judge Wo lin entered an o rder staying all discovery in connecti on with Kensington ’s rec usal m otion. The or

der expla ined that recusa l moti ons are often b rought f or improper pu rposes and th at all discovery should b e stayed until Kensington ’s motion could be tested by the adversarial p rocess. Judge W olin also announced in his order that he intended to issue a Case Managem ent Order in the near future go verning f urther proc eedings on the recusal motion. E. Kensington ’s Mandam us Petit ion Dissat isfied with Judge Wolin’s dec ision to sua spon te stay discover y on t he recusal motion, Kensington filed an Em

ergency Petiti on for a Writ of Mandam us with us on Octob er 28, 200 3. Kensington ’s petition aske d us to iss ue a Writ of Mandam us “directing Jud ge Wolin either ( a) to disqualif y himself under 28 U.S .C. § 455 , or (b) to withdraw his October 23[, 2003] order suspending briefing and d iscovery on the recusal-12-

motion, and inste ad allow expedited di scovery and an expedited briefing and hear ing schedule on the motion.” On Oc to be r 3 0, 20 03 , w e i ss ue d a n o rd er st ayi ng “a ll pr oc ee di ng s a ff ec te d b y” Kensington ’s ma

ndamus pe

tition ( with the exception of t he recus al mot

ion) and establishing a b riefing sched ule. Our ord er invited Jud ge Wolin to resp ond to Kensington ’s petition. Meanwhile , Judge Wol

in issue d a Case Ma

nagement Order on Oc tober 28, 2003 which left h is stay of discovery order in place, b ut directed each of the fiv e Consultan ts to submit affidavits set

ting forth c ertain informa tion rel ating to t

heir ac tiviti es in the

Five Asbestos Cases and the G-I Holdings bankruptcy . The order

also es tablis hed a briefing schedule on Kensington ’s recusal motion.

F. The District Court’s Responses In response to our invitatio n, Judge Wo lin submitted three w ritten responses to Kensington ’s petition. In h is first response, Ju dge Wolin an nounced that he wou ld “judge the Mot

ion to Recus e on the la

w and facts present

ed after all of the partie s have been heard in full” and that he wou ld seek to resolv e the motion as qu ickly as possible. Judge Wolin also expl ained tha t he had re cently

finished a

four-week bench tria

l in the Owens Corning

bankruptcy cas e concerning the issue of “substantive consolidat ion.” That trial was neces sary

because Owens Corning had proposed a

plan of reor

ganizat ion which, if adopted, would substantively c onsolidate Owens Corning and its debtor-3 Owens Co rning has ex plained that:

Unlike OwensCorning’s ot her ma jor unsecur

ed creditors, whi ch have direct claims against the pa rent company alone, [ Kensington and CSFB have] gu arantees from certain O wens Corn ing subsid iaries. If these subsidiary

guarantees are enforceable , [they] will receive a greate

r proportio nate recovery than that receiv ed by other unsecu red creditors. Substantiv e consolidatio n would eliminate this claimed disprop ortionate re co ve ry b y [ Kensington

and CSFB ].

4 Around the sa

me time tha

t Judge Wolin filed hi s second r esponse, USG Corporati on filed a m

otion in the

Bankruptcy

Court see

king his re cusal. Unlike som e of the other partie s seeking Judge Wolin’s rem oval, USG Corpor

ation ar gued that t

he extensive ex parte communicati ons between Judge Wolin and the Consultants (as well as other persons) provide an independent basis for Judge Wolin’s disqualificat ion under both 28 U.S.C. § 4 55(a) and (b)(1). -13- subsidiaries into a single bank ruptcy estate. It is alleged that Kensington and CSFB have opposed substantive co nsolidation because it wou ld significan tly reduce their aggregate

re co ve ry. 3 Judge Wolin state d in his re sponse tha t he was pr

eparing a n opinion on substant ive consolidation, but had not y et iss ued the opini on when Kensington filed its motion s eeking hisrecusa l. Judge Wolin als o maint ained tha t he had no infor

mati on regarding the G-I Holdings ba nk ru pt cy. In hi s s ec on d r es po ns e, Ju dg e W ol in ad dr es se d t he su gg es ti on ma de by D.K. Acquisition Partners that his ex parte comm unicati ons with the

