In Re Kensington International Ltd. , 368 F.3d 289 ( 2004 )


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  •                                                                                                                            Opinions of the United
    2004 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    5-17-2004
    In Re: Kensington
    Precedential or Non-Precedential: Precedential
    Docket No. 03-4212
    Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
    Recommended Citation
    "In Re: Kensington " (2004). 2004 Decisions. Paper 659.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2004/659
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    UNITED STATES COURT OF
    APPEALS FOR THE THIRD CIRCUIT                BEFORE:      FUENTES, SMITH and
    GARTH, Circuit Judges
    ___________
    (Opinion Filed: May 17, 2004)
    No. 03-4212
    ___________                      Roy T. Englert, Jr. (argued)
    Lawrence S. Robbins
    IN RE: KENSINGTON                       Robbins, Russell, Englert, Orseck &
    INTERNATIONAL LIMITED and                   Untereiner
    SPRINGFIELD ASSOCIATES, LLC,                 1801 K Street, N.W
    Petitioners                        Suite 411
    Washington, DC 20006
    ___________
    John J. Gibbons
    No. 03-4526                      Gibbons, Del Deo, Dolan, Griffinger &
    ___________                      Vecchione
    One Riverfront Plaza
    IN RE: D.K. ACQUISITION                   Newark, NJ 07102
    PARTNERS, L.P.; FERNWOOD
    ASSOCIATES, L.P.                       Attorneys for Petitioners in 03-4212
    AND DEUTSCHE BANK TRUST
    COMPANY AMERICAS, Petitioners                Charles Fried (argued)
    1545 Massachusetts Avenue
    ___________                      Cambridge, MA 02138
    No. 04-1468                      Richard Mancino
    ___________                      Marc Abrams
    Willkie, Farr & Gallagher
    IN RE: USG CORPORATION,                   787 Seventh Avenue
    Petitioner                       New York, NY 10019-6099
    On Petitions for Writs of Mandamus         Joanne B. Wills
    to the United States Bankruptcy Court       Jennifer L. Scoliard
    for the District of Delaware          Klehr, Harrison, Harvey, Branzburg &
    (Related to Bankruptcy Nos. 00-03837,        Ellers
    01-01139 and 01-02094)               919 North Market Street
    ___________                    Suite 1000
    Wilmington, DE 19083
    Argued on April 19, 2004
    1
    Attorneys for Petitioners in 03-4526
    Stephen C. Neal (argued)                      222 Delaware Avenue
    Scott D. Devereaux                            P.O. Box 1266, Suite 1200
    Cooley Godward                                Wilmington, DE 19899
    3000 El Camino Real
    5 Palo Alto Square                            Richard E. Flamm
    Palo Alto, CA 94306                           2840 College Avenue
    Suite A
    Daniel J. DeFranceschi                        Berkeley, CA 94705
    Paul N. Heath
    Richards Layton & Finger                      Attorneys for Respondents Owens
    One Rodney Square                             Corning, et al.
    P.O. Box 551
    Wilmington, DE 19899                          David M. Bernick (argued)
    Michelle H. Browdy
    David G. Heiman                               Janet S. Baer
    Jones Day                                     Kirkland & Ellis
    North Point                                   200 East Randolph Drive
    901 Lakeside Avenue                           Suite 6500
    Cleveland, OH 44114-1190                      Chicago, IL 60601
    Paul R. DeFilippo                             Christopher Landau
    Wollmuth, Maher & Deutsch                     Ashley C. Parrish
    One Gateway Center                            Kirkland & Ellis
    Newark, NJ 07102                              655 Fifteenth Street, NW
    Washington, DC 2005
    Attorneys for Petitioner in No. 04-1468
    Laura Davis Jones
    Charles O. Monk, II (argued)                  David W. Carickhoff, Jr.
    Saul Ewing                                    Pachulski, Stang, Ziehl, Young, Jones &
    100 South Charles Street                      Weintraub
    Baltimore, MD 21201                           919 North Market Street
    16th Floor
    Norman L. Pernick                             P.O. Box 8705
    J. Kate Stickles                              Wilmington, DE 19899
    Saul Ewing
    2
    Attorneys for Respondent W.R. Grace &       McMonagle and Dean M. Trafelet
    Co.
    Daniel K. Hogan
    Elihu Inselbuch (argued)                    Law Offices of Daniel K. Hogan
    Peter Van N. Lockwood                       1701 Shallcross Avenue
    Nathan D. Finch                             Suite C
    Caplin & Drysdale                           Wilmington, DE 19806
    399 Park Avenue, 27th Floor
    New York, NY 10022                          Sander L. Esserman
    Robert T. Brousseau
    Marla R. Eskin                              David J. Parsons
    Mark T. Hurford                             Stutzman, Bromberg, Esserman & Plifka
    Campbell & Levine                           2323 Bryan Street
    800 North King Street                       Suite 2200
    Suite 300                                   Dallas, TX 75201-2689
    Wilmington, DE 19801
    Attorneys for Respondent Baron & Budd
    Attorneys for Respondents Official          Claimants
    Committee of Asbestos Claimants of
    Owens Corning, Official Committee of        Jeffrey S. Trachtman
    Asbestos Personal Injury Claimants of       Kramer, Levin, Naftalis & Frankel
    W.R. Grace and Official Committee of        919 Third Avenue
    Asbestos Personal Injury Claimants of       39th Floor
    USG Corporation                             New York, NY 10022
    Michael J. Crames (argued)                  Adam G. Landis
    Jane W. Parver                              Rebecca L. Butcher
    Aaron Stiefel                               Landis, Rath & Cobb
    Edmund M. Emrich                            919 Market Street
    Kaye Scholar                                Suite 600, P.O Box 2087
    425 Park Avenue                             Wilmington, DE 19899
    New York, NY 10022
    Attorneys for Respondent Credit Suisse
    Edwin J. Harron                             First Boston Corp
    Young, Conaway, Stargatt & Taylor
    P.O. Box 391, 1000 West Street              Neal J. Levitsky
    Brandywine Building, 17th Floor             L. Jason Cornell
    Wilmington, DE 19899                        Fox Rothschild
    824 North Market Street
    Attorneys for Respondents James J.          Suite 810
    3
    Wilmington, DE 19899-2323                  Armstrong World Industries, Inc.
    Henry W. Simon                             Kenneth Pasquale
    Robert A. Simon                            Lewis Kruger
    Simon & Simon                              Stroock, Stroock & Lavan
    3327 Winthrop Avenue                       180 Maiden Lane
    Suite 200                                  New York, NY 10038
    Fort Worth, TX 76116
    Attorneys for Intervenor Official
    Attorneys for Respondent Waters &          Committee of Unsecured Creditors of
    Kraus                                      USG Corporation
    Edward L. Jacobs                           Roderick R. McKelvie
    26 Audubon Place                           Fish & Neave
    P.O. Box 70                                1899 Pennsylvania Avenue, NW
    Fort Thomas, KY 41075                      Washington, DC 20006
    Attorney for Respondent Harry Grau &
    Sons
    Daniel J. Popeo
    Michael R. Lastowski                       Richard A. Samp
    Duane Morris                               Washington Legal Foundation
    1100 North Market Street                   2009 Massachusetts Avenue, N.W.
    Suite 1200                                 Washington, DC 20036
    Wilmington, DE 19801
    Attorneys for Amicus Curiae Washington
    Attorney for Intervenor Official           Legal Foundation
    Committee of Unsecured Creditors of
    USG Corp.                                  James L. Patton, Jr.
    Young, Conaway, Stargatt & Taylor
    Mark E. Felger                             P.O. Box 391, 1000 West Street
    Jeffrey R. Waxman                          Brandywine Building, 17th Floor
    Cozen & O’Connor                           Wilmington, DE 19899
    1201 Market Street
    Suite 1400                                 Attorney for Amicus Curiae Eric D.
    Wilmington, DE 19801                       Green
    Attorneys for Intervenor Official          Timothy K. Lewis
    Committee of Unsecured Creditors of        Schnader Harrison Segal & Lewis
    4
    2001 Pennsylvania Avenue NW                     questioned” under 28 U.S.C. § 455(a).
    Suite 300                                       The Petitions asserted that disqualification
    Washington, DC 20006                            was also wa r r a n te d u nder
    28 U.S.C. § 455(b)(1) as a result of ex
    Craig Berrington                                parte communications among Judge
    Lynda S. Mounts                                 Wolin and his advisors, the parties, and
    American Insurance Association                  the attorneys.1
    1130 Connecticut Avenue, NW
    Suite 1000                                             Following a hearing on December
    Washington, DC 20015                            12, 2003, we concluded that we should
    not reach the merits of the Mandamus
    Attorneys for Amicus Curiae American            Petitions. Our decision was “prompted by
    Insurance Association                           our overarching concern that we [did] not
    have an adequately developed evidentiary
    record before us.” In re Kensington Int’l
    Garth, Circuit Judge:                           Ltd., 
    353 F.3d 211
    , 214 (3d Cir. 2003).
    “[R]eluctant to act in a complex situation
    Approximately six months ago, two        such as this one, where so many vital
    emergency petitions were filed in this          interests are at stake, without a developed
    Court asking us to issue Writs of               evidentiary record,” we remanded the
    Mandamus disqualifying Senior District          proceedings to Judge Wolin while
    Court Judge Alfred M. Wolin of the              retaining jurisdiction. 
    Id. at 223.
    We
    District of New Jersey from continuing to       instructed Judge Wolin to vacate his order
    preside over two of five asbestos-related       staying discovery and allow expedited
    bankruptcies that this Court had assigned       discovery to proceed. We also directed
    to him in December 2001 for coordinated         that he issue an expedited ruling on all of
    case management. The five companies in          the recusal motions pending before him.
    bankruptcy are Owens Corning, W.R.              
    Id. USG Corp.
    by this time had also filed
    Grace & Co., USG Corporation,                   a recusal motion.
    Armstrong World Industries, Inc., and
    Federal-Mogul Global, Inc. (collectively,
    the “Five Asbestos Cases”).                            1
    The Petitioners had originally
    moved for recusal in the Bankruptcy
    The Petitions, which were brought        Court, but filed Petitions for Writs of
    by creditors of Owens Corning and W.R.          Mandamus in this Court after Judge Wolin
    Grace & Co., alleged that Judge Wolin           withdrew the recusal motions from the
    had, through his association with certain       Bankruptcy Court and stayed the
    consulting Advisors which he had                corresponding discovery. At the time that
    appointed, created a perception that his        the Petitions were filed, Judge Wolin had
    impartiality “might reasonably be               not ruled on the recusal motions.
    5
    On remand, Judge Wolin and the              from further presiding over those three
    parties faithfully followed our instructions.       bankruptcies. See Alexander v. Primerica
    Under stringent time restrictions and               Holdings, Inc., 
    10 F.3d 155
    , 162 (3d Cir.
    Judge Wolin’s effective oversight, the              1993) (“For purposes of § 455(a)
    parties conducted extensive discovery into          disqualification, it does not matter whether
    the facts surrounding the recusal motions.          the district court judge actually harbors
    Following an additional round of briefing,          any bias against a party or the party’s
    Judge Wolin issued a comprehensive                  counsel.”). We emphasize that our review
    written opinion and order on February 2,            of the record has not revealed the slightest
    2004 denying the recusal motions both on            hint of any actual bias or partisanship by
    the merits and on timeliness grounds. See           Judge Wolin. On the contrary, Judge
    generally In re Owens Corning, 305 B.R.             Wolin has throughout his stewardship
    175 (D. Del. 2004).                                 over the Five Asbestos Cases exhibited all
    of the judicial qualities, ethical conduct,
    As noted, we retained jurisdiction           and characteristics emblematic of the most
    over the Mandamus Petitions. These                  experienced, competent, and distinguished
    Petitions were joined by USG Corp., the             Article III jurists. But the test for
    debtor in the USG Corp. bankruptcy. The             disqualification under § 455(a) is not
    Official Committee of Unsecured                     actual bias; it is the perception of bias.
    Creditors in the Armstrong World                    See 
    id. Industries, Inc.
    bankruptcy filed a fourth
    Petition, but due to its late filing we did                  Second, we find that the motions
    not consolidate it with the other Petitions.        for recusal in the Owens Corning and
    W.R. Grace & Co. bankruptcies were
    I.                              timely under 28 U.S.C. § 455(a). In
    reaching that conclusion, we disagree with
    Having exhaustively reviewed the            Judge Wolin that it was appropriate, in
    now developed record, we have reached               this case, to impute knowledge of the
    the following conclusions:                          grounds for disqualification to the
    Petitioners. The evil that a timeliness
    First, a reasonable person, knowing         r e q u i r e me n t is i n t e n d e d to
    all of the relevant circumstances, would            prevent—namely, holding in reserve a
    conclude that Judge Wolin’s impartiality            recusal demand until such time that a party
    might reasonably be questioned in the               perceives a strategic advantage—is served
    Owens Corning, W.R. Grace & Co. and                 by requiring actual knowledge. Because
    USG Corp. bankruptcies. Although the                the Petitioners did not themselves learn
    record does not demonstrate that Judge              about the Advisors’ conflict of interest
    Wolin has done anything wrong or                    (discussed infra) until shortly before they
    unethical or biased, he must be                     moved for disqualification, their motions
    disqualified under 28 U.S.C. § 455(a)               were timely.
    6
    Third, USG Corp. stands on a              November 3, 2003 stayed certain
    different footing. The record discloses          proceedings before the Bankruptcy
    that the USG debtors and Unsecured               Courts, we will set a separate date to hear
    Creditors Committee knew as early as             argument on the Armstrong Petition and
    January 2002 about the Advisors’ conflict.       will render a decision in that case in due
    However, other factors come into play as         course.
    to USG Corp. (which we discuss infra)
    requiring Judge Wolin’s disqualification.                Sixth, we likewise do not rule on, or
    express an opinion as to, the fifth
    Fourth, we do not decide whether          bankruptcy, Federal-Mogul Global, Inc.,
    the ex parte communications between              albeit for a different reason. None of the
    Judge Wolin, on the one hand, and the            parties in Federal-Mogul has moved for
    Advisors, parties, and attorneys, on the         Judge Wolin’s recusal in the Bankruptcy
    other, provide a separate ground for             Court or filed a Petition for Mandamus in
    disqualification under 28 U.S.C.                 our Court. Accordingly, we will not
    § 455(b)(1). Nor do we decide whether            disturb Judge Wolin’s assignment in
    those motions are timely. We feel                dealing with the Federal-Mogul Global,
    constrained, however, to note that we look       Inc. bankruptcy.
    with disfavor upon both the extent to
    which, and manner in which, Judge Wolin                    II. BACKGROUND
    engaged in ex parte communications.
    Whatever value the ex parte meetings may                 In our earlier opinion, we described
    have had in moving the Five Asbestos             the parties, the allegations, the responses,
    Cases along or creating a settlement-            the procedures, our standard of review,
    friendly atmosphere was outweighed by            and our standards for disqualification
    the attendant risks and problems, which          under 28 U.S.C. § 455(a) and (b)(1). See
    are catalogued in some detail in the             
    Kensington, 353 F.3d at 214-22
    . We
    Petitioners’ briefs. See also Code of            perceive no need to repeat these matters in
    Conduct for U.S. Judges Canon 3 § A(4)           detail, but we will refer to those that are
    (2003).                                          particularly relevant here, as well as the
    supplemental concerns and facts that have
    Fifth, we reach no decision on the       come to our attention.
    Petition for Mandamus filed in the
    Armstrong World Industries, Inc.                        After our December 12, 2003
    bankruptcy. As mentioned above, that             hearing, which gave rise to the expedited
    Petition was not consolidated with the           discovery and Judge Wolin’s expedited
    Petitions in Owens Corning, W.R. Grace           ruling on the recusal motions, we received
    & Co., and USG Corp. Rather than delay           two additional Petitions for a Writ of
    this opinion, and recognizing that our           Mandamus in the USG Corp. and
    initial orders dated October 30, 2003 and        Armstrong World Industries, Inc.
    7
    bankruptcies. Accordingly, we list the             in the discharge of his functions. These
    parties now seeking Judge Wolin’s                  Advisors were not selected from any
    disqualification and those opposing it:            judicial category (i.e., they were not
    federal magistrate judges, special masters,
    Parties Seeking Recusal2                           or law clerks4 ); they consisted of lawyers,
    Kensington International Ltd, et al.; Credit       retired state court judges, and professors
    Suisse First Boston, as agent for Owens            with prior experience in asbestos
    Corning’s pre-petition bank creditors;             litigation. The Petitioners claim that
    D.K. Acquisition Partners, L.P., et al.;           Judge Wolin, who has presided over the
    USG Corp.; Official Committee of                   Five Asbestos Cases since December
    Unsecured Creditors of USG Corp.;                  2001, has through his appointment of the
    Official Committee of Unsecured                    Advisors and his participation with them
    Creditors of Armstrong World Industries,           in administering the bankruptcies, created
    Inc.                                               a perception in the mind of the reasonable
    person that his impartiality could be
    Parties Opposing Recusal3                          questioned, and this being so, that he must
    Owens Corning; Baron & Budd                        be disqualified.
    Claimants; Legal Representative for
    Future Asbestos Personal Injury Claimants                  The Petitions filed in the Owens
    in Owens Corning & USG Corp.; W.R.                 Corning and W.R. Grace & Co.
    Grace & Co.; Official Committee of                 bankruptcies seek Judge Wolin’s
    Asbestos Personal Injury Claimants of              disqualification primarily pursuant to 28
    W.R. Grace & Co.; Official Committee of            U.S.C. § 455(a), which reads: “Any
    Asbestos Personal Injury Claimants of              justice, judge, or magistrate judge of the
    USG Corp.                                          United States shall disqualify himself in
    any proceeding in which his impartiality
    Essentially, the parties seeking             might reasonably be questioned.” As we
    disqualification assert that Judge Wolin           stated in our earlier opinion, “[t]he test for
    had appointed five Advisors to assist him          recusal under § 455(a) is whether a
    reasonable person, with knowledge of all
    2
    the facts, would conclude that the judge’s
    The following amicus curiae
    supported the recusal petitions: American
    Insurance Partners and Washington Legal
    4
    Foundation.                                                 As a matter of historical interest,
    then-District Court Judge Sarokin was
    3
    Amicus curiae Eric Green, Legal            assisted in an action involving the
    Representative for Future Asbestos                 Tobacco Industry by a Magistrate Judge
    Personal Injury Claimants in Federal               and a Special Master. See Haines v.
    Mogul Global, Inc., supported the entities         Liggett Group Inc., 
    975 F.2d 81
    (3d Cir.
    opposing recusal.                                  1992).
    8
    impartiality might reasonably be                  bankruptcy whatever relief, if any, we
    questioned.” 
    Kensington, 353 F.3d at 220
             apply to the Owens Corning, W.R. Grace,
    (citing Edelstein v. Wilentz, 
    812 F.2d 128
           and USG Corp. bankruptcies.
    (3d Cir. 1987)). While this test is
    acknowledged to be the standard for                      To complete our recital of the
    disqualification under § 455(a), the              matters we must consider, we note that the
    interpretation of what constitutes a              parties in the Federal-Mogul Global, Inc.
    reasonable person has been contested here.        bankruptcy, which is the fifth asbestos-
    We will discuss that issue later in this          related bankruptcy under Judge Wolin’s
    opinion.                                          charge, have not participated in any of the
    proceedings which we review.5
    After we scheduled the briefing and
    hearing dates for the Owens Corning and                  Even though we described the facts
    W.R. Grace & Co. Petitions, USG Corp.             in some detail in our earlier opinion,
    filed a third Petition for Mandamus. That         certain factual circumstances require
    Petition, while also seekin g                     further elaboration here because they bear
    disqualification pursuant to § 455(a),            directly on the merits and timeliness of the
    focused primarily on the standard of              petitions.
    disqualification found in § 455(b)(1).
    That particular subsection requires a                          A. The Parties
    justice, judge, or magistrate judge to
    disqualify himself only if “he has a                     The first petition was filed by
    personal bias or prejudice concerning a           Kensington International Limited and
    party, or personal knowledge of disputed          Springfield Associates, LLC, two creditors
    evidentiary facts concerning the                  of Owens Corning (collectively,
    proceeding.” 28 U.S.C. § 455(b)(1). The           “Kensington”).      That petition was
    thrust of USG Corp.’s Petition is that            followed in short order by a second
    Judge Wolin acquired personal knowledge           petition from D.K. Acquisition Partners,
    of disputed evidentiary facts by
    conducting ex parte meetings with the
    Advisors, parties, and attorneys.                        5
    An amicus curiae brief was filed
    by Eric D. Green, who is the
    More recently, the Official                representative for future asbestos
    Committee of Unsecured Creditors of               personal-injury claimants in the Federal-
    Armstrong World Industries, Inc. (the             Mogul bankruptcy. See 
    note 3 supra
    . An
    “Armstrong Committee”) also filed a               amicus curiae brief does not trigger our
    Petition for a Writ of Mandamus. That             jurisdiction and we lack the authority to
    Petition neither seeks nor opposes Judge          issue a writ of mandamus to non-parties.
    Wolin’s disqualification. Instead, it asks        See In re School Asbestos Litig., 977 F.2d
    that we extend to the Armstrong                   764, 798 (3d Cir. 1992).
    9
    L.P., Fernwood Associates, L.P., and                private practitioners, or academics.
    Deutsche Bank Trust Company Americas,               Pursuant to Judge Wolin’s order, the
    three creditors of W.R. Grace & Co.                 Advisors were to “advise the Court and to
    (c ol le ct iv el y, “D.K. A cquisitio n            undertake such responsibilities, including
    Partners”). The third petition was filed            . . . mediation of disputes, holding case
    more recently by USG Corporation, the               m a n a g e me n t c o n f e r e n c e s , a n d
    debtor in the USG bankruptcy.                       consultation with counsel, as the Court
    may delegate to them individually.” The
    B. Ex Parte Communications and the                 Advisors could also be delegated “certain
    Advisors                              authority to hear matters and to advise the
    Court on issues that may arise in these five
    On December 20, 2001, Judge                 large Chapter 11 cases.” Judge Wolin’s
    Wolin held a case management conference             order provided that he could, “without
    for the Five Asbestos Cases. Although               further notice, appoint any of the
    there is no official record of what was said        Court-Appointed Consultants to act as a
    at that conference, Judge Wolin produced            Special Master to hear any disputed matter
    a script (“talking points”) which reflects          and to make a report and recommendation
    what he said to the parties. According to           to the Court on the disposition of such
    the script, Judge Wolin announced that              matter.”
    “[i]n order to effectively case manage
    complex litigation, it is necessary for the                Over the next two years, Judge
    judge to speak and/or meet with attorneys           Wolin met repeatedly, on an ex parte
    on an ex parte basis, without permission            basis, with the parties and their attorneys.
    of adversary attorneys.” Judge Wolin                Despite his prior assurance that he would
    further announced that “[a]ny objection to          do so “sparingly,” he acknowledged more
    such ex parte communications is deemed              recently that he met ex parte with
    waived,” but he assured the parties and             interested parties “on innumerable
    attorneys that he would use his power to            occasions.” (Supp. Resp. dated Nov. 20,
    meet ex parte “sparingly.” None of the              2003). This is supported by the fee
    parties objected at that time.                      applications filed by the Advisors, which
    reveal more than 325 hours of ex parte
    A week later, Judge Wolin named             meetings with the attorneys for various
    five “Court Appointed Consultants” (the             parties in the Five Asbestos Cases. Many
    “Advisors”) to assist him in the Five               of these meetings took place at restaurants
    Asbestos Cases. The five individuals he             over lunch or dinner or at law firms.
    named were David Gross, Judson Hamlin,              During the proceedings on remand, Judge
    William Dreier, John Keefe, and Francis             Wolin acknowledged that he received
    McGovern, all of whom had prior                     extra-judicial information at the ex parte
    experience with asbestos or mass tort               conferences. (See Joint Appendix “JA” at
    litigation either as state court judges,            1165.)
    10
    The ex parte meetings were not              11 U.S.C. § 502(c),8 the tensions between
    limited to the parties and their attorneys.         various creditor classes, and Rule 706
    In the first half of 2002, Judge Wolin and          panels.9 These issues are highly relevant
    the Advisors held a series of four ex parte         concerns in asbestos litigation. The
    meetings at which they discussed, in                primary purpose of these meetings was to
    Advisor McGovern’s words, “[j]ust                   educate Judge Wolin on the issues likely
    whatever issue you can think of,”                   to arise in the Five Asbestos Cases or, as
    including claims bar dates, the chrysotile          Advisor Gross put it, “to assist Judge
    defense,6 proof of claim forms, pleural             Wolin . . . in becoming more conversant
    plaques,7 the pros and cons of various              with the details of the asbestos litigation.”
    approaches to estimation under
    One of these initial meetings was
    6
    attended by Bob Komitor, a plaintiff’s
    “Of the three basic kinds of             attorney. According to Advisor Dreier,
    asbestos fibers—amosite, crocidolite, and           Komitor described an expert, Dr. Peter
    chrysotile—the straight, solid amosite and          Barrett, as “a charlatan” and criticized the
    crocidolite fibers are less likely to break         chrysotile defense. Dr. Barrett had been
    up in the lungs and more likely to cause            previously engaged by USG Corp. While
    mesothelioma than are the curly, hollow             there is no official record of this meeting,
    chrysotile fibers.” Menne v. Celotex                notes taken by Advisor Gross suggest that
    Corp., 
    861 F.2d 1453
    , 1456 (10th Cir.               some of the Advisors also expressed
    1988). Thus, asbestos manufacturers                 negative views about the positions taken
    sometimes raise a so-called “chrysotile             by USG’s expert and other USG Corp.
    defense” when sued by asbestos victims.             defenses.
    We have stated, however, that “[t]he
    absence or presence of chrysotile in                       Following this series of initial
    asbestos products is not an affirmative             meetings, Judge Wolin also held an ex
    defense which would require the                     parte meeting on November 19, 2002 with
    presentation of any evidence . . . .”
    Blancha v. Raymark Indus., 
    972 F.2d 507
    ,
    8
    514 (3d Cir. 1992).                                             11 U.S.C. § 502(c) states:
    “[t]here shall be estimated for purpose of
    7
    Pleural plaques is a medical             allowance under this section . . . any
    condition that consists of extensive pleural        contingent or unliquidated claim, the
    thickening on the exterior of the lungs.            fixing or liquidation of which, as the case
    See Dunn v. HOVIC, 
    1 F.3d 1362
    , 1365                may be, would unduly delay the
    (3d Cir. 1993). Pleural plaques are                 administration of the case.”
    “frequently seen in people who have been
    9
    exposed to significant doses of asbestos.”                  Rule 706 of the Federal Rules of
    Rogers v. Raymark Indus., 
    922 F.2d 1426
    ,            Evidence permits the court to appoint an
    1428 (9th Cir. 1991).                               independent panel of expert witnesses.
    11
    Advisors Gross, McGovern and Dreier to                     During the course of the Five
    discuss certain issues in the Owens                 Asbestos Cases, Advisor Hamlin prepared
    Corning bankruptcy. There is no official            a draft opinion in each of the Five
    transcript of this meeting, but Advisor             Asbestos Cases, a role that Hamlin likened
    Dreier took notes. On remand, Judge                 to that of a federal magistrate judge. At
    Wolin rejected inquiries concerning this            his deposition, Hamlin explained that he
    meeting on the ground that it included              would normally receive a phone call from
    settlement discussions. As a result,                Judge Wolin’s chambers informing him
    Advisor Dreier’s notes were filed under             that an appeal had been taken from the
    seal both in the District Court and by us.          Bankruptcy Court and that he was to
    prepare a draft opinion for Judge Wolin.
    Two days before the meeting,                 The issues on which he drafted opinions
    Owens Corning had distributed a draft               included, among other things, bar dates for
    plan of reorganization that was supported           asbestos property claims, defenses by
    by Credit Suisse First Boston, as agent for         USG Corp. to asbestos personal injury
    the pre-petition creditors. The draft plan          claims, and proof of claim forms.
    called for certain issues to be resolved
    prior to plan confirmation. At the                      C. The G-I Holdings Bankruptcy
    November 19th meeting, the Advisors
    discussed some of the key issues contained                  Two months before Judge Wolin
    in the proposed plan with Judge Wolin               appointed the Advisors in the Five
    and explained their effects as well as what         Asbestos Cases, the Bankruptcy Court for
    appear to be certain settlement figures that        the District of New Jersey (Chief Judge
    had been discussed with the parties.                Rosemary Gambardella) had appointed
    Advisor Hamlin to serve as the “Legal
    At a conference held on November             Representative of Present and Future
    21, 2002, Judge Wolin stated that he did            Holders of Asbestos-Related Demands” in
    not favor Owens Corning’s proposed plan.            still another asbestos-related bankruptcy
    In January 2003, Owens Corning filed a              case captioned In re G-I Holdings Inc.
    revised plan of reorganization that this            The G-I Holdings bankruptcy is not
    time was supported by the tort claimants            related to the Five Asbestos Cases, and
    who had objected to the first draft plan.10         Judge Wolin has played no role in the G-I
    Holdings proceedings. There is, however,
    a substantial likelihood and a tacit, if not
    express, agreement that some of the future
    10
    The Petitioners argue that a             claimants in G-I Holdings will also have
    reasonable person could perceive that               claims against one or more of the debtors
    Judge Wolin’s impartiality could                    in the Five Asbestos Cases.
    reasonably be questioned in this sequence
    of events.                                                 Less than one month after Judge
    12
    Wolin appointed the five Advisors,                motion. That stay prompted Kensington
    Hamlin filed an application in G-I                to file a petition in our Court seeking a
    Holdings to engage Advisor Gross as his           Writ of Mandamus directing Judge Wolin
    local counsel. Chief Judge Gambardella            either to disqualify himself or to withdraw
    approved Gross as Hamlin’s local counsel.         his discovery stay.
    D. Kensington’s Recusal Motion                   E. The District Court’s Responses
    Almost two years later, Kensington                 Judge Wolin submitted three
    filed a motion in the Bankruptcy Court            written responses to Kensington’s petition.
    seeking to recuse Judge Wolin from                In his first response, dated November 3,
    further participation in the Owens Corning        2003, Judge Wolin announced that he
    bankruptcy. Kensington asserted that              would “judge the Motion to Recuse on the
    Judge Wolin was precluded under 28                law and facts presented after all of the
    U.S.C. § 455(a) from continuing to                parties have been heard in full” and that he
    preside over the Owens Corning                    would seek to resolve the motion as
    bankruptcy because two of his Advisors            quickly as possible.
    (Gross and Hamlin) allegedly had a
    conflict of interest as a result of their                In his second response, dated
    participation in G-I Holdings.                    November 21, 2003, Judge Wolin
    answered the suggestion that his ex parte
    Three days later, the debtors in the        communications with the Advisors and
    W.R. Grace bankruptcy applied to                  various attorneys somehow required his
    Bankruptcy Judge Fitzgerald to appoint            recusal. Judge Wolin explained that the
    Mr. Hamlin as the Legal Representative            purpose of the ex parte communications
    for Future Asbestos Claimants of W.R.             “was to ensure that each committee or
    Grace & Co. The application disclosed             corporate constituency was afforded the
    that Mr. Hamlin was already serving as an         opportunity to provide to the Court
    Advisor to Judge Wolin in the Five                insights as to why, in the competition for
    Asbestos Cases, including, of course, the         limited dollars, its claim was just.” Judge
    W.R. Grace bankruptcy. W.R. Grace &               Wolin also wrote that, “[g]iven that these
    Co. ultimately withdrew its application           meetings occurred on a regular basis
    after Judge Fitzgerald expressed her              without complaint and given that the
    opinion that Hamlin could not serve as the        December 20, 2001 case management
    Futures Representative in the W.R. Grace          conference alerted all concerned that ex
    bankruptcy.                                       parte meetings were part of the District
    Court’s case management plan, it strikes a
    On October 23, 2003, Judge Wolin           discordant note that the conduct of ex
    entered an order staying all discovery in         parte conferences would be the ground for
    connection with Kensington’s recusal
    13
    a recusal motion.”11                                instructions that he allow expedited
    discovery to proceed. We also required
    In his third response, dated                 that he rule on the pending recusal
    December 5, 2003, Judge Wolin again                 motions. We were motivated primarily by
    defended his Case Management methods                our concern that we did not have an
    and, in particular, his decision to allow ex        adequately developed evidentiary record
    parte communications.                               before us.
    F. D.K. Acquisition Partners’                          As we previously stated, on
    Mandamus Petition                          February 2, 2004, following expedited
    discovery, Judge Wolin issued a 102-page
    Meanwhile, D.K. Acquisition                  written opinion and order denying the
    Partners filed a motion in the W.R. Grace           motions for recusal. First, Judge Wolin
    bankruptcy case seeking Judge Wolin’s               found that the evidence failed to disclose
    recusal. A week later, D.K. Acquisition             that there was an appearance of
    Partners filed a petition in this Court             impropriety under § 455(a) or that his ex
    seeking the same relief requested by                parte communications required his recusal
    Kensington.      We consolidated D.K.               under § 455(b)(1). Second, Judge Wolin
    Acquisition Partners’ Mandamus Petition             determined that the motions were not
    with Kensington’s Petition.                         timely because the parties seeking his
    recusal either had actual or imputed
    G. Remand                            knowledge of the facts giving rise to the
    recusal motions long before the motions
    Following an extended hearing and            were filed. He also charged that the
    after we had received briefs from the               Petitions were prompted by strategic,
    parties and amici, we remanded the                  rather than ethical, motivations.
    proceedings to Judge Wolin with
    III. JURISDICTION
    11
    Around the same time that Judge                   We have jurisdiction to issue Writs
    Wolin filed his second response, USG                of Mandamus under the All Writs Act, 28
    Corporation filed a motion in the                   U.S.C. § 1651(a), which provides that
    Bankruptcy Court seeking his recusal.               “[t]he Supreme Court and all courts
    USG Corporation argued that the                     established by Act of Congress may issue
    extensive ex parte communications                   all writs necessary or appropriate in aid of
    between Judge Wolin and the Advisors (as            their respective jurisdictions and agreeable
    well as other persons) provided an                  to the usages and principles of law.” We
    independent basis for Judge Wolin’s                 also retained jurisdiction when we
    disqualification under both 28 U.S.C.               remanded the proceedings to Judge Wolin
    § 455(a) and (b)(1).                                for discovery and his ruling.            See
    14
    
