Judges Order 1/9/95

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA


     William Thomas, et. al.       |          C.A. No. 94-2742
           Plaintiffs pro se,      |          Judge Charles R. Richey
                                   |
               v.                  |
                                   |
     The United States, et. al.    |
           Defendants.             |

ORDER

On January 6, 1995, the Court held a hearing in the above-captioned case on the Plaintiffs' Motion to Recuse, as well as their application for a Temporary Restraining Order ("TRO")

At that time, the Court advised the Plaintiffs of its decision to deny the Motion to Recuse based on the pleadings, unless the Plaintiffs could offer argument in addition to that set forth in their papers. Over the objection of counsel for the Government, the Court heard testimony proffered by the Plaintiffs on the subject of service of process. In particular, the Plaintiffs called one Kenneth Kahn, a law librarian for the D.C. Public Defender's Office, who recounted his attempt to serve the Government with the Complaint and TRO application on the date in question, December 22, 1994. Taking this testimony at face value, it appears as if proper service of process was not effected.

As this testimony presented no additional grounds for the Plaintiffs' Motion to Recuse, the Court shall adhere to its initial determination and, in the exercise of its sound discretion, deny said Motion. United States v. Pollard, 959 F.2d 1011, 1031 (D.C.

2

Cir.), cert. denied, 113 S.Ct. 322 (1992).

Here, the Plaintiffs' allegations focus on the fact that the Court denied the December 22nd request for a TRO, without prejudice, because the Defendants had not been served. See December 22, 1994 Order. Moreover, as the Court explained at the hearing, because the holidays were extant when the Court received the TRO on December 22, 1994 late in the afternoon, and because the Court was without the staff necessary to convene everyone at that time, and in view of the import of the issues raised, the Court found that a short delay to afford the Government the opportunity to respond was in the interests of justice and consonant with the Court's duty.

Moreover, under 28 U.S.C. § 144 and § 455, the Plaintiffs have failed to demonstrate any personal bias or prejudice that would warrant recusal. "In assessing the sufficiency of the evidence [presented by the Plaintiffs under § 144 and § 4553, facts drawn from judicial actions are not considered." Anderson v. Bradford, 1990 WL 161916 at +2. As in Anderson, the instant Plaintiffs base their claims "entirely upon alleged 'misconduct through the usurpation of judicial powers.' This judicial, as opposed to extrajudicial, evidence cannot be considered under either 455(b) (1) or § 144." Id. at f2-3. Further, there is nothing under the facts alleged by the Plaintiffs that would show "'an appear ance of bias or prejudice sufficient to permit the average citizen reasonably to question a judge's impartiality"' under § 455(a) Id. at +3 (quoting United States v. Heldt, 668 F.2d 1238, 1271 (D.C. Cir. 1981) (per curiam)). Again, as in Anderson, the

3

Plaintiffs have not alleged that the undersigned has any special interest, personal connections, or financial interest in this case. Nor is there any allegation of personal antagonism toward these Plaintiffs. Indeed, as the Court explained at the hearing, the Plaintiffs have been before this Court numerous times in the past, with the Court having ruled both in their favor and against them.

At the hearing today, the Court also denied the Plaintiffs' application for a TRO. For the reasons articulated from the bench, the Court found that the Plaintiffs had not met the requirements for a TRO, namely,
  1. likelihood of success on the merits;
  2. a threat of immediate irreparable harm;
  3. that the issuance of an injunction will not harm the other parties; and
  4. that the issuance of the injunction will not be adverse to the public interest. Washinqton Metropolitian Area Transit Commission v. Holidav Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977)

Accordingly, it is, by the Court, this 6th day of January, 1995,

ORDERED that the Plaintiffs' Motion to Recuse shall be, and hereby is, DENIED; and it is

FURTHER ORDERED that the Plaintiffs' application for a Temporary Restraining Order shall be, and hereby is, DENIED; and it is

FURTHER ORDERED that, pursuant to Rule 65(a)(2) of the Federal Rules of Civil Procedure, the Plaintiffs' application for a Preliminary Injunction shall be combined with a hearing on the merits; and it is

4

FURTHER ORDERED that the Court shall hold a hearing on the same on January 12, 1995 at 2:00 p.m., provided proper service of process has been effected on each named Defendant; and it is

FURTHER ORDERED that the Court recognizes that the Government has 60 days upon receipt of the Complaint in which to file an Answer or otherwise respond under Fed. R. Civ. P. 12 (a) (3); and it is

FURTHER ORDERED that the Court recognizes the representation of the Assistant United States Attorney at the hearing on January 6, 1995 that it may be impossible for her to obtain authority to represent the individually named Defendants prior to the hearing set for January 12, 1995, at 2:00 p.m.; nevertheless, she is encouraged to do so, and the Government may, if appropriate, file a pleading regarding the defense of absolute or qualified immunity or other motions which the Court shall entertain at the beginning of the hearing set for the aforesaid date; and it is

FURTHER ORDERED that the Clerk shall, upon receipt of this Order, telephone the contents hereof to the United States Marshals Service and shall provide a copy of the Complaint to the same; and it is

FURTHER ORDERED that the United States Marshals Service shall, forthwith, effectuate service of process on all named Defendants so that the matter may be processed on an expedited basis and in order that the Defendants may respond by January 12, 1995; and it is

FURTHER ORDERED that, in the event that service of process has not been effected on the Defendants before January 12, 1995 at 2:00

5

p.m., the hearing set for that date shall be cancelled and rescheduled for the first available date, so that this case may be fully ventilated and resolved as soon as possible, for the benefit of the Plaintiffs, the public, and the individually-named Defendants; and it is

FURTHER ORDERED that any party in the above-captioned case who needs a continuance of the hearing date beyond July 12, 1995 may by written pleading request such a continuance by stating the grounds therefor, provided the same is filed with the Clerk on or before 3:00 p.m. on January 11, 1995, with a copy to Chambers.



_______________________(Signed)
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE