UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO THE STATE OF IDAHO, ET AL, PLAINTIFFS, CLAUDE L. OLIVER, ETC., ET AL, PLAINTIFF-INTERVENORS, V. ORGANIZATION FOR REAR ADMIRAL ROWLAND G. FREEMAN, III, ADMINISTRATOR OF GEN- Civil No. 79-1097 MEMORANDUM DECISION Defendant-intervenors, National Organization for Women, et al, have moved the Court for a certificate of appeal pursuant to 28 U.S.C. § 1292(b), which provides for interlocutory appeal of a nonappealable order. The requirements for the application of section 28 U.S.C. § 1292(b) are enumerated in the statute. Section 1292(b) grants to the court of appeals jurisdiction. [w]hen a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order. Therefore, a tripartite test is established which must be met before interlocutory appeal is permitted: (1) the order must be otherwise nonappealable; (2) the district judge must "be of the opinion that such [an] order involves a controlling question of law as to which there is substantial ground for difference of opinion", (3) an immediate appeal would "materially advance the ultimate termination of the litigation." First, it is clear that the February 6th denial of the motion to disqualify is a nonappealable order. The Ninth Circuit in United States v. State or Washington, 573 F.2d 1121 (9th Cir. 1978) wrote: Early authority in this circuit, and more recent authority generally, hold that denial of a motion to disqualify is not a final order nor one that should be treated as such under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Robinson v. Largent, 419 F.2d 1327 (3d Cir. 1970) (per curriam; Rosen v. Sugarman, 357 F.2d 794 (2d Cir. 1966); Baltuff v. United States, 35 F.2d 507 (9th Cir.), Cert. denied, 278 U.S. 579, 49 S.Ct. 517, 73 L.Ed. 517 (1929); McColgan v. Lineker, 289 F. 253 (9th Cir. 1923); see 9 Moore's Federal Practice Id. at 1122. This position is in harmony with the Supreme Court's pronouncements. Firestone Tire & Rubber Co. v. Risjord, 49 LW 4089, 4092 (Jan. 13,1981). The second requirement of section 1292 necessitates that the district judge issuing the nonappealable order must "be of the opinion that such [an] order involves a controlling question of law as to which there is substantial ground for difference of opinion." Defendant-intervenors argue that the question involved in the Court's order of February 6th meets this requirement. They allege that the issues involved constitute a controlling question of law because if the Court's decision is found erroneous it would be reversible error on final appeal. Defendant-intervenors also argue that because the Court discussed two alternative standards in its order that there is ipso facto a substantial ground for a difference of opinion. It should be noted that the posture of the case before the Court is that all parties have filed motions to dismiss or in the alternative for summary judgment and a stipulation of facts has been entered into by the parties; furthermore, it appears probable that there will be no facts left to be determined by an evidentiary hearing or trial. Therefore, all that is pending before the Court at this time are questions of law. If any error is committed by the trial court in interpreting the applicable law, it is within the appellate court's exclusive jurisdiction to correct that error. Also, while the Court's order pointed out and discussed two alternative approaches to the standard under 28 U.S.C. § 455(a), this ambiguity does not pose a substantial ground for difference of opinion. If anything, the question of which approach is correct is merely academic in this case because both approaches were applied and neither warranted disqualification. In the same manner, there is no disagreement that 28 U.S.C. § 455(a) calls for an objective rather than a subjective standard of reviewing the likelihood that the judge's impartiality could reasonably be questioned. Defendant-intervenors' contention that the Court improperly transformed the objective standard into a subjective one by considering facts that were not pled or which would tend to rebut certain inferences drawn from allegations found in the pleadings misconceives the Court's opinion. To reiterate, a section 455 motion is self-executing by the Court, wherein the Court must consider all pertinent facts relating to the motion and then determine whether a disinterested observer would decide that the judge's impartiality might reasonably be questioned. The fact that matters which were hidden from general view or only within the purview of the judge are considered does not make the process subjective. The Court is held to an objective determination of the question of disqualification. Finally, in order to grant an interlocutory appeal under section 1292(b), the trial court must find that such an order would materially advance the ultimate termination of the litigation. According to the House Judiciary Committee, the primary purpose of section 1292(b) is to "expedite the ultimate termination of litigation and thereby save unnecessary expense and delay." H.R.Rep.No. 1667, 85th Cong., 2d Sess. 1 (1958). See, United States v. Woodbury, 263 F.2d 785, 787 (9th Cir. 1959). S.Rep.No. 2435, 85 Cong. 2d Sess., reprinted in (1958), U.S. CODE CONG. & ADMIN. NEWS, p. 5255d: 7B MOORE, Federal Practice § 1292 (1976). This requirement is probably the most important factor to be considered by the Court. See, Note, Interlocutory Appeals In the Federal Courts Under 28 U.S.C § 1292(b), 88 Harvard L.Rev. 607, 625-628 (1975). Because a judge should grant an appeal only if it will "materially advance the ultimate termination of the litigation" pursuit of the question of disqualification will ultimately take considerable time which is not warranted because the whole question can be resolved upon ultimate appeal. Also, from the standpoint of time for disposition, there is no certainty that a certification of interlocutory appeal under section 1292(b) by a district judge will guarantee that the circuit court will grant permission for the appeal. See, e.g., In re Virginia Electric and Power Co., 539 F.2d 357 (4th Cir. 1976). As noted above, this case is before the Court on stipulated facts, thus essentially leaving only questions of law. Regardless what the ruling of this Court may be, an appeal is certain. Since it is the appellate court which has the final word on all questions of law, including the Court's ruling on the question of disqualification, interlocutory appeal at this juncture would not materially advance