    Kensington, 353 F.3d at 214
    (“We will               court’s order denying recusal. See S. Rep.
    retain jurisdiction over any further                93-419 (1973), H. Rep. 93-1453 (1974)
    proceedings . . . .”).                              (explaining that the addition of
    subsection (a) to § 455 was not intended
    IV. STANDARD OF REVIEW                          to alter the abuse of discretion standard of
    review). “When the need for a writ of
    When a Petition for a Writ of                mandamus is determined by this court to
    Mandamus challenges a district court                be ‘clear and indisputable,’ a district
    judge’s decision not to recuse himself, we          judge’s decision not to recuse himself or
    normally review that decision for an abuse          herself necessarily also will have been an
    of discretion. Selkridge v. United of               abuse of discretion or a clear legal error.” 12
    Omaha Life Ins. Co., 
    360 F.3d 155
    , 166
    (3d Cir. 2004). But the mandamus
    petitions in Owens Corning and W.R.                        12
    It is somewhat strange to speak in
    Grace & Co. are somewhat unique, from a             terms of an abuse of discretion where the
    procedural perspective, in that they arrived        underlying statute, 28 U.S.C. § 455, states
    in our Court before the District Court              that a judge “shall” disqualify himself or
    ruled on the recusal motions. Had we                herself if certain grounds are present. The
    reached the merits at that time instead of          abuse of discretion standard may be an
    remanding to the District Court, we would           anachronistic vestige of an earlier version
    have applied the “clear and indisputable”           of § 455. Prior to 1974, § 455 provided in
    standard that governs Petitions for a Writ          its entirety that a judge had to “disqualify
    of Mandamus. See Kerr v. U.S. Dist. Ct.,            himself in any case in which he has a
    
