Petition for a writ of mandamus under 28 U.S.C. § 1651 and Fed. R. App. P. 21, compelling the Hon. David N. Edelstein, Chief Judge of the United States District Court for the Southern District of New York, to recuse himself from further proceedings in the trial of United States v. International Business Machines Corporation, 69 Civ. 200, on the ground that he harbors a personal bias against petitioner. Petition denied.
Before Mulligan, Van Graafeiland and Meskill, Circuit Judges.
More than a decade ago, on January 17, 1969, the United States of America, by its attorneys, acting under the direction of the Attorney General, filed a complaint in the United States District Court for the Southern District of New York which alleged that International Business Machines Corporation (IBM), commencing in or about 1961, had monopolized and attempted to monopolize the market for general purpose electronic digital computers in violation of Section 2 of the Sherman Act (15 U.S.C. § 2).*fn1 In addition to injunctive relief the Government sought such "divorcement, divestiture and reorganization" of IBM as might be appropriate to restore competitive conditions. On January 26, 1972, Hon. David N. Edelstein, Chief Judge of the Southern District, assumed control of the case. After extensive pretrial discovery, the bench trial was commenced on May 19, 1975. Counsel for the Government estimated that its case would take two to three months and IBM's counsel predicted that its defense would take six to eight months.
These estimates in fact proved to be grossly erroneous. The Government's direct case lasted for almost three years, ending on April 26, 1978. IBM's defense began on that date and it continues as of this writing. Eleven years have elapsed since the filing of the initial complaint, pre-trial depositions commenced some eight years ago, and more than four and one-half years of trial time have been consumed. A mammoth record of trial transcript and exhibits has been assembled. To the best of our knowledge no litigation has taken so much time and involved such expense.
On July 19, 1979, IBM filed an application requesting Chief Judge Edelstein to recuse himself on the grounds that he 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 therefore urged his recusal under 28 U.S.C. §§ 144, 455 and the due process clause of the Fifth Amendment. In addition IBM argued that resumption of the trial before a new judge would be inappropriate until the record has been "purged of the effects of the Chief Judge's bias."
On September 11, 1979, Chief Judge Edelstein filed a written opinion in which he denied the request for recusal as both untimely and legally insufficient. In his opinion he stated, "This court has no interest in the outcome of this case other than the interest of every judicial officer that the truth be discovered and the law correctly applied. IBM identifies no personal prejudice and bias on the part of this court because none exists." On September 12, 1979 the trial judge denied IBM's oral application for a stay of all proceedings for 30 days so that IBM might file a Petition for a Writ of Mandamus. On September 13, 1979 IBM filed in this court a Petition for a Writ of Mandamus pursuant to 28 U.S.C. § 1651 and Fed. R. App. P. 21 together with a motion for a stay of all proceedings pending our determination of the merits of the petition. Oral argument on the motion for a stay was heard on September 14, 1979 before this panel and it was denied from the bench. Argument on the merits of the petition was heard in this court on October 16, 1979. As of that time more than 90,000 pages of testimony had been transcribed, almost 9,000 documents had been received into evidence, several hundred witnesses deposed, and some seventy trial witnesses called. In the argument counsel for IBM suggested that the case might take five more years of trial time to complete, putting the case into 1984, an appropriately Orwellian denouement. Because the litigation has lasted so tortuously long and is costing taxpayers of the United States as well as the stockholders of IBM untold millions of dollars, to say nothing of the continuing toll of time and effort made upon the federal judiciary,*fn2 we have requested the parties to conduct settlement discussions. Conferences have been held, as reported in the press, and this court has been kept apprised by the parties of their progress. Although we have no way of predicting the ultimate outcome of this prolonged litigation, it does seem that its settlement would be in the best interests of all those concerned. Yet it seems fair to state that while there is reason to be somewhat optimistic so long as the parties are meeting, there is little reason to expect a settlement in the immediate future and no reason to further delay this opinion.
It is clear to this panel that the issuance of the extraordinary writ of mandamus to remove Chief Judge Edelstein from the trial of the case on the ground of personal bias, as set forth in the petition here, is not the appropriate vehicle to relieve IBM of the burdens it sets forth in its papers. IBM complains in gist of erroneous rulings and judicial mismanagement of the trial. Our task here is not to decide this case on its merits or to provide a critique of its conduct but rather to determine whether the petitioner has met the burden of establishing that Chief Judge Edelstein is unfit to continue by reason of his personal bias against IBM. We hold that the burden has not been satisfied.
The United States makes the threshold argument that mandamus does not lie here because under Will v. Calvert Fire Ins. Co., 437 U.S. 655, 665-66, 98 S. Ct. 2552, 2559, 57 L. Ed. 2d 504 (1978), where a matter is committed to the discretion of the district court, a petitioner cannot meet the "clear and indisputable" right test which is a condition precedent to the issuance of the extraordinary relief sought in mandamus. The Government argues that the findings of untimeliness and insufficiency made below are discretionary and therefore preclude the writ which IBM would have us issue. We do not agree. Calvert Fire Insurance was not a case involving recusal but rather dealt with the determination of a trial judge to defer federal proceedings until the termination of concurrent state litigation. This the Court found was a matter within the discretion of the district court. "Where a matter is committed to the discretion of a district court, it cannot be said that a litigant's right to a particular result is "clear and indisputable.' " Id.
The question here is not whether the trial judge has abused his discretion but whether he could exercise any discretion because of a personal, extrajudicial bias which precludes dispassionate judgment. This presents a distinguishable issue. This court has long since taken the position that there are "few situations more appropriate for mandamus than a judge's clearly wrongful refusal to disqualify himself." Rosen v. Sugarman, 357 F.2d 794, 797 (1966). We do not read Calvert Fire Insurance Co. to overrule sub silentio this well established rule, followed by the great majority of other circuits as well.*fn3 A claim of personal bias and prejudice strikes at the integrity of the judicial process, and it would be intolerable to hold that the disclaimer of prejudice by the very jurist who is accused of harboring it should itself terminate the inquiry until an ultimate appeal on the merits. We conclude that we have the power to issue the writ but only if the petitioner has satisfied the burden of establishing that its right is "clear and indisputable."
On July 19, 1979 five distinguished members of the Board of Directors of IBM (William T. Coleman, Jr., Carla Anderson Hills, John N. Irwin II, Wiliam W. Scranton and Irving S. Shapiro), acting as a special committee of the Board, filed an affidavit stating their belief, as noted above, that Chief Judge Edelstein "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." The committee requested his recusal and the assignment of another judge to hear the case. The affidavit was filed pursuant to the Fifth Amendment of the United States Constitution, and Sections 144 and 455 of Title 28, United States Code. The action of the committee was based upon the affidavits of IBM trial counsel and certain IBM witnesses and the appendices attached thereto which include some 2500 pages of charges. The Government has responded with its own appendix of approximately 550 pages and IBM has replied with another appendix of 250 pages. In substance, IBM's charge of bias and prejudice is based upon the following allegations:
1) The Chief Judge has become an advocate for the plaintiff, disrupting the direct testimony of IBM's witnesses, cross-examining IBM witnesses himself, shielding plaintiff's witnesses from cross-examination, and routinely abusing IBM's witnesses and counsel.
2) His rulings on questions of evidence, procedure and discovery have been inconsistent and the general conduct of the trial has been in ...