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Sataki v. Broadcasting Board of Governors

October 13, 2010

ELHAM SATAKI, PLAINTIFF,
v.
BROADCASTING BOARD OF GOVERNORS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Currently pending before the Court is Plaintiff Elham Sataki's [66] Motion to Disqualify this Court pursuant to 28 U.S.C. § 144. This is, in effect, Plaintiff's second attempt to disqualify the Court based on allegations that certain of the Court's rulings, combined with the fact that the undersigned was appointed by former President William J. Clinton and is allegedly affiliated with the Democratic party, are evidence that the Court has an extra-judicial bias or prejudice against her counsel of record, Larry Klayman, which has in turn prejudiced the Court against her as his client. The Court has previously made clear that such allegations are legally insufficient to support disqualification. Plaintiff's most recent filings offer no new authority to the contrary. Accordingly, upon a searching review of Plaintiff's Motion and the parties' respective responses, the relevant case law and statutory authority, and the entire record as a whole, the Court shall DENY Plaintiff's [66] Motion to Disqualify the Court pursuant to 28 U.S.C. § 144. The Court has also conducted its own independent review of the record and is satisfied that no reasonable and informed observer would question this Court's impartiality. Accordingly, for the reasons set forth below, the Court concludes that recusal is neither required nor warranted in this case.

I. BACKGROUND

The Court shall assume familiarity with its prior decisions in this case, which set forth in detail the factual background and procedural history of this case, and shall therefore provide only a brief summary of the instant action as is necessary to provide context for resolution of the motion now before the Court. See Sataki v. Broadcasting Board of Governors, __ F. Supp. 2d __, 2010 WL 2195799 (D.D.C. June 1, 2010); Sataki v. Broadcasting Board of Governors, __ F. Supp. 2d __, 2010 WL 2679893 (D.D.C. July 7, 2010); Sataki v. Broadcasting Board of Governors, __ F. Supp. 2d __, 2010 WL 2679901 (D.D.C. July 7, 2010). This case stems from allegations that Plaintiff was sexually harassed and assaulted by a co-worker at the Persian News Network and that her employer, the Broadcasting Board of Governors ("BBG"),*fn1 as well as several members and employees of the BBG, unlawfully facilitated the alleged sexual harassment, actively attempted to cover up the incidents of harassment, interfered with the investigation of her administrative complaint, and retaliated against her for complaining about her co-worker's harassing conduct as well as for criticizing BBG's management and mission.

Plaintiff filed a series of administrative and legal complaints seeking review of her allegations of harassment and retaliation - including the instant lawsuit, which was filed on April 2, 2010. The case was initially assigned to another trial judge, but was eventually reassigned to this Court by the Calendar Committee on May 25, 2010, as a related action to a case then-pending before this Court. See Docket No. [29] (Reassignment of Civil Case). Plaintiff is represented in this civil action by Larry Klayman, her counsel of record. She has named as Defendants BBG and several members and employees of the BBG, both in their official as well as their individual capacities (collectively with BBG, "Defendants"). As set forth in Plaintiff's initial complaint, she alleges that Defendants violated her constitutional rights under the First, Fourth, Fifth, and Fourteenth Amendments as well as under the Privacy Act of 1974, 5 U.S.C. §§ 552a et seq., and failed to provide her with a reasonable accommodation in violation of the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq. See Compl., Docket No. [1]. Plaintiff amended her complaint on June 1, 2010, to add a claim for interim injunctive relief pursuant to the D.C. Circuit's decision in Wagner v. Taylor, 836 F.2d 566 (D.C. Cir. 1987). See Am. Compl., Docket No. [35].

On May 20, 2010, Plaintiff filed a Motion for a Temporary Restraining Order and/or Preliminary Injunction. See Docket No. [11]. By Memorandum Opinion and Order dated June 1, 2010, this Court denied Plaintiff's request for a temporary restraining order. See Sataki v. Broadcasting Board of Governors, __ F. Supp. 2d __, 2010 WL 2195799 (D.D.C. June 1, 2010). The parties subsequently advised the Court that they had been unable to reach an agreement that would consolidate consideration of Plaintiff's request for a preliminary injunction with the merits of her underlying claims, and the parties therefore proposed an expedited briefing schedule for resolution of Plaintiff's preliminary injunction motion. Pursuant to that schedule, Plaintiff filed a Supplemental Memorandum in Support of Motion for Preliminary Injunction on June 11, 2010, and the parties' briefing on Plaintiff's request for a preliminary injunction was fully completed by June 30, 2010.