Consultant s and vari ous attorneys somehow requ ired his recusal. 4 Judge Wolin explained that he had announced at his initial

Case Mana

gement conferenc e on Decem

ber 20, 2001, t

hat the s ize and complexity

of the Five Asbestos Cases would require him to have ex parte communicati ons. The purpose of the ex parte comm unicati ons, acc ording to Judge-14-

Wolin, “ was to ens ure that each com

mitt ee or cor porate c onstitue

ncy was afforde d the opportunity to provide to the Court insights as t o why, in the com

petition for limite d dollars , its c laim

was just. ” Judge Wolin also wr ote that , “[g]iven t

hat thes e mee

tings occurred o n a regular b asis without co mplaint and giv en that the Dec ember 20, 200 1 case management conf erence alerted all con cerned that ex parte meet ings were part of the Dist ric t Cour t’s cas e ma

nagem ent pl an, i t st

rike s a di scor

dant n ote t

hat t he con duct o f ex parte conferen ces would b e the groun d for a recu sal motion.” In his thi rd respons e, Judge Wolin again defended hisCase Mana gement methods and, in part

icul ar, his de cis ion toall ow ex parte communications. Jud ge Wolin explaine d that the

public dis closure

of propriet

ary or other s ensiti ve information in t he context of a

bankruptcy

proceedi ng can have s ignifica nt econom

ic ram ificat ions and therefor e “it wa s the expr

essed intent of the

Distri ct Court t

o provide ac cess t

o any and all interest

ed parties free of the constraint of damning admissions in a public are na.” Judge Wolin also recomm ended, for the first time , that we -- the Court of Appeals -- deci de the

mer its of Kensington ’s Petition for Manda mus wit hout further

delay , although he stood read y to decide the recusal motion s if we fou nd the recor d to be insu fficient. G. The Con sultants’ Aff idavits In compliance w ith Judge Wo lin’s order, each of the Co nsultants filed affidavits in the Dis trict

Court on Novem

ber 14, 2003 des cribing t heir ac tiviti es in the

Five Asbes tos Ca ses . Mr. Grosssta ted i n his a

ffida vit t hat J udge W olin h ad been awar e “[a]t-15-

all relevant times” of Mr. Gross’s r ole in the G-I Holdings

bankrup tcy case

. Mr. Gross als o expl aine d that

his r ole i n the F

ive As best

os Cas es wa s es sent

ial ly “tha t of a settlem ent facilitator” and that he had never “assiste d in any way in Judge Wolin’s decision-making function” or “discusse d with Judge Wolin . . . any legal or factual iss ues 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 explain ed in his aff idavit that his assig nments as a Consu ltant to Judge Wolin “consis ted of revi ewing appea ls from the Dela ware Bankr

uptcy Court and submitting a draf t opinion in each of th e [Five Asb estos Cases],” a ro le Mr. Hamlin likened “ to that of a

magis trate

[judge] in providing recom mended findings of fact

and conclusion s of law to a d istrict judge.” M r. Hamlin asserted that h e had prep ared only one draft opinion in the Owens Corning bankruptcy and that Judge Wolin had not used that par ticula r opinion. Mr . Hamlin also s tated t hat he “di d not discus s any substant ive issues in the [ Owens Corning ] case with Jud ge Wolin at any time.” H. The Answers On November

21, 2003, Answer s to the m andamuspetiti ons were fi led. The following oppose d Kensington ’s effort s to disqua lify Judge Wolin: Owens Corning Corp., the Official Commit tee of Asbestos Creditors in Owens Corning, Jame s McMonagle (the Legal

