APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civ. No. 72-0968)
Before Seitz, Chief Judge, Adams, Circuit Judge, and Lord, District Judge.*fn*
This is an appeal by a member of the plaintiff class, Allen N. Brunwasser, from an order, 82 F.R.D. 457, in which the district judge recused himself on his own motion from continuing to preside over a hearing to determine the amount of attorneys' fees to be awarded counsel for the plaintiff class from the proceeds of a settlement in favor of that class. After entering the recusal order, the district judge, at the request of appellant Brunwasser, certified this appeal under 28 U.S.C. § 1292(b) (1976), and this court accepted the appeal. There is no challenge to Brunwasser's standing to pursue this appeal.
The named plaintiffs, Mary E. Haas and John Mitchell, brought this action against Pittsburgh National Bank, Mellon Bank, and Equibank. They challenged the method by which the defendant banks computed the service charges on their customers' Master Charge and BankAmericard revolving charge accounts. The district court certified the case as a class action on August 6, 1973, and then granted summary judgment in favor of the defendants on September 25, 1974. See Haas v. Pittsburgh National Bank, 381 F. Supp. 801 (W.D.Pa.1974). This court reversed the district court's grant of summary judgment and remanded the case for trial. See Haas v. Pittsburgh National Bank, 526 F.2d 1083 (3d Cir. 1975). On August 26, 1977, the district court approved a settlement of $2,760,000 in favor of the plaintiff class.
The fee petitioners, the named plaintiffs and their attorneys, filed a joint petition for attorneys' fees to be paid out of the settlement fund pursuant to Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973). The only member of the plaintiff class who objected to the fee request was the appellant, Brunwasser. The district court ordered that a fee hearing be held to determine whether the requested fee was reasonable. The court sua sponte appointed H. Woodruff Turner as counsel and guardian ad litem for the plaintiff class to assert any interest of the class that Brunwasser might not assert. In the district court's view, the guardian ad litem was considered necessary because:
(Defendants) do not participate in the fee determination proceedings. The unfortunate result is the necessity for the judge to assume the advocate's role left unfilled by the defendants' departure. The dilemma thereby created for the Court finds the judge playing "devil's advocate" on behalf of the disinterested defendants, while at the same time attempting to exercise his impartiality in making a just determination of reasonable fees. To require the judge to occupy an adversary position during the fee proceedings is highly inconsistent with his acknowledged duty to act as an impartial arbitrator. The appointment of a guardian for the class obviates this considerable problem of judicial schizophrenia.
The hearing finally began in January 1979 after a year and one half of preliminary hearings, motions, and discovery. During this period, as well as during the fee hearing itself, the atmosphere became quite tense and even hostile. The district judge denied the fee petitioners' motion to recuse on June 26, 1978. On May 24, 1979, however, the district judge sua sponte recused himself from presiding over the fee hearing.
The district judge's decision to recuse himself centered on a series of newspaper articles that questioned his attitude toward class actions and attorneys' fees awards. At the fee hearing, class member Brunwasser indicated that the fee petitioners may have been involved in an attempt to intimidate the district judge through this series of newspaper articles. The district judge recused himself because he felt it was not possible to render a decision and maintain the appearance of fairness. In his memorandum opinion and order dated May 24, 1979, he summarized his position:
Should fees be favorably awarded to the petitioners, the specter of the condemning news articles lurks in the background as a perceived cause. On the other hand, should the award of attorneys fees focus unfavorably upon the petitioners, it is a certainty that personal vengeance and retribution will lurk in the background as the perceived cause.
On June 7, 1979, two weeks after the district judge recused himself, appellant Brunwasser filed a petition to certify the recusal order under section 1292(b). On June 11, 1979, he filed an amendment to the certification petition that requested that an additional controlling question of law be included in the certification order. The district court certified this appeal under section 1292(b) on the same day. Under rule 5(a) of the Federal Rules of Appellate Procedure, a district court may amend an order at any time before final judgment to certify it under section 1292(b). See Braden v. University of Pittsburgh, 552 F.2d 948, 952 (3d Cir. 1977) (en banc). Therefore, both appellant Brunwasser's petition to certify and the district court's certification order were timely,*fn1 although we emphasize the practical importance of a very prompt certification of the type of issue here involved.
Initially, we must confront the question whether the district judge, after recusing himself, had jurisdiction to certify the question of his recusal under section 1292(b). In deciding this issue we need not reach the question whether he could have certified this appeal if another judge was exercising jurisdiction over the case when either the certification petition was filed or the certification order was entered. Although this case had been reassigned to another district judge on May 25, 1979, this judge had returned the case to the Clerk for reassignment on May 30, 1979. The case was not reassigned again until July 11, 1979. Therefore, when Brunwasser filed his petition for certification and when the district court entered the order of certification, no judge was ...