    426 U.S. 394
    , 403 (1976). The abuse of              substantial interest, has been of counsel, is
    discretion standard, even though it may             or has been a material witness, or is so
    have led to the same result, would have             related to or connected with any party or
    had no application.                                 his attorney as to render it improper, in his
    opinion, for him to sit on the trial, appeal,
    At oral argument, we asked the              or other proceeding therein.” 28 U.S.C. §
    parties to submit supplemental letters              455 (amended 1974) (emphasis added).
    addressing the appropriate standard of              Under that version, a judge had broad
    review where, as here, a Petition for               discretion to deny a recusal request even if
    Mandamus seeking to disqualify a district           the grounds for recusal were present. To
    court judge precedes a ruling by the                the extent judges continue to retain any
    district court. Having reviewed the                 discretion under the post-1974 version of
    submissions made by the parties, we now             § 455, it is only to determine if the “facts
    hold that Judge Wolin’s decision not to             asserted as comprising bias, a forbidden
    recuse himself must be reviewed for an              financial interest, kinship, or the
    abuse of discretion, as it is, in effect, no        appearance of partiality bring the trial
    different than an appeal from a district            court judge within the disqualifying
    15
    
    Alexander, 10 F.3d at 163
    n.9.                            American Bar Ass’n, 
    107 F.3d 1026
    , 1042 (3d Cir.
    V. DISCUSSION                                  1997) (“The standard for
    recusal is whether an
    A. Standard for Disqualification Under                    objective observer
    § 455(a)                                    reasonably might question
    the judge’s impartiality.”).
    Whenever a judge’s impartiality
    “might reasonably be questioned” in a              
    Selkridge, 360 F.3d at 167
    .
    judicial proceeding, 28 U.S.C. § 455(a)
    requires that the judge disqualify himself.               A party moving for disqualification
    The test for recusal under § 455(a) is             under § 455(a) need not show actual bias
    whether a reasonable person, with                  because § 455(a) “concerns not only
    knowledge of all the facts, would                  fairness to individual litigants, but, equally
    conclude that the judge’s impartiality             important, it concerns ‘the public’s
    might reasonably be questioned.                    confidence in the judiciary, which may be
    
    Alexander, 10 F.3d at 164
    .                         irreparably harmed if a case is allowed to
    proceed before a judge who appears to be
    “Under § 455(a), if a                       tainted.’” 
    Alexander, 10 F.3d at 162
           reasonable man, were he to                  (quoting School Asbestos, 977 F.2d at
    know all the circumstances,                 776).
    would harbor doubts about
    the judge’s impartiality                    B. Who is the Hypothetical Reasonable
    under the applicable                              Person under § 455(a)?
    standard, then the judge
    must recuse.”        In re                          Judge Wolin’s opinion of February
    Prudential Ins. Co. of                      2, 2004 supporting his order denying the
    America Sales Practices                     recusal motions held that the reasonable
    Litigation, 
    148 F.3d 283
    ,                   person under § 455(a) is someone “with
    343 (3d Cir. 1998) (internal                the professional skills and experience in
    quotations omitted); see                    mass-tort [asbestos-related] bankruptcies
    Massachusetts School of                     sufficient to understand the import of the
    Law at Andover, Inc. v.                     facts presented,” thus excluding
    “laypersons or attorneys not conversant
    with the basics of mass-tort bankruptcy
    definition.” 2 Steven Alan Childress &             practice.” Owens Corning, 305 B.R. at
    Martha S. Davis, Federal Standards of              190. In reaching that conclusion, Judge
    Review § 12.05 (3d ed. 1999). If the               Wolin reasoned that, “where proceedings
    answer to that inquiry is “yes,”                   are by their nature inscrutable to outsiders,
    disqualification must follow.                      the wider world must rely upon those
    16
    persons actually involved to report on             straightforward in this case.           The
    those proceedings’ capacity to produce a           gravamen of the Petitions is that Judge
    fair result.” 
    Id. Wolin was
    tainted by the involvement of
    two court-appointed advisors who, at the
    To the best of our knowledge,              same time that they were supposed to be
    Judge Wolin’s gloss on § 455(a)’s                  giving neutral advice in the Five Asbestos
    “reasonable person” standard has no                Cases, represented a class of tort claimants
    precedent. It also appears to be in tension        in another, unrelated asbestos-driven
    with our observation in School Asbestos            bankruptcy and espoused views therein on
    that § 455(a) was enacted by Congress              the same disputed issues that are at the
    because “‘people who have not served on            core of the Five Asbestos Cases.13
    the bench are often all too willing to
    indulge suspicions and doubts concerning                   We are confident that the average
    the integrity of judges.’”           School        layperson could grasp this alleged
    
    Asbestos, 977 F.2d at 782
    (quoting                 impropriety and, after being fully
    Liljeberg v. Health Servs. Acquisition             informed of all the surrounding
    Corp., 
    486 U.S. 847
    , 864-65 (1988)).               circumstances, could draw a conclusion
    Notably, the School Asbestos lawsuit was           about Judge Wolin’s ability to render a
    precisely the sort of complex, mass-tort           fair and impartial decision. That being so,
    litigation that Judge Wolin believed               we perceive no reason to depart from the
    required a more nuanced definition of the          traditional “man on the street” standard.
    reasonable person.                                 See Moran v. Clarke, 
    296 F.3d 638
    , 648
    (8th Cir. 2002) (using “average person on
    Judge Wolin distinguished School           the street” standard); Home Placement
    Asbestos on the ground that the                    Serv., Inc. v. Providence Journal Co., 739
    appearance of impropriety in that                  F.2d 671, 676 (1st Cir. 1984) (same);
    case—the district court judge had attended         Potashnick v. Port City Constr. Co., 609
    a scientific conference organized by the           F.2d 1101, 1111 (5th Cir. 1980) (same).
    plaintiffs’ counsel—“was simple enough
    for anyone to grasp.” Owens Corning,                     Judge Wolin’s definition of 
    the 305 B.R. at 190
    .          Judge Wolin’s            hypothetical reasonable person is contrary
    characterization suggests that the
    perception of impropriety in the Five
    Asbestos Cases is, by comparison, too                     13
    The Petitions also assert that
    complex for the average person to                  Judge Wolin should be recused because of
    comprehend. We cannot agree.                       his ex parte communications with the
    Advisors and the parties, but that is
    No one disputes that asbestos               grounded primarily in § 455(b)(1), which
    bankruptcies are complicated, but the              does not employ a reasonable person
    alleged perception of impropriety is fairly        “perception” standard.
    17
    to the goal of § 455(a). An attorney                         Before we can decide whether the
    familiar with asbestos bankruptcies                   reasonable person might question Judge
    presumably would have a higher threshold              Wolin’s impartiality, we must determine if
    for conflicts and alleged improprieties               his Advisors had a conflict of interest. If
    than the average layperson.              This         not, then our inquiry comes to an end
    contravenes the purpose of § 455, which is            because the Petitioners will have failed to
    “to promote public confidence in the                  show that they have a clear and
    integrity of the judicial process.”                   indisputable right to disqualification. On
    
    Liljeberg, 486 U.S. at 860
    (citing S. Rep.            the other hand, if there was a conflict, then
    No. 93-419, p. 5 (1973); H.R. Rep. No.                we must reach the question of whether that
    93-1453, p. 5 (1974)). Accordingly, we                conflict might be perceived by the
    agree with the Fourth Circuit Court of                reasonable person as having tainted Judge
    Appeals that the hypothetical reasonable              Wolin.
    person under § 455(a) must be someone
    outside the judicial system because                          Aside from the timeliness of the
    judicial insiders, “accustomed to the                 recusal motions, the existence of a conflict
    process of dispassionate decision making              of interest by the Advisors may be the
    and keenly aware of their Constitutional              most sharply contested issue in these
    and ethical obligations to decide matters             proceedings. Judge Wolin explained in
    solely on the merits, may regard asserted             his written opinion that he was an asbestos
    conflicts to be more innocuous than an                “neophyte” when he assumed control of
    outsider would.”           United States v.           the Five Asbestos Cases, and that he
    DeTemple, 
    162 F.3d 279
    , 287 (4th Cir.                 brought the Advisors on board to “inform
    1998); see also United States v. Jordan,              the Court of the vast landscape of asbestos
    
    49 F.3d 152
    , 156-57 (5th Cir. 1995)                   related issues that would permit the Court
    (remarking that average person on street              to make reasoned case management
    “is less likely to credit judges’ impartiality        decisions.” Owens Corning, 305 B.R. at
    than the judiciary”); In re Mason, 916                198.
    F.2d 384, 386 (7th Cir. 1990) (noting that
    lay observer is less inclined to presume                     We conclude that two of the
    judge’s impartiality than members of                  Advisors, Gross and Hamlin, did, in fact,
    judiciary). Thus, we hold that the                    operate under a structural conflict of
    appearance of impropriety must be viewed              interests at the same time that they served
    from the perspective of the objective,                as Judge Wolin’s Advisors. This conflict
    reasonable layperson, who is not                      arose from the dual roles they played in
    necessarily familiar with asbestos                    the Five Asbestos Cases and the G-I
    bankruptcies and litigation.                          Holdings bankruptcy.
    C. Did the Advisors have a Conflict of                      On the one hand, Gross and Hamlin
    Interest?                               clearly had a duty to remain neutral in the
    18
    Five Asbestos Cases and to provide                counsel.14 In those roles, Gross and
    objective, unbiased information to Judge          Hamlin owed the future asbestos claimants
    Wolin. As Judge Wolin stated in his               in G-I Holdings a fiduciary duty to
    original appointment order, the Advisors’         advance their interests and to see that they
    role “was to advise the Court and to              received the greatest possible share of the
    undertake [certain] responsibilities,             bankruptcy estate.15 To achieve that end,
    including by way of example and not               the very Advisors who were advising
    limitation, mediation of disputes, holding        Judge Wolin had to take positions in G-I
    case management conference, and                   Holdings and the Five Asbestos Cases that
    consultation with counsel . . . .”                favored the future asbestos claimants. By
    their very position as representatives of the
    We would be hard pressed to                future asbestos claimants in G-I Holdings,
    overstate the importance of the Advisors’         Gross and Hamlin signaled to all that they
    role in the Five Asbestos Cases. As a
    result of their appointment, the Advisors                14
    had a unique level of access to Judge                       As we noted earlier, W.R. Grace
    Wolin. Indeed, Judge Wolin himself                & Co.’s motion to appoint Hamlin as a
    acknowledged in a fee allowance order             Futures Representative was withdrawn in
    that the Advisors “occup[ied] a unique            light of Bankruptcy Judge Fitzgerald’s
    position in the [Five Asbestos] cases not         reaction.
    shared by other persons” and that they                   15
    Some of the parties opposing
    “function[ed] in a manner in all respects         Judge Wolin’s disqualification have
    similar to examiners as provided in the           emphasized that the future claimants in G-
    Bankruptcy Code.” The Advisors also               I Holdings are, as yet, unidentified
    had a unique level of influence over Judge        individuals because they have not yet
    Wolin, given the role they played at the          developed any outward medical symptoms
    outset of the Five Asbestos Cases in              as a result of their exposure to asbestos.
    educating Judge Wolin (a self-admitted            We are not persuaded that this is a
    neophyte) on all of the key asbestos-             mitigating factor. Although the future
    related issues.                                   claimants are, by definition, a group of
    unknown individuals, their interests in
    On the other hand, Advisors Gross          pursuing claims against the asbestos
    and Hamlin also had a duty to act as              manufacturers are clearly identifiable and,
    zealous advocates for the future asbestos         as such, Hamlin and Gross were duty-
    claimants in the G-I Holdings bankruptcy.         bound to further the claimants’ collective
    Hamlin was at all relevant times the legal        interests. In this sense, Hamlin and
    representative of the present and future          Gross’s role could be likened to that of a
    asbestos personal injury claimants in G-I         class representative and his attorney at the
    Holdings and Gross served as his local            inception of a class action lawsuit, before
    the class members are identified.
    19
    could not be non-partisan, benign, or                        Despite his conclusion that “no
    neutral.                                              conflict exists,” Judge Wolin nevertheless
    shares Hamlin’s concerns. Recognizing
    Given their dual roles, we find that          that “[t]he core task of any futures
    Gross and Hamlin had a conflict of                    representatives is to determine claim
    interest. The structural conflict arose               validity and claim valuation” for future
    primarily out of the close relationship               claimants, Judge Wolin explains that no
    between the future asbestos claimants and             conflict materialized because “[t]he issues
    the issues in the Five Asbestos Cases and             of claim valuation and future claimant
    G-I Holdings. In both proceedings, the                versus present claimant equivalence have
    debtors were leading manufacturers of                 been neither briefed nor joined” in the
    asbestos products who were forced into                Five Asbestos Cases. Owens Corning,
    bankruptcy by a flood of 
    asbestos-related 305 B.R. at 198
    .          Judge Wolin’s
    claims, including those of future claimants           statements further demonstrate the tension
    not yet identified. Consequently, many of             between Hamlin’s and Gross’s dual roles
    the same legal issues (e.g., bar dates, proof         as advisors to Judge Wolin in the Five
    of claim forms, medical manifestations,               Asbestos Cases and Futures
    etc.) either have arisen or will arise in both        Representatives in G-I Holdings.
    the Five Asbestos Cases and the G-I
    Holdings bankruptcy. Both Judge Wolin                         If Gross and Hamlin were
    and Advisor H amlin implicitly                        precluded from addressing issues such as
    acknowledge that there existed a conflict             bar dates and claim valuation, we cannot
    of interest.      Hamlin stated in his                understand how it could be appropriate for
    deposition that “[i]f any issue or any                them to discuss other issues of importance
    responsibility was sought from me [by                 to Futures Claimants in G-I Holdings. If
    Judge Wolin] in regard to any issue that I            both Hamlin and Judge Wolin would
    felt impinged on by G-I stuff, I would                question the Advisors’ ability to remain
    have asked that assignment be given to                neutral with respect to bar dates, a
    somebody else.” Specifically, Hamlin                  reasonable person certainly would be
    stated that “I wouldn’t have touched the              suspicious of discussions with the
    personal injury bar date issue . . .                  Advisors on potential affirmative defenses
    [b]ecause that’s what I’m dealing with in             to liability, the proper content of proof of
    G-I.” While the parties opposing recusal              claims forms, or the processes for
    contend that this statement proves there              estimating claims under 11 U.S.C. §
    was no conflict of interest, it proves just           502(c). See supra at 10 (discussing the
    the opposite. Had there been no conflict,             subjects addressed in Judge Wolin’s ex
    Hamlin would have perceived no need to                parte meetings with the Advisors).
    reject any assignments in the Five
    Asbestos Cases.                                              As discussed below in Section V-E,
    these suspicions are heightened by the ex
    20
    parte nature of the communications                   Moreover, there is a substantial likelihood
    between Judge Wolin and his Advisors.                that many of the future claimants in G-I
    We do not hold that ex parte                         Holdings will also be future claimants in
    communications alone—in the absence of               the Five Asbestos Cases because it is not
    any conflict of interest—require recusal.            unusual for asbestos claimants to bring
    We emphasize that it is the conflict of              claims against different asbestos
    interest and not the particular specialty of         manufacturers.
    the neutral expert or advisor that concerns
    us. A judge may engage an expert or                         As counsel for Kensington argued:
    someone to assist him who has no conflict
    and is “disinterested.” Here, however, we                   [I]t is our view that Judge
    have concluded that the Advisors were                       Wolin has rendered a
    conflicted and were not disinterested.                      number of rulings favorable
    Hence, any decision by us that would                        to tort claimants after
    preclude a judge from obtaining assistance                  discussions with the future -
    from a non-conflicted advisor would                         - with the advisors who are
    unnecessarily restrict a judge’s ability to                 Futures Representatives in
    communicate with neutral experts.                           G-I.
    Indeed, a judge may consult ex parte with
    a disinterested expert provided that the                    Do I have a signed, sealed
    judge “gives notice to the parties of the                   confession, we urged this
    person consulted and the substance of the                   result on Judge Wolin and
    advice, and affords the parties reasonable                  he then did it? No, I don’t
    opportunity to respond.” Code of Conduct                    have that. But the problem
    for U.S. Judges Canon 3 § A(4) (2003).                      here is a 455(a) problem.
    A    reasonable         observer,                             * * *
    understanding that certain issues were “off
    limits,” would be concerned by the                          But this much is undeniable.
    absence of any mechanism to police those                    On October 31st, 21 days
    limits. Indeed, the record before the Court                 before that [Nov. 21] status
    contains substantial evidence that these                    conference, Owens Corning
    limits were, in fact, violated. Although                    circulated a draft plan of
    Hamlin testified that a bar date was not                    reorganization that was met,
    discussed by the Advisors, and although                     in letters in the record
    Gross testified that he could not recall                    before you, with great
    whether a bar date was discussed, the                       approval by the commercial
    other three Advisors testified that the issue               creditors and great
    of whether and how to impose a bar date                     disapproval by the tort
    was discussed with Judge Wolin.                             creditors.
    21
    After the November 21st                            Judge Wolin stated in his opinion
    untranscribed hearing at                    that he met with the Advisors as a group
    which we recall Judge                       on only four occasions for a total of
    Wolin saying he did not like                eighteen hours and that, after May 2002,
    that plan, Owens Corning                    “the Advisors as a group became
    went back and formulated a                  functionally obsolete despite their de jure
    brand-new plan that is so                   existence.” Owens Corning, 305 B.R. at
    favorable to the tort                       200. Judge Wolin also emphasized that
    claimants that they are                     his meetings with the Advisors consisted
    coproponents of the plan.                   merely of discussions, which he defined as
    This is two days after                      “consideration of a subject by a group; an
    meeting with Mr. Gross, a                   earnest conversation,” and that he never
    representative of future                    received any advice, which he defined as
    claimants. There are real                   an “opinion about what could or should be
    appearance problems here,                   done about a situation or problem.” 
    Id. at even
    if there are not certain               198 (citing American Heritage College
    types of smoking guns.                      Dictionary 397, 20 (3d ed. 1993)).
    (Transcript of April 19, 2003 Oral                        Judge Wolin’s distinction between
    Argument at 47-48, 52-53.) Whether or              discussions and advice cuts too fine a line.
    not we reach the same conclusions that             As Kensington points out, “[i]t is hard to
    counsel did, the fact remains that the             fathom why Judge Wolin wanted [a] crash
    matters set forth in the depositions which         course in asbestos litigation if not to assist
    we ordered, which are too voluminous to            him in deciding ‘the merits’ of ‘disputed’
    duplicate here but which we have studied,          issues that he could expect to face.”
    do reflect that counsel’s view of the              Indeed, the four meetings in early 2002
    § 455(a) problem is indeed accurate.               between Judge Wolin and the Advisors
    covered almost all of the major issues in
    D. Did the Advisors’ Conflict Taint              asbestos litigation, including the Rule 706
    Judge Wolin?                           panel, claims bar date, claim forms,
    pleural registries, fraudulent conveyance
    We turn now to the question of              claims, various defenses, claims
    whether Gross’s and Hamlin’s conflict of           estimation, trust distribution procedures,
    interest irreversibly tainted Judge Wolin.         tensions among the creditor classes, and
    We obviously do not equate this “taint” of         the asbestos claimants’ veto power under
    Judge Wolin with any wrongdoing or bias            11 U.S.C. § 524(g).
    on his part. We are fully aware that the
    § 455(a) standard asks only if a reasonable              In deciding whether Gross and
    person knowing all the circumstances               Hamlin’s involvement in the Five
    might question Judge Wolin’s impartiality.         Asbestos Cases and interactions with
    22
    Judge Wolin leads to disqualification                     The same factors that required
    under § 455(a), we find instructive the            recusal in Hall apply here. Although
    Fifth Circuit Court of Appeals’ decision in        Gross and Hamlin were not law clerks per
    Hall v. Small Business Administration,             se, they were in some respects the
    