Representative

for Owens Corning’s Asbes tos Claimants ), and the Baron &

Budd Claimants. CSFB s upported Judge Wolin’sdisquali ficati on.-16- I. D.K. Acqu isition Partn ers’ MandamusPetiti on On Nov ember 14, 200 3, the same day that the Consu ltants submitted their affidavits to the District Cou rt, D.K. Acqu isition Partn ers filed a motion in the W.R. Grace bankruptcy cas e seeking Judge Wolin’s recusal . A week later, D.K. Acquis ition Partners filed an emerge ncy petiti on with us se eking the s ame r elief s ought by Kensington. We ordered th at D.K. Acqu isition Partn ers’ mandamus petit ion be consolidated with the Kensington

petiti on. We have

since r eceive d Answers t

o D.K. Acquis ition Partners’ petition from W.R. Grace & Co., the Official Committee of W.R. Grace AsbestosClaimants, a

nd the Unoffici al Comm

ittee of Select W.R. Gra

ce Asbes tos Claimants. J. Hearing On December 12, 2003, we held the hearing scheduled by our order of November 21, 2003. Both par

ties a nd amici were hea

rd and vari ous argum

ents and r epresentations urged , on th e one h and, t hat we disqu ali fy

Judge Woli n and, on the

other hand, that

we deny disqualification . Among the rep resentations wh ich we have taken into consideration insofar as expediting our ruling and Judge Wolin’s ruling is Mr. Inselbuch’s repr

esenta tion that since t he filing of t

hese ca ses cl ose to 30,000 a sbestos claimantshad died of mesothelioma and lung cancer and that 15 victims “will die t oday as a matter of statistics.” Hence, h e claimed delay was fatal.5 § 455(a) provi des in it s entir ety that “[a]ny jus tice, judge, or magistr ate judge of the United S tates shall disqualif y himself in any proceeding in w hich his impartiality might reasonably be que stioned.”

6 § 455(b )(1) provid es that a judg e must disqualify himself “[w] here he has a personal bias or prejudice concerning a party , or personal knowledge of disputed evidentiary facts concern ing the pro ceeding.” -17- II. We turn now to the gov erning legal stan dards. Kensington and D.K. Acquis ition 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 als o seeking Judge Wolin’s disqualification under § 455(b)(1), 6 but it has relied prim arily on § 455(a). A. StandardsGoverning Wr its of Manda

mus We have t

he power to i ssue writs of ma ndamus unde

r the All WritsAct, 28 U.S. C. § 1651(a), whi ch providesthat “[t ]he Suprem

e Court and a

ll court s esta

blished by

Act of Congress m

ay issue a ll writ s neces sary

or appropri ate in a

id of their respec tive jurisdictions and agreeable to the usa ges and principles of law.” See Haines v . Liggett Group In c., 975 F.2d 81 (3d C ir. 1992). A writ of mandamus is, however, an extraordina ry form of relief. See In re Fed eral-Mogu l Global, In c., 300 F.3d 368, 379 (3d Cir. 2002). “As the a djective ‘extra ordinary ’ impl

ies, . . . court s of appeal s must be chary in exerc ising tha

t power: ‘ [M]andamusmust not be used asa mer

e substitute for appeal.’” In re Sch. Asb estos Litig., 977 F.2d 764, 772 (3d Cir . 1992) (quoting Westinghou se Elec. Corp. v. R epublic of P hilippines, 951 F.2d 1414 , 1422 (3d Cir.7 In City of Pittsbu rgh v. Simm ons, 729 F.2d 953, 95 4 (3d Cir. 1984), we relied

on our long-st

anding prec edent tha

t a denia l of recus al did not c onstitut e a final order and thus a ppell ate juris dict ion co uld not

be ent ert aine d. Tha

t ca se di d not, howeve

r, s peci fy the sta tutory recusa l that wa s being sought . In School A sbestos, Judge Becke r of our Court held t

hat a Pet ition for Ma

ndamus pr

edicat ed on § 455 would be ent ertained by this Court. See Schoo l Asbestos, 977 F.2d at 775. -18- 1991)). If, in effect, an appeal will lie , mandamus will not. “Even when the petitioner shows that there is no other adequate m eans to obtain the desired relief, and also has shown a ‘cle ar and indisp utable’ right to issuance of th e writ, the exercise o f our po wer is largely discretionary .” Alexander v . Primerica Ho ldings, Inc., 10 F.3d 155, 163 (3d Cir. 1993) (quoting Will v. United Sta tes, 389 U.S . 90, 96 (1 967) (citation omitted)).

