United States District Court, D. Columbia
JANE DOE, Plaintiff: Andrew G. Slutkin, LEAD ATTORNEY,
Geoffrey Giles Hengerer, SILVERMAN, THOMPSON, SLUTKIN &
WHITE, Baltimore, MD.
ALFREDO SIMON CABRERA, Defendant: Benjamin Voce-Gardner, LEAD
ATTORNEY, PRO HAC VICE, ZUCKERMAN SPAEDER, LLP, New York, NY;
Jon Ross Fetterolf, ZUCKERMAN SPAEDER, LLP, Washington, DC.
CRIME VICTIMS RESOURCE CENTER, Movant: Terrence Michael
Andrews, LEAD ATTORNEY, DC VICTIMS RESOURCE CENTER, Upper
B. WALTON, United States District Judge.
civil matter is currently before the Court on the
plaintiff's Motion to Disqualify & Memorandum in Support
Thereof (" Mot." ), which seeks to have this Court
recuse itself from further presiding over this matter and
vacate several of its recent discovery rulings, id. at 28-29;
see also August 18, 2015 Transcript of Emergency
Teleconference (" Aug. 18, 2015 Tr." ) at 6:13-23,
ECF No. 76; August 18, 2015 Order (" Aug. 18, 2015
Order" ) at 1, ECF No. 75. The motion is primarily based
on comments made by one of the Court's law clerks ("
Law Clerk I" ), who insinuated in jest to members of
defense counsel's law firm, including an attorney who has
made an appearance in this matter on behalf of the defendant,
that she influenced the Court's decisionmaking process
with respect to certain discovery rulings in this case. To be
sure, the Court does not condone these comments even though
they were made in jest. There was no factual basis for them,
and they should not have been made. For the reasons that
however, the ill-advised conduct by the law clerk provides no
basis for the Court to recuse itself.
The Court's Law Clerks
Clerk I began serving as a law clerk for the Court in
November 2013. Aug. 18, 2015 Order, Exhibit ("
Ex." ) C (Declaration of Marina Fernandez (" Decl.
I" )) ¶ 2. From " the onset of [her]
clerkship," the Court " instructed" her that
she " was conflicted from participating in any cases
being litigated by the law firm of Zuckerman Spaeder
[LLP]" (" Zuckerman Spaeder" ) because her
father was a partner at the firm. Id. In accordance
with that instruction, the Court told Law Clerk I " to
have no substantive involvement" with this case when it
was randomly assigned to this Court, id. ¶ 5, as
Zuckerman Spaeder had been retained by the defendant for his
defense. The Court tasked Law Clerk II to assist on the
case, see Aug. 18, 2015 Order, Ex. B
(Declaration of Hugham Chan (" Decl. II" )) ¶
2, and Law Clerk I has " never" provided the Court
" with any substantive input" regarding this case,
Aug. 18, 2015 Order, Ex. C (Decl. I) ¶ ¶ 17-18.
Law Clerk I's tenure in the Court's chambers, she
acquired the services of Zuckerman Spaeder to represent her
in a " personal legal matter." Id. ¶
3. The firm's representation of her " lasted from
January 2015 through February 2015 with some follow-up
discussion in May 2015."  Id. ¶ 3
n.1. Associate Ben Voce-Gardner (" the associate" )
was part of Law Clerk I's legal team in her personal
matter. See id. ¶ 3; see also Aug. 18, 2015 Order, Ex. A
(August 11, 2015 Letter from Fetterolf (" Aug. 11, 2015
Ltr." )) at 2. Through the associate's
representation of Law Clerk I on her personal matter, the two
became friends and periodically sent text messages to each
other, even after the legal relationship concluded. See Aug.
