United States District Court, District of Columbia
RUDOLPH CONTRERAS, UNITED STATES DISTRICT JUDGE
Plaintiff's Motion to Disqualify Foreign Intelligence
Surveillance Court Judges
Plaintiff, Timothy Rote, has brought a complaint against
Defendants Committee on Judicial Conduct and Disability of
the Judicial Conference of the United States, United States
Department of Justice, Oregon Judicial Department, Oregon
State Bar, Oregon State Bar Professional Liability Fund,
Colorado Judicial Department, the Hon. Robert Kugler,
Arbitrator William B. Crow, the Hon. Paul Papak, the Hon.
Elizabeth Weishaupl, the Hon. Robert Herndon, the Hon. James
Egan, Billy Williams, Carol Bernick, the Hon. Susie L. Norby,
and John Does (1-5). The Complaint, which seeks damages as
well as declaratory and injunctive relief, alleges:
violations of Mr. Rote's First, Fifth, and Fourteenth
Amendment rights pursuant to 42 U.S.C. § 1983; a
conspiracy to violate his civil rights under 42 U.S.C. §
1985; and, violations of his rights conferred by Article I,
sections 8, 10, and 20 of the Oregon Constitution. Mr. Rote
moved, pursuant to 28 U.S.C. § 455(a)-(b), to disqualify
the undersigned judge. For the reasons explained below, this
Court denies Mr. Rote's motion.
Rote alleges twenty-eight “acts” committed by
various defendants in this action that form the basis for his
claims. See Compl., ECF No. 1. These
“acts” relate to judicial proceedings before the
Hon. Robert E. Jones in the U.S. District Court for the
District of Oregon in 2001 regarding a business dispute,
id. ¶¶ 20-24; a complaint that Mr.
Rote's former employee filed with the Oregon Department
of Justice and the Lane County District Attorney in 2003,
id. ¶¶ 26-35; judicial proceedings before
the Hon. Robert Kugler in a U.S. District Court in New Jersey
in 2004 also relating to Mr. Rote's former employee,
id. ¶¶ 36-39; criminal contempt of court
hearings in New Jersey stemming from the 2014 New Jersey
litigation, id. ¶¶ 40-44; arbitration
proceedings in Oregon beginning in 2006 involving the same
employee who initiated the New Jersey litigation,
id. ¶¶ 46-54; ethics complaints filed with
the Oregon State Bar Association, id. ¶¶
55-56; judicial proceedings-considering a motion to vacate
the