The opinion of the court was delivered by: EDELSTEIN
On May 17, 1982 International Business Machines Corporation ("IBM") delivered to the court an affidavit requesting this court to recuse itself pursuant to 28 U.S.C. §§ 144, 455, and the fifth amendment of the United States Constitution from further participation in this proceeding.
The affidavit, signed by Frank T. Carey, chairman of the board of directors of IBM, states:
I believe that Judge David N. Edelstein, the judge who presided over the trial of U. S. v. IBM and who, since the dismissal of that case by stipulation of the parties on January 8, 1982, has nevertheless purported to enter "orders", to hold "hearings" and otherwise to conduct "proceedings" therein, has a personal bias and prejudice against IBM; that his impartiality to conduct any further proceedings whatever with respect to IBM or the subject matter of U. S. v. IBM may reasonably be questioned; that he has a bent of mind that will prevent impartiality of judgment; and that this bias and prejudice could not have come from any source other than an extrajudicial source.
The conclusion quoted above is based on the affidavit of Thomas D. Barr, dated May 17, 1982. The allegations in the Barr affidavit are generally that the court "has acted in excess of (its) ... lawful and constitutional powers", "has violated the Code of Judicial Conduct", "has engaged in a campaign to smear Mr. Baxter and to reverse the dismissal of U. S. v. IBM ", and "has expressed publicly an opinion concerning the merits of dismissal ... and publicly accused Mr. Baxter of having a conflict of interest".
On January 8, 1982 the Department of Justice and IBM filed a stipulation of dismissal in this case. On February 8, the court held a conference regarding the parties' request to vacate certain pre-trial orders concerning the preservation of documents. On March 2, the court convened another conference to make certain correspondence between a Mr. Erickson of the Memorex Corporation and Assistant Attorney General William F. Baxter, and the court's concern over the correspondence, a matter of record. On March 19, the court issued an order granting Philip M. Stern, by his attorneys, leave to appear as amicus curiae. The court also entered an order at the request of amicus curiae Philip Stern setting a hearing for April 8 on the following issues:
(1) Whether the stipulation of dismissal filed on January 8, 1982 is ineffective and a nullity because of the failure to comply with the provisions of the Antitrust Procedures and Penalties Act, 15 U.S.C. § 16(b) et seq. ("Tunney Act"), and
(2) Whether the stipulation of dismissal is ineffective and a nullity because prior activities of Assistant Attorney General William F. Baxter disqualified him from participation in the review and dismissal of this case.
The hearing date was adjourned once at the request of Mr. Barr. The new date set by the court for the hearing was April 19. On April 5, the Department of Justice moved for an adjournment of the hearing date until May 19. On April 6, IBM submitted to the court a letter and enclosure entitled "Memorandum for Judge Edelstein" in response to plaintiff's motion, stating its position that the court lacked jurisdiction following the dismissal. Later on April 6, the court entered an order adjourning the hearing date until May 19. On May 7, plaintiff moved for another adjournment of the hearing date to June 21 on the grounds that the Office of Professional Responsibility of the United States Department of Justice and the Acting Attorney General had not completed the review of the contention of amicus curiae Philip Stern that Assistant Attorney General William F. Baxter should have disqualified himself from involvement in this action, and that the United States would not be able to respond fully to all the issues raised by the March 19 Order to Show Cause until said review was completed. The court granted in part and denied in part plaintiff's motion. The hearing on the issue of the disqualification of Assistant Attorney General Baxter was adjourned to June 21. The May 19 hearing on the applicability of the Tunney Act, however, was not adjourned. The court also instructed that memoranda addressing the Tunney Act issue be filed before 5 P.M. on May 17. Shortly after 5 P.M. on May 17, IBM delivered to chambers its affidavit requesting recusal, its supporting affidavit, and a document entitled "Memorandum for Judge Edelstein Concerning the Antitrust Procedures and Penalties Act ("Tunney Act") and the Disqualification of Judge Edelstein."
IBM, in its April 6 "memorandum", and in its papers submitted in support of the instant request for recusal, suggests that any actions by the court following the dismissal are "entirely without any jurisdiction". IBM at no point moved to vacate any of the orders of the court for lack of jurisdiction. Rather, IBM has taken it upon itself to determine the court's jurisdiction, and having concluded that no jurisdiction exists, has submitted uncaptioned papers for the court's edification. The court looks with disfavor upon IBM's naked attempt to deny jurisdiction and its omission of a case caption from its papers. Further, IBM, after insisting that the court lacks jurisdiction to conduct further proceedings in this case, has adopted a seemingly contradictory position by interposing its views on a substantive issue which in IBM's view the court is powerless to decide.
IBM's position is without support. It is hornbook law that the court has jurisdiction to determine its own jurisdiction. As stated by Professor Wright:
"Jurisdiction to determine jurisdiction" refers to the power of the court to determine whether it has jurisdiction over the parties to and the subject matter of the suit. If the jurisdiction of a federal court is questioned, the court has the power, subject to review, to determine the jurisdictional issue.
C. Wright, The Law of Federal Courts 57-58 (3d ed. 1976). See 13 C. Wright & A. Miller, Federal Practice and Procedure § 3536 at 330-31 (1975). The leading case on this issue is United States v. United Mine Workers of America, 330 U.S. 258, 67 S. Ct. 677, 91 L. Ed. 884 (1947). In that case, the Supreme Court held that orders by the district court must be followed, even if it is ultimately determined that the court lacked jurisdiction. The district court has the power to determine if it has the capacity to hear and decide the merits of a case before it, and the court's orders preserving the status quo must be obeyed until the determination of jurisdiction. The Supreme Court, however, did state that ...