Judicial Recusal Requires Bias from Extrajudicial Source — Rulings in Prior Cases Almost Never Sufficient — Judge Subject to Recusal If Objective Observer Would Doubt Impartiality

From Ocean-Oil Expert Witness, Inc. v. O’Dwyer, 2011 U.S. App. LEXIS 20467 (5th Cir. Oct. 6, 2011) (affirming contempt sanction issued under inherent power):

O'Dwyer argues that Judge Lemelle should have recused himself from sitting in this case because of his personal bias against O'Dwyer. We review a denial of a motion to recuse under an abuse-of-discretion standard. Crawford v. United States Dep't of Homeland Sec., 245 F. App'x 369, 383 (5th Cir. 2007).

A judge is disqualified for bias or prejudice only where bias comes from an extrajudicial source and results in an opinion based on something besides what the judge learned in the case at hand. United States v. Grinnell Corp., 384 U.S. 563, 583 (1966). Thus, rulings in previous cases will almost never form a sufficient basis for bias, Liteky v. United States, 510 U.S. 540, 555 (1994), unless they show such substantial antagonism that a fair judgment is impossible, United States v. Scroggins, 485 F.3d 824, 830 (5th Cir. 2007). Additionally, a judge can be disqualified if it would appear to an objective observer that he will not be impartial, meaning a reasonable person, who knew all the circumstances, would doubt his impartiality. Chitimacha Tribe of La. v. Harry L. Laws Co., 690 F.2d 1157, 1165 (5th Cir. 1982).

O'Dwyer claims several events show bias: (i) the fact that the judge presided over O'Dwyer's previous disciplinary hearing; (ii) the refusal to stay this proceeding while all proceedings in which O'Dwyer was a plaintiff or represented plaintiffs were stayed; (iii) the fact that O'Dwyer sued all the judges in the district, including Judge Lemelle; and (iv) the decision in In re High Sulphur Content Gasoline Products Liability Litigation, 517 F.3d 220 (5th Cir. 2008), shows the judge is biased against O'Dwyer because of the judge's close relationship with lawyers and other judges whom O'Dwyer accused of misconduct. None of these is sufficient to demonstrate that the denial of the motion to recuse was an abuse of discretion.

Although Judge Lemelle presided over disciplinary proceedings against O'Dwyer, nothing indicates those proceedings prejudiced O'Dwyer here. The judge's decisions in the disciplinary matters were intrajudicial, rather than extrajudicial, so they do not require recusal unless they show such substantial antagonism that a fair judgment is impossible. Scroggins, 485 F.3d at 830.

Nothing in the record of the disciplinary proceedings suggests Judge Lemelle developed any such enmity toward O'Dwyer during those proceedings. In fact, the en banc court of the Eastern District of Louisiana found that "there [was] absolutely nothing in the record to suggest [biased] conduct by Judge Lemelle. If anything, he bent over backwards to ensure that O'Dwyer received a fair hearing." Thus, the disciplinary proceedings did not evince a "deep-seated favoritism or antagonism that would make fair judgment impossible." See Liteky, 510 U.S. at 555.

O'Dwyer's citation to Federal Procedure, Lawyer's Edition, is not to the contrary. That text indicates that a judge should be disqualified from sitting on a case involving an attorney if he in the past tried to have that attorney disbarred, because "protracted prosecutorial pursuit of the attorney may so entangle him in matters involving the attorney as to indicate that he may be biased." Lawyer's Co-operative, Federal Procedure: Lawyer's Edition § 20:131 (Thomas J. Goger ed. 2005). Judge Lemelle did not engage in a "protracted prosecutorial pursuit" of O'Dwyer; he was merely the judge presiding over the disciplinary hearing. The chief judge of the Eastern District of Louisiana, Judge Berrigan, initiated the proceedings, based on actions that had occurred before Judge Duval. Judge Lemelle was neither the target of the conduct for which O'Dwyer was disciplined nor the one seeking to punish for that conduct. He was merely the impartial arbiter of the hearing, who, as discussed above, accomplished that task in an unbiased fashion. ***

Suing all the judges in a district indiscriminately also does not force their recusal. Judges are not required to recuse just because they have been or are involved in litigation with a party. [United States v. Sutcliffe, 505 F.3d 944, 958 (9th Cir. 2007); Azubuko v. Royal, 443 F.3d 302, 304 (3d Cir. 2006); In re Taylor, 417 F.3d 649, 652 (7th Cir. 2005); United States v. Grismore, 564 F.2d 929 (10th Cir. 1977).] Otherwise, parties could control which judges hear their case by filing lawsuits against all judges of whom they disapproved. Courts must take care to ensure that motions for recusal are not abused as a litigation tactic. Sensley v. Albritton, 385 F.3d 591, 598 (5th Cir. 2004). O'Dwyer sued all active judges in the district after independent counsel was not appointed to investigate the matter of his disciplinary hearing in an attempt to force appointment of such counsel. Such a generalized suit against all the judges cannot require their recusal, both because it is not likely to succeed 7 and because the judges do not stand to suffer negative repercussions where the only relief sought is to have independent counsel appointed.

Share this article:

Share on facebook
Share on twitter
Share on linkedin
Share on email

Recent Posts