United States District Court, D. Columbia.
June 9, 2015
CINA A. RYAN, Plaintiff,
FEDERAL BUREAU OF INVESTIGATION, et al., Defendants
A. RYAN, Plaintiff, Pro se, Chevy Chase, MD.
FEDERAL BUREAU OF INVESTIGATION, DEPARTMENT OF JUSTICE,
Defendants: Peter Rolf Maier, LEAD ATTORNEY, U.S.
ATTORNEY'S OFFICE, Civil Division, Washington, DC.
S. CHUTKAN, United States District Judge.
court held a hearing on the motion for summary judgment
pending in this matter on May 14, 2015. Plaintiff Cina A.
Ryan alleges that certain questions and comments by the court
in the course of that hearing create reason to believe the
court " will not rule on the Plaintiff's case, in a
fair and impartial manner." (Pl. Recusal Mot., ECF No.
14, at 1). As such, he moves the undersigned to disqualify
herself from this matter pursuant to 28 U.S.C. §
455. For the reasons set forth below,
Plaintiff's motion is DENIED and the undersigned will
continue to preside over this matter.
facts of the underlying dispute in this Freedom of
Information Act (" FOIA" ) lawsuit are tangentially
relevant; therefore, the court provides only a brief
overview. Plaintiff, who believes he is under surveillance by
the FBI, submitted a FOIA request for his complete FBI file.
(Compl. ¶ ¶ 8, 24; Declaration of David Hardy
[" Hardy Decl." ], ECF No. 4-3, Ex. A at 3). The
FBI located no responsive documents and Plaintiff filed this
lawsuit challenging the adequacy of the FBI's search.
(Compl. ¶ 44; Hardy Decl. Ex. E). Importantly, for
purposes of the hearing and the instant motion,
Plaintiff's challenge is based primarily on his argument
that the FBI's search was inadequate because the FBI
conducted the search using several variations of
Plaintiff's name but not the variation which appears on
various forms of government-issued identification: Cina Ryan
(without any middle initial). (Pl. Opp'n, ECF No. 7, at
7; Am. Affidavit, ECF No. 8, at 1; Reply to 2d Hardy Decl.,
ECF No. 12, at 2-3). The FBI contends that, as a function of
the phonetic search methodology employed, searching for this
particular variation was unnecessary because any documents
using the name " Cina Ryan" would have been located
when searches were run for similar spelling variations, e.g.
" Sina Ryan" or " Cina A. Ryan." (Hardy
Decl. ¶ 25). The court ordered the FBI to submit, no
later than June 14, 2015, a declaration providing the court
with additional information about the phonetic search tool to
enable the court to evaluate this argument (and information
addressing some of Plaintiff's other arguments). The FBI
did so on June 8, 2015. (ECF No. 16). At present, the court
has issued no opinion or order reaching any conclusion on the
merits of these competing arguments.
recusal statute does not " warrant the transformation of
fear that a judge may decide a question against him into a
reasonable fear that the judge will not be impartial."
Murchison v. Inter-City Mortg. Corp. Profit Sharing &
Pension Plans, 503 F.Supp.2d 184, 188 (D.D.C. 2007)
(internal quotation omitted). Instead, recusal is to be
" limited to truly extraordinary cases where...the
judge's views have become 'so extreme as to display
clear inability to render fair judgment.'"
Cobell v. Kempthorne, 455 F.3d 317, 332, 372 U.S.
App.D.C. 232 (D.C. Cir. 2006) (quoting Liteky v. United
States, 510 U.S. 540, 551, 114 S.Ct. 1147, 127 L.Ed.2d
is required whenever the judge's " impartiality
might reasonably be questioned" or when the judge "
has a personal bias or prejudice concerning a party." 28
U.S.C. § 455. " Recusal [for impartiality] is
required when a reasonable and informed observer would
question the judge's impartiality," SEC v.
Loving Spirit Found., Inc., 392 F.3d 486, 493, 364 U.S.
App.D.C. 116 (D.C. Cir. 2004) (internal quotations omitted),
while recusal for personal bias requires a showing of "
actual bias or prejudice." Tripp v. Exec. Office of
the President, 104 F.Supp.2d 30, 34 (D.D.C. 2000).
" Opinions formed by the judge on the basis of facts
introduced or events occurring in the course of the current
proceedings, or of prior proceedings, do not constitute a
basis for a bias or partiality motion unless they display a
deep-seated favoritism or antagonism that would make fair
judgment impossible." Liteky, 510 U.S. at 555.