18, 2015 Order, Ex. C (Decl. I) ¶ 3; Aug. 18, 2015
Order, Ex. A (Aug. 11, 2015 Ltr.) at 2. That associate has
also appeared on behalf of the defendant in this case. E.g.,
Appearance of Counsel, ECF No. 9. The Court, however, was
never aware that this associate provided legal services for
Law Clerk I, until the events that gave rise to this motion
The Court's Discovery-Related Rulings And Law Clerk
I's Communications With Members Of Defense Counsel's
29, 2015, the parties " contacted" the Court,
seeking to " resolve a dispute that had arisen during a
deposition" of a third party. Mot. at 5. Law Clerk I
" answered the phone and stated that [Law Clerk II] was
not available." Id.; see also Aug. 18, 2015
Order, Ex. C (Decl. I) ¶ 7. The parties outlined the
discovery dispute to Law Clerk I, and she relayed that
to the Court, while reminding the Court that she was screened
from involvement in the case and could not assist the Court
any further. See Aug. 18, 2015 Order, Ex. C (Decl. I) ¶
8. The discovery dispute concerned a third-party deponent,
who objected to the presence of a defense expert during her
deposition. See id.; see also Opp'n Ex. B
(Deposition Transcript of Jennifer Anne Graebe, R.N. ("
Graebe Dep. Tr." )) at 6:5-7:1. When Law Clerk II became
available, which was almost immediately after the dispute was
presented to the Court, the Court only sought his substantive
assistance in handling the dispute. The Court subsequently
determined that there was no basis for the objection, and in
light of the fact that neither party objected to the presence
of the defendant's expert at the
deposition, the Court permitted the deposition to
proceed and allowed for briefing from any party, if case
authority existed contrary to the Court's
ruling. Later during the day after the
discovery dispute had been resolved, Law Clerk I sent a text
message to the associate, indicating that she had "
[dealt] with an over[-]the[-]phone objection in one of [his]
cases," and asked whether he was in Washington, D.C. for
the deposition. Mot. at 6 (quoting text message sent from Law
Clerk I to the associate). The associate was apparently
unaware that a deposition was being conducted in this case on
that day. See Aug. 18, 2015 Order, Ex. A (Aug. 11, 2015 Ltr.)
In-Court Motions Hearing
August 5, 2015, the Court heard oral arguments concerning
various discovery-related motions. See, e.g., August 5, 2015
Transcript of Motions Hearing (" Aug. 5, 2015 Tr."
), ECF No. 74. At the conclusion of that hearing, the Court
orally granted the defendant's motion to require the
plaintiff to submit to an independent medical examination,
see generally August 7, 2015 Order (providing legal bases for
the Court's oral ruling), ECF No. 73; see also August 5,
2015 Order (" Aug. 5, 2015 Order" ) at 1, ECF No.
71, as well as the defendant's motion for the disclosure
of the plaintiff's grand jury testimony, see generally
Doe v. Cabrera, 126 F.Supp.3d 160, 2015 WL 5190437
(D.D.C. 2015) (providing legal bases for the Court's oral
ruling); see also August 6, 2015 Order (" Aug. 6, 2015
Order" ) at 1, ECF No. 72. Law Clerk I and Law Clerk II
were both present in the courtroom during the hearing. See
Aug. 18, 2015 Order, Ex. C (Decl. I) ¶ ¶ 10-12.
Later that day, as well the day after the hearing, Law Clerk
I reminded Law Clerk II that he needed to help the Court
memorialize the Court's oral rulings in paper orders, as
the Court had limited availability during the remainder of
that week and the following week. See id. ¶ ¶
13-14. The Court memorialized its rulings
on August 5, 2015, see Aug. 5, 2015 Order at 1 (granting
motion for independent medical examination), and on August 6,
2015 (granting motion for disclosure of grand jury
testimony), see Aug. 6, 2015 Order at 1.
the Court issued its August 6, 2015 Order, that same day and
unbeknownst to the Court and Law Clerk II, Law Clerk I sent
text messages to the associate stating that he was going to
" owe" her an alcoholic beverage. See Aug. 18, 2015
Order, Ex. C (Decl. I) ¶ ¶ 14-15; see also Aug. 18,
2015 Order, Ex. A (Aug. 11, 2015 Ltr.) at 1. More
specifically, Law Clerk I insinuated that she had contributed
to the Court's issuance of its August 6, 2015 Order in
the defendant's favor. See Aug. 18, 2015 Order, Ex. A
(Aug. 11, 2015 Ltr.) at 1 & n.2 (Law Clerk I sending text
message to associate that " as of 3:34 [p.m.]
today," when the Court issued its order, the associate
" owe[d] [her] a beer [(or wine)!]" ). Law Clerk I
also sent a similarly-worded text message to her father.
Id. at 1 n.1. Law Clerk I has represented that these
text messages were made in jest, as she was "
pregnant" and was therefore " not drink[ing]"
alcohol. Aug. 18, 2015 Order, Ex. C (Decl. I) ¶ 14.