As is of particular relevance to the instant Motion, on June 9, 2010, prior to the filing of Plaintiff's supplemental preliminary injunction briefing, Plaintiff filed a "Motion and Memorandum to Chief Judge and Judge Kollar-Kotelly to Reassign and Remand Case, by Consent or Otherwise, to Prior Trial Judge Richard W. Roberts, or in the Alternative, to Assign Sataki Cases to Another Trial Judge Through Random Assignment System" (hereinafter, "Pl.'s Mot. to Reassign"). See Docket No. [42]. As set forth therein, Plaintiff alleged that certain of the Court's rulings, combined with the fact that the undersigned had been appointed to the federal bench by former President William J. Clinton and was allegedly affiliated with the Democratic party, evidenced bias by the Court against her counsel, Larry Klayman; for this reason, Plaintiff requested that this Court, or alternatively, Chief Judge Royce C. Lamberth, reassign this case to a different trial judge. See id. Defendants opposed the request.

By Memorandum Opinion and Order dated July 7, 2010, the Court denied Plaintiff's Motion to Reassign. See Sataki v. Broadcasting Board of Governors, __ F. Supp. 2d __, 2010 WL 2679893 (D.D.C. July 7, 2010). The Court found that Plaintiff had failed to identify any legitimate grounds warranting reassignment of this case. See id. at *2-3. In addition, the Court found that the motion, although framed as a request for reassignment under the local rules, could also be construed as seeking recusal of the Court pursuant to 28 U.S.C. § 455. Id. at *3. Cognizant that "section 455 'imposes a duty directly upon the judge to evaluate [her] own conduct," the Court proceeded to consider Plaintiff's allegations to determine whether recusal was warranted under either section 455(a) or 455(b), notwithstanding the ambiguity in Plaintiff's motion. Id. The Court ultimately concluded that "recusal [was] neither warranted nor required, whether Plaintiff's claims of bias are examined singly or as a whole." Id. at *6.

By Memorandum Opinion and Order that same day, the Court also denied Plaintiff's request for a preliminary injunction. See Sataki v. Broadcasting Board of Governors, __ F. Supp. 2d __, 2010 WL 2679901 (D.D.C. July 7, 2010). Significantly, Plaintiff did not appeal the Court's decision denying her request for a preliminary injunction.

On July 26, 2010, Plaintiff filed the now-pending [66] Motion to Disqualify this Court pursuant to 28 U.S.C. § 144. Two days later, on July 28, 2010, Plaintiff filed a Notice of Voluntarily Dismissal, in which she voluntarily dismissed the majority of her claims in this case. Defendants have since filed an Opposition to Plaintiff's Motion to Disqualify, see Docket No. [69], and Plaintiff has filed a Reply, see Docket No. [74]. Accordingly, the Motion to Disqualify is now fully briefed and ripe for this Court's resolution.

II. LEGAL STANDARD AND DISCUSSION

To recuse a judge under section 144, a litigant must submit, along with its motion, an affidavit stating "the facts and the reasons for [its] belief that bias or prejudice exists." 28 U.S.C. § 144. Upon the filing of a "timely and sufficient affidavit," section 144 mandates that the assigned "judge shall proceed no further, but another judge shall be assigned to hear such proceeding." Id.; see also Bhd. of Locomotive Firemen and Enginemen v. Bangor & Aroostook R.R. Co., 380 F.2d 570, 576 (D.C. Cir. 1967) ("The disqualification statute, 28 U.S.C. § 144, is mandatory and automatic, requiring only a timely and sufficient affidavit alleging personal bias or prejudice of the judge."). "Importantly, the mere fact that a party has filed a § 144 motion, accompanied by the requisite affidavit and certificate of counsel, does not automatically result in the challenged judge's disqualification." Robertson v. Cartinhour, 691 F. Supp. 2d 65, 77 (D.D.C. 2010); see also United States v. Miller, 355 F. Supp. 2d 404, 405 (D.D.C. 2005) ("disqualification is not automatic upon submission of affidavit and certificate"). Rather, recusal is required only upon the filing of a "timely and sufficient affidavit." 28 U.S.C. § 144.

