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September 11, 1979


The opinion of the court was delivered by: EDELSTEIN


On July 19, 1979, International Business Machines Corporation, defendant in this civil antitrust action, filed an affidavit that asked this court to disqualify itself from further participation in the proceedings, pursuant to 28 U.S.C. sections 144, 455, and the fifth amendment of the United States Constitution. The affidavit, signed by five "outside" directors on behalf of the corporation, states the following conclusion: "We believe that Chief Judge David N. Edelstein, the Judge presiding over the trial in the above-captioned action, has a personal bias and prejudice against IBM and in favor of plaintiff, that his impartiality in this action may reasonably be questioned, that he has a bent of mind that will prevent impartiality of judgment, and that his bias and prejudice could not have come from any source other than an extrajudicial source." IBM Aff. P 4.

 The conclusion quoted above is based upon the contents of nine affidavits of IBM witnesses, *fn1" plus a single joint affidavit of 11 IBM attorneys (hereinafter Joint Affidavit) supported by 26 appendices bound in nine volumes and containing over 2,000 pages.

 The multiple affidavits and voluminous appendices submitted to this court contain a myriad of allegations, many of them repetitious or overlapping, and many of them argumentative in nature, covering a seven-year period from April 1972 through June 1979. Even the attempt of the Joint Affidavit to provide an "Overview of Proof" covers 15 pages. In essence, however, the numerous allegations can be reduced to four categories: (1) adverse rulings by the court on motions, evidentiary matters, and testimony, which IBM characterizes variously as incorrect, inconsistent, and punitive; (2) allegedly hostile treatment by the court of IBM's witnesses, including adverse comments on their reliability, frequent interruptions of their testimony and putting numerous questions to them, compared to the court's allegedly protective attitude towards plaintiff's witnesses; (3) statements by the court allegedly revealing an antipathy towards IBM counsel; and (4) actions by the court allegedly creating a record "that cannot be subjected to full and adequate appellate review." Joint Aff. at 45.

 The relevant statutory provisions are set forth below. *fn2" Although this court has serious reservations about the formal sufficiency of IBM's affidavit and certificate of counsel, the court will not dwell on them. *fn3" This Memorandum will discuss whether the claims are raised in timely fashion, and whether this court should disqualify itself pursuant to applicable law. *fn4"

 Timeliness under 28 U.S.C. §§ 144 and 455

 Section 144 requires a "timely" affidavit to invoke its disqualification procedure. By contrast, section 455 both before and after its 1974 amendment "is wholly silent about procedure," United States v. Wolfson, 558 F.2d 59, 62 n. 11 (2d Cir. 1977), (quoting 13 Wright, Miller & Cooper, Federal Practice & Procedure § 3550 (1975)), and thus contains no explicit timeliness requirement. Because IBM's affidavit invokes section 455, it becomes necessary to inquire as a threshold matter whether timeliness standards also apply to section 455. In recent decisions, the Second Circuit has applied timeliness criteria to section 455. National Auto Brokers Corp. v. General Motors Corp., 572 F.2d 953, 958-59 (2d Cir. 1978), Cert. denied, 439 U.S. 1072, 99 S. Ct. 844, 59 L. Ed. 2d 38 (1979) (claim under pre-amendment section 455 held untimely); United States v. Daley, 564 F.2d 645, 651 (2d Cir. 1977), Cert. denied, 435 U.S. 933, 98 S. Ct. 1508, 55 L. Ed. 2d 530 (1978) (protracted delay "undermine(s)" motion under amended section 455). Moreover, there is no evidence that section 455 was intended to overrule Sub silentio the explicit and strictly observed timeliness limitations contained in section 144. Such a construction would authorize disgruntled litigants to bypass the strictures of section 144 by invocation of section 455 far along in a proceeding, after testing the temper of the court. United States v. Conforte, 457 F. Supp. 641, 654 n. 7 (D.Nev.1978). This was manifestly not contemplated by the 1974 amendment to section 455. See H.R.Rep. No. 93-1453, 93d Cong., 2d Sess. 5, Reprinted in 3 (1974) U.S.Code Cong. & Admin.News, pp. 6351, 6355. Therefore, this court will inquire into the timeliness of IBM's affidavit under sections 144 and 455.