    695 F.2d 175
    (5th Cir. 1983). In that case,        substantial equivalent of law clerks.17
    the losing party moved after trial to              Hamlin, for example, drafted legal
    disqualify the judge and to vacate the             opinions in each of the Five Asbestos
    judgment because it came to light that the         Cases for Judge Wolin. Thus, not only
    judge’s law clerk had, among other things,         was Hamlin the “legal researcher[] who
    accepted, prior to the judgment being              [sought] the authorities that affect[ed] the
    entered, an offer to join the law firm             judge’s decision,” but he was also the
    which represented the winning party. 
    Id. scrivener who,
    in the first instance, tried
    at 178. The judge denied the motion on             his hand at crafting the decision that, if
    the ground that the law clerk had never            accepted by Judge Wolin, would dispose
    expressed an opinion to him about the              of an appeal taken from the Bankruptcy
    winning party and because the law clerk            Court in one of the Five Asbestos Cases.
    had accepted the offer of employment only          See 
    id. Moreover, Gross
    and Hamlin held
    after the judge had made up his mind               a special position of trust and influence
    about the case and had written a rough             because they, together with the other three
    draft of the opinion. 
    Id. Advisors, were
    perceived by Judge Wolin
    On appeal to the Fifth Circuit, the
    court reversed and entered an order                recusal in First Interstate Bank of Arizona
    disqualifying the judge. In reaching that          v. Murphy, Weir & Butler, 
    210 F.3d 983
    decision, the court remarked that the goal         (9th Cir. 2000). There, a bankruptcy
    of § 455(a) “is to exact the appearance of         judge recused herself because her law
    impartiality” and therefore it was, in the         clerk had continued to have some contact
    court’s opinion, immaterial “[w]hether or          with a Chapter 11 bankruptcy proceeding
    not the law clerk actually affected the            after the law clerk accepted an offer to
    judge’s decision.” 
    Id. at 179.
    The court           join the law firm representing the
    also emphasized that law clerks hold a             creditors. 
    Id. at 985.
    special position of trust and influence                   17
    The “hybrid” status of the
    insofar that they are “sounding boards for         Advisors has given us considerable
    tentative opinions and legal researchers           concern. That concern is expressed in
    who seek the authorities that affect the           note 20, infra. As counsel for Respondent
    judge’s decision.”16 
    Id. Owens Corning
    admitted at our first
    hearing, he had no knowledge of such a
    hybrid status or of individuals having
    16
    The Ninth Circuit Court of               assumed that status being asked to assist a
    Appeals discussed a similar motion for             judge.
    23
    as being experts in the asbestos litigation        because they had been influenced by
    field and depended on them to educate              submissions from advocacy groups and
    him on all the relevant issues.                    counsel supporting plaintiffs in other
    lawsuits against the defendant.18 
    Id. at There
    is, of course, nothing                261-62.
    inherently wrong with appointing a panel
    of experts. But when ex parte discussions                 The Edgar decision, like the Hall
    between the judge and the panel veer into          decision, is instructive in that the Seventh
    the merits, recusal may follow. For                Circuit Court of Appeals did not hesitate
    example, in Edgar v. K.L., 
    93 F.3d 256
                to disqualify the district court judge under
    (7th Cir. 1996), a district court judge
    appointed, with the parties’ consent, a
    panel of experts. Although the parties                    18
    The Edgar court held that the
    were aware that the panel had ex parte             district court judge had acquired
    meetings with the judge from time to time          “personal” knowledge from the panel of
    to discuss administrative matters, the             experts, which is another way of saying
    parties only discovered later that one of          that the judge acquired information from
    the meetings involved a discussion of the          an extrajudicial source. Edgar, 93 F.3d at
    merits and possibly a preview of the               259. The extrajudicial source doctrine, as
    panel’s final report. 
    Id. at 257-58.
    When          it is commonly known, provided at one
    the parties moved to disqualify the judge,         time that recusal was not warranted unless
    he blocked discovery and denied the                the grounds for recusal emanated from an
    motion.     A petition for a writ of               extrajudicial source (i.e., a source outside
    mandamus in the Seventh Circuit Court of           of the judicial proceedings at hand). See
    Appeals followed. 
    Id. at 257.
                         Liteky v. United States, 
    510 U.S. 540
    , 544-
    545 (1994). In Liteky, the Supreme Court
    The Seventh Circuit issued a writ          held that the extrajudicial source also
    of mandamus disqualifying the judge. As            applied to § 455(a), but it tempered its
    to § 455(a), the court held: “A thoughtful         effect by explaining that it was merely a
    observer aware of all the facts . . . would        factor and not a prerequisite for
    conclude that a preview of evidence by a           disqualification. 
    Id. We agree
    with the
    panel of experts who had become                    Edgar court that off-the-record
    partisans carries an unacceptable potential        discussions on substantive issues in
    for compromising impartiality.” 
    Id. at chambers
    constitute “personal” or
    259-60 (citations omitted). The court also         “extrajudicial” knowledge in the sense
    noted that “[e]xperts appointed and                that the information conveyed to the judge
    supervised by a court carry special weight         leaves no trace in the record and cannot
    because of their presumed neutrality,” and         “be controverted or tested by the tools of
    that the panel of experts appointed by the         the adversary process.” Edgar, 93 F.3d at
    district court judge were not truly neutral        259.
    24
    § 455(a) even though there was no                   Wolin, mediate disputes, hold case
    evidence of actual bias. The theme                  management conferences, and consult
    running through both Edgar and Hall is              with the attorneys. Hamlin himself
    that there is an almost irrebutable                 likened the powers that he exercised to
    presumption that a judge is “tainted” and           those of a magistrate judge. Given these
    must be disqualified where, as here, he             wide-ranging powers, surely the five
    surrounds himself with individuals who              Court-Appointed Advisors were under a
    may not be truly disinterested.                     duty to maintain at least the degree of
    neutrality normally required of law clerks
    Some of the parties opposing Judge           or court-appointed experts. However, that
    Wolin’s disqualification attempt to                 neutrality was seriously compromised by
    distinguish the Hall and Edgar decisions            virtue of their participation in G-I
    on the ground that the Five Asbestos                Holdings, a bankruptcy involving many of
    Cases do not involve a district court’s             the same issues present in the bankruptcies
    relationship with its law clerks or court-          assigned to Judge Wolin, many of the
    appointed experts. The Respondents                  same creditors, and possibly some of the
    contend that court-appointed “Advisors,”            same asbestos claimants.
    such as Gross and Hamlin, are mere
    consultants, of whom pure neutrality is not                We also note that Kensington’s
    required.                                           Reply Brief emphasizes that over a 22-
    month period Judge Wolin received
    While the Respondents’ attempt to           substantive information from:
    distinguish Hall and Edgar has some
    superficial appeal, we believe their                       •    two Advisors (Gross and
    approach values form over substance and             Hamlin), who had a fiduciary duty in G-I
    relies too heavily on overly-technical              Holdings to advance the interests of the
    categorizations. More importantly, it fails         future asbestos claimants (Joint Appendix
    to take into account the underlying                 (“JA”) 1545);
    considerations that drove the courts’
    decisions in Hall and Edgar. The primary                   •     two Advisors (Gross and
    concern in both Hall and Edgar is that a            Hamlin), who had an incentive to make
    party which held a special position of trust        helpful precedent in the Five Asbestos
    and influence over the judge was found to           Cases, which they could then rely on (and
    be not truly disinterested in the outcome of        did rely on) in G-I Holdings in support of
    the proceedings. The same can be said               the future claimants (JA 1621, 978B, 980,
    here. As court-appointed Advisors to                2728);
    Judge Wolin, Gross and Hamlin were
    given very broad powers. The order                         • three Advisors (Gross, Hamlin
    appointing them provided, among other               and McGovern) who met on multiple
    things, that they could advise Judge                occasions with the future representatives
    25
    in a wide range of asbestos-related cases            (3d Cir. 1989) (disqualifying judge under
    (including the Five Asbestos Cases), to              § 455(a) because of ex parte
    develop a common strategy with respect to            communications). We have previously
    pending asbestos legislation and to discuss          described ex parte communications as
    common issues (JA 1645); and                         “anathema in our system of justice.”
    School 
    Asbestos, 977 F.2d at 789
    . One
    •    two Advisors (Gross and                  leading reason is that ex parte meetings
    McGovern) who allegedly breached their               are often, as they were here, unrecorded.
    duties as mediators by disclosing to Judge           Consequently, there is no official record of
    Wolin substantive positions of the                   what was said during those meetings. Of
    mediating parties (JA 1393, 1409, 1412,              even greater concern is the argument
    1432).19                                             urged upon us by the Petitioners who,
    without knowledge of what was discussed
    Given the unique level of access             at these meetings, contended that they
    and influence that Gross and Hamlin had,             could not respond to these “silent” facts.
    the length of their appointment, and the             As we explained in City of Pittsburgh v.
    overlapping issues and clients, we find              Simmons, 
    729 F.2d 953
    (3d Cir. 1984):
    that the reasonable person, with familiarity
    of these circumstances, would conclude                      The record taken by a
    that their conflict of interest tainted Judge               certified court reporter is
    Wolin.                                                      always the best evidence of
    what has been said, what
    E. The Ex Parte Communications                           actions have been taken,
    Contributing to Taint                               and what rulings have been
    made. “Meaningful review
    The extensive ex part e                              requires that the reviewing
    communications between Judge Wolin, on                      tribunal must be able to
    the one hand, and the Advisors and                          review a decision of a trial
    parties, on the other, further support                      court . . . to determine its
    disqualification under § 455(a). See                        correctness and if necessary
    United States v. Furst, 
    886 F.2d 558
    , 583                   control the course of the
    litigation whether by appeal
    or by use of a writ . . . .”
    19
    Kensington alleges that Advisors                    Wood v. Zapata Corp., 482
    Gross and McGovern, who served as                           F.2d 350, 358 (3d Cir.
    mediators in the Owens Corning                              1973) (Biggs, J.,
    bankruptcy, improperly shared with Judge                    dissenting).     Without a
    Wolin information that they had gained                      record of the proceedings
    from the parties during the course of                       “[w]e are left with
    mediation.                                                  conflicting statements of
    26
    counsel which cannot be                     the public interest in truth and fairness”).
    reconciled and, in any                      If judges engage in ex parte conversations
    event, are not part of the                  with the parties or outside experts, the
    record and therefore cannot                 adversary process is not allowed to
    serve as a basis for                        function properly and there is an increased
    adjudication.” 
    Id. risk of
    an incorrect result.
    . . .     Indeed, the best                          Attuned to that concern, the Code
    protection for the litigants,               of Conduct for United States Judges
    the bar, and the bench at                   cautions that a judge should “neither
    trial and on appeal is a                    initiate nor consider ex parte
    verbatim record. Rather                     communications on the merits, or
    than having to speculate                    procedures affecting the merits, of a
    upon what was said and the                  pending or impending proceeding.” Code
    manner in which an                          of Conduct for U.S. Judges Canon 3 §
    argument was made, the                      A(4) (2003). The rule is designed to
    court then has before it,                   prevent all of the evils of ex parte
    when a record is taken, the                 communications: “bias, prejudice,
    exact words of counsel and                  coercion, and exploitation.” Jeffrey M.
    the exact words and rulings                 Shaman et al., Judicial Conduct and
    of the court. Thus, there is                Ethics § 5.03 (3d ed. 2000). The Code
    no need for characterization                provides for only two narrow exceptions.
    in affidavits or for                        First, “[a] judge may . . . obtain the advice
    reconstruction at a later date              of a disinterested expert on the law
    of what the parties or court                applicable to a proceeding before the
    thought each said or meant                  judge if the judge gives notice to the
    or what each intended.                      parties of the person consulted and the
    substance of the advice, and affords the
    