B. Mandamusas a Mea

ns For Disqua

lify ing a Judge “Mandamus is a proper m eans for this court to review a dist rict 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. I ndeed, “[v]irtua lly every court of appe als hasrecogniz ed the nec essit y a nd propriet

y of interlocutory

review of disqualification issues on petit ions for mandamus ‘to ensure t hat judges do not adjudicate cases that they have no statutory

power to hear.’” Alexander, 10 F.3d at 163 (quot

ing School A sbestos, 977 F.2d at 778). Less well established, however, is the inclination of a court of appeals to ente rtain a mandam

us petition seeking a distric t court judge’ s disqual

ificat ion when the di stric t court judge has not y et rule d on a moti on for recu sal p end ing bef ore h im.-19- C. Standard for Disqualification under § 455(a) Whenever a judge’s imparti ality “might reasonably

be questioned” in a judicial proceedi ng, 28 U.S.C. § 455( a) requi res tha t the judge di squalify

himself. The te st for recusal unde r § 455(a) is w hether a reason able person, w ith know ledge of all th e facts, would co nclude that th e judge’s impartiality might reasonab ly be questioned. Edelstein v. Wilentz, 812 F.2 d 128 (3 d Cir. 198 7). It is of no co nsequence that the jud ge is not actually biased because § 455(a) “concer ns not only

fairnes s to indivi dual lit

igants, but, equally

import ant, it concerns ‘the public’s con fidence in th e judiciary, which may be irreparably harmed if a case is allowed t o proceed before a judge who appears to be tainted.’” Alexander v. Primerica Holding s, Inc., 10 F.3d 155, 162 (3d Cir . 1993) (quoting School A sbestos, 977 F.2d at 776) (emphasis added). In Haines v. Lig gett Group Inc., 975 F.2d 81 (3d Cir. 1992), where a manda mus petition filed by

leading tobacco companies charged that the district court judge had disquali fied him self when he state d that the

tobacco industry

conceal ed smoking risks and “despite som

e rising pretende

rs, . . . may

be the king of c oncealm

ent and disinform ation,” we held tha

t “[i]m partia lity and the appe arance

of impar tiality in a judicial officer a re the s ine qua non of the Ameri can lega

l sy stem ” and that “[a]ny tribunal permitted by

law to tr y c ases a nd controver sies not

only must be unbiased but also must avoid even the appeara nce of bias.” Id. at 98 (quoting Lewis v. Curtis, 671-20-

F.2d 779, 789 (3d Cir . 1982)). We went on to s ay in Haines that the

distri ct court

judge in question had “been a distinguished mem ber of the federal judiciary for almost 15 y ears and [was] no st

ranger t o this cour

t; he [was ] well known and r espect ed for ma gnificent abilities and outstanding jurisprudential a nd judicial temperam

ent.” Id. Judge Wolin is no diff erent -- he exh ibits the same admirable qualities an d talents. We went on t

o say in Haines that: On the basi s of our coll ective experience, we woul d not agree that [the distri ct court

judge was] inc apable of di scharging judicial duties fr ee from bias or pr ejudice. Unfortunately , that i s not the t est. I t is not our

subjecti ve impressions of h is impartiality gleaned after reviewin g his decision s these many ye ars; r ather, the poles tar is“[i]mpa rtiality and the appearanc e of impartiality .” Id. D. Standard for Disquali ficati on under § 455(b)( 1) Whereas § 455(a) is a cat chall disqualificati on provision, § 455(b)(1) is more narrow in t

hat it r equiresa judge to dis qualify himse lf only if “he hasa persona

l bias or prejudice c oncerning a party, or personal kn owledge o f disputed evidentiary facts concerning the proceed ing.” 28 U .S.C. § 45 5(b)(1); see also Liteky v. U nited States, 510 U.S. 540, 548 (1994) (descr ibing § 455(a) as a “‘ catcha ll’ re cusal pr

ovision, c overing both ‘inte rest or relat ionship’ a

nd ‘bias or

prejudice ’ grounds”) . Unlike di squalifi cation under § 455(a) , however, which ma y be waived by