 Section 144 limits filing of the affidavit to "not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time." Because the district courts no longer sit in terms, 28 U.S.C. § 138 (1976), the ten-day provision has been replaced, at least by some courts, with statements that the affidavit be filed before trial, See Roussel v. Tidelands Capital Corp., 438 F. Supp. 684 (N.D.Ala.1977), or even before invoking the powers of the court at all, Hall v. Burkett, 391 F. Supp. 237 (W.D.Okl.1975). The "good cause" provision has always been understood to require filing "at the earliest moment after knowledge of the facts demonstrating the basis for such disqualification." United States v. Patrick, 542 F.2d 381, 390 (7th Cir. 1976), Cert. denied, 430 U.S. 931, 97 S. Ct. 1551, 51 L. Ed. 2d 775 (1977).

 There are two branches to the timeliness inquiry. First, the timing of a submission must be measured on an absolute scale. That is, the remoteness of the disqualification request from the commencement of the proceeding necessarily bears on its timeliness, for there are manifold and patent disadvantages in transferring the case to another judge who must familiarize himself with issues already decided. Craven v. United States, 22 F.2d 605, 608 (1st Cir. 1927), Cert. denied, 276 U.S. 627, 48 S. Ct. 321, 72 L. Ed. 739 (1928). The Second Circuit perhaps more than most has emphasized this principle. United States v. Daley, 564 F.2d 645, 651 (2d Cir. 1977), Cert. denied, 435 U.S. 933, 98 S. Ct. 1508, 55 L. Ed. 2d 530 (1978), identified the passage of "ten days of trial, with all the attendant expenditure of judicial resources" preceding the recusal motion as a factor distinct from the appellant's knowledge of allegedly disqualifying circumstances long before bringing on the motion. A similar statement in Rosen v. Sugarman, 357 F.2d 794, 797-98 (2d Cir. 1966), as to affidavits not filed at the threshold of litigation was quoted with approval in National Auto Brokers Corp. v. General Motors Corp., 572 F.2d 953, 958 (2d Cir. 1978), Cert. denied, 439 U.S. 1072, 99 S. Ct. 844, 59 L. Ed. 2d 38 (1979). Indeed, even when the affidavit is held timely, the fact that it is not filed at the outset of litigation weighs against the affiant on the question of legal sufficiency, for " "the statute does not permit second-guessing.' " Tenants and Owners in Opposition to Redevelopment v. United States Dep't of H.U.D., 338 F. Supp. 29, 32 (N.D.Cal.1972), (quoting In re Union Leader Corp., 292 F.2d 381, 390 (1st Cir. 1961)).

 The present submission is offered over seven years after this court assumed control of this case. This period of time has not been characterized by inaction. Six hundred twelve trial days have consumed over 90,000 transcript pages. Approximately 8,400 exhibits have been received. Seventy-one live witnesses have been heard; several hundred have testified by deposition. The pretrial transcript alone consists of over 5,000 pages. The court has issued 66 opinions and 137 memorandum endorsements. Defendant's present submission recites rulings and statements by the court and other episodes throughout this record, running at least as far back as a discovery order entered almost seven years ago and violated by defendant, and contempt proceedings held thereafter. Joint Aff. at 41. The point needs no belaboring that this affidavit comes late in the day.

