Opposition to Motion to Recuse

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.             |

UNITED STATES' OPPOSITION TO
PLAINTIFFS' MOTION TO RECUSE

Pursuant to this Court's Order of January 4, 1995, the government hereby files this opposition to the plaintiffs' Motion for Recusal.

INTRODUCTION

Plaintiffs apparently filed a complaint, accompanied by a request for a temporary restraining order, on December 22, 1994. The Court, having been informed that the United States had not been served with process,[l] and in view af the latensss of the request, as well as the lack of staff during the holiday season, reasonably determined to deny the plaintiffs' request far a temporary restraining order, without prejudice. See January 4, 1995 Order. In response, the plaintiffs have filed a motion for recusal of the Judge assigned to this cass, Because the plaintiffs' allegations in support of their motion fall far short of demonstrating any circumstances that would warrant recusal, the Court should deny the motion,


[1 According to the plaintiffs, the Office of United states Attorney for the District of Columbia was served on December 22nd. See January 4, 1995 Order at The United States Attorney's Office has no record of having been served with any papers in this case. In fact, undersigned counsel only obtained copies of the complaint and accompanying motions, as well as the Motion to Recuse, late in the day on January 4, 1985. These copies were obtained from the Clerk's Office at the courthouse.]

ARGUMENT

The plaintiffs have moved for recusal under 28 U.S.C. 144 and 455.[2] The decision whether to recuse is left to the sound discretion of the court. United States v. Pollard, 959 F,2d 1011, 1031 (D.C.Cir.), cert., denied, 113 S.Ct. 322 (1992). Recusal under 144 is required when the party seeking recusal "files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or infavor of any adverse party . . ." 28 W,S.C. 144. "[T]he substantive inquiry under 28 U.S,C, 455(b)(1), is identical to the inquiry under section 144 ...." Anderson v. Bradford, 1990 WL 161916, *1 (D.D.C. 1990), (footnote omitted), citing Liberty Lobby. Inc. v. Dow Jones & Co. Inc. 838 F.2d 1287, 1301 (D.C.CIR.), Cert. denied, 488 U.S. 825 (1988).[3] Under 455(a), recusal is requlred if the Court's "impartiality might reasonably be questioned," 28 U,S.C. 455(a). Plaintiffs' allegations, even if accepted as true, fail to demonstrate that recusal as appropriate,


[2 It appears from their motion that plaintiffs are invoking subsection (a) and (b)(l) of 455.]

[3 A copy of the Court's decision in Anderson is attached.]

A. Plaintiffs Have Failed to Demonstrate
Personal Bias or Prejudice.


"[U]nder 144 and 455(b)(1):
The alleged bias and prejudice to be disqualifying must stem from an
extrajudicial source and result in an opinian on the merits on some basis
other than what the judge learned from his [or her] participation in the case."

Anderson, at * 2, quoting United States v. Grinnell Corp., 384 U.S. 563, 583 (1966). Here, the plaintiffs allegations focus upon the fact that the Court denied the December 22nd request for a temporary restraining order, without prejudice, bacause the defendants werc not served. See December 22, 1994 Order. In that same Order, the Court explained that if the defendants were properly served, the Court would hear the request on January 6th.

In its most recent Order, the Court noted the long-standing practice of the Court not to grant temporary restraining orders without opposing counsel present, especially in cases involving the government. January 4, 1995 Order at 1. The Court also explained that it delayed any hearing because of the additional difficulties presented by the lack of staff, the impending holidays, and to allow the government to address plaintiffs' allegations.

The actions of this Court in denying the request for a temporary restraining order, giving the plaintiffs an opportunity to effect service, and setting a hearing within 15 days in no way reflect bias or prejudice -- much less bias from an "extrajudicial" source. On the contrary, the Court was informed of the lack of service on the United States by the Clerk of the Court. Although the plaintiffs now assert that this is incorrect, to undersigned counsel's. knowledge, none of the defendants have yet been served, As noted above, counsel obtained copies of the papers fram the Clerk's office at the courthouse not frbm plaintiffs. Because plaintiffs have fallen far short of demonstrating any bias or prejudice, Their Motion to Recuse under 144 and 455(b)(1) should be denied,

B. Plaintiffs Have Failed to Demonstrate
that the Court's "Impartiality Might
Reasonably Be Questioned",

In order to invoke 28 U.S.C. 455(a), the plaintiff must "establish[] an appearance of bias or prejudice, as judged by an objcective standard. United States v. Heldf, 668 F.2d 1238, 1271 (D.C. Cir. 1981) (per curiam), cert. denied, 456 U.S. 926 (1982).

Here, the plaintiffs have failed to allegr any facts or circumstances that would objectively indicate an appearance of impartiality. The plaintiffs have alleged nothing more than that they believe the hearing on that request for a temporary restraining order should have been scheduled sooner. They have not asserted that the Court has any personal, financial, or other interest in the case.

As this Court has explained, "It is so well settled that no recitation of authority is needed for the proposition that judges should not, and must not, recuse themselves in actions based on their judicial rulings." Bishy v. Meese, 1988 WL 38687 (D.D.C. 1988) (copy attached). Because the plaintiffs are asking that the court recuse itself based upon its December 22, 1994, ruling, and have asserted no facts that would indicate bias, prejudice or impartiality, the motion to recuse should be denied.

CONCLUSION

For the reasons stated and upon the authorities cited, the plaintiffs motion to recuse should be denied.


Respectfully Submitted,

_____________________________________
ERIC H. HOLDER, JR., D.C. BAR #303115
United Statas Attorney

_____________________________________
SALLY M. RIDER, D.C. BAR #436588
Assistant United States Attorney

OF COUNSEL:

RANDOLPH MYERS, Esq.
Office of the Solicitor