Commercial Litigation and Arbitration

Motion to Disqualify Judge Pursuant to 28 U.S.C. § 144 — Procedure — Alleged Bias Against Counsel Generally Insufficient to Warrant Recusal

From Sataki v. Broad. Bd. of Gov’rs, 733 F. Supp. 2d 54 (D.D.C. 2010):

Currently pending before the Court is Plaintiff Elham Sataki's ... Motion to Disqualify this Court pursuant to 28 U.S.C. § 144. This is, in effect, Plaintiff's second attempt to disqualify the Court based on allegations that certain of the Court's rulings, combined with the fact that the undersigned was appointed by former President William J. Clinton and is allegedly affiliated with the Democratic party, are evidence that the Court has an extrajudicial bias or prejudice against her counsel of record, Larry Klayman, which has in turn prejudiced the Court against her as his client. ***

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." Id.; see also Bhd. of Locomotive Firemen and Enginemen v. Bangor & Aroostook R.R. Co., 380 F.2d 570, 576, 127 U.S. App. D.C. 23 (D.C. Cir. 1967) ("The disqualification statute, 28 U.S.C. § 144, is mandatory and automatic, requiring only a timely and sufficient affidavit alleging personal bias or prejudice of the judge."). "Importantly, the mere fact that a party has filed a § 144 motion, accompanied by the requisite affidavit and certificate of counsel, does not automatically result in the challenged judge's disqualification." Robertson v. Cartinhour, 691 F. Supp. 2d 65, 77 (D.D.C. 2010); see also United States v. Miller, 355 F. Supp. 2d 404, 405 (D.D.C. 2005) ("disqualification is not automatic upon submission of affidavit and certificate"). Rather, recusal is required only upon the filing of a "timely and sufficient affidavit." 28 U.S.C. § 144.

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. ***

At the outset, the Court emphasizes that the allegations of bias set forth in counsel's Affidavit focus solely on the Court's alleged bias towards counsel, and not towards Plaintiff herself. That is, Plaintiff's Motion to Disqualify is premised solely on the allegation that the Court's alleged bias or prejudice against her attorney, Larry Klayman, has been transferred to her as Klayman's client and has rendered the Court unable to act impartially towards her as a party in this litigation. Plaintiff has not cited any case law or other legal authority from this Circuit addressing the question of whether a court's alleged bias against an attorney, rather than the client, may be a sufficient grounds for disqualification, and the Court itself is aware of none. The question therefore appears to be an issue of first impression in the D.C. Circuit. Plaintiff has, however, cited several cases from other jurisdictions in which courts have held that bias against an attorney may be imputed to his client. ***

While Plaintiff is correct that some courts have recognized that bias towards an attorney may be imputed to a client in limited circumstances, even these courts have overwhelmingly cautioned that bias towards an attorney is only rarely sufficient to support disqualification. See, e.g., Panzardi-Alvarez, 879 F.2d 975, 984 (1st Cir. 1989) ("As a general rule, bias against the party must be shown and it is insufficient to rely on clashes between the court and counsel as the basis of a disqualification motion. There are, however, some extreme cases in which the judge's attitude toward a party's attorney will be so hostile that it would be reasonable to conclude that the judge will be unable to remain impartial as to the client.") (internal citations and quotation marks omitted); In re Beard, 811 F.2d 818, 830 (4th Cir. 1987) (" For the bias against the attorney to require disqualification of the trial judge, it must be of a continuing and personal nature and not simply bias against the attorney because of his conduct."); Conklin v. Warrington Twshp., 476 F. Supp. 2d 458 (M.D. Pa. 2007) ("bias against an attorney may require disqualification . . . where the hostility is so virulent and of such magnitude that it prejudices the judge against the attorney's client") (internal quotation marks omitted). Defendants for their part have not specifically disputed that bias towards an attorney may in some instances be imputed to the client. *** Ultimately, given the parties' apparent agreement on this point and the Court's finding below that Plaintiff has failed to proffer sufficient facts demonstrating bias or prejudice on the part of the Court towards her attorney, the Court need not resolve this issue. Even assuming that a court's demonstrated bias towards an attorney may in certain rare circumstances be transferred to the client, Plaintiff in this case has not shown that the Court is biased or prejudiced against her attorney -- let alone that any such alleged prejudice is of such a nature that it may be imputed to her as the client. *** Plaintiff's allegations of bias based on the Court's appointment by former President Clinton, alleged political affiliations, and the Court's judicial rulings are legally insufficient to warrant or justify disqualification.

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