    Id. at 955-56.
                                        parties reasonable opportunity to
    respond.” Code of Conduct for U.S.
    The other problem is that ex parte          Judges Canon 3 § A(4) (2003). Second,
    communications run contrary to our                 “[a] judge may, with consent of the
    adversarial trial system. The adversary            parties, confer separately with the parties
    process plays an indispensable role in our         and their counsel in an effort to mediate or
    system of justice because a debate                 settle pending matters.” 
    Id. between adversaries
    is often essential to
    the truth-seeking function of trials. See                  Judge Wolin apparently recognized
    Polk County v. Dodson, 
    454 U.S. 312
    , 318           the dangers of ex parte meetings, but
    (1981) (“The system assumes that                   relied on two “safeguards” to minimize the
    adversarial testing will ultimately advance        risk. First, Judge Wolin explained that all
    27
    parties were welcome to participate in the             meetings. Thus, the risk of an incorrect
    ex parte meetings and “as one party left               result was still present. This would be of
    chambers, the next would arrive ready to               little consequence if the ex parte meetings
    debunk the ‘falsehood s’ of its                        had been limited to procedural matters, but
    predecessor.” Owens Corning, 305 B.R.                  Judge Wolin himself explained that “[t]he
    at 206. Second, Judge Wolin explained                  purpose of the ex parte meetings was to
    that he was “no babe in arms.” 
    Id. This ensure
    that each committee or corporate
    characterization, which finds expression in            constituency was afforded the opportunity
    Judge Wolin’s February 2, 2004 opinion,                to provide to the Court insights as to why,
    is obviously in tension with his earlier               in the competition for limited dollars, its
    self-characterization as an asbestos                   claim was just.” (Supp. Resp. at 3.) In
    “neophyte.”                                            other words, the ex parte meetings went to
    the very heart of the proceedings.
    Unfortunately, we do not share
    Judge Wolin’s confidence that these                            The ex parte meetings with the
    safeguards adequately minimized the risks.             parties are flawed because, as we have
    Obviously Judge Wolin is correct when he               explained, no opportunity existed for their
    states that he is “no babe in arms,” but the           adversaries to know precisely what was
    same could be said of the overwhelming                 said, when it was said, by whom, and what
    majority of Article III judges. Moreover,              effect could be drawn from their offerings.
    the Code of Judicial Conduct does not                  On the one hand, although all parties may
    draw a distinction between newly-                      at one time or another have been invited to
    appointed and veteran judges; the general              an ex parte meeting with Judge Wolin, the
    p r o h i b i t io n a g a i n st e x p a r t e        probability of “slippage” and omission in
    communications on the merits applies to                the content of the material discussed,
    all judges.                                            whether procedural or substantive, was
    evident. As we have stated, no one could
    As for the second safeguard, we                know what had been said or proffered. On
    must first assume that all parties took                the other hand, Judge Wolin’s ex parte
    equal advantage of Judge Wolin’s                       meetings with the Advisors presented an
    invitation to participate in ex parte                  even more egregious problem. The instant
    meetings, even though experience informs               record reveals a conflict as to what the
    us that certain parties may be more                    Advisors brought to the meetings from
    aggressive than others. But even if all                their extrajudicial experience and, in the
    parties met for the same amount of time                case of Hamlin and Gross, from their
    with Judge Wolin, there was no way for                 advocate roles in G-I Holdings, and the
    them to adequately respond to or counter               extent of their influence on the entire
    facts presented by their adversaries                   process. We know, for instance, that
    because they had no way of knowing what                someone at one of the meetings
    was said during those unrecorded                       disparaged a possible expert witness and
    28
    criticized a defense. Of equal concern is                  attorneys on an ex parte
    the record’s disclosure that at a November                 basis, without permission of
    19, 2002 meeting attended by Advisors                      adversary attorneys. Any
    Gross, McGovern, and Dreier, matters of                    objection to such ex parte
    substance were discussed, but we have no                   communications is deemed
    knowledge about their content. The                         waived.
    record is silent in this respect. Advisor
    Dreier made notes in handwriting which                     While we have no record of any
    are under seal and we find difficult to             objections being registered at that time, we
    comprehend.       No discovery of that              cannot regard the silence that
    meeting was permitted by Judge Wolin.               accompanied the preemptive statement
    that “[a]ny objection to such ex parte
    We have previously discussed the             communications is deemed waived” as
    distinction between our holding, that               manifesting consent.       To fulfill the
    conflicted advisors who participate or              principles and objectives of Canon 3 of
    influence a judge requires the judge’s              the Code of Conduct, which proscribes ex
    disqualification, as distinct from an expert        parte communications except with
    or other assistant to the judge who is              consent, affirmative consent is dictated.
    disinterested and non-conflicted. It should         The record reveals no such consent was
    be understood that we do not hold that a            ever given.
    judge may not or should not have ex parte
    meetings or communications with the                         Given all of these considerations,
    parties or their counsel appearing before           we are confident that the reasonable
    him. However, the hallmark of such                  person would be troubled by the fact that
    meetings or communications requires the             so many communications between Judge
    consent of the parties. We have pointed             Wolin and Gross or Hamlin took place
    out in this section that the Code of                outside the presence of the parties. If the
    Conduct for United States Judges                    structural conflict of interests gave Gross
    proscribes ex parte communications                  and Hamlin a motive to give Judge Wolin
    except where the judge has entered into             less-than-neutral advice, it was the ex
    them with the consent of all the parties.           parte meetings that gave them the
    opportunity. In the absence of the parties,
    It will be recalled that Judge Wolin         Gross and Hamlin were in a position to
    stated at the December 2001 Case                    influence Judge Wolin without concern
    Management Conference that:                         about judicial constraints or independent
    challenges from those individuals or
    In order to effectively case                 entities with a stake in the outcome of the
    manage complex litigation,
    it is necessary for the judge
    to speak and/or meet with
    29
    Five Asbestos Cases.20                                      Notwithstanding that § 455 does
    not contain an express timeliness
    F. Were the Recusal Motions Timely                requirement, the Courts of Appeals cases
    Under § 455(a)?                          that have addressed the issue have
    concluded that parties seeking
    disqualification under § 455(a) should do
    20
    We have previously noted that            so in a timely manner. See, e.g., In re IBM
    the Advisors chosen by Judge Wolin were             Corp., 
    45 F.3d 641
    , 643 (2d Cir. 1995); In
    not of the judicial family in the sense that        re Apex Oil Co., 
    981 F.2d 302
    , 304 (8th
    they were neither magistrate judges, law            Cir. 1992). The reason most often given
    clerks, or special masters. As such, the            for applying a timeliness requirement to
    Advisors were not subject to the                    recusal motions is that “[t]he judicial
    constraints imposed upon judicial                   process can hardly tolerate the practice of
    personnel, either through the Code of               a litigant with knowledge of circumstances
    Conduct for United States Judges, the               suggesting possible bias or prejudice
    Code of Conduct for Judicial Employees,             holding back, while calling upon the court
    or Bankruptcy Rule 9003 (“Prohibition of            for hopefully favorable rulings, and then
    Ex Parte Contacts”). We do not imply that           seeking recusal when they are not
    because of their hybrid status as Advisors,         forthcoming.” Smith v. Danyo, 585 F.2d
    that the Advisors breached any of the rules         83, 86 (3d Cir. 1978). Yet timeliness, as
    by which judicial personnel are bound.              the Court in Danyo stated, is but one of
    We cannot help but point out, however,              the factors which engages a court’s
    that judicial personnel could not have              discretion in determining whether a judge
    undertaken or been engaged in positions             shall be relieved from its assignment. 
    Id. or other
    functions at odds with their
    judicial position. We are obliged to look                  On remand, Judge Wolin concluded
    with disfavor upon appointment of                   that the motions seeking his recusal were
    personnel who have the access and                   untimely under § 455(a). In reaching that
    influence with the judiciary that the               holding, Judge Wolin charged that the
    Advisors had and yet are not constrained            Petitioners either knew or should have
    from accepting positions that conflict with         known about Gross and Hamlin’s
    their advisory duties. See Code of                  participation in G-I Holdings long ago, but
    Conduct for United States Judges Canon 3            waited until October 2003 to act on that
    § (B)(2) (stating that “[a] judge should            information. Judge Wolin also questioned
    require court officials, staff, and others          the Petitioners’ true motivations for filing
    subject to the judge’s direction and                the recusal motions, claiming that they
    control, to observe the same standards of           were not based on ethical considerations
    fidelity and diligence applicable to the            but were strategic maneuvers by the
    judge”) (emphasis added); see also Notes            Petitioners calculated to gain a larger
    4 and 
    18, supra
    .                                    percentage of the bankruptcy estates,
    30
    either through a legislative solution or           Holdings bankruptcy. While reviewing
    through delay.21                                   that opinion, Brodsky noticed that Advisor
    Gross was listed as the counsel for the
    Judge Wolin and the parties                Futures Representative. This, in turn,
    opposing recusal have focused primarily            prompted an investigation by Brodsky
    on Mark Brodsky, the senior portfolio              which disclosed Hamlin’s role in G-I
    manager at Elliot Management, which                Holdings. Brodsky’s claim that this was
    provides services to Kensington’s parent           the first time he learned of Gross and
    companies. Brodsky testified that he first         Hamlin’s participation in G-I Holdings is
    learned about Gross and Hamlin’s                   corroborated by a September 24, 2003 e-
    participation in G-I Holdings on                   mail in which Brodsky expresses shock at
    September 24, 2003, a little more than two         Gross’s involvement in G-I Holdings.
    weeks before Kensington filed the first of
    the recusal motions. Brodsky testified that               It is not surprising, therefore, that
    he acquired this knowledge from another            Judge Wolin in his written opinion found
    Owens Corning creditor who brought to              that Brodsky (or, for that matter, D.K.
    his attention an opinion issued in the G-I         Acquisition Partners) did not have actual
    knowledge of Gross or Hamlin’s
    participation in G-I Holdings prior to
    21
    Congress has recently undertaken         September 2003.22 He did conclude,
    an attempt to improve the current asbestos         however, that they either had constructive
    litigation system. See 150 Cong. Rec.              or imputed knowledge prior to September
    S4103-S4114 (daily ed. Apr. 20, 2004).             2003.
    Senator Hatch, Chairman of the Senate
    Judiciary Committee, has introduced                       As we understand the phrase,
    Senate Bill 1125, the Fairness in Asbestos         constructive knowledge is “knowledge
    Injury Resolution Act (“FAIR” Act),                that one using reasonable care or diligence
    which is designed to bring compensatory            should have, and therefore that is
    relief to those su ffering from                    attributed by law to a given person.”
    mesothelioma and asbestosis. If enacted            Black’s Law Dictionary 876 (7th ed.
    in its current form, the bill would create         1999). Judge Wolin implied that Brodsky
    for the benefit of asbestos victims a $114         had constructive knowledge of the
    billion fund under the auspices of a               Advisors’ conflict because: (a) Hamlin’s
    streamlined no-fault system. See 
    id. Senator Frist
    has described this proposal
    22
    as “a substantially better means of                           At the hearing which Judge
    obtaining compensation than through                Wolin held in January 2004, he stated,
    bankruptcy trusts.” 
    Id. at S4105.
    Insurers         when questioned if he disbelieved
    and defendant companies for the most part          Brodsky, “I don’t disbelieve Mr. Brodsky
    support the bill.                                  as a matter of fact.”
    31
    appointment as the Futures Representative            Schreiber, 
    599 F.2d 534
    , 537 (3d Cir.
    and Gross’s selection as local counsel in            1979), “sound p ublic policy
    G-I Holdings was a matter of public                  considerations . . . militate for the
    record; (b) asbestos-related trade                   adoption of a . . . rule that the parties
    periodicals reported Hamlin and Gross’s              should be apprised of any possible ground
    involvement in G-I Holdings; and (c)                 for disqualification known privately to the
    many of the attorneys involved in the Five           judge.” The most compelling of these
    Asbestos Cases knew about Hamlin or                  public policy considerations is that the
    Gross’s involvement in G-I Holdings. As              judge is in the best position to know of the
    Judge Wolin explained it, “Brodsky                   circumstances supporting a recusal
    surrounded himself with a coterie of                 motion. The Five Asbestos Cases are no
    experienced and sophisticated lawyers                exception.
    who through even a modicum of effort
    would have unearthed Hamlin’s and                          The record in this case
    Gross’s G-1 appointments.”                           demonstrates that Judge Wolin knew
    about Gross and Hamlin’s participation in
    We believe Judge Wolin                       G-I Holdings from or near the inception of
    improperly placed the burden on the                  Hamlin’s appointment as the Futures
    Petitioners to uncover Gross and Hamlin’s            Representative.23 Moreover, at least one
    participation in G-I Holdings. Such a                of the parties (USG Corp.) brought
    requirement does not further the purpose             Hamlin’s potential conflict to Judge
    of § 455(a), which “mandates, at a                   Wolin’s attention in February 2002, more
    minimum, the appearance of neutrality and            than one-and-one-half years before
    impartiality in the administration of                Kensington filed its recusal motion.24 It is
    justice.” 
    Alexander, 10 F.3d at 157
    . In
    the recusal context, we are satisfied that if               23
    there is to be a burden of disclosure, that                      Gross submitted an affidavit
    burden is to be placed on the judge to               which declared: “At all relevant times,
    disclose possi b l e g r o un d s f or               Judge Wolin was aware of my
    disqualification. See United States v.               representation of Mr. Hamlin in G-I
    Bosch, 
    951 F.2d 1546
    , 1555 n.6 (9th Cir.             Holdings.” This was corroborated by
    1991) (noting that § 455(a) “has a de facto          Hamlin, who testified at his deposition
    disclosure requirement.”); see also Parker           that he informed Judge Wolin at the outset
    v. Connors Steel Co., 
    855 F.2d 1510
    , 1525            that he was the Futures Representative in
    (11th Cir. 1988) (recognizing that recusal           G-I Holdings.
    motion could have been avoided if judge                     24
    The record contains a stipulation
    had disclosed grounds for recusal to                 signed by USG Corp.’s counsel which
    parties).                                            unequivocally states that USG Corp.
    learned in January 2002 about Hamlin’s
    As we stated in United States v.              appointment in G-I Holdings. That same
    32
    undisputed, however, that Judge Wolin               access to a burgeoning stream of
    never disclosed to the parties, either on or        information in the Five Asbestos cases
    off the record, that Gross and Hamlin were          does not naturally lead to the conclusion
    actively participating as zealous advocates         that they should have known about the
    in G-I Holdings.                                    participation of Hamlin and Gross in G-I
    Holdings. We are persuaded that nothing
    There may be instances in which            short of actual knowledge of the facts
    constructive knowledge is so pervasive              giving rise to the recusal motions and the
    that it is tantamount to actual knowledge,          Petitions for Mandamus would satisfy the
    but this is not one of those instances. See,        § 455(a) timeliness factor here.
    e.g., Nat’l Auto Brokers Corp. v. Gen.
    Motors Corp., 
    572 F.2d 953
    , 958-59 (2d                     In addition to relying on
    Cir. 1978) (finding that parties had                constructive knowledge, Judge Wolin
    constructive knowledge of judge’s former            found that the Petitioners had imputed
    affiliation with a large law firm located in        knowledge of Gross and Hamlin’s
    same community); Universal City Studios             participation in G-I Holdings. “Imputed
    v. Reimerdes, 
    104 F. Supp. 2d 334
    , 353              knowledge” means that knowledge
    (S.D.N.Y. 2000) (same).25 The parties’              attributed to one person may be deemed to
    give notice to another party.
    month, Judge Wolin issued an order                         We agree with Judge Wolin that
    appointing Hamlin to serve as a Special             imputed knowledge can, under limited
    Master in the USG Corp. bankruptcy.                 circumstances, render a recusal motion
    Although USG Corp. acquiesced to that               untimely. For example, when a party’s
    appointment, it wrote Judge Wolin a letter          attorney is aware of the grounds
    expressing its concern that “an unsatisfied         supporting recusal, but fails to act until the
    party” might later try to overturn an               judge issues an adverse ruling, the recusal
    approved plan of reorganization by                  motion is not timely See, e.g., E. & J.
    claiming that Hamlin was conflicted.                Gallo Winery v. Gallo Cattle Co., 967
    25
    The parties opposing recusal             F.2d 1280, 1295 (9th Cir. 1992) (denying
    have directed our attention to In re Allied-        as untimely motion for disqualification
    Signal, Inc., 
    891 F.2d 967
    (1st Cir. 1989),         where party’s attorney knew about alleged
    wherein the Court of Appeals for the First          conflict but did not file motion until after
    Circuit affirmed a district court judge’s           judgment was entered against him). Aside
    decision not to recuse himself based in             from the fact that the attorney is only one
    part on constructive knowledge. It is               step removed from the client, the attorney
    important to note, however, that this               and client have an agency relationship and
    observation was not made in the context
    of a timeliness determination under §
    455(a), but rather on assessment of the             merits.
    33
    therefore any facts known by the attorney            S.D.N.Y. 1992) (“The duty [of the
    may generally be imputed to the client.              committee and its counsel] extends to the
    See Restatement (Second) of Agency §                 class as a whole, not to its individual
    9(3) (1958) (“A person has notice of a fact          members.”); In re Levy, 
    54 B.R. 805
    , 807
    if his agent has knowledge of the fact . . .         (Bankr. S.D.N.Y. 1985) (“Counsel for the
    .”).                                                 creditors’ committee do not represent any
    individual creditor’s interest in this case;
    We do not, however, agree with               they [are] retained to represent the entire
    Judge Wolin that the recusal motions in              unsecured creditor class.”). So while the
    the Five Asbestos Cases present an                   Committee had a duty to represent the
    appropriate avenue for imputing                      collective interests of the unsecured
    knowledge to the Petitioners. There are              creditors, it did not have the authority to
    simply “too many dots that must be                   bind each individual creditor. This stands
    connected” before the Petitioners can be             in stark contrast to the attorney-client
    deemed to have known about Gross and                 relationship we discussed above.
    Hamlin’s participation in G-I Holdings.
    For example, Judge Wolin determined that                    In looking at the issue of timeliness
    knowledge could be imputed to                        through the lens of imputed knowledge,
    Kensington through the law firm of Davis             we find that the record in this case
    Polk & Wardwell, which is lead counsel               discloses facts that are too far removed
    for the Unsecured Creditors Committee in             and far too attenuated from the concept of
    the Owens Corning bankruptcy. A Davis                knowledge that would cause a party to
    Polk partner testified that he received an e-        take action to vindicate their interest. We
    mail in October 2001 disclosing Hamlin’s             have pursued the trail of imputed
    appointment in G-I Holdings. Judge                   knowledge that the record has laid out
    Wolin concluded that this constituted                before us, and we are satisfied that the
    notice to the Petitioners in Owens Corning           knowledge allegedly imputed could not
    because the Unsecured Creditors                      have led any of the participants to the
    Committee and Davis Polk owed a                      point where they could be deemed to have
    fiduciary duty directly to Kensington.               “known” about the conflict of the
    Advisors. If connecting the dots could not
    While it is true that the Unsecured           have led to such a conclusion, then it is
    Creditors Committee in Owens Corning                 evident to us that in order to sustain the
    represented Kensington’s interests in the            principles of § 455(a), where a judge’s
    Owens Corning bankruptcy, it is                      impartiality may appear to be questioned,
    established that a Creditors Committee               we must require actual knowledge (or its
    owes a fiduciary duty to the unsecured               undeniable equivalent) to be shown.
    creditors as a whole, not to the individual          Because the Petitioners in Owens Corning
    members. See Drexel Burnham Lambert                  and W.R. Grace & Co. did not have actual
    Group, 
    138 B.R. 717
    , 722 (Bankr.                     knowledge of the conflict of the Advisors
    34
    which we have discussed and which the             stands in a different posture than does
    record discloses, we hold that the motions        Kensington or D.K. Acquisition Partners
    seeking Judge Wolin’s recusal under §             insofar as Judge Wolin’s disqualification
    455(a) were timely.                               is concerned. The record reveals, with no
    uncertainty, that Kensington and D.K.
    G. Disqualification Under § 455(b)(1)            Acquisition Partners did not have actual
    knowledge of the Advisors’ conflict until
    We express no view on the                  S eptember a n d O c t o b e r 2 0 0 3 ,
    timeliness of the motions for                     respectively, and that they filed motions
    disqualification under § 455(b)(1). As            seeking Judge Wolin’s disqualification
    mentioned above, the Petitioners also seek        weeks later.
    Judge Wolin’s disqualification under §
    455(b)(1) on the basis of his ex parte                   On the other hand, USG became
    communications with the Advisors,                 aware of the Advisors’ conflict in January
    parties, and attorneys. Because we have           2002. See Note 
    25, supra
    . It did not take
    determined that Judge Wolin must be               any action, however, until after the
    disqualified under § 455(a), there is no          motions filed by Kensington and D.K.
    need to reach the issues of timeliness or         Acquisition gave rise to a similar motion
    the merits of § 455(b)(1). See School             by USG. We assume this is the reason
    
    Asbestos, 977 F.2d at 781
    (declining to           why USG’s motion (and ensuing Petitions
    reach § 455(b)(1) issue where                     for Mandamus) focused principally on
    disqualification was warranted under §            § 455(b)(1) and the ex parte
    455(a)). Section 455(b)(1) is embraced            communications that Judge Wolin had
    within the perception that a reasonable           with the Advisors, the parties, the
    person might entertain that the judge’s           attorneys, and others. We will not
    impartiality might reasonably be                  speculate, however, on this score because
    questioned.26                                     USG’s Petitions were also couched in
    terms of § 455(a) and dealt as well with
    VI. USG Debtors and the Official                the Advisors’ conflict which we have
    Committee of Unsecured Creditors                discussed in connection with the
    (collectively, “USG”)                      Kensington and D.K. Acquisition Partners
    Petitions.
    As we previously indicated, USG
    If timeliness turned solely on
    “actual knowledge” and constituted the
    26
    Because we are not addressing           only factor we could consider in deciding
    disqualification under § 455(b)(1), we            whether to reach the merits of a recusal
    express no view as to whether the claims          motion, we might well have second
    made by the Petitioners relying on §              thoughts about relieving Judge Wolin of
    455(b)(1) require disqualification.               his assignment over the USG Corp.
    35
    bankruptcy. But as we explained earlier in            decision that favored it.27 As USG’s
    this opinion, timeliness is just one of the           Unsecured Creditors Committee has
    factors—albeit a significant one—which                argued, § 455(a) contains no explicit
    engages our discretion in determining                 timeliness requirement and “the
    whether another judge should be assigned              seriousness of the grounds for recusal that
    to oversee the USG Corp. bankruptcy. See              exist on this record far outweighs any
    