the part ies, t he grounds for disqualificatio n under § 455(b)(1 ) generally cannot be w aived. See 28 U.S.C. § 455(e).8 The Petition ers claim that, “[b]ecau se asbestos claimants freq uently claim to

have been exposed to as bestos- containing products pr oduced by

more t han 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 cl aimants to as sert claims against differ ent manufactur ers.” -21- As noted ab ove, Kensington ’s ma ndamus pe

tition r elieson both § 455(a) a

nd § 455(b )(1). D.K. Acqu isition Partn ers’ petition was brought under § 455(a). III. In light of t

hese st andards, we now exam

ine the a rgument s prese

nted by the partie s and amicus cur

iae both in su pport of , and in op position to , Judge Wolin ’s recusal. A. Argument s in Support of Di squalifi cation The parties asking for Judge Wolin’s disqualificat ion first seek to demonstra te that Messrs . Gross a

nd Hamlin’s dual r

oles in t he Five Asbe stos Cas es and G-I Holdings gave rise t o potentia l and act ual confli cts of int

erest . In doing so, these pa rtiescontend, among other th ings, that:

• It is highly likely that a significant nu mber of the fu ture asbestos claimants in G-I Holdings

will also be fu ture claimants in the Fiv e Asbestos Cases, 8 thus creating a c onflict betw een Messrs. Gro ss and Hamlin’s du ty to zealous ly repres ent thei

r clie nts, on the

one hand, and t

heir duty to give Judge Wolin neutral advice, on the other;

• Messrs . Gross a

nd Hamlin never dis closed t o the part ies in t he Five AsbestosCases t

hat they were re present ing the as bestos c laimants in G-I Holdings ;

• Messrs. Gross and Hamlin repeatedly used their p ositions as adv isors to Judge Wolin to advocat

e their client s’ part

isan int erest s in G-I Holdings ;9 Owens Corning challenge s the Wa shington Lega l Foundation’ s purporte d nonintere sted par

ty status , claiming tha

t it is“alli ed” with t

he comm ercia l creditors and regularly campaigns for asb estos tort reform in th e media, courts, and U.S. Con gress. -22- • Messrs . Gross a

nd Hamlin challe

nged and criticiz ed in G-I Holdings an expert witness who i s likel y t o testi fy in Owens Corning ;

• There were numerous instancesin which Messrs. Hamlin and Gross, as partis an advocat

es for the asbest os claimantsin G-I Holdings , met ex parte with Jam es McMonagl e, the Le gal Repre sentat ive for Futur

e Asbest os Claimants in Owens Corning , to discuss “com mon future s issue s;” and

• The debtorsin W.R. Grace applied to the Bankruptcy Court to have Mr. Hamlin appoin ted as the legal rep resentative fo r future asb estos claimants -- an applicatio n which, if granted, wo uld give rise to another con flict. Building on that argu ment, the Petitioners n ext contend that, throug h his close association with the Consu ltants, Judge Wo lin was “tainted” b y association with Messrs. Gross and Ha

mlin, such that

a reas onable per son might question hi s impa

rtiality . The Petiti oners em

phasize that it matt ers not whe

ther Judge

Wolin ac tually

knew of the conflict s, but only

that, a s a res ult of Mess rs. Ham lin and Gros s’s dual

and conflic ting roles, a reasonab le person might q uestion Jud ge Wolin’s partiality. The Petitio ners also point ou t that the Washing ton Legal F oundatio n, the only party with no direct in terest in this case, suppo rts Judge Wolin ’s recusal. 9 The Petitioners also em

phasize that Judge Wolin apparently knew all along that Messrs. Hamlin and G ross were servin g as partisans on behalf of the future c laimants in G-I Holdings , but did not m ake a dis closure

to the par

ties. The Petit

ioners a rgue that the appearance of impropriety was further fostered by

the extensive ex parte comm unicati ons10 Kensington and D.K. Acqu isition Partn ers vigorously dispute a ny s uggestion that they deliberately delayed filing their respective P etitions for M andamus. Kensington flatly states that it had “no kn owledge” o f Messrs. Gross an d Hamlin’s participatio n in G-I Holdings

until two w eeks befo re it filed its recusal motion . For its part, D.K. Acquisition Partners claims that it first learned ab out Messrs. Gro ss and Hamlin’s role in G-I Holdings

when Kensington

filed it s recus al mot

ion. -23- between Judge Wolin and the Consultants. Taken together, the Petit ioners contend that these fa ctors c onclusively

demonst rate t hat Judge Wolin’s impart ialit y m ight be questioned , thereby mandating his remova l.

