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June 14, 2000


The opinion of the court was delivered by: Lamberth, District Judge.


This matter comes before the court on defendant Kenneth H. Bacon's Motion to Recuse, pursuant to 28 U.S.C. § 455(a) & (b)(1) ("Section 455"). Upon consideration of the defendant's motion, the Department of Defense's response, plaintiffs opposition, the applicable law, and for the reasons set forth below, the court hereby DENIES defendant's motion to recuse.


This case arises from the release of information from Linda Tripp's security clearance application by the Department of Defense ("DoD") to Jane Mayer, a reporter from The New Yorker magazine. The allegations are as follows: On March 12, 1998, Mayer contacted Kenneth Bacon, the Assistant Secretary of Defense for Public Affairs, who was the principal DoD spokesman. Amended Compl. ¶ 70. Mayer indicated she was writing a story on Tripp and had uncovered information suggesting that Tripp had been arrested in 1969. She wanted to know whether Tripp had disclosed any prior arrests on her security clearance application. Id. Following his call from Mayer, Bacon enlisted his deputy, Clifford Bernath to obtain the information she requested. The next day, after obtaining the desired information, Bernath contacted Mayer, with Bacon's approval, and informed her that Tripp had denied having an arrest record on her clearance application, a form also known as a "DD Form 398." Id. ¶ 79. Later that same day, The New Yorker published Mayer's article, entitled "Portrait of a Whistleblower," which included the information from Tripp's Form 398 provided by DoD. Id. ¶ 83.

Alleging that the release of information contained in the security clearance application violated her rights under the Privacy Act, 5 U.S.C. § 552a (1994), Tripp seeks damages and injunctive relief against the Executive Office of the President ("EOP"), the Federal Bureau of Investigation ("FBI") and the United States Department of Defense ("DoD"). See id. Counts I-III. Additionally, Tripp seeks recovery from certain named individual defendants, Kenneth Bacon, Clifford Bernath, and Jane and John Does 1-99, for an alleged conspiracy to violate Tripp's civil rights under the Civil Rights Act of 1871, 17 Stat. 13, cl. 2 and 42 U.S.C. § 1985(2). Tripp also brings pendent state common law claims against defendants Bacon and Bernath based on the torts of invasion of privacy and civil conspiracy.

The basis for the present motion, however, derives from an opinion issued by this court in a related case. See Alexander v. FBI, 192 F.R.D. 37, 40 n. 1 (D.C. 2000). Commonly referred to as "Filegate," the Alexander case involves allegations that plaintiffs' privacy interests were violated when, in 1993 to 1994, the FBI improperly handed over to the White House hundreds of FBI files of former political appointees and government employees under the Reagan and Bush Administrations. Over the course of discovery in Alexander, this court authorized limited discovery into the circumstances surrounding the release of Ms. Tripp's background security information, to the extent that the inquiry was "reasonably calculated to lead to the discovery of a White House connection to the release of Tripp's private government information." See Alexander v. FBI, 188 F.R.D. 111, Memorandum and Order at 115-16 (D.C. 1998). Specifically, the court determined that discovery into the DoD release might be relevant if it could establish circumstantial evidence of White House misuse of government information, similar to the conduct alleged in Filegate. See id.; see also Alexander v. FBI, et al., 186 F.R.D. 154, 158 (D.C. 1999) ("This line of discovery is appropriate because plaintiffs may seek to create the inference that if the White House misused government information for political purposes in the case of the Tripp release, such evidence may be circumstantial evidence of the similar conduct alleged in plaintiffs' complaint.").

In pursuing discovery into the Tripp release in Alexander, plaintiffs subpoenaed various documents from DoD, including materials maintained in the DoD Inspector General's ("IG" or "OIG") investigatory file. See Alexander, 192 F.R.D. at 38-39. In response to plaintiffs' subpoenas and subsequent motions to compel, however, DoD claimed, inter alia, that certain of the materials requested by the plaintiffs were protected from disclosure by the law enforcement privilege. See id.; see also Alexander, 186 F.R.D. at 166. To assess DoD's claim of law enforcement privilege, the court ordered DoD to submit the materials in camera. Subsequently, after reviewing the DoD OIG materials in camera, the court held two ex parte hearings with DoD's counsel concerning its law enforcement privilege claim. See Alexander v. FBI, Ex Parte In Camera Hearing of January 28, 2000; Alexander v. FBI, Ex Parte, In Camera Hearing of December 15, 1998.