the termination of this litigation. Finally, considering only the matter of a prompt resolution of the pending litigation, an interlocutory appeal is not only uncertain because the circuit court must grant permission to hear it, but furthermore several months to a year could easily lapse before the circuit court could make a ruling. This case has been in this Court for almost two years and the ratification extension deadline set by Congress is approaching and will expire in June of 1982. A substantial delay at this time would in effect preclude the appeals court from passing on the issues. The court will judicially note that if the question of disqualification is to be dealt with at this time, a writ of mandamus would render a more speedy resolution than a section 1292 certification. Although a writ of mandamus is termed an extraordinary writ, it is well suited to the extraordinary issue of disqualification, which by its very nature involves exceptional circumstances. Comment, Disqualification For Interest of Lower Federal Court Judges: 28 U.S.C. § 455, 71 Michigan L.Rev. 538, 549 (1973). The writ of mandamus has been used and recognized as an appropriate procedure for reviewing the decision of a district court which has acted on a motion to disqualify. Parrish v. Board of Commissioners of the Alabama State Bar, 524 F.2d 98 (5th Cir. 1975); Davis v. Board of School Commissioners of Mobile County, 517 F.2d 1044 (5th Cir. 1975); Mitchell v. Sirica, 502 F.2d 375 (D.C. Cir.) cert. denied 418 U.S. 955 (1974). Thus, if the question of disqualification is to be pursued the defendant-intervenors should seek their remedy with the Ninth Circuit either through a writ of mandamus or upon final appeal. The Court is not of the opinion that the order of February 6, 1981, is a controlling question of law to which there is a substantial difference of opinion, nor would a granting of interlocutory appeal of this single issue materially advance the ultimate termination of this litigation. Accordingly, defendant-intervenors' motion for certification of appeal pursuant to section 1292(b) should be denied and the case should proceed as scheduled. DATED this 3rd day of March, 1981. MARION J. CALLISTER, United States District Judge. UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT THE NATIONAL ORGANIZATION FOR WOMEN, PETITIONERS, V. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO, and The State of Idaho, et al., real parties in interest No. 81-7161 DC No. 79-1097, Idaho ORDER Before: Goodwin and Ferguson, Circuit Judges The petition for writ of mandamus is denied. Although petitioners appropriately sought relief under this court's mandamus jurisdiction, see United States v. Washington, 573 F. 2d 1121 (9th Cir. 1978), and although the issues presented are ones of first impression, the showing made in the petition, considered as a whole, fails to warrant the extraordinary relief represented by the writ of mandamus. See Allied Chemical Corp. v. Daiflon, Inc. 101 S. Ct. 188 (1980): Bauman v. United States District Court, 557 F.2d 650 (9th Cir. 1977). In the circumstances of this case, including the availability of interim relief pending an appeal from final judgment, see Fed. R. App. P. 2, 8 (a), the potential hardship to petitioners of an adverse decision in the district court fails to constitute irreparable injury warranting issuance of the writ in the absence of a showing that the district court committed a clear and indisputable mistake in denying the motion for disqualification. The approach taken by the district court in applying 28 U.S.C. § 455 (a) cannot be so characterized at this time. Petitioners' renewed motion for stay is denied as moot. UNITED STATES DISTRICT COURT, Central District of CALIFORNIA LEAGUE OF WOMEN VOTERS OF CALIFORNIA, ET AL., PLAINTIFFS, V. FEDERAL COMMUNICATIONS COMMISSION, DEFENDANT. No. CV-79-1562-MML ORDER VACATING DISMISSAL AND SETTING BRIEFING SCHEDULE This is an action challenging the constitutionality of 47 U.S.C. $399 (a) as violative of the First and Fifth Amendments. On October 23, 1979 and January 18, 1980, the Federal Communications Commission (FCC) stated its decision not to defend the constitutionality of that statute. On March 11, 1980, this Court entered an Order dismissing this action on the ground that no case or controversy existed. This Order was based in part upon determinations that the action was not ripe for judicial resolution in light of the FCC's decision, and that without any defense by the FCC there would be no adverse parties to this action. This dismissal order was appealed to the United States Court of Appeals for the Ninth Circuit. On April 10, 1981, the case was remanded to this Court in light of the Executive Branch's decision to defend the statute. Although the remand order suggested that this court vacate its prior order and enter a new judgment within the time of remand, a subsequent clarification issued on April 27, 1981 granted this court the discretion to extend the period of remand if a new jurisdictional ruling required additional time for a trial in this action. After careful consideration of the memoranda submitted by both parties on the jurisdictional issues in this case, the Court hereby vacates its prior order of dismissal and Orders this case to proceed in the manner indicated below. This decision is based upon the following considerations: (1) As indicated in the defense memorandum, the United States Justice Department and Federal Communications Commission have decided to enforce the applicable statute. Thus, there will now be adverse parties to this litigation. (2) The decision to enforce the statute also makes the case ripe for judicial resolution, without the necessity of any prior action by plaintiffs to violate the statute. The ripeness doctrine stems from Article III limitations on judicial power to the adjudication of actual cases or controversies. By deciding to exercise jurisdiction only when cases are ripe for adjudication, courts are expressing concern that judicial resources should be limited to review of actual disputes rather than uncertain premature issues. In the present case, the Executive Branch's decision to enforce the statute has eliminated any uncertainty about the existence of an actual case or controversy. Plaintiffs now face a very realistic threat of severe administrative and penal sanctions should they violate the statute. Plaintiffs are not required to first violate the statute under such circumstances, before bringing a judicial chal |