B. Argument s Against

Disquali ficati on The parties opposing Judge Wolin’s disqualification argue first and foremost that the Petitions f or Mandamus sh ould be d enied becau se they are untimely. See United States v. York, 888 F.2d 1050, 1055 (5th Ci r. 1989) (s tating t

hat tim elines s requir

ement “prohibits k nowing concealment of an ethical issue fo r strategic purp oses”). The p remise underly ing this a rgument is that the Petitionersknew, or re asonably should have known, about Mess rs. Gros s and Ham lin’s r oles in G-I Holdings

long ago, but chose not to act on that inf ormation until recen tly. Those parties point o ut, for example, th at (a) Messrs. Gross and Ha

mlin’ s parti cipati on in G-I Holdings was a matte

r of public record and was wid ely repo rted in th e asb esto s liti gati on t rade pres s; an d (b ) tha t cert ain l aw firms representing the credit

ors in the Owens Corning bankrup tcy received notice of M essrs. Gross and Ha

mlin’ s parti cipati on in G-I Holdings

. 1011 We mus t confessthat we ha ve struggl ed to define

the role and positi on of the “Consultants.” To the best of our knowledge, the Consultants’ roles and positions are truly novel in terms of the p owers they were assigned

. See, e.g., Fed. R. Civ. P. 53(a) (authorizing district courts to ap point “masters”); Fed. R . Evid. 70 6 (permitting “cou rtappointed experts”); 28 U.S.C. § 636(b)(1) (permitt ing referrals to magistrate judges); see als o December 1, 20 03 Amendment to Fed. R. Civ . P. 53 (pro viding, in ter alia, that a “Master must not hav e a relationship to the parties, coun sel, action, or cou rt that would require disqu alification of a judge u nder 28 U .S.C. § 45 5”). At ora l ar gument, we

aske d Owens Corni ng’s a ttor ney if he h ad eve

r hea rd of a judge ap pointing this kind o f a “hybrid” adviso r. He replied th at he had no t. -24- In additi on to the timeliness ar gument, the part

ies opposing the ma

ndamus petitions con tend that:

• Kensington ’s petition fo r mandamus is merely a litigation tactic intended to derail the Owens Corning bankruptcy , as evi denced by the “bar rage of mo ti on s a nd la ws ui ts ” p ur po rt ed ly fil ed by Kensington beginnin g in October 2003;

• The petitions for mandamus have fail ed to demonstrate that Judge Wolin’s associ ation wit

h Messrs . Gross a

nd Hamlin require s his re cusal; and

• The complexity of the F ive Asbestos C ases required a n ovel case management a

pproach, thus justifying the use of advisors wit h 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 t he Owens Corning

bankruptcy , it doesnot neces saril y follow that he must also be d isqualified from presiding o ver the remaining four ban kruptcies. For example, W.R. Grac e & Co. believes the parti es 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 ba nk ru pt cy. In a sim ilar ve in,-25-

Armstrong World Industries sub mitted a Statement solely to emphasize that Judg e Wolin and the Consultants play ed a minima l role in the Armstrongba nk ru pt cy. IV. After reviewing the

writte n submis sions from

the part ies, t he Distr ict Court , and amicus cur

iae , and afte

r heari ng oral ar

gument on De cembe

r 12, 2003, we will, while retaining ju risdiction, remand th is matter to Judge Wolin so that he can, in the first instanc e, deci de (following expedite d discover y) whether he

should recuse him self from one or more of the Five Asbestos Cases. Our rec ital of the parties’ arguments as they are present ed in thisopinion are