After the final ex parte hearing in January 2000 and completion of its in camera review, the court ultimately "determined that the materials compiled by the DoD during its investigation into the Tripp release [were] cumulative, and thus, merely duplicate the circumstantial evidence plaintiffs [had] already developed or obtained through other discovery in this case." Alexander, 192 F.R.D. at 40. As such, the court was not required to address the merits of the DoD's claim of law enforcement privilege, nor did the court compel the disclosure of the IG materials to the Alexander plaintiffs. Id.

In a footnote in that opinion, however, the court stated that if it had been required to reach the issue of the DoD's claim of law enforcement privilege, where a court must consider, inter alia, whether an investigation is "ongoing," see In re Sealed Case, 856 F.2d 268, 271 (D.C.Cir. 1988) (citing Frankenhauser v. Rizzo, 59 F.R.D. 339 (E.D.Pa. 1973)), the court would not have sustained DoD's claim of privilege on the basis of that factor. Alexander, 192 F.R.D. at 40 n. 1. Rather, the court stated that it found it "impossible to fathom how an internal investigation into such a simple matter could take [almost two years] to conclude." Id. Further expressing its skepticism about the repeated assertions that the investigation into the Tripp release was continuing, the court noted that "the `ongoing' nature of the investigation appears equally implausible given the fact that the Tripp release presents such a clear violation of the Privacy Act. . . ." Id. at 40 n. 1.

Seizing upon the court's comments in the above-quoted footnote in the Alexander opinion, see id., Bacon now advances that the court's recusal in this case is warranted under Section 455(a) and (b)(1). Specifically, Bacon contends that recusal is required because the court has "directly and unnecessarily ruled on one of the principal issues presented in this case — whether the defendants' conduct violated the Privacy Act — without the benefit of any briefing, argument, or evidence on that question." See Defendant Kenneth H. Bacon's Motion to Recuse, at 1 (Filed April 14, 2000).

And, in responding to defendant Bacon's motion and urging this court to grant defendant's motion to recuse, the DoD advances that recusal is warranted under Section 455(a) because the court's comment in the March 6, 2000 Alexander opinion has created the appearance of bias that would lead an informed observer to question the judge's impartiality. United States v. Barry, 961 F.2d 260, 263 (D.C.Cir. 1992). To that end, the DoD maintains that the court's comments were based on an "extrajudicial" source because Bacon and DoD were not parties to the Alexander proceeding, and thus had no opportunity to submit briefing or otherwise participate in the adversarial process in that case. In other words, DoD contends that "extrajudicial source" for purposes of necusal is party-specific. To that end, DoD contends that the court's comments and its review of the IG file in Alexander were extrajudicial to defendants Bacon and DoD in this case insofar as they were "derived from a source outside judicial proceedings in which the party that may be prejudiced has had a fair opportunity to address or rebut the court's stated conclusions." Department of Defense's Response to Motion to Recuse ("DoD Response"), at 9. In so arguing, DoD contends that Liteky v. United States is not controlling here, as that case only addressed recusal in the context of "intrajudicial sources" involving the same party, not a prior proceeding involving different parties. They further attempt to distinguish the present case from earlier cases denying recusal, noting that in those cases, the ruling or remark at issue was the product of "a study of the depositions and briefs which the parties had requested [the judge] to make." United States v. Grinnel, 384 U.S. 563, 583, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966); see also United States v. Roach, 108 F.3d 1477, 1483-84 (D.C.Cir. 1997) (affirming district court's denial of motion to recuse "[b]ecause at the time the district judge made the remarks he had already reviewed [defendant's] motion to show cause as well as the Department's opposition, [and] he was quite familiar with the allegations and documents in [defendant's] case"). Alternatively, DoD asserts that even if the court's comments were not based on an extrajudicial source to the defendants, recusal is still required because the remarks create the appearance that the court's impartiality may be called into question, and "could suggest, to an outside observer, such a `high degree of favoritism or antagonism' to defendants' position that `fair judgment is impossible.'" DoD Response, at 11 (citing Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994)).


Section 455(a) of Title 28 of the United States Code provides that a federal judge shall "disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). And, Section 455(b)(1) states, in relevant part, that a judge shall "disqualify himself . . . (1)[w]here he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding." 28 U.S.C. § 455(b)(1). Whether there is any basis for questioning a judge's impartiality under Section 455(a) is to be determined by an objective standard. United States v. Heldt 668 F.2d 1238, 1271 (D.C.Cir. 1981); United States v. Fiat Motors of North Am., 512 F. Supp. 247, 250 (D.C. 1981). That is, recusal is required where the court determines that "an informed observer would reasonably question the judge's impartiality." United States v. Barry, 961 F.2d 260, 263 (D.C.Cir. 1992); see also United States v. Jordan, 49 F.3d 152, 155 n. 3 (5th Cir. 1995) (stating that the Liteky opinion "neither stated nor implied that the ...

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