State of Arizona v. United States District Court for the District of Arizona, and Kaiser Cement and Gypsum Corporation, Real Parties in Interest

SUPPLEMENTAL OPINION

This ease presents the question whether the real parties in interest in a mandamus proceeding are entitled to an order assessing costs against the petitioners following the denial of the petition for a writ of mandamus. We conclude that costs may be assessed in favor of the actual respondents/real parties in interest.

Petitioners, State of Arizona, et al. (Arizona) sought review of the district judge’s order granting the motion of the actual respondents herein, Kaiser Cement and Gypsum Corp., et al. (Kaiser Cement) to recuse himself pursuant to 28 U.S.C. § 455 (b)(4) (1976). In re Cement and Concrete Antitrust Litigation, 515 F.Supp. 1076 (D.Ariz.1981). Relief was sought in three ways: (1) by appealing pursuant to 28 U.S.C. § 1291 ; (2) by petitioning for permission to appeal pursuant to 28 U.S.C. § 1292 (b); and (3) by petitioning for a writ of mandamus.

The appeal was dismissed for lack of jurisdiction under 28 U.S.C. § 1291 and we denied the petition for permission to appeal. In re Cement and Antitrust Litigation, 673 F.2d 1020 (9th Cir.1982). In our opinion we concluded, however, that the petition for a writ of mandamus to direct the district court to…