    Danyo, 585 F.2d at 86
    .                                significance that might exist on the date
    the Motion was filed.”28 If, as USG
    As the Danyo Court noted and as               claims, public policy is the polestar to
    we have recounted, “[t]he judicial process            which we must look, it is these concerns
    can hardly tolerate the practice of a litigant        of public policy that are implicated in
    with knowledge of circumstances                       USG’s Petitions.
    suggesting possible bias or prejudice
    holding back, while calling upon the court                    First, Judge Wolin had issued just
    for hopefully favorable rulings, and then             one adverse ruling at the time that USG’s
    seeking recusal when they are not                     motion was filed and, as mentioned, this
    forthcoming.” 
    Id. at 86.
    The Danyo                    ruling was favorable to USG. As both the
    Court went on to caution circumspection               USG Committee and USG Debtors have
    by stating “[b]ut especially when the                 taken pains to point out, Judge Wolin has
    circumstances giving rise to the charge of            issued no substantive rulings in their case
    bias occur or are discovered after the case           at all, other than the one ruling which we
    has commenced, timeliness should be                   have just recounted. Moreover, the
    measured not in some absolute and                     Motions to Recuse filed by USG were
    arbitrary manner from the date of                     filed only after the Owens Corning
    discovery, but with respect to the future
    stages of the case.” 
    Id. at 86
    (emphasis                     27
    added). Danyo then instructs us that we                          On February 19, 2003, Judge
    are to consider an appropriate                        Wolin issued a case management order
    accommodation between the competing                   instructing the USG Debtor to propose a
    institutional interest in avoiding the                bar date for asbestos cancer claimants and
    appearance of impropriety, on the one                 proof of claim form. This ruling had been
    hand, and avoiding the abuse of § 455(a)              opposed by the asbestos claimants.
    procedure, on the other. Cf. 
    id. 28 Brief
    of Petitioner the Official
    Committee of Unsecured Creditors of
    The record informs us that the USG             USG Corporation, et al. in Support of
    debtors had one meeting with Judge Wolin              Petitions for a Writ of Mandamus (citing
    in early 2002. At the time that it filed its          In re 
    Edgar, 93 F.3d at 257
    (noting that
    motion to recuse Judge Wolin, it had                  “passage of time is not conclusive if the
    received but one ruling in all the                    justification for disqualification is
    intervening time, and that ruling was a               compelling”)).
    36
    Petitioners and the W.R. Grace Petitioners                 We would be remiss if we did not
    had filed theirs. It is of interest to note         close this opinion, which concerns Senior
    that insofar as the Petitions seeking               District Judge Alfred M. Wolin, with
    disqualification of Judge Wolin, none of            thoughts that were so ably expressed years
    them seeks to overturn any of his prior             ago by our colleague, Senior Judge
    rulings. Rather, the recusal proceedings            Ruggero J. Aldisert. Judge Aldisert wrote
    are concerned only with his continuing              for the Court in Haines v. Liggett Group,
    into the “future stages”of these cases.             Inc., 
    975 F.2d 81
    , 98 (3d Cir. 1992), a
    case which required the reassignment of
    USG seeks Judge Wolin’s recusal             another distinguished District Court
    because, as we have been made aware                 Judge. The Court held in Haines that
    during the discovery that took place after          Judge Sarokin, the district court judge
    our first hearing, the Advisors billed their        who had to be reassigned, had exhibited
    fees equally to each of the Five Asbestos           the “appearance of partiality” in presiding
    Cases on the theory that the issues                 over an action against the Tobacco
    concerned each case equally. There is,              Industry. We take the liberty of repeating
    therefore, some logic in USG’s argument             verbatim Judge Aldisert’s words as they
    that it should be entitled to the same              appeared in the Haines opinion because
    remedy which we have decided is                     they are so appropriate and relevant here:
    necessary in Owens Corning and W.R.
    Grace.                                                     The right to trial by an
    impartial judge “is a basic
    We are not disposed to have the                     requirement of due
    issue of timeliness trump what we have                     process.” In re Murchison,
    concluded are the principles of § 455(a),                  
    349 U.S. 133
    , 136, 75 S. Ct.
    even though the record discusses no                        623, 625, 
    99 L. Ed. 942
    improper acts by Judge Wolin. In light of                  (1955).     To fulfill this
    the record that has been developed, and in                 requirement—and to avoid
    light of the factors which have been                       both bias and th e
    outlined in 
    Danyo, supra
    , and their                        appearance of bias—this
    application to USG, we are satisfied that,                 court has supervisory
    in the unique context of this case, it is                  authority to order cases
    appropriate for us to disqualify Judge                     reassigned to another
    Wolin from administering the USG                           district court judge. Lewis
    bankruptcy, just as we have disqualified                   v. Curtis, 
    671 F.2d 779
    , 789
    him from administering the Owens                           (3d Cir.), cert. denied, 459
    Corning and W.R. Grace bankruptcies.                       U.S. 880, 
    103 S. Ct. 176
    , 
    74 L. Ed. 2d 144
    (1982).
    VII.                                    Therein we stated:
    37
    I mp a r t i a l i t y a n d t h e              15 years29 and is no stranger
    appearance of impartiality                      to this court; he is well
    in a judicial officer are the                   known and respected for
    sine qua non of the                             magnificent abilities and
    American legal system. In                       outstanding jurisprudential
    Commonwealth Coatings                           and judicial temperament.
    Corp. v. Continental                            On the basis of our
    Casualty Co., 
    393 U.S. 145
    ,                     collective experience, we
    
    89 S. Ct. 337
    , 340, 21 L.                       would not agree that he is
    Ed.2d 301 (1968), the                           incapable of discharging
    United States Supreme                           judicial duties free from
    Court stated: “[A]ny                            bias or prejudice.
    tribunal permitted by law to                    Unfortunately, that is not
    try cases and controversies                     the test. It is not our
    not only must be unbiased                       subjective impressions of
    but also must avoid even the                    his impartiality gleaned
    appearance of bias.”                            after reviewing his
    decisions these many 
    years; 671 F.2d at 789
    . See also                       rather, the polestar is
    Nicodemus v. Chrysler                           “[i]mpartiality and the
    Corp., 
    596 F.2d 152
    , 157                        appearance of impartiality.”
    (6th Cir. 1979); United
    States v. Robin, 
    553 F.2d 8
    ,              
    Haines, 975 F.2d at 98
    .
    10-11 (2d Cir. 1977) (en
    b a n c ) (per curi am) .                            VIII. CONCLUSION
    Reassignment is appropriate
    to “preserve not only the                 We conclude as follows:
    reality but also the
    appearance of the proper                         The Kensington, D.K. Acquisition
    functioning of the judiciary              Partners, and USG Corp. Petitioners have
    as a neutral, impartial                   demonstrated a clear and indisputable
    administrator of justice.”                right to have the Writs of Mandamus
    United States v. Torkington,
    
    874 F.2d 1441
    , 1447 (11th
    Cir. 1989).                                     29
    Judge Wolin has been a federal
    district court judge for seventeen years.
    The district judge in              Prior to joining the federal judiciary, he
    this case has been a                      served as a judge on the County District
    distinguished member of the               Court and Superior Court of New Jersey
    federal judiciary for almost              for seven years.
    38
    issue.    The record reveals that the                     Because Judge Wolin, a United
    Advisors’ conflict, which cannot at this           States District Court Judge from the
    stage be disassociated from Judge Wolin            District of New Jersey, was appointed in
    as well as the ex parte meetings that the          the District of Delaware as Coordinator of
    Advisors and Judge Wolin participated in,          Case Management for the Five Asbestos
    reveal an abuse of discretion that requires        Cases by the then-Chief Judge of this
    disqualification. If these circumstances           Court (Senior Judge Edward R. Becker),
    were revealed to a reasonable person, it           we deem it appropriate to file this Opinion
    would undoubtedly lead to a perception             and Writ of Mandamus with the present
    that Judge Wolin’s impartiality might be           Chief Judge of this Court (Judge Anthony
    seriously questioned.                              J. Scirica) for either appointment or
    reassignment of the Owens Corning, W.R.
    As to Kensington, D.K. Acquisition          Grace & Co. and USG Corp. bankruptcies
    Partners, and USG Corp., who have asked            to another judge within the Third Circuit
    us to issue a Writ of Mandamus                     pursuant to 28 U.S.C. § 292(b).30
    disqualifying Judge Wolin from further
    presiding over the Owens Corning, W.R.
    Grace & Co. and USG Corp. bankruptcies,
    we will grant their request.                       In re Kensington Int’l Ltd.
    Nos. 03-4212, et al.
    We will take no action at this time
    with respect to the Armstrong World
    Industries, Inc. bankruptcy, but will
    FUENTES, Circuit Judge, dissenting.
    schedule appropriate briefing and
    argument on the Petition for Mandamus                     In November 2001, then-Chief
    filed by the Official Committee of                 Judge Becker of this Court ordered the
    Unsecured Creditors of Armstrong World             consolidation of the Five Asbestos Cases
    Industries, Inc.                                   on the grounds that “these bankruptcy
    cases, which carry with them tens of
    We will take no action in the               thousands asbestos claims, need to be
    Federal-Mogul Global, Inc. bankruptcy,             consolidated before a single judge so that
    leaving its administration with Judge
    Wolin.
    30
    28 U.S.C. § 292(b) provides:
    We will vacate any and all stays            “The chief judge of a circuit may, in the
    that we previously imposed on the District         public interest, designate and assign
    Court and Bankruptcy Court proceedings,            temporarily any district judge of the circuit
    so that the matters pending or to be               to hold a district court in any district
    brought before the District and                    within the circuit.”
    Bankruptcy Courts may be resumed.
    39
    a coordinated plan for management can be                                 A.
    developed and implemented.” JA at 191.
    First, I must disagree with my
    Judge Becker stressed the magnitude of
    colleagues’ conclusion that Gross and
    this task, noting that because “a significant
    Hamlin had a conflict of interest. The
    portion of the asbestos cases in this
    majority discerns that “Gross and Hamlin,
    country are proceeding under the aegis of
    did, in fact, operate under a structural
    this litigation, I deem this assignment and
    conflict of interest” arising “from the dual
    consolidation critically important to the
    roles they played in the Five Asbestos
    administration of justice.” 
    Id. at 191-92.
                                                         Cases and the G-I Holdings bankruptcy.”
    Judge Wolin accepted this Court’s
    Maj. Op. at 18. The majority agrees with
    mandate and immediately set himself to
    Petitioners that Gross and Hamlin are
    the task of managing this unprecedentedly
    conflicted by their futures representative
    large asbestos bankruptcy litigation. My
    roles because the issues in G-I overlap to
    colleagues, disapproving of the manner in
    such a great degree with those in the Five
    which Judge Wolin executed his mandate,
    Asbestos Cases. Specifically, the majority
    have decided that he must be recused.
    writes: “By their very position as
    I disagree with this conclusion for          representatives of the future asbestos
    several reasons. First, I cannot concur that         claimants in G-I Holdings, Gross and
    a reasonable observer would perceive any             Hamlin signaled to all that they could not
    appearance of partiality on the part of              be non-partisan, benign or neutral.” Maj.
    Judge Wolin: specifically, I do not agree            Op. at 19.
    that the Advisors labored under any sort of
    There is no doubt, as the Supreme
    conflict, nor do I perceive Judge Wolin’s
    Court recognized long ago, that “[c]ourts
    practice of ex parte communications to
    have (at least in the absence of legislation
    warrant his recusal. I find it telling that
    to the contrary) inherent power to provide
    Petitioners have not asked, and the
    themselves with appropriate instruments
    majority has not seen a need, for any of
    required for the performance of their
    Judge Wolin’s prior rulings to be
    duties. This power includes authority to
    disturbed. In my view, this fact belies the
    appoint persons unconnected with the
    seriousness of the taint that Petitioners
    court to aid judges in the performance of
    have sought to ascribe to Judge Wolin’s
    specific judicial duties, as they may arise
    court. Second, the petitions for recusal in
    in the progress of a cause.” In re Peterson,
    this case are clearly untimely, and should
    