not to be ta

ken or inte

rprete d as expre ssions or

inclina tions of this Court

respec ting the i ssue of re cusal or disquali ficati on. First a nd foremos t, we ar

e concer ned that t he exist ing recor d is inade quate and incomplete. We are reluctan t to act in a complex situ ation such as th is one, where so many vital interests are at stake, withou t a developed evidentiary record. We do not fault the part ies. J udge Wolin’ s stay

of discover

y or der prevented the pa

rties from developing evidence o f the circumstances w hich they allege give rise to the recusal motions. Hence, a rema

nd allowing for discovery is nec essary because the prima

ry inquiry to which w e must respond p ursuant to 2 8 U.S.C. § 455(a) is “wh ether a reasonab le person knowing all the circumstances would harbor doubts concerning the judg e’s impartiality” -- an inquiry which necessarily requires that we know all th e circumstances. Jones v. Pittsbu rgh Nat’l C orp., 899 F.2 d 1350 , 1356 (3 d Cir. 199 0) (emphasis adde d).12 In remanding thismatt er to Judge

Wolin, we

are devi ating sl

ightly from the re li ef re qu es te d b y Kensington. In its Reply brief, Kensington request ed that, in the eve

nt we decide d additiona

l factfinding was re quired, we rema nd the mot

ion for rec usal to a differen t judge f or resolution

. Kensington believed this w as necessitated by certain rema rks Judge Wolin ma

de in his wr

itten r esponsesto the mandamuspetiti ons, incl uding his s tat eme nt tha t the tim ing of D.K. Acqu isition Partn ers’ recusa l moti on “speaks volumes as to the legit

imacy of the Motion for Recusal of the District Court.”

-26- Accordingly, we r

equire in order to discharge our judicial function that the evidenti ary record in this ca se be develop ed. In its Reply brief, Kensington asser ted that , in light

of the extensive bri efing and schedule d oral ar

gument, there wa s “no need t o rema nd this ca se for furt

her fact finding” and th at we

could “and s hould enter

a re cusa l orde r on th e exi sti ng rec ord.” Brie fs without an evidentiary

basis and oral argument a re, however, a poor substitute for a developed evidentiary record wh ich can result f rom an adversarial d iscovery process. Among other things, discovery in this case may s hed light on such matters as (i) the full exten t of the Co nsultants’ activities in the Five Asb estos Cases; (ii) Messrs. Gross and Ha

mlin’ s acti vitiesin G-I Holdings ; (iii ) the timeliness of the Petiti ons for Mandamus; and (iv) the extent to which recu sal, if warranted in one of the bankru ptcies, must be held to ex tend to the o ther bankru ptcies. Because d iscovery is not an exercise which this C ourt can reaso nably conduct, bu t is more the functio n of the D istrict Court, we will va

cate t he stay Judge Wolin entere d in his Oct ober 23, 2003 orde

r and rem and this matte r to Judge Wolin so that his recusal ruling, which we direct that he make, may benefit fro m the discovery engaged in by the parties. 12We decline to re mand thi s mat

ter to a different judge becaus e we do not believe Judge Wolin’s written responses demonstrate that he will be unable to render an impartial decision on the recusal motions. In deed, Judg e Wolin stated in h is first response that, “[i]n order to preclude any unwarranted conclusion” that he was prematurely deciding the su bstantive merits of th e motion to recuse, h e would restrict h is response s to proce dural matter s. Moreove r, we har bor seri ous rese

rvationsabout assigning a § 455 disqualificat ion moti on to a differ

ent judge, pa

rticul arly at thisstage of the proceed ings. See, e.g., Bernard v. Coyne, 31 F.3d 842, 843 (9th Ci r. 1994) (hol ding that re sponsibil

ity for deciding § 455 recusa l moti on lies s olely

with judge to whom motion is directed); Njie v. Lubbock County, 999 F. Supp. 858, 860 (N. D. Tex. 1998) (concludin g that if recusa l motion is made und er § 455, “th e judge w hose impartiality is being qu estioned rules o n the motions”). Compa re 28 U.S.C. § 144 (requiring “another ju dg e” to ru le on re cu sa l m ot io n i f s up po rt in g a ff id av it me et s t hr es ho ld “s uf fi ci en cy” test). -27- Second, our de cision t