 Perhaps to avoid the telling effect of these facts the present affiants apparently seek to justify their submission under the second branch of timeliness analysis, that is, as being filed "at the earliest moment after knowledge of the facts" alleged to require disqualification. Patrick, 542 F.2d at 390. Thus, the underlying affidavit of counsel avers:

We have for some time avoided the judgment we have now reached, mindful that counsel for litigants may often perceive bias or prejudice on the part of a judge where others, not personally involved in the heat of litigation, may reasonably doubt those perceptions or conclude that what is perceived as bias is merely adverse rulings on the merits of individual controversies or the hint of such rulings in the future.
What in the past we saw as extremely vexatious and wrong-headed actions by Chief Judge Edelstein may now, we believe, be seen as strong indications of bias and prejudice . . . .
What makes further proceedings before Chief Judge Edelstein now impossible are the events surrounding the commencement and presentation of IBM's direct case, crystallized by the recent conduct and rulings of the last few weeks . . . .

 Joint Aff. at 4-6. These "events" are said to be: (1) a series of orders by this court resulting in the issuance and enforcement of subpoenas duces tecum served on defendant's witnesses; (2) the court's allegedly hostile treatment of defendant's witnesses; and (3) evidentiary and procedural rulings during defendant's direct case unfavorable to IBM and allegedly inconsistent with rulings during plaintiff's direct case.

 This new and conveniently acquired interpretation of events long past, supposedly prompted by recent events, is not the kind of "discovery of new facts" that justifies an otherwise untimely submission. For example, in California v. Kleppe, 431 F. Supp. 1344 (C.D.Cal.1977), the complaint had been filed on October 29, 1976. The judge did not become aware until April 25, 1977 that a certain company in which he held stock might be affected by a decision in the case at bar; similarly counsel did not become aware of the court's stock holdings until that same day. Under such circumstances, an application under sections 144 and 455 filed four days later was held timely. By contrast, in Duplan Corp. v. Deering Milliken, Inc., 400 F. Supp. 497, 510 (D.S.C.1975), the affiant called into question a series of remarks made by the court that transpired between October 1971 and January 1974. The affidavit was not filed until April 1975, and counsel sought to justify the delay by claiming that "the disqualifying facts . . . were not appreciated as showing bias and prejudice until (the) court issued its rulings of November 27 and December 19, 1974." Id. The court held the affidavit untimely.

 The Duplan fact pattern is especially apposite here, where IBM counsel similarly aver that recent decisions and orders by the court have caused them only now to reach an awareness that prior actions of the court were due to bias or prejudice. Yet this is by no means grounds for justifying a submission at this late stage, for section 144 "was never intended to enable a discontented litigant to oust a judge because of adverse rulings," Ex parte American Steel Barrel Co., 230 U.S. 35, 44, 33 S. Ct. 1007, 1010, 57 L. Ed. 1379 (1913); nor should it allow a litigant to "sample the temper of the court before deciding whether or not to file an affidavit of prejudice," Peckham v. Ronrico Corp., 288 F.2d 841, 843 (1st Cir. 1961). The reason is clear: the proper time to challenge the merits of judicial acts is on appeal from a final judgment, or where permitted, by interlocutory appeal. In re J. P. Linahan, Inc., 138 F.2d 650, 654 (2d Cir. 1943). This principle is too firmly embedded to yield to an argument that the cumulative effect of rulings needed to be assayed before a properly supported affidavit could be drawn. Davis v. Cities Service Oil Co., 420 F.2d 1278, 1282 (10th Cir. 1970); Duplan, 400 F. Supp. at 509, 510.

 IBM's affidavit is untimely under both sections 144 and 455 for the reasons stated above. Yet, the court will give full consideration to the legal sufficiency of the affidavit, since its impartiality has been questioned.

