United States District Court, District of Columbia
October 28, 2002
BARBIE BLACK, PLAINTIFF,
NEWTON KENDIG, ET AL., DEFENDANTS.
The opinion of the court was delivered by: John M. Facciola, United States Magistrate Judge
Currently pending and ready for resolution is Defendant's Motion for
Recusal and Memorandum in Support. After careful consideration and for
the reasons articulated below, defendant's motion will be granted, albeit
for different reasons than the defendant offers.
On January 21, 2000, Judge Sullivan referred this case to me for
settlement. I spoke with and met with the parties on numerous occasions
during which we had frank discussions about this case. On June 26,
2001, I flew to Augusta, Georgia and met with plaintiff personally in the
prison in which she was confined to discuss her case and finalize the
details of the settlement. On July 23, 2001, Judge Sullivan accepted the
settlement agreement and my referral ended.
On May 21, 2002, almost one full year after the parties had ostensibly
reached a settlement, plaintiff moved for reinstatement of his
complaint, expedited discovery, leave to file a second amended
complaint, a preliminary injunction, and a temporary restraining order.
On May 22, 2002, Judge Sullivan re-referred the case to me for a Report
and Recommendation on the pending motions. The parties are now bitterly
divided over the meaning of one provision of the settlement agreement.
The agreement allowed the Bureau of Prisons a three month period during
which it was obliged to create and propose a treatment plan for
Dr. Frederick S. Berlin was also to prepare a treatment
plan. Once both proposals were prepared, paragraph 5 of the agreement
The BOP's Medical Director, Dr. Newton E. Kendig, will
review the BOP's assessment and treatment plan,
together with the assessment(s) and treatment plan(s)
prepared by Dr. Berlin and the BOP's consulting doctor
if any. Dr. Kendig will then decide which plan, or
combination of plans, will be offered to plaintiff.
As plaintiff reads this provision, Kendig is obliged to adopt a
treatment plan and order that plaintiff be given estrogen therapy if the
plans recommended it. Defendant denies that this provision imposes any
such obligation on Kendig. As defendant sees it, he can refuse to give
plaintiff estrogen therapy even though, for example, both Dr. Berlin and
the BOP treatment plan recommend it.
Defendant now seeks my recusal.
The pertinent sections of the recusal statute provide:
§ 455. Disqualification of justice, judge, or
(a) Any justice, judge, or magistrate of the United
States shall disqualify himself in any proceeding in
which his impartiality might reasonably be
(b) He shall also disqualify himself in the following
(1) Where he has a personal bias or prejudice
concerning a party, or personal knowledge of
disputed evidentiary facts concerning the
28 U.S.C.A. § 455(a) & (b) (1993).
To resolve the government's motion, it is first helpful to clear some
First, while it is not clear that the government still relies upon the
point, I do not have any disqualifying "personal knowledge of disputed
evidentiary facts concerning the proceeding." 28 U.S.C.A. §
455(b)(1). Obviously, presiding over the settlement discussions is
within my judicial responsibilities and I gained no knowledge of any
facts pertaining to this dispute in any other way. Recusal on this
ground is, therefore, unavailable. U.S. v. Pollard, 959 F.2d 1011, 1031
(D.C. Cir. 1992) (only personal knowledge of disputed facts gained other
than by presiding requires reversal).
Second, I have no intention whatsoever of permitting either party or
myself to breach the confidentiality of the settlement discussions. As
the government points out, I yield to no one in my insistence that
settlement discussions remain confidential. See Childers v. Slater, 1998
WL 429849, at *6 (D.D.C. 1998) (Facciola, J.). I will not permit either
party to refer in any way to anything anyone, including me, said during
settlement discussions. My issuing a Report and Recommendation in this
case will, therefore, not threaten either a violation of Fed.R.Evid.
408, of the wise policy that animates it, or of the Court's own Mediation
Third, it is certainly not true that presiding over settlement
discussions requires the recusal of a judge who then must preside over
the case that was not settled. The converse seems to be true. See
e.g., Franks v. Nimmo, 796 F.2d 1230, 1235 (10th Cir. 1986); Bilello v.
