Commercial Litigation and Arbitration

May a Pro Se Litigant File a Motion to Recuse under 28 U.S.C. § 144, Which Requires a Certificate of Counsel of Record? Caselaw Split

From Klayman v. Judicial Watch, Inc., 2010 U.S. Dist. LEXIS 109068 (D.D.C. Oct. 13, 2010):

Currently pending before the Court is Plaintiff Larry Klayman's ("Klayman") *** Motion to Disqualify this Court pursuant to 28 U.S.C. § 144. This represents Klayman's second attempt to disqualify this Court in this case based on the allegation that certain of the Court's rulings, combined with the fact that the undersigned was appointed by former President William J. Clinton, are evidence that the Court has an extrajudicial bias or prejudice against him. ***

To recuse a judge under section 144, a litigant must submit, along with its motion, an affidavit stating "the facts and the reasons for [its] belief that bias or prejudice exists." 28 U.S.C. § 144. Upon the filing of a "timely and sufficient affidavit," section 144 mandates that the assigned "judge shall proceed no further, but another judge shall be assigned to hear such proceeding." ***

The question of whether the motion and supporting affidavit is both timely and legally sufficient is for this Court to determine in the first instance. ***

Second, in determining whether the affidavit sets forth a legally sufficient basis for disqualification, the Court "must accept the affidavit's factual allegations as true even if the judge knows them to be false."***

Once it is established that the affidavit has been properly certified by counsel of record and that the facts set forth therein have been stated with sufficient particularity, the Court must then

ascertain[] whether these facts would fairly convince a sane and reasonable mind that the judge does in fact harbor the personal bias or prejudice contemplated by the statute. It is well established that the facts must give fair support to the charge of a bent mind that may prevent or impede impartiality. The basis of the disqualification is that personal bias or prejudice exists, by reason of which the judge is unable to impartially exercise his functions in the particular case. The factual allegations must establish by more than a prima facie case, but not beyond a reasonable doubt that the mind of the judge is closed to justice; that the judge has a personal bias or prejudice against the affiant which is of such a nature, and of such intensity, that it would render the judge unable to give the affiant the fair trial to which every litigant is entitled. Obviously, such a showing could rarely be made.

Hanrahan, 248 F. Supp. at 475-76 (internal citations and quotations omitted). "Importantly, to be disqualifying, the alleged bias usually 'must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.'" ***

B. The Motion to Disqualify Does Not Strictly Comply with the Certification Requirement Set Forth in 28 U.S.C. §144

In addition, although neither party has raised the issue, the Court notes that section 144 requires that a party's affidavit submitted in support of a motion for disqualification under this statutory provision "be accompanied by a certificate of counsel of record stating that it is made in good faith." 28 U.S.C. § 144. The certification requirement is not simply a pro forma procedural obligation but is key to the integrity of the recusal process. Because the Court must accept as true all factual allegations asserted in the affidavit, even if the Court knows such allegations to be untrue, the certification requirement is essential to "guard against the removal of an unbiased judge through the filing of a false affidavit." Loving Spirit Found., 392 F.3d at 496. The certification requirement therefore serves as a "check on abuse of the recusal process," assuring the Court that the statements in the affidavit are made in good faith. Id. Given the importance of the certification, the failure to comply with this requirement is not simply a procedural error. United States v. Miller, 355 F. Supp. 2d 404, 405-06 (D.D.C. 2005) ("failure to make this certification is grounds for denying the motion").

Here, *** although Klayman is himself a licensed attorney admitted to practice before this Court, he is acting as a pro se Plaintiff in the instant action and not as counsel of record. Whether a pro se litigant is in fact able to file a motion for disqualification under section 144, notwithstanding the statutory requirement that the accompanying affidavit be certified as made in good faith by the "counsel of record," appears to be one of first impression in this Circuit, and courts in other jurisdictions have varied in their treatment of pro se motions under section 144. For example, some courts have held that a pro se party cannot file a motion for disqualification under section 144 as they cannot comply with the statute's explicit certification requirement. See, e.g., Buckenberger v. Reed, Civ. Action No. 6-7393, 2010 WL 3523021, at *1 (E.D. La. Aug. 31, 2010) (concluding "that a pro se litigant may not use 28 U.S.C. § 144 as a means to seek recusal because of the certification requirement" and therefore denying the motion). Other courts have concluded that a pro se litigant may file a motion under this provision so long as the party provides a certificate of good faith signed by a member of the bar, albeit not counsel of record. See, e.g., United States v. Rankin, 1 F. Supp. 2d 445, 450 (E.D. Pa. 1998) (holding that "§ 144 requires that, in the case of a pro se movant, the certificate of good faith that accompanies the § 144 affidavit be signed by any member of the bar of the court"). Still other courts have determined that it is appropriate to consider the merits of a pro se litigant's section 144 motion notwithstanding the lack of any certification of good faith by counsel of record and/or a member of the bar. See, e.g., Melvin v. Social Sec. Admin., Civ. Action No. 5:09-235, 2010 WL 3743543, at *2 (E.D.N.C. Sept. 14, 2010) (noting "that the plain language of § 144 precludes a pro se plaintiff bringing [] a motion [for disqualification] without a certificate of good faith signed by a member of the bar," but nonetheless "proceed[ing] to address the merits of plaintiff's motion in the spirit of the liberality afforded to pro se litigants"); Williams v. New York City Housing Auth., 287 F. Supp. 2d 247, 249 (S.D.N.Y. 2003) (noting the insufficiency of the pro se movant's affidavit where it lacked the certificate of counsel, but addressing the movant's arguments). The Court ultimately finds that it need not resolve the question of whether Klayman, as a pro se litigant, may move for disqualification under section 144. As discussed below, the Court finds that Klayman's Affidavit, even if considered, is legally insufficient to support disqualification under section 144.

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