Nevertheless, realizing the impropriety of the text messages,
she informed the Court about them that same night. See,
e.g., id. ¶ ¶ 15-16. The following day, August
7, 2015, the Court contacted the parties to schedule an
emergency conference to disclose what Law Clerk I had told
the emergency conference, which occurred in the courtroom,
telephonically, and on the record, the plaintiff orally moved
for the Court to, inter alia, recuse itself from this case
and to vacate its discovery rulings from the August 5, 2015
motions hearing. See, e.g., Aug. 18, 2015 Order at 1. The
Court denied the motion without prejudice, but allowed the
parties to brief the issue of recusal. See id. The plaintiff
has renewed her motion in written filings.
[B]ecause judges are presumed to be impartial, 'the Court
must begin its analysis of the allegations supporting a
request [for recusal] with a presumption against
disqualification.'" SEC v. Bilzerian, 729
F.Supp.2d 19, 22 (D.D.C. 2010) (second alteration in
original) (ellipses omitted) (quoting Cobell v.
Norton, 237 F.Supp.2d 71, 78 (D.D.C. 2003)); accord
United States v. Ali, 799 F.3d1008, __, 2015 WL
5011433, at *4 (8th Cir. 2015) (" [A] party introducing
a motion to recuse carries a heavy burden of proof; a judge
is presumed to be impartial and the party seeking
disqualification bears the substantial burden of proving
otherwise." (quoting Fletcher v. Conoco Pipe Line
Co., 323 F.3d 661, 664 (8th Cir. 2003))). Under 28
U.S.C. § 455(a) (2012), a judge " shall disqualify
himself in any proceeding in which his impartiality might
reasonably be questioned." The party moving for
disqualification of the judge must make " a showing of
an appearance of bias or prejudice sufficient to permit the
average citizen reasonably to question a judge's
impartiality is all that must be demonstrated to compel
recusal." United States v. Bostick, 791 F.3d
127, 155 (D.C. Cir. 2015) (quoting United States v.
Heldt, 668 F.2d 1238, 1271, 215 U.S.App.D.C. 206 (D.C.
Cir. 1981)); see also SEC v. Loving Spirit Found.,
Inc., 392 F.3d 486, 493, 364 U.S.App.D.C. 116 (D.C. Cir.
2004) (" Recusal is required when 'a reasonable and
informed observer would question the judge's
impartiality.'" (quoting United States v.
Microsoft Corp., 253 F.3d 34, 114, 346 U.S.App.D.C. 330
(D.C. Cir. 2001), cert. denied, 534 U.S. 952, 122 S.Ct. 350,
151 L.Ed.2d 264 (2001))); In re Barry, 946 F.2d 913, 914, 292
U.S.App.D.C. 39 (D.C. Cir. 1991) (" There is, of course,
no doubt (1) that one determines a [28 U.S.C. § 455]
violation completely without regard to whether there exist
adequate independent grounds for the judge's rulings, (2)
that the appearance-of-partiality test is an objective one
(whether an informed observer would reasonably question the
judge's impartiality), and (3) that application of the
test is wholly independent of whether the judge intends to
act with bias or prejudice." ); accord In re
Sherwin-Williams Co., 607 F.3d 474, 477-78 (7th Cir.
2010) (" That an unreasonable person, focusing on only
one aspect of the story, might perceive a risk of bias is
irrelevant. . . . In addition to being well-informed about
the surrounding facts and circumstances, for purposes of our
analysis, a reasonable person is a 'thoughtful observer
rather than a hypersensitive or unduly suspicious
person.'" (ellipses and citation omitted) (quoting
In re Mason, 916 F.2d 384, 386 (7th Cir. 1990)));
United States v. Holland, 519 F.3d 909, 913 (9th
Cir. 2008) (similar); Sensley v. Albritton, 385 F.3d
591, 599 (5th Cir. 2004) (courts must consider how the facts
would appear to a " well-informed, thoughtful and
objective observer, rather than the hypersensitive, cynical,
and suspicious person" (quoting United States v.
Jordan, 49 F.3d 152, 156 (5th Cir. 1995))); In re Drexel
Burnham Lambert Inc., 861 F.2d 1307, 1313 (2d Cir. 1988)
(" [J]udges determine appearance of impropriety--not by
considering what a straw poll of the only partly informed
man-in-the-street would show--but by examining the record
facts and the law, and then deciding whether a reasonable
person knowing and understanding all the relevant facts would
recuse the judge." ); United States v.
