The opinion of the court was delivered by: Lamberth, District Judge.
MEMORANDUM AND ORDER (RECUSAL)
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
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 ...