judge's remarks, including those that are " critical
or disapproving of, or even hostile to, counsel, the parties,
or their cases, ordinarily do not support a bias or
partiality challenge." Id. If the opinion
expressed derives from an " extrajudicial source,"
recusal may be proper. Id., Am. Cntr. for Civil
Justice v. Ambush, 680 F.Supp.2d 21, 24-25 (D.D.C. 2010)
(" A party moving for recusal pursuant to Section 455(a)
must demonstrate the court's reliance on an extrajudicial
source that creates an appearance of partiality or, in rare
cases, where no extrajudicial source is involved, ... a
deep-seated favoritism or antagonism that would make fair
judgment impossible." ) (internal citations and
quotations omitted, alteration in original). Statements that
are " assessments relevant to the case, whether they are
correct or not...do not demonstrate bias, even if they are
expressions of impatience, dissatisfaction, or
annoyance." United States v. Ciavarella, 716
F.3d 705, 719 (3d Cir. 2013) (internal quotations and
alterations omitted), District of Columbia v. Doe,
611 F.3d 888, 899, 391 U.S. App.D.C. 388 (D.C. Cir. 2010)
(judge's accusation that plaintiff " deceptively
work[ed] around his 'no personal service rule'
and...engag[ed] in unethical behavior" was not a basis
for recusal); see also United States v.
Carson, 455 F.3d 336, 358, 372 U.S. App.D.C. 251 (D.C.
Cir. 2006), Klayman v. Judicial Watch, Inc., 628
F.Supp.2d 98, 109-110 (D.D.C. 2009) (expressions of
disapproval of " well-documented and repeated failures
to comply with court-ordered deadlines" in "
neutral and respectful language" did not suffice to
support a recusal or disqualification). By contrast,
statements by the presiding district court judge which
included " crude characterizations of Microsoft, his
frequent denigrations of Bill Gates, [and] his mule trainer
analogy as a reason for his remedy," which were made
" outside the courtroom, in private meetings unknown to
the parties, in anticipation that ultimately the Judge's
remarks would be reported," created an appearance of
partiality such that recusal was appropriate. United
States v. Microsoft Corp., 253 F.3d 34, 116, 346 U.S.
App.D.C. 330 (D.C. Cir. 2001).
sole basis for Plaintiff's recusal motion are statements,
perhaps limited to
a single statement, by the court in the course of the hearing
on Defendant's motion for summary judgment. (Pl. Recusal
Mot. at 2). The court stated, while addressing
Plaintiff's argument that the FBI deliberately excluded
the search term " Cina Ryan" in order to avoid
locating responsive documents, that " if the FBI had
done a search of Cina Ryan, C-I-N-A Ryan, no middle initial
A, and come up with no documents, you would be telling me
that that was also inadequate, right?" (Mot. Hr'g
Tr. 30:11-14 May 14, 2015). Plaintiff disagreed. (
Id. 30:15-23). This comment does not indicate the
court is unable to impartially decide whether the FBI has
adequately searched for documents concerning Plaintiff.
Murchison, 503 F.Supp.2d at 189 (judge's
observations must evidence " deep-seated and unequivocal
antagonism" in order to warrant recusal). To the
contrary, the court informed the parties during this hearing
that it was " perplexed" by the FBI's "
curious" decision not to conduct a search using the name
" Cina Ryan," (Mot. Hr'g Tr. 31:4-5,
31:22-32:5, 33:13), and required the FBI to submit an
additional declaration addressing several of Plaintiff's
arguments. ( Id. 40:2-18, 41:7-14). Indeed, the
court convened the hearing in the first instance, and
permitted the submission of additional evidence and
declarations from the parties, at Plaintiff's request.
(Pl. Aff., ECF No. 7 at 1 (" requesting oral
arguments" ); Pl. Opp'n, ECF No. 7 at 7 (" the
Plaintiff wants to subpoena some of the individuals mentioned
in his affidavit" ); Minute Order, Apr. 8, 2015; see
also Mot. Hr'g Tr. 9:16-12:7 (confirming that
Plaintiff had submitted for the court's review all
exhibits he believed necessary to the court's decision)).
has pointed to no evidence, and there is none, that the
undersigned has either a personal bias against him or that a
reasonable and informed observer of the proceedings in this
case to date could question the undersigned's
impartiality. The court has given Plaintiff multiple
opportunities to present the court with both evidence and
argument about the adequacy of the FBI's search efforts.
No recusal or disqualification is warranted and
Plaintiff's motion is accordingly denied.
corresponding order will issue separately.
reasons set forth in the accompanying Memorandum Opinion (ECF
No. 17), it is hereby
that Plaintiff's Motion for Recusal (ECF No. 14) is
DENIED; and it is further
that the Clerk of Court shall mail a copy of this order and a
copy of the court's Memorandum Opinion (ECF No. 17) to
A separate statute, 28 U.S.C. § 144,
requires recusal upon a party's " timely and
sufficient affidavit that the judge before whom the matter is
pending has a personal bias or prejudice either against him
or in favor of any adverse party." This motion is
properly before the court only under § 455, for lack of
the " timely and sufficient affidavit" required by
§ 144. However the outcome would be the same under
either statute, since " substantively, the two
statutes are quite similar, if not identical."
Phillips v. Joint Legis. Comm. on Performance and
Expenditure Rev. of State of Miss., 637 F.2d 1014, 1019
(5th Cir. Unit A 1981).