APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA Civil Action No. 68-959.
Gibbons and Hunter, Circuit Judges, and Layton, Senior District Judge.*fn*
LAYTON, Senior District Judge:
Once again we are asked to review the district court's grant of relief, pursuant to Rule 60(b)(5) and (6), F.R.C.P. from a consent judgment entered in favor of the plaintiff class on January 18, 1973. Additionally, the plaintiff class has appealed from the refusal of the district judge to disqualify himself.
The facts surrounding this rather lengthy litigation are familiar to all concerned, and will be summarized only to the extent necessary in order to dispose of the issues presently before this Court. On July 29, 1966, plaintiff Mayberry brought this action pursuant to 42 U.S.C. § 1983, complaining of physical abuse by prison officials and confinement in facilities creating hazards to his health. Suffice it to say that after much litigation, the plaintiff sought to have the action certified on behalf of the class of "all those who have been at any time subsequent to June 25, 1965, or who are at present, or who will hereafter be confined at the State Correction Institute at Pittsburgh (Western Penitentiary)."*fn1 The Commonwealth declined to oppose the class certification*fn2 and, on December 11, 1972, a certification order was entered.*fn3 On January 18, 1973 a consent judgment was entered, which, in pertinent part, enjoined the Commonwealth from confining any class member in a basement facility known as the Behavior Adjustment Unit (BAU). No immediate change was wrought by the injunction, because the BAU had already been ordered closed by the Governor of Pennsylvania one year earlier, a fact heavily relied upon by the Commonwealth in argument before this Court. The Governor's order was rescinded on December 11, 1973, and prison officials, once again, began to use the BAU for confinement of unruly prisoners, notwithstanding the fact that such activity was clearly in violation of the January 18, 1973 consent judgment. After more than 10 months of such violative use, the Commonwealth sought relief from the consent judgment pursuant to Rule 60(b), F.R.C.P. Relief was granted by the district court without a hearing, and on January 19, 1976, we remanded with directions to conduct a hearing, at which time evidence in support of the Commonwealth's motion could properly be gathered and made of record.*fn4 Upon remand the plaintiff moved to have the district judge disqualify himself, pursuant to 28 U.S.C. § 455. This motion was denied.*fn5 A hearing was held and, on August 24, 1976, the district court granted the Commonwealth's motion to vacate the consent judgment.*fn6 Both the issues of the district judge's refusal to disqualify himself, and his grant of relief are raised on this appeal.
Preliminary to our disposition of these two issues, however, a contention raised by the Commonwealth requires attention. In its brief, the Commonwealth noted, almost as an aside, that opposing counsel, Michael L. Rosenfield, Esq., of the National Emergency Civil Liberties Committee, "purports to represent a class no member of which has retained him and no member of which has appeared in this action other than Mayberry, who himself has professed no interest in this case."*fn7 While it is unclear what conclusion the Commonwealth seeks to support with this alleged set of facts, we perceive an issue which arguably draws into question our jurisdiction to pass on the merits of this appeal. Thus the following discussion is necessary.
The relevant facts are as follows. After our remand to the district court, a hearing was held on April 6, 1976 at which time evidence in support of the Commonwealth's motion was introduced. On April 19, 1976 Mr. Rosenfield filed a motion to withdraw as counsel. This motion was prompted by letters from Mayberry to Rosenfield and the district court, in which the plaintiff expressed a general dissatisfaction with Rosenfield's representation and demanded that he be allowed to proceed pro se.*fn8 After a brief hearing, no transcript of which has apparently been made, the district judge granted Rosenfield's motion to withdraw "insofar as it relate[d] to the legal representation of named plaintiff Mayberry. Insofar as it relate[d] to the legal representation of the plaintiff class . . . the petition [was] denied."*fn9 Rosenfield was ordered to "continue to represent the class until such time as other suitable counsel enter[ed] on behalf of said class in this case."*fn10 Rosenfield continued to represent the class through the time of the district court's final disposition, and has taken this appeal on behalf of the class.
We deal here only with the issue, raised by these facts, whether there no longer exists a live "case or controversy" within the meaning of Article III of the United States Constitution, where, in a class action, an appeal is taken by an attorney who was ordered by the district court to represent the interests of that class after its representative had dissolved his retainer of that attorney and taken no further action.*fn11
While plaintiff Mayberry, in his April 9, 1976 letter to the court, indicated a desire to continue pro se, the record is silent regarding any subsequent action taken by him in opposition to the Commonwealth's motion. If, as the Commonwealth has alleged, the class representative in this suit "has professed no interest" in these proceedings, and thus is not advancing any live interests before this Court, we must determine whether there remain parties at bar who have "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues . . . ." Baker v. Carr, 369 U.S. 186, 204, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962). Even assuming that we may no longer look to Mayberry to advance the necessary live interests at this stage in the proceedings, the record fails to raise any doubt that, at the time the complaint was filed and at the time the class was certified, Mayberry provided this jurisdictional prerequisite. That being so, while the same "case or controversy" requirement obtains at all stages of the litigation, including the present proceedings, we may now look to the interests of the class, rather than those of its representative, to provide such a live controversy. Sosna v. Iowa, 419 U.S. 393, 402, 42 L. Ed. 2d 532, 95 S. Ct. 553 (1975). Given that the class includes "all those who have been at any time subsequent to June 25, 1965, or who are at present, or who will hereafter be confined at the [Western Penitentiary]", clearly there are presently class members subject to confinement in the BAU. Thus live interests, sufficient to meet the "case or controversy" requirement, are properly before the Court.
THE DISQUALIFICATION ISSUE
Shortly after our remand to the district court, directing that a hearing be held on the Commonwealth's motion for relief from the consent judgment, the plaintiffs moved to have the district judge disqualify himself. The motion was denied. The proper inquiry on appeal is whether the district judge abused his discretion in so doing. Davis v. Board of School Comm'rs of Mobile Cty., 517 F.2d 1044, 1052 (5th Cir.), cert. denied, 425 U.S. 944, 48 L. Ed. 2d 188, 96 S. Ct. 1685 (1976).
The plaintiffs assert that, because the district judge granted the Commonwealth's first motion without a hearing, and thus was allegedly predisposed towards granting rather extraordinary relief even in the absence of a properly developed record, his "impartiality might reasonably be questioned" within the meaning of 28 U.S.C. § 455(a).*fn12
While the district court applied § 455 as amended,*fn13 thus employing a more expansive standard for recusal, we need not pause to consider whether he did so properly in the face of Congress' provision that the more expansive standard promulgated by the 1974 amendment shall not apply to any proceeding commenced prior to 1974.*fn14 See In Re Virginia Elec. & Power Co., 539 F.2d 357 (4th Cir. 1976). Contra, Samuel v. University of Pittsburgh, 395 F. Supp. 1275 (W.D. Pa.), rev'd on other grounds, 538 F.2d 991 (3d Cir. 1976). Instead we feel that, under either standard, the plaintiffs' motion was properly denied.
Plaintiffs maintain that they are not urging upon this Court a general rule requiring the disqualification of each district judge to whom a case is remanded because of an error committed by that judge. Instead, they contend that the particular error for which we remanded, i.e., the failure to properly develop a record upon which an enlightened disposition could be made of the Commonwealth's request for relief from a final judgment,*fn15 somehow ...