o rema nd is im pelled in large pa

rt by the sta ndards governing the

issuanc e of a writ

of mandam

us. It i s well e stabli shed that a writ of mandamus will i ssue only if the party seeking the writ has “no o ther adequa te means to attain the desire d relief.” In re Sharo n Steel Corp ., 918 F.2 d 434, 4 36 (3d C ir. 1990). Clearly that standard cannot be met where a motion seeking the distr ict judge’s disquali ficati on -- the s ame r elief s ought in the m

andamuspetiti ons -- ispending in the district court. Finally , our deci sion to re mand thi s mat

ter to J udge Wolin i s guided by

the principle that “[ d]iscretion is co nfided in the district jud ge in the first in stance to determine whethe r to disqualif y himself . . . [because the] j udge presid ing over a ca se is in the best position to appreciate the implicat

ions of those matters a

lleged in a recusal motion.” In re Drexel Bu rnham L ambert Inc., 861 F.2d 1307, 1312 (2d Cir . 1988)13 At oral a rgument , the at

torney repres enting the

Official Commi ttee of As bestos Claimants in Owens Corning repres ented to t

he Court tha

t approxim

ately 30,000 of the asbestos claim

ants in the Five Asbestos Claim ants have died from asbestos- related diseases since

the cases were fil ed and that statisti cs would reveal that 15 asbestos-r elated victims would d ie each day.

14 We inquir

ed at ora l argum ent about t

he effect Judge Wolin’s disqua

lifica tion would have on the

Five Asbes tos Case s. Owens Cor ning’s couns el repl

ied that assigning another judge to the Owens Corning bankruptcy

would set t

he procee dings in Owens Corning back at least one y ear. By expediting t

he filing of t

his opinion a

nd by or dering com

pliance with our direct ions which e stabli sh a deadline or outs ide date of January

31, 2004, we believe any -28- (citation omit

ted). This principle rings part icularly true where, as here, t

he district court judge has pre sided over

(i) an extraordinarily

complex litiga

tion (ii ) involving a multitude of p arties (iii) for an ex tended perio d of time. Judg e Wolin has bee n intimately involved in these proceedings for the past two y ears and, as dem onstrated by

his written responses, has a cquired a f amiliarity with the issues beyond ours. Acc ordingly, he is in the best position to understand “the im plications of those matt

ers alleged in [the] recusal motion[s].” Id. We realize, of cou rse, that our dec ision to remand th is matter to Judge Wolin will result in some del ay, which causes us great concern. Not only can delay

have unintended (and undesirable) ram

ifications for the debtors-in-bankruptcy ; it can have a much m ore personal effect on t

he asbes tos cla

imant s who have fil ed claims aga inst the debtors- inbankrup tcy and their related entities. 13 We nevertheless believe that a short delay so that an evidentiary record may be develop ed is to be pref erred rather than making an illinformed decision on allegations al one. 14 In an a tte mpt to re duce t

he del ay , howe ver, wedelay is minimal, but in this case essential.

will orde r that expedited di scovery and Judge Wolin’s ruling on the re cusal m otions be comple ted no lat er than J anuary

31, 2004. Whil e this m

ight ordina

rily be deem ed too short a time for disc overy, we believe that it is m anageable under the district court judge’s g uidance an d supervisio n. Indeed, Kensington ’s attorney advised us at oral argument that exp edited discov ery probably could be completed in two to th ree weeks. V. For the fore going reas ons, we will (i) va cate t he discove

ry stay impose d by J

udge Wolin in his order of October 23, 2003; (ii) direct that expedite d discovery proce ed without int

errupti on, objecti ons, or ext ensions; and (iii ) direc t Judge Wolin to rule on the recusal motions pen ding bef ore him no later than January 31, 2004 . This panel w ill retain jurisdiction in the event proce edings subsequent to Judge Wolin’s ruling are require d. TO THE CLER K: Please file the foregoing opini on.

/s/ Leonard I. G arth Circuit Judge