    253 U.S. 300
    , 312 (1920) (Brandeis, J.)
    be rejected on that basis alone.
    (internal citations omitted). Although
    Accordingly, I must respectfully dissent
    “there is no statute which expressly
    from my colleagues’ decision to recuse
    authorizes” the appointment of the
    Judge Wolin.
    Advisors in this case, “the court possesses
    I.                              the inherent power to supply itself with
    this instrument for the administration of
    40
    justice when deemed by it essential.” 31 
    Id. d e
    b t o r -d e f e n d a n t ’ s C h a p t e r 1 1
    The Advisors may well have been                               reorganization plan is confirmed, while
    e x t r a o r d i n a r y a n d unp reced ente d              future claimants are those who do not
    appointments in this asbestos bankruptcy                      manifest any injury until after the plan is
    proceeding, but this is a case of                             confirmed. Because asbestosis symptoms
    e x t r a o r d i n ary a n d u n p r e c e d e n te d        can take an extremely long time to
    complexity and magnitude. In that light, I                    manifest themselves, and because the
    cannot agree that a reasonable observer,                      whole point of Chapter 11 proceedings is
    with knowledge of all of the relevant facts,                  to give the debtor finality as to pre-
    would discern their role as creating any                      bankruptcy liabilities, future claimants are
    appearance of partiality.                                     given their own “futures representative.”
    This representative is charged with
    To see why this is true, one need
    representing the interests of future
    only look at the role of a futures
    claimants, i.e., by maximizing their share
    representative in asbestos bankruptcy
    of the trust corpus. Much like unnamed
    litigation. In an asbestos bankruptcy
    class members are bound to the results of
    proceeding, all present and future asbestos
    a class action, a future claimant is bound
    claims are steered away from the bankrupt
    by the resolution to which his or her
    debtor and applied to a properly funded
    representative agrees.             By definition,
    trust approved by the bankruptcy court.
    future claimants are unidentified during
    Present asbestos litigants are those who
    the plan process, so the futures
    suffer asbestos-related injury before the
    representative does not have any concrete
    clients, only a nebulous “client” comprised
    31                                                    of latent future interests.
    The Advisors appointed by Judge
    Wolin were: 1) William Dreier, a retired                              Consequently, Gross and Hamlin do
    New Jersey appellate judge and products                       not have any clients in G-I, nor will they
    liability expert; 2) David Gross, a New                       have any clients by the point at which their
    Jersey lawyer and mediator who had                            job in G-I is finished: their duty is to
    previously served as counsel for both                         promote the collective interest of those
    asbestos plaintiffs and defendants; 3) C.                     parties that will have future claims against
    Judson Hamlin, a retired New Jersey                           the G-I post-confirmation trust. In other
    Superior Court judge who had managed all                      words, Gross and Hamlin are charged with
    asbestos litigation in New Jersey for a                       safeguarding future claimants’ “cut” of the
    number of years; 4) John Keefe, a retired                     G-I trust. This duty does not place Gross
    New Jersey appellate judge who had                            and Hamlin in a materially adverse
    managed all asbestos litigation in New                        position to the estates in the Five Asbestos
    Jersey for a different period of time; and 5)                 Cases, nor does it give them a direct
    Francis McGovern, a Duke University law                       interest in manipulating those estates in
    professor with his area of expertise in mass                  any way. See In re Marvel Entertainment
    tort litigation.
    41
    Group, Inc., 
    140 F.3d 463
    , 476 (3d Cir.                      division of the trusts in the Five Asbestos
    1998) (“one is a ‘disinterested person’ only                 Cases.
    if he has no interest that is materially
    Despite the total lack of
    adverse to a party in interest in the
    commonality among the parties and
    bankruptcy”).
    subject matter in G-I and the Five
    Petitioners’ failure to point out any              Asbestos Cases, the majority perceives the
    interest held by Gross or Hamlin is                          appearance of a conflict because, as an
    unsurprising, given that they do not                         asbestos bankruptcy case, G-I contains
    represent any of the parties in the Five                     similar issues to those in the Five Asbestos
    Asbestos Cases. While there may be some                      Cases. 32 In my view, this simply cannot
    overlap among those who eventually share                     constitute grounds for a reasonable, fully
    in the money set aside for future claimants                  informed observer to perceive a conflict,
    in the Five Asbestos Cases and those who                     and the majority does not explain why it
    share in the money set aside for future                      would constitute such grounds. It is true
    claim ants in G-I , the “partie s”                           that decisions from Judg e W olin
    t h e m s e l v es — t h e f u t u r e c l ai m a n t        benefitting future claimants in the Five
    interests—are distinct.               The clear              Asbestos Cases might benefit the G-I
    distinction between the futures claimants                    future claimants, but this does not make
    in G-I and those in the Five Asbestos                        Gross and Hamlin non-neutral as Judge
    Cases is highlighted by the facts that future                Wolin’s Advisors.        Any person with
    claimants in the Five Asbestos Cases could                   expertise in a given field invariably forms
    be present claimants in G-I or vice versa,                   opinions about that field. For example,
    and that Gross and Hamlin will not even                      judges are empowered to appoint attorneys
    know which claimants fall into which                         as experts. It is almost certain that an
    category until their roles are concluded.                    expert attorney will have opinions about
    Moreover, the subject matters of
    the cases are entirely different.        As                         32
    The majority contends that
    observed before, the G-I litigation is a
    Hamlin and Judge Wolin implicitly
    dispute over how to divide the assets of the
    conceded a conflict when they stated that
    G-I trust. Similarly, each of the Five
    Hamlin would have had to recuse himself
    Asbestos Cases is a dispute over how to
    from any assignment in the Five Asbestos
    divide the assets of the trust of one of the
    Cases dealing too closely with G-I. Maj.
    five debtors. In other words, the money at
    Op. at 19.        A reasonable observer,
    stake in G-I has no relation whatsoever to
    however, would not view Hamlin’s and
    the money at stake in any of the Five
    Judge Wolin’s cautious statement about
    Asbestos Cases, and the responsibility held
    self-recusal in hypothetical situations as an
    by Gross and Hamlin to maximize future
    admission that a structural conflict actually
    G-I asbestos claimants’ share of the G-I
    existed, or even that recusal would be
    trust presents no duty with respect to the
    mandatory in those hypothetical situations.
    42
    the matters within his or her expertise.             informed judicial advisor (or judge). The
    Accordingly, it is possible, if not probable,        majority gleans an appearance of conflict
    that the attorney will have opinions about           from the mere existence of similarities
    the merits of the case for which he or she           between the Five Asbestos Cases and G-I,
    is called. Furthermore, it is also possible,         but a reasonable observer with knowledge
    if not probable, that the practice upon              of all relevant facts33 would easily pierce
    which the attorney built his or her                  through these superficial similarities and
    expertise will contain clients that would be         conclude that there is no conflict.
    benefitted by the judge’s ruling in a certain
    B.
    way. These are just natural consequences
    of the attorney being an expert in his or her                Because I find that Gross and
    field, but would not cause the reasonable            Hamlin were not conflicted by their roles
    observer to demand the judge’s recusal               in G-I, I find it necessary to briefly discuss
    because the attorney is “conflicted.”                Petitioners’ other allegations of conflict.
    Similarly, a judge would obviously not               The second purported conflict is the
    have to recuse himself from all criminal             attendance by Gross, Hamlin and
    cases if his law clerk was committed to              McGovern at the futures representatives’
    working for the Federal Defender after his           meetings. Petitioners assert that because
    or her clerkship. Although the law clerk             t h e m e e t i n g s in c l u d e d f u t u r e s
    would arguably have an incentive to
    promote pro-defendant precedent, no
    reasonable observer would demand that                        33
    The majority correctly observes
    the judge screen off the law clerk from all
    that the reasonable person envisioned by §
    criminal cases.
    455(a) is a lay person, not a member of the
    In short, there is no colorable basis        asbestos bar. However, even if the District
    for perceiving Gross and Hamlin to be                Court’s description of the reasonable
    “non-neutral.” They do not represent any             person was technically wrong, the practical
    parties in the Five Asbestos Cases, they do          import of this mistake was minimal. As
    not directly represent any interest                  respondents observe, the “reasonable
    materially adverse to any of those parties,          observer” in recusal cases must still have
    and the subject matter of their                      “knowledge of all the facts.” In re
    representation is wholly separate from the           Kensington Int’l Ltd., 
    353 F.3d 211
    , 220
    subject matter of the Five Asbestos Cases.           (3d Cir. 2003) (emphasis added). Thus,
    At most, Petitioners have shown that Gross           although the reasonable person is a lay
    and Hamlin have opinions about the                   person, the observer with which the Court
    subject matter in front of them as a result          is concerned is a lay person with complete
    of their knowledge of asbestos litigation,           knowledge of the demands and intricacies
    but strong opinions about the law are to be          of asbestos bankruptcy litigation, as well
    expected in any well-educated and well-              as the actual events that transpired in the
    District Court.
    43
    representatives for the Five Asbestos               Asbestos Cases were spun in any particular
    Cases and had as their goal the promotion           light to the Advisors.     This case is
    of future claimants’ interests in the               therefore more like Bonds than School
    planning of upcoming legislation, the               Asbestos.
    neutrality of the three Advisors was
    Petitioners’ final three grounds of
    compromised. Attendance at a conference
    conflict are also unpersuasive. First,
    or meeting where a particular point of
    Petitioners’ argument that Gross’s
    view is advocated or dominates the
    advocacy for the Keene Creditors Trust
    discussion, however, does not by itself
    created a conflict fails for the same
    create a reasonable question as to a judge’s
    reasons that he and Hamlin were not
    impartiality. United States v. Bonds, 18
    conflicted by their roles in G-I. Second,
    F.3d 1327, 1330-31 (6th Cir. 1994).
    Petitioners allege that after Gross and
    Going to such a conference creates no
    McGovern acted as mediators, they
    more of an appearance of bias than reading
    divulged confidential information gathered
    a law review article or book with the same
    in that capacity from the parties to Judge
    viewpoint. 
    Id. at 1330-32.
                                                        Wolin, and that this constituted an ethical
    In Bonds, the criminal defendants            breach of their mediator duties. The
    appealed a conviction based largely on              record indicates that Gross made some
    challenged DNA evidence, and then                   reports of his mediation discussions to
    moved for rehearing en banc after losing            Judge Wolin, and that McGovern did, in
    the appeal. 
    Id. at 1328.
    The defendants             fact, report to the Advisors and Judge
    unsuccessfully sought the recusal of an             Wolin that the parties to an earlier
    appellate judge from the en banc panel              mediation in Owens Corning disagreed on
    because that judge had attended a scholarly         the extent of Owens Corning’s tort
    conference in which the speakers                    liability, estimating it to be anywhere from
    vigorously defended the FBI’s DNA                   $6 to 20 billion.34              Furthermore,
    methods and denigrated defense counsel              McGovern has testified that disclosures of
    challenging those methods. 
    Id. at 1329.
    In          the mediation’s substance, even to the
    refusing to grant the recusal motion, the           decisionmaker in the case, are an ethical
    Bonds court specifically distinguished In           breach.
    re School Asbestos Litig., 
    977 F.2d 764
    ,
    At most, Petitioners have shown
    782 (3d Cir. 1992), on the grounds that the
    that McGovern and Gross may have
    conference in the latter case was actually
    breached their ethical duties as mediators;
    funded by the judge in that case, and
    provided a pre-screening of the plaintiffs’
    case on the actual facts of the case. 
    18 34 F.3d at 1330-31
    . This case has neither of                     Petitioners contend that this
    these salient attributes, as there is no            account is verified by Dreier’s notes, but
    evidence that the actual facts of the Five          Dr e ier’s pe nma nship ma ke s th is
    impossible to confirm. JA at 3122-35.
    44
    however, Petitioners have not shown any              Judge Wolin’s practice of ex parte
    way in which this purported breach would             communications contributed to an
    actually constitute a conflict or an                 appearance of partiality: “If the structural
    appearance of partiality on Judge Wolin’s            conflicts of interest gave Gross and
    part. Petitioners have no evidence that the          Hamlin a motive to give Judge Wolin less-
    mediations’ substance was conveyed to                than-neutral advice, it was the ex parte
    Judge Wolin in a manner that would bias              meetings that gave them the opportunity.”
    him in the Five Asbestos Cases. Indeed,              Maj. Op. at 29. Of course, if there were no
    as Judge Wolin has pointed out in his                conflict to begin with, then Judge W olin’s
    opinion, the total amount of Owens                   ex parte conferences with his Advisors
    Corning’s liability was not the key                  were no more objectionable than any
    settlement issue in the case; rather,                judge’s ex parte communications with his
    because the bankruptcy dispute is over the           or her law clerks. Thus, the ex parte
    distribution of the pie rather than its size,        communications with the Advisors clearly
    the truly sensitive information in this case         did not provide any independent grounds
    would be the parties complicated claims as           for recusal.
    to their shares of the estate.
    While I share my colleagues’
    Finally, Petitioners contend that             wariness of the scope of Judge Wolin’s ex
    Hamlin’s nomination as a futures                     parte contacts with the parties, I do not
    representative in Grace created a conflict,          find those contacts disturbing to the point
    and that Hamlin admitted as much.                    of requiring his recusal under § 455(a).
    Hamlin, of course, merely observed that if           Petitioner USG’s brief implies that ex
    he became the futures representative in              parte contacts in themselves cause a
    Grace, he would have to leave his Advisor            judge’s impartiality to be reasonably
    position. Hamlin’s observation, in fact,             questioned. This blanket indictment of ex
    highlights why his role in G-I did                   parte communications is belied by caselaw
    not create a conflict here: as a Grace               in both this Circuit and others. In re
    futures representative, he would be                  Prudential Ins. Co. Am. Sales Practices
    fighting with other creditors of Grace over          Litig. Agent Actions, 
    278 F.3d 175
    , 182, n.
    the proper distribution of the Grace estate.         5 (3d Cir. 2002) (stating that “any
    As a G-I futures representative, in contrast,        r e ason able a ttorn e y w o u l d h a ve
    he has no direct interest in the division of         understood that Judge Wolin could
    the Grace estate. In conclusion, for the             permissib ly engage in ex parte
    reasons stated above, none of Petitioners’           communication in a complex class action”
    arguments that a conflict existed is                 and noting recusal movant’s concession
    persuasive.                                          that premising his motion on Judge
    Wolin’s ex parte contacts was baseless)
    C.
    (internal quotations omitted); Aiken
    The majority also comments that               County v. BSP Div. of Envirotech Corp.,
    45
    