Abbot Lab., 825 F. Supp. 475, 478-79 (E.D.N.Y. 1993); Geneva Assurance
Syndicate, Inc. v. Med. Emergency Serv. Assoc., No. Civ. A. 92-1652, 1993
WL 384566, at *3 (N.D.Ill. Sept. 28, 1993); U.S. v. Conservation Chemical
Co., 106 F.R.D. 210, 234-35 (W.D.Mo. 1985). Any such absolute rule would
be silly. Some settlement discussions begin with the defendant offering
"nuisance value" and the plaintiff walking out five minutes later in a
huff. To preclude the magistrate judge who presides over such theatrics
from then doing anything else in that case is to waste a judicial
resource as badly as cutting one's throat on a good rug.
What I think the government is grasping for but cannot reach, is the
real question presented: whether, having presided over the settlement
discussions, I should then resolve what the parties meant during those
very settlement discussions because they so utterly disagree over what
the agreement means.
Judges are presumed to be able to compartmentalize information upon
which they can predicate their decisions, and information of which they
are otherwise aware, but cannot use as a basis for their decisions.*fn2
It is also said that whether or not
the appearance of impartiality is
offended is to be determined objectively, not subjectively.*fn3 The
question is not whether I think that I can be objective and fair but
whether a reasonable, objective person has reason to doubt my
impartiality no matter how fair I think I can be.*fn4 To put this all
together, the question is whether a reasonable person would find that the
appearance of fairness would be offended by a magistrate judge resolving
the interpretation of a contract that the parties negotiated under that
judge's intensive supervision. While the question is a close one, I
believe that I must recuse myself.
No matter how much I am presumed to be able to compartmentalize
information I learned while presiding over the settlement discussions
from any evidence the parties may tender at any hearing, I would be
obliged to engage in remarkable mental gymnastics. I would have to
consider what the parties said occurred during their settlement
discussions while mentally suppressing my own recollection of what they
said. I would have to segregate what they claimed they intended from
what I perceived they intended based on what I heard them say during the
Indeed, there is one view of the matter that suggests that it is not
too far fetched to imagine that I could become a witness in this case if
the parties differ bitterly as to what occurred at the settlement
discussions and Judge Sullivan, in his wisdom, decided that one party or
the other could call me as a witness.*fn5
While I cannot predict with
certainty that any of this will occur, the possibility that I might have
to be a witness gives me pause. If, in the interim, I provide Judge
Sullivan with a Report and Recommendation that speaks to the very issue
about which I might have to testify, I would be acting as witness and
judge in the same case. I cannot imagine how any one could possibly
defend such a curious mixing of roles. I surely believe that any
reasonable person would find that co-mingling highly offensive to the
appearance of impartiality.
Finally, there is an institutional interest that has to be factored
into the calculus. As the government correctly points out, presiding
over settlement conferences has become an important responsibility of
magistrate judges. At the same time, their responsibilities over the
substantive aspects of cases have grown as well. For example, more
parties express their consent to magistrate judges' presiding over
trials. I have held enough settlement conferences to know that my
success is a direct function of the parties' certainty that what they
tell me will remain confidential and their perception of my utter
objectivity. I can easily understand why a party would be less than
frank if that party could foresee the possibility that what they said to
me during settlement discussions would influence how I would ultimately
rule on a substantive matter in the same case. The impact that fear
would have on the success I might otherwise achieve in settling that case
compels me to conclude that the line between the
magistrate judge as
mediator and the magistrate judge as presiding judge must be kept
straight and true.
I, therefore, have decided to recuse myself from issuing the Report and
Recommendation. On the other hand, I note my continued desire to help the
parties finally settle this matter if they believe I can assist them.
An Order accompanies this Memorandum Opinion.
In accordance with the accompanying Memorandum Opinion, it is hereby,
ORDERED that Defendant's Motion for Recusal and Memorandum in Support
[#119] is GRANTED.