 Sufficiency under 28 U.S.C. § 144

 The disqualification procedure set forth in section 144 requires that the affidavit filed by a party be "sufficient" as well as timely. The requirement of legal sufficiency has been interpreted to mean a judge must rule whether the reasons and facts stated in the affidavit "give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment." Berger v. United States, 255 U.S. 22, 33-34, 41 S. Ct. 230, 233, 65 L. Ed. 481 (1921); See United States v. Azhocar, 581 F.2d 735, 738 (9th Cir. 1978), Cert. denied, 440 U.S. 907, 99 S. Ct. 1213, 59 L. Ed. 2d 454 (1979); National Auto Brokers Corp. v. General Motors Corp., 572 F.2d 953, 958 (2d Cir. 1978), Cert. denied, 439 U.S. 1072, 99 S. Ct. 844, 59 L. Ed. 2d 38 (1979). The affidavit must "show a true personal bias, and must allege specific facts and not mere conclusions or generalities." Brotherhood of Locomotive Firemen and Enginemen v. Bangor and Aroostook R. Co., 127 U.S.App.D.C. 23, 29, 380 F.2d 570, 576 (D.C.Cir.), Cert. denied, 389 U.S. 970, 88 S. Ct. 463, 19 L. Ed. 2d 461 (1967). Moreover, the judge is presumed to be impartial, Wolfson v. Palmieri, 396 F.2d 121, 126 (2d Cir. 1968); United States v. Mitchell, 377 F. Supp. 1312, 1316 (D.D.C.1974), aff'd sub nom. United States v. Haldeman, 181 U.S.App.D.C. 254, 559 F.2d 31 (D.C.Cir. 1976) (en banc) (per curiam), Cert. denied, 431 U.S. 933, 97 S. Ct. 2641, 53 L. Ed. 2d 250 (1977), and a substantial burden is imposed on the affiant to demonstrate that such is not the case, See, e.g., United States v. Civella, 416 F. Supp. 676, 682 (W.D.Mo.1975) (citing cases). Until such a ruling upon legal sufficiency has been made, the judge retains jurisdiction over the proceeding in all respects, See Ex Parte American Steel Barrel Co., 230 U.S. 35, 44, 33 S. Ct. 1007, 57 L. Ed. 1379 (1913); Daily Mirror, Inc. v. New York News, Inc., 533 F.2d 53, 56 n. 5 (2d Cir.), Cert. denied, 429 U.S. 862, 97 S. Ct. 166, 50 L. Ed. 2d 140 (1976); In re Union Leader Corp., 292 F.2d 381, 383-84 (1st Cir.), Cert. denied, 368 U.S. 927, 82 S. Ct. 361, 7 L. Ed. 2d 190 (1961). Only after a judge finds that the facts asserted establish a legally sufficient claim of personal bias or prejudice must the mandate of section 144 be followed that "such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding."

 Under section 144 the court cannot inquire into the truth of the matters alleged but must accept them as true for the purpose of ruling upon their legal sufficiency, however unfounded they may be in fact. Berger v. United States, 255 U.S. 22, 36, 41 S. Ct. 230, 65 L. Ed. 481 (1921). This statutory obligation, however, does not preclude the court from putting the facts alleged into their proper context and examining the surrounding circumstances. See, e.g., Rosen v. Sugarman, 357 F.2d 794 (2d Cir. 1966); Foster v. Medina, 170 F.2d 632 (2d Cir. 1948), Cert. denied, 335 U.S. 909, 69 S. Ct. 412, 93 L. Ed. 442 (1949); United States v. Zagari, 419 F. Supp. 494 (N.D.Cal.1976). As stated Supra, IBM's manifold allegations can be put roughly into four broad categories: Adverse rulings, hostile treatment of IBM's witnesses, antipathy to IBM's counsel, and frustration of IBM's attempt to make a clear record for appellate review.

 IBM first claims that the court's rulings on evidence, procedure and the conduct of the trial have been overwhelmingly adverse, that the rulings have been incorrect, inconsistent, and at times punitive, and "have been based on a single principle: plaintiff wins and IBM loses." Joint Aff. at 36. IBM states, in part, that it has lost, and the government won, 86% Of all objections and oral motions made by either side to documents and testimony during trial; and that ...

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