DeTemple, 162 F.3d 279, 287 (4th Cir. 1998) (similar).
applying this objective standard, the Court need not accept
every fact alleged by the moving party as true. Heldt, 668
F.2d at 1271 (" [T]here is no support for the position
that the facts alleged in the papers submitted by a person
relying on section 455 must in every case be accepted as true
. . . . The very fact that [S]ection 455 is addressed
directly to the judge makes it evident that some evaluation
by the court of the facts giving rise to the motion is
anticipated in most cases." ); see also In re Aguinda,
241 F.3d 194, 201 (2d Cir. 2001) (" [T]he grounds
asserted in a recusal motion must be scrutinized with care,
and judges should not recuse themselves solely because a
party claims an appearance of partiality." ); Hinman
v. Rogers, 831 F.2d 937, 939 (10th Cir. 1987) (a court
should " not recuse [itself] on unsupported, irrational,
or highly tenuous speculation" ); Mass. Sch. of Law
at Andover, Inc. v. Am. Bar Ass'n, 872 F.Supp. 1346,
1349 (E.D. Pa. 1994) (" [A] judge need not accept as
true the motion's factual allegations, but may contradict
them with facts drawn from his own personal knowledge."
(citing United States v. Balistrieri, 779 F.2d 1191,
1202 (7th Cir. 1985))), aff'd, 107 F.3d 1026 (3d Cir.
1997); United States v. Sciarra, 851 F.2d 621, 625
n.12 (3d Cir. 1988); In re San Juan Dupont Plaza Hotel
Fire Litig., 129 F.R.D. 409, 413-14 (D.P.R. 1989)
(" Section 455 must be narrowly construed and the
allegations of counsel must pass the litmus test of good
faith. . . . [A] Section 455 disqualification should not be
allowed on the bases of rumors, innuendos, unsupported
allegations, or claims that like blind moths, flutter
aimlessly to oblivion when placed under the harsh light of
the full facts." (citations omitted)). Thus, "
except in the most unusual circumstances . . . judges [are
trusted] to put their personal feelings aside, [and] recusal
must 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 474 (1994)); see also Ryan v. FBI, 125
F.Supp.3d 1, __, 2015 WL 4965913, at *2 (D.D.C. 2015) ("
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."
(ellipses omitted) (quoting Am. Ctr. for Civil Justice v.
Ambush, 680 F.Supp.2d 21, 24-25 (D.D.C. 2010))). As
such, " [a] judge is as much obliged not to recuse
himself when it is not called for as he is obliged to when it
is." In re Drexel Burnham Lambert, 861 F.2d at
1312 (citing In re Union Leader Corp., 292 F.2d 381,
391 (1st Cir.), cert. denied, 368 U.S. 927, 82 S.Ct. 361, 7
L.Ed.2d 190 (1961)); Cobell v. Norton, 237 F.Supp.2d
at 102 (similar).
[T]he pall that the conduct of a law clerk may cast over the
integrity of his [or her] judge, is covered by the appearance
of impropriety notion inherent in [S]ection 455(a)."
In re San Juan, 129 F.R.D. at 412 n.5. "
Nonetheless, whatever appropriate ethical foothold law clerks
must obtain in the employ of the judiciary; the judge cannot
be made an easy victim of the clerk's follies or
perceived faults." Id. " Both bench and
bar recognize . . . that judges, not law clerks, make the
decisions." In re Allied-Signal Inc., 891 F.2d
967, 971 (1st Cir. 1989). " If a clerk has a possible
conflict of interest, it is the clerk, not the judge, who
must be disqualified." Hunt v. Am. Bank & Trust Co.
of Baton Rouge, 783 F.2d 1011, 1016 (11th Cir. 1986);
see also In re Corrugated Container Antitrust
Litig., 614 F.2d 958, 968 (5th Cir. 1980) (" [W]e
think it fitting to restrict those situations in which the
bias of a law clerk will work to disqualify the clerk's
employer. Clearly, a law clerk's views cannot be
attributed to the judge for whom the clerk works." ),
cert. denied sub nom. 449 U.S. 888, 101 S.Ct. 244, 66 L.Ed.2d
a motion to recuse under 28 U.S.C. § 455(a) is committed
to the discretion of the Court and denial will be reversed
only upon a showing of abuse of discretion. E.g.,
Bostick, 791 F.3d at 155 (" We review a district
court judge's refusal to recuse for abuse of
discretion." ); accord In re United States, 666
F.2d 690, 695 (1st Cir. 1981) (" [Because] in many cases
reasonable deciders may disagree, the district judge is
allowed a range of discretion." ). But if there is any
doubt as to " whether . . . disqualification is
required," the Court " should resolve the doubt in
favor of disqualification." Parker v. Connors Steel
Co., 855 F.2d 1510, 1524-25 (11th Cir. 1988) (citing