    866 F.2d 661
    , 679 (4th Cir. 1989) (recusal            the qualitative circumstances of the
    inquiry based on ex parte contacts must               contacts and their consequences in making
    take all circumstances of contact into                their decisions. In this case, Judge W olin
    account).                                             made his practice of using ex parte
    communications widely known at the
    Indeed, contrary to USG’s
    outset of the bankruptcy proceedings, and
    arguments, cases ordering recusal on the
    the record indicates that while every single
    basis of ex parte contacts did so based on
    party did not participate, there was no
    the contacts’ specific circumstances, not as
    favoritism given to any particular bloc of
    part of some general rule against ex parte
    interests. JA at 1854-70. The only
    contacts. In United States v. Kelly, 888
    suspicious circumstance alleged by USG is
    F.2d 732, 745 (11th Cir. 1989), for
    that Judge Wolin issued a Case
    example, the Eleventh Circuit recused the
    Management Order favoring USG’s
    judge in question because the judge
    position on setting a bar date, had
    communicated ex parte with a friend’s
    numerous ex parte contacts with asbestos
    wife regarding the friend’s decision to
    claimants’ counsel, and then “retreated”
    testify; indeed, the judge himself conceded
    from enforcing the Case Management
    the appearance of impropriety. Similarly,
    Order. However, the Case Management
    the School Asbestos court recused a trial
    Order itself was not binding, but explicitly
    judge who, in his personal capacity, had
    described itself as a proposal that was
    unwittingly attended a conference
    subject to comment by all interested
    sponsored by the plaintiffs in his case on
    parties, after which it might not be
    the very topics central to his case, funded
    executed. JA at 286. In conclusion, there
    by money he had approved for plaintiffs’
    is noth ing ab out t he ex parte
    fund. School 
    Asbestos, 977 F.2d at 781
    -
    communications in this case to warrant
    82. In that case, we ruled that all of those
    recusal.
    facts in concert, combined with the judge’s
    own recognition of a possible taint,                                      D.
    warranted recusal. 
    Id. at 782-83.
    In other
    Because I would reject Petitioners’
    words, the ex parte contacts in those cases
    § 455(a) challenge, I reach the §455(b)(1)
    possessed attributes that made them
    challenge as well, and conclude that the ex
    specifically vulnerable to allegations of
    parte communications here do not warrant
    bias.
    recusal under § 455(b)(1). In relevant part,
    In trying to analogize to these cases,        28 U.S.C. § 455(b)(1) demands a judge’s
    USG makes much of the large number of                 recusal when “he has . . . personal
    ex parte contacts in this case, but does not          knowledge of disputed evidentiary facts
    cite to any caselaw that indicates that the           concerning the proceeding.”        Accord
    quantity of contacts is a factor in                   
    Kensington, 353 F.3d at 219
    , n. 6.
    determining recusal. Rather, as indicated             Canvassing caselaw from various
    above, courts ordering recusal examined               jurisdictions, Judge Wolin held that the
    46
    proscribed knowledge in § 455(b)(1) does             1322, 1329 (8th Cir. 1985) (same); United
    not include information gained ex parte              States v. Bailey, 
    175 F.3d 966
    , 969 (11th
    within a judicial proceeding, generally              Cir. 1999) (same); In re Beard, 811 F.2d
    known facts, opinions on broad topics                818, 829, n. 16 (4th Cir. 1987) (knowledge
    formed outside the courtroom, or                     acquired by judge through ex parte
    irrelevant facts. Rather, the District Court         communication did not fall under §
    concluded, § 455(b)(1) mandates recusal if           455(b)(1) because it was acquired during
    and only if “a specific, disputed fact at            “the course of his judicial duties”); United
    issue in the case was within the judge’s             States v. Yousef, 
    327 F.3d 56
    , 170 (2d Cir.
    prior, non-judicially acquired knowledge.”           2003) (same); United States v. Flowers,
    JA at 104. Petitioners argue that ex parte           
    818 F.2d 464
    , 468-69 (6th Cir. 1987)
    contacts are almost entirely forbidden by            (recusal not warranted where “all the
    §455(b)(1). Respondents counter that the             information the judge acquired about the
    District Court’s standard was basically              case arose from his association with the
    correct, and that § 455(b)(1) recusal is only        proceeding”); In re Grand Jury 95–1, 118
    triggered if a judge gains information on a          F.3d 1433, 1438 (10th Cir. 1997)
    disputed evidentiary fact outside of                 (information must be obtained outside
    judicial proceedings, or if he shows actual          course of judicial proceeding, such as “by
    bias.                                                witnessing the events at issue in the
    proceeding”) (internal quotations omitted).
    As discussed above, case law in this
    Court casts doubt on Petitioners’ sweeping                  The Circuits also seem to agree
    indictment of ex parte communications.               with Respondents that recusal is only
    See In re 
    Prudential, 278 F.3d at 182
    , n. 5.         appropriate under § 455(b)(1) when the
    Furthermore, other Circuits unanimously              knowledge gained is pertinent to a specific
    support Respondents’ contention that                 disputed fact at issue in the case before the
    §455(b)(1) recusal requires the “personal            judge. United States v. DeTemple, 162
    knowledge” to have its source outside of             F.3d 279, 285 (4th Cir. 1998) (judge’s
    the matter over which the judge is                   kno wle d g e o f f a c t s g ai n e d b y
    presiding. Bogosian v. Woloohojian, 158              representation of one of defendant’s prior
    F.3d 1, 11 (1st Cir. 1998) (information              creditors did not require recusal because
    gained by judge “acting in a judicial                none of those facts was “a disputed
    capacity . . . was not ‘personal’ knowledge          evidentiary fact in the criminal trial”);
    raising a recusal question”); Conkling v.            United States v. Smith, 
    210 F.3d 760
    , 764
    Turner, 
    138 F.3d 577
    , 592-93 (5th Cir.               (7th Cir. 2000) (judge’s extrajudicial
    1998) (same); Lac du Flambeau Band of                knowledge that anhydrous ammonia is a
    Lake Superior Chippewa Indians v. Stop               dangerous substance did not justify recusal
    Treaty Abuse–Wisc., Inc., 
    991 F.2d 1249
    ,             from sentencing defendant even though
    1255-56 (7th Cir. 1993) (same); Hale v.              danger posed by anhydrous ammonia was
    Firestone Tire & Rubber Co., 756 F.2d                material fact at issue because danger posed
    47
    was not in dispute). This Court has agreed           broad proposition that any information
    that the “disputed evidentiary facts”                gained by the judge outside the adversarial
    described in § 455(b)(1) are “matters                process (i.e., ex parte) mandates recusal.
    underlying the cause of action.” Plechner            Rather, in Edgar the recused judge sent a
    v. Widener College, Inc., 
    569 F.2d 1250
    ,             panel of appointed experts to personally
    1263 (3d Cir. 1977).                                 inspect the conditions of an Illinois mental
    health facility that was found to be
    Petitioners’ attempts to establish a
    constitutionally infirm. 
    Id. at 257.
    In
    per se rule requiring recusal for ex parte
    other words, the Edgar judge’s officers
    communications are unavailing.           For
    obtained first-hand knowledge of disputed
    example, they cite to Price Bros. Co. v.
    evidentiary facts at the heart of the case,
    Philadelphia Gear Corp., 
    629 F.2d 444
    ,
    and that circumstance squarely fits within
    446 (6th Cir. 1980), but that case was not
    the requirements for recusal outlined by
    a recusal case, and dealt with a judge
    Judge W olin in his opinion.
    whose law clerk gathered facts through
    first-hand observation of the allegedly                     Petitioners’ final attempt to create
    defective pipe at the heart of the lawsuit;          an unconditional nexus between ex parte
    in other words, the judge gained                     communications and recusal lies in a
    extrajudicial knowledge regarding a                  reference to the Code of Judicial Conduct,
    disputed fact at the heart of the litigation.        wh ich cautio ns ag ainst ex parte
    The Price Bros. court explicitly stated,             communications. Code of Conduct for
    however, that “not every ex parte                    United States Judges, 
    175 F.R.D. 363
    ,
    communication to the trial court” is                 Canon 3(A)(4).       However, the Code
    impermissible. 
    Id. Similarly, United
                    tellingly leaves out ex parte
    States v. Craven, 
    239 F.3d 91
    (1st Cir.              communications in its listing of grounds
    2001), cited by USG, is not a recusal case           for disqualification, refuting Petitioners’
    either, and also stated “that not every ex           claim that the Code endorses recusal based
    parte contact between a judge and a court-           on ex parte contacts. 
    Id. at Canon
    3(C).
    appointed expert” is improper. 
    Id. at 103,
              Furthermore, although the Code was
    n. 3. Petitioners do cite a recusal case,            largely codified in 28 U.S.C. § 455, see
    Hathcock v. Navistar Int’l Transp. Co., 53           Ausherman v. Bank of Am. Corp., 
    216 F.3d 36
    , 41 (4th Cir. 1995), but in that             F.Supp.2d 530, 531 (D. Md. 2002),
    case the judge was recused on § 455(a)               “violations of the Code do not necessarily
    grounds because he had plaintiff’s counsel           give rise to a violation of” that statute.
    draft an opinion for him without informing           Andrade v. Chojnacki, 
    338 F.3d 448
    , 459
    opposing counsel.                                    (5th Cir. 2003). Indeed, as Respondents
    point out, the fact that Congress codified
    The precedent most strongly urged
    so much of the Code but did not codify the
    by Petitioners as persuasive in this case is
    prohibition on ex parte communications
    Edgar v. K.L., 
    93 F.3d 256
    (7th Cir. 1996),
    evinces a Congressional judgment that ex
    but even that case does not stand for the
    48
    parte communications do not warrant                  warrants recusal if the judge or an
    recusal per se.      In short, ex parte              attendant officer could become a direct
    communications must give the judge                   witness in the case. Because Petitioners
    information on a specific disputed material          cannot demonstrate such circumstances in
    fact gleaned from outside the judiciary              this case in regard to Judge W olin, his
    process to warrant recusal under §                   recusal is not warranted under § 455(b)(1).
    455(b)(1). 35
    II.
    Petitioners fail to show that Judge
    Even if I believed that any of
    Wolin gained any “personal” knowledge
    Petitioners’ recusal arguments had merit, I
    from outside judicial proceedings, as all of
    would deny Petitioners’ motion as
    the ex parte contacts in this case were
    untimely.
    conducted within the context of Judge
    Wolin’s management of the case, as                                       A.
    announced in December 2001. Petitioners
    Most troubling in this case is the
    rely on Judge W olin’s statement that he
    conduct of Petitioners USG and the USG
    learned information that was “extra-
    Unsecured Creditors. As the majority
    judicial,” but Judge Wolin’s opinion
    recognizes, both of these Petitioners knew
    rejected the allegation that he learned any
    of the Advisors’ alleged conflict in
    information that was “extra-judicial” in the
    January 2002.        Furthermore, it is
    sense prohibited by § 455(b)(1). USG also
    undisputed that all parties knew of the ex
    argues that if the ex parte communications
    parte scheme in December 2001, at the
    at issue in this case are not deemed
    inception of Judge W olin’s control of the
    e xtrajud icial, then no ex par te
    Five Asbestos Cases. It is also undisputed
    communication can ever justify recusal.
    that no motion for recusal was made until
    USG’s argument is overstated: ex parte
    October 2003. This Circuit has joined
    contacts are extrajudicial if they are
    others in imposing a timeliness
    received by a judicial officer in his
    requirement on recusal motions. E.g.,
    “personal” capacity, i.e., through first-hand
    United States v. Rosenberg, 806 F.2d
    perception of disputed matters such as in
    1169, 1173 (3d Cir. 1986). In determining
    Edgar. Put another way, § 455(b)(1)
    whether a request for recusal is timely, the
    Court considers the time elapsed between
    the complained-of conduct and the motion,
    35                                                   the timeline of the case between the
    Kensington also cites to Flamm,
    conduct and the motion, and the effect of
    Judicial Disqualification § 14.1, which in
    recusal on the case going forward. Smith
    turn cites to state law cases for the
    v. Danyo, 
    585 F.2d 83
    , 86 (3d Cir. 1978);
    proposition that ex parte contacts
    Apple v. Jewish Hosp. and Med. Ctr., 829
    demand recusal; § 455(b)(1), a federal
    F.2d 326, 334 (2d Cir. 1987). These
    statute, is clearly not implicated by these
    factors, taken together, effectively
    citations.
    49
    disallow recusal motions by “a litigant            because Judge Wolin announced that all
    with know ledge of c ircumstances                  objections would be deemed waived. I do
    suggesting possible bias or prejudice              not believe that a responsible attorney
    holding back, while calling upon the court         would have reasonably reacted to Judge
    for hopefully favorable rulings, and then          Wolin’s instruction in that manner. First,
    seeking recusal when they are not                  Judge Wolin’s statement most naturally
    forthcoming.” 
    Smith, 585 F.2d at 86
    .               indicates that under his announced
    practice, any objections to any particular
    USG and the USG Unsecured
    ex parte communication would be waived,
    Creditors perfectly fit the Smith court’s
    not that parties could not voice their
    description of the “sneak attack” litigant.
    objections to the practice itself. Second,
    Astonishingly, these two Petitioners kept
    even if USG and the USG Unsecured
    silent about the matters underlying their
    Creditors felt that their objection would
    motions for over 20 months. USG tries to
    fail before Judge Wolin, attorneys
    minimize the appearance of delay by
    routinely make seemingly futile objections
    observing that Judge Wolin’s December
    for the purpose of preserving their
    2001 statement only disclosed that he
    objection on the record. See Lightning
    would “sparingly” resort to ex parte
    Lube, Inc. v. Witco Corp., 
    4 F.3d 1153
    ,
    communications, and alleging that it did
    1181, n. 16 (3d Cir. 1993) (attorney’s
    not know of the actual scope of the ex
    failure to object not excused by belief that
    parte communications until late 2003. As
    objection would be futile). Third, even if
    mentioned above, however, the quantity of
    USG and the USG Unsecured Creditors
    ex parte communications is irrelevant to
    felt that objection would be futile, they had
    USG’s claim: it is undisputed that USG
    the available remedy that they have chosen
    knew that Judge Wolin was (allegedly
    to exercise now, two years later: a motion
    improperly) engaging in ex parte
    for recusal. In short, USG and the USG
    communications to some extent for almost
    Unsecured Creditors have no colorable
    two years before it brought its motion to
    excuse for why they did not proceed for
    recuse, and that is the relevant measure of
    more than 20 months with their efforts to
    the time elapsed. USG cites to Edgar, 93
    recuse Judge Wolin.
    F.3d at 257, but in that case a one-year
    delay in bringing the recusal motion was                  The majority seems to recognize
    justified because the movants had only             that USG and the USG Unsecured
    recently discovered the objectionable              Creditors have no excuse for their dilatory
    qualitative nature of the ex parte contacts        conduct, but then proceeds to excuse that
    at issue.                                          conduct anyway on the grounds that USG
    had no improper motive for its recusal
    USG and the USG Unsecured
    motion.      Specifically, the majority
    Creditors also try to excuse their delay by
    observes that the timeliness requirement
    arguing that they did not feel empowered
    was crafted largely to prevent parties from
    to object to the ex parte communications
    50
    trying to recuse a judge once they felt that        Accordingly, I would reject the § 455(a)
    they were losing their case. The majority           challenge to Judge Wolin’s ex parte
    then accepts USG’s allegation that the only         practice on timeliness grounds with respect
    ruling made by Judge Wolin so far has               to USG.36
    been in its favor: the aforementioned
    B.
    February 2003 Case Management Order.
    The majority concludes that, because USG                    Although I do not find the conduct
    had not yet suffered any adverse ruling, it         of the Petitioners in Owens Corning and
    did not have the fear of losing that lays at        Grace as clearly inexcusable as that of the
    the heart of the timeliness requirement,            Petitioners in USG, I would still find their
    and that there is therefore no need to              recusal motions untimely as well. The
    enforce the timeliness requirement against          recusal motion on ex parte grounds is
    USG.                                                clearly untimely for the reasons stated
    earlier: namely, that all parties knew of
    Of course, as USG has itself
    Judge Wolin’s plan for ex parte
    observed in its argument that it suffered
    communications in December 2001. The
    prejudice from the ex parte contacts, the
    recusal motion on conflict grounds,
    District Court eventually refused to
    enforce that Case M anagement Order,
    meaning that, in effect, the District Court
    36
    ruled against USG’s wishes. USG cannot,                       I would also find Petitioners’ §
    on the one hand, claim in support of its            455(b)(1) claim untimely. Although no
    recusal argument that it has perceived              published decision from this Court has
    Judge Wolin’s ex parte contacts as                  decided whether § 455(b) has a timeliness
    predisposing him against USG, and then              requirement, it is worth noting that almost
    on the other hand, claim that Judge Wolin           every other Circuit that has considered the
    has shown no predisposition against USG             question has implicitly or explicitly
    to bolster its timeliness claim. In any             recognized such a requirement. Apple,
    event, even if USG had not suffered 
    any 829 F.2d at 334
    (applying requirement to
    adverse rulings yet, it does not change the         § 455(b) motion); Oglala Sioux Tribe of
    fact that USG has no justification for its          Pine Ridge Indian Reservation v.
    delay in bringing its motion to recuse, as          Homestake Mining Co., 
    722 F.2d 1407
    ,
    well as the fact that the delay to this case        1414 (8th Cir. 1983) (same); E. & J. Gallo
    that will result from recusal will erase two        Winery v. Gallo Cattle Co., 
    967 F.2d 1280
    ,
    years of case management. As this Court             1295 (9th Cir. 1992) (same); Summers v.
    has previously noted, delay in this case            Singletary, 
    119 F.3d 917
    , 920-21 (11th
    could be catastrophic to many of the                Cir. 1997) (explicitly rejecting argument
    constituencies involved, and that issue             that timeliness requirement applies only to
    looms especially large in this timeliness           § 455(a) motions and not § 455(b)
    inquiry. 
    Kensington, 353 F.3d at 224-25
    .            motions); United States v. York, 
    888 F.2d 1050
    , 1054-55 (5th Cir. 1989) (same).
    51
    however, requires further discussion with            (notice to creditors’ committee constituted
    respect to the Owens Corning and Grace               notice to individual creditors).
    Petitioners. These Petitioners contend that
    Imputing the Unsecured Creditors
    their motion is timely because they did not
    Committees’ knowledge to creditors
    actually know of the alleged conflict until
    makes sense. As a parallel example,
    September 2003. I agree with the majority
    Respondents point out that the Asbestos
    that constructive knowledge is not
    Claimants Committee is presumed to
    sufficient to trigger timeliness concerns,
    speak for all claimants; it would be
    but that imputed knowledge can
    staggeringly onerous to require notice of
    sometimes be sufficient. However, I
    relevant events to be given to all 200,000+
    disagree with the majority’s conclusion
    asbestos claimants rather than the
    that we should not impute the Owens
    Committee, which represents their
    Corning and Grace Unsecured Creditors
    collective interest. There is no reason why
    Committees’ knowledge of the alleged
    unsecured creditors should be given any
    conflicts to the Owens Corning and Grace
    different treatment than their asbestos
    Petitioners.
    claimant counterparts; to the contrary,
    It is uncontroverted that the firms of        given that in bankruptcy cases creditors
    Davis Polk & Wardwell and Stroock &                  within each constituency change on a
    Stroock & Lavan, counsels for the Owens              regular basis, the necessity of using the
    Corning and W.R. Grace Unsecured                     Unsecured Creditors Committee as a
    Creditors Committees respectively, learned           conduit of notice to unsecured creditors is
    of the alleged conflicts no later than               even more manifest.            Indeed, the
    January 2002. A party, of course, is                 streamlining function of these Committees
    charged with the knowledge of its counsel.           is largely their reason for existing in the
    E.g., Veal v. Geraci, 
    23 F.3d 722
    , 725 (2d           first place. Finally, imputing knowledge
    Cir. 1994).      Therefore, both of the              from the Committees to individual
    Unsecured Creditors Committees knew of               creditors would safeguard the interests
    the alleged conflicts. The Unsecured                 behind the timeliness requirement. In
    Creditors Committees are fiduciaries of all          particular, this rule would prevent
    unsecured creditors, including Kensington            Creditors Committees from strategically
    and the Grace Creditors. Woods v. City               preserving recusal claims by insulating
    Nat’l Bank & Trust Co., 
    312 U.S. 262
    , 268            those claims from individual creditors, and
    (1941); In re Mountain States Power Co.,             would encourage Creditors Committees to
    
    118 F.2d 405
    , 407 (3d Cir. 1941).                    execute their duties to creditors more
    Accordingly, notice to the Unsecured                 vigilantly.
    Creditors Committees is the equivalent of
    Kensington and the Grace Creditors
    notice to Kensington and the Grace
    cite authority purportedly against this rule,
    Creditors. In re Harris Management Co.,
    but the cited cases do not contradict the
    Inc., 
    791 F.2d 1412
    , 1415 (9th Cir. 1986)
    rule of imputing notice. In re Levy, 54
    
    52 B.R. 805
    , 806-07 (Bankr. S.D.N.Y. 1985),            consolidation, which was opposed by the
    merely states the truism that a Committee           bank creditors. Under the status quo, the
    represents the collective interest of its           bank creditors would get almost a full
    members, rather than any member’s                   return on their credits; on the other hand,
    individual interest. Kunica v. St. Jean             under substantive consolidation, the debts
    Fin., Inc., 
    63 F. Supp. 2d 342
    , 347                   of all subsidiaries would be thrown into a
    (S.D.N.Y. 1999), simply quotes the                  single bankruptcy estate with that of
    underlying bankruptcy opinion, which in             Owens Corning, putting the bank creditors
    turn made its decision not to impute notice         on an equal footing with all other creditors
    on the grounds that the notice to the               of Owens Corning. According to Judge
    Committee in that case was oral and                 Wolin, the effect of consolidation on the
    informal. Kunica v. St. Jean Fin., Inc., 233        banks would be to eliminate more than $
    1 B.R. 46
    , 57 (S.D.N.Y. 1999). Here, in               billion in debt guaranteed by the Owens
    contrast, Davis Polk and Stroock received           Corning subsidiaries. The District Court
    written notice of the alleged conflicts. In         held a hearing in April 2003 on the
    In re Masters, Inc., 
    149 B.R. 289
    , 292-93           substantive consolidation issue, and an
    (E.D.N.Y. 1992), Petitioners’ next cited            opinion was pending on that matter when
    case, the court held that actual notice to          Kensington asked for Judge W olin’s
    individual creditors was required in the            recusal.       This set of facts and
    specific context of Bankr. R. 9019(a).              circumsta nc e s le a ds me to tw o
    Finally, Petitioners cite to Maldonado v.           conclusions. First, Kensington had an
    Ramirez, 
    757 F.2d 48
    (3d Cir. 1985), but            incentive to seek Judge Wolin’s recusal: in
    that case does not deal with creditors              its moving papers, Kensington has
    committees at all and is therefore                  indicated its belief that Judge Wolin has
    inapposite. In conclusion, Stroock’s and            implicitly promoted this claimant-friendly
    Davis Polk’s knowledge of the alleged               plan, and whether Kensington is correct or
    conflicts should count as knowledge on the          not, it has clearly shown that it finds Judge
    parts of the Grace Creditors and                    Wolin to be ill-disposed to its interests.37
    Kensington, and the motion to recuse on
    conflict grounds is therefore untimely.
    37
    It is worth noting that although                        As for the Grace Petitioners,
    Judge Wolin has not yet made any                    Judge Wolin observed that they were also
    significant rulings in Owens Corning or             holders of bank debt, and so they might
    Grace, he was, at the time the recusal              reasonably have feared a fate similar to
    petitions were filed, on the cusp of issuing        that anticipated by Kensington in Owens
    a ruling on the issue of “substantive               Corning. Furthermore, two of the Grace
    consolidation.” After much debate, Owens            Petitioners are themselves holders of
    Corning had submitted a reorganization              Owens Corning’s bank debt, meaning that
    plan that incorp orated substantive                 they have the same interest in Owens
    Corning that Kensington does.
    53
    Second, recusal would lead to months if
    not years of delay in Owens Corning, as it
    would at the very least require a retrial of
    the extremely contentious substantive
    consolidation issue, and threatens to
    nullify over tw o years of case
    management. See 
    Kensington, 353 F.3d at 224
    , n. 14 (“assigning another judge to the
    Owens Corning bankruptcy would set the
    proceedings in Owens Corning back at
    least one year”). As this Court noted in its
    earlier opinion, the brunt of this delay falls
    upon the claimants themselves, who wait
    for the conclusion of this bankruptcy
    proceeding for resolution of their claims.
    See 
    id. at 224,
    n. 13.
    III.
    Pursuant to a mandate from this
    Court, Judge Wolin took admittedly
    extraordinary measures to manage an
    unprecedentedly large and complex
    asbestos bankruptcy proceeding. Although
    his methods were unconventional, none of
    them would inspire within the reasonable
    and informed observer legitimate
    questions regard ing Judge W olin’s
    impartiality. I fear that in moving for
    Judge Wolin’s recusal, Petitioners have
    employed a guerrilla tactic timed to serve
    their own economic interests in this case,
    rather than the interests of justice and
    judicial integrity. In the end, putting the
    stamp of judicial approval on this kind of
    litigious gamesmanship threatens to
    undermine the integrity of our judicial
    proceedings far more than any techniques
    employed by Judge Wolin.           I must
    respectfully dissent.
    54
    

Document Info

Docket Number: 03-4212, 03-4526, 04-1468

Citation Numbers: 368 F.3d 289, 2004 WL 1088306

Judges: Fuentes, Smith, Garth

Filed Date: 5/17/2004

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (55)

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e-j-gallo-winery-a-california-corporation , 967 F.2d 1280 ( 1992 )

Polk County v. Dodson , 102 S. Ct. 445 ( 1981 )

In Re Drexel Burnham Lambert Group, Inc. , 26 Collier Bankr. Cas. 2d 1283 ( 1992 )

Saccurato Inc. v. Masters, Inc. (In Re Masters, Inc.) , 149 B.R. 289 ( 1992 )

Margarita Selkridge v. United of Omaha Life Insurance ... , 360 F.3d 155 ( 2004 )

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in-re-harris-management-company-inc-debtor-bruce-lindsey-as-trustee-of , 791 F.2d 1412 ( 1986 )

37-fed-r-evid-serv-783-prodliabrepcchp-13542-william-dunn-hess , 1 F.3d 1362 ( 1993 )

Nuclear Regulatory Commission v. Federal Labor Relations ... , 866 F.2d 661 ( 1989 )

in-re-kensington-international-limited-and-springfield-associates-llc-in , 353 F.3d 211 ( 2003 )

Kerr v. United States Dist. Court for Northern Dist. of Cal. , 96 S. Ct. 2119 ( 1976 )

Summers v. Singletary , 119 F.3d 917 ( 1997 )

United States v. H. Wailen York , 888 F.2d 1050 ( 1989 )

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