The question of whether the motion and supporting affidavit is both timely and legally sufficient is for this Court to determine in the first instance. See United States v. Haldeman, 559 F.2d 31, 131 (D.C. Cir. 1976) ("It is well settled that the involved judge has the prerogative, if indeed not the duty, of passing on the legal sufficiency of a Section 144 challenge."); see also United States v. Heldt, 668 F.2d 1238, 1272 n.69 (D.C. Cir. 1981) (noting that "under section 144 . . . the transfer to another judge for decision is 'at most permissive"') (quoting Haldeman, 559 F.2d at 131). First, with respect to the timeliness of the motion, section 144 is itself silent as to "what the timeliness requirement means where, as in this case, the recusal motion rests on events occurring after proceedings began." S.E.C. v. Loving Spirit Found., Inc., 392 F.3d 486, 492 (D.C. Cir. 2004). In such circumstances, courts "have required the affidavit to be filed 'at the earliest moment.'" Id. As the D.C. Circuit has made clear, the timeliness requirement is "[c]rucial to the integrity of the judicial process," as it "ensures that a party may not wait and decide whether to file based on 'whether he likes subsequent treatment that he receives.'" Id. (quoting In re United Shoe Mach. Corp., 276 F.2d 77, 79 (1st Cir. 1960)).

Second, in determining whether the affidavit sets forth a legally sufficient basis for disqualification, the Court "must accept the affidavit's factual allegations as true even if the judge knows them to be false." Loving Spirit Found., 392 F.3d at 496; see also United States v. Hanrahan, 248 F. Supp. 471, 474 (D.D.C. 1965) ("when presented with an application and affidavit such as this one, a Court may not pass upon the truth or falsity of the allegations, but must accept them as true for the purpose of determining the legal sufficiency of the affidavit"). However, the affidavit "must state facts as opposed to conclusions, and while the information and belief of the affiant as to the truth of the allegations are sufficient, mere rumors and gossip are not enough." Hanrahan, 248 F. Supp. at 474 (internal citations omitted). "The identifying facts of time, place, persons, occasion and circumstances must be set forth, with at least that degree of particularity one would expect to find in a bill of particulars." Id. (internal citations omitted). Importantly, given the requirement that the Court accept the facts stated in the affidavit as true, the statute mandates that "the attorney presenting the motion [] sign a certificate stating that both the motion and declaration are made in good faith." Loving Spirit Found., 392 F.3d at 496; see 28 U.S.C. § 144 (requiring that the affidavit "be accompanied by a certificate of counsel of record stating that it is made in good faith"). The certification requirement is key to the integrity of the recusal process and "guard[s] against the removal of an unbiased judge through the filing of a false affidavit." Loving Spirit Found., 392 F.3d at 496.

Once it is established that the affidavit has been properly certified by counsel of record and that the facts set forth therein have been stated with sufficient particularity, the Court must then

ascertain[] whether these facts would fairly convince a sane and reasonable mind that the judge does in fact harbor the personal bias or prejudice contemplated by the statute. It is well established that the facts must give fair support to the charge of a bent mind that may prevent or impede impartiality. The basis of the disqualification is that personal bias or prejudice exists, by reason of which the judge is unable to impartially exercise his functions in the particular case. The factual allegations must establish by more than a prima facie case, but not beyond a reasonable doubt that the mind of the judge is closed to justice; that the judge has a personal bias or prejudice against the affiant which is of such a nature, and of such intensity, that it would render the judge unable to give the affiant the fair trial to which every litigant is entitled. Obviously, such a showing could rarely be made.

Hanrahan, 248 F. Supp. at 475-76 (internal citations and quotations omitted). "Importantly, to be disqualifying, the alleged bias usually 'must stem from an extra-judicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.'" Robertson, 691 F. Supp. 2d at 78 (quoting United States v. Grinnell Corp., 384 U.S. 563, 583 (1966)); see also Liteky v. United States, 510 U.S. 540, 554 (1994) (predispositions developed during proceedings are rarely sufficient). For the reasons set forth ...


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