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TWIST v. U.S. DEPARTMENT OF JUSTICE

November 2, 2004.

CHARLES RUSSELL TWIST, Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE, Defendant.



The opinion of the court was delivered by: RICARDO URBINA, District Judge

MEMORANDUM ORDER

DENYING THE PLAINTIFF'S MOTION TO ALTER OR AMEND JUDGMENT AND DENYING THE PLAINTIFF'S MOTION FOR RECUSAL
I. INTRODUCTION
This matter comes before the court on the plaintiff's motions for recusal and to alter or amend judgment.*fn1 The now pro se plaintiff, Charles Twist, brought an action pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, against the Department of Justice ("DOJ") seeking documents maintained by the Office of Professional Responsibility ("OPR") relating to an investigation he participated in while working for the defendant as a trial attorney. Specifically, the plaintiff claimed that the defendant unlawfully withheld nonexempt reports. He further claimed that the absence of certain documents from the Vaughn index*fn2 demonstrates bad faith. The defendant responded that it released all responsive, non-exempt documents to the plaintiff in compliance with FOIA.*fn3 The court referred this case to Magistrate Judge Facciola, and on August 2, 2004, the court adopted his report and recommendation ("R&R") and granted the defendant's motion for summary judgment. Thereafter, the plaintiff filed a motion to alter or amend judgment and a motion for recusal. The court addresses these motions in turn.

  II. BACKGROUND

  The facts leading to this action commenced approximately twenty years ago when the Antitrust Division ("ATR") of the DOJ authorized a grand jury investigation of Cleveland area newspapers. See Def.'s Mot. for Summ. J. ("Def.'s Mot."), Harding Decl. ¶ 7. The plaintiff worked as a staff attorney on the investigation. Id. During the investigation, the plaintiff accused certain DOJ officials of obstructing the grand jury investigation. Id. at ¶ 9. The plaintiff claimed that the DOJ terminated him in retaliation for making allegations of misconduct. Id.; see also Twist v. Meese, 854 F.2d 1421, 1422 (D.C. Cir. 1988). At the time of the investigation, the current Chief Judge of the D.C. Circuit, Douglas Ginsburg was the Assistant Attorney General for the ATR. See Pl.'s Mot. for Recusal at 2. The plaintiff sent FOIA and Privacy Act requests to the defendant, the DOJ. On September 3, 1998, the DOJ received the first request, which sought inspection and review of personnel records. Def.'s Mot. at 3, Hall Decl. ¶¶ 8, 10. A search of the OPR's system of records retrieved an investigative file under the plaintiff's name. Def.'s Mot., Hall Decl. ¶ 9. The OPR's initial search retrieved seven documents (68 pages), which were thereafter referred to the ATR for approval for release. Id. at ¶ 11; Def.'s Mot., Harding Decl. ¶ 10. In October 1998, the OPR informed the plaintiff of the progress of their search. Following that letter, on November 24, 1998, the plaintiff wrote a letter to the OPR stating that his "request [was] for documents concerning [him] . . . [and it was] not limited to `personnel records' as [the OPR] impl[ied]." Compl. Attach. 2. In the meantime, the ATR retrieved two additional pages of responsive documents. Then, on January 8, 1999, the ATR gave the plaintiff 70 pages of documents (a compilation of the responsive documents from the OPR and the ATR); within those 70 pages, the ATR redacted two pages in part because they revealed grand jury information. Def.'s Mot., Harding Decl. ¶ 10.

  In February 2001, the OPR sent the plaintiff a letter informing him that they conducted a second search. Def.'s Mot., Hall Decl. ¶ 13-14; Def's Mot., Ex. G. In that letter, the OPR stated that it treated the plaintiff's clarification in his November 1998 letter as a second search because the second request was broader than the first. Id. This second search of the OPR's system of records produced 378 documents responsive to the plaintiff's request: 64 documents were duplicates; 15 documents were disclosed in their entirety; 17 documents were withheld in part pursuant to 5 U.S.C. §§ 552 (b)(2), (b)(5), (b)(7))C); 141 documents originated from the plaintiff (the OPR did not submit them to the plaintiff on the assumption that the plaintiff maintained copies);*fn4 131 documents required prior disclosure approval by the ATR because they either originated in the ATR or contained information of interest to the ATR; and ten documents completely withheld pursuant to 5 U.S.C. §§ 552 (b)(5), (b)(7)(C). Def.'s Mot., Ex. K.

  On March 14, 2001, the plaintiff submitted an unsuccessful appeal to the OPR for a FOIA determination. Thereafter, on May 29, 2001, the plaintiff commenced the instant action in this court. Def.'s Mot. at 14.

  The ATR also conducted a second search. In August 2001, Harding requested this second search because the first ATR search revealed only two documents. Id. at ¶ 11. The new search produced 285 pages, 155 pages of which were disclosed, 90 were redacted in part, and 44 were fully withheld. Id.*fn5

  Back in the courthouse, after two years of litigation, the court referred the defendant's renewed motion for summary judgment and all related motions to Magistrate Judge Facciola. Order dated November 26, 2003. Thereafter, Magistrate Judge Facciola recommended that the court grant the DOJ's motion for summary judgment because the plaintiff did not show that the defendant improperly claimed FOIA exemptions, nor did the plaintiff support any of his assertions of bad faith. See Report and Recommendation by Mag. J. Facciola dated June 22, 2004 ("R&R"). On August 2, 2004, the court adopted the Magistrate Judge's R&R and granted the defendant's motion for summary judgment, concluding that the court could not "embark on a time-consuming and costly goose chase in pursuit of phantom reports." Id. at 2.

  On August 9, 2004, the plaintiff filed a motion for recusal and a motion styled as a reconsideration motion, which the courts treats as a motion to alter or amend judgment. For the reasons that follow, the court denies both the plaintiff's motion for recusal and the plaintiff's motion to alter or amend judgment.

  III. ANALYSIS

  A. The Court Denies the Plaintiff's Motion for Recusal

  In his motion for recusal, the plaintiff contends that Canon 2 of the Code of Conduct for United States Judges prohibits judges from behaving in a partial manner. Pl.'s Mot. Recusal at 1. The plaintiff states that because the court is subject to the review of Chief Judge Ginsburg, who was Assistant Attorney General at the time of the investigation, there is a bias that demands recusal. Id. The court now evaluates the legal sufficiency of these arguments.

  1. Legal Standard for Recusal

  The applicable statute governing when a federal judge is required to recuse himself is 28 U.S.C. § 455, which provides that "[any] justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). Section 455 (b) describes situations in which judges must disqualify themselves. Specifically, a judge "shall" disqualify himself in instances:
(1) [w]here he has a personal bias or prejudice concerning a party, or personal knowledge of the disputed evidentiary facts concerning the proceeding; (2) [w]here in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it; (3) [w]here he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;(4) [h]e knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding; (5) [h]e or his spouse, or a person within the third degree of relationship to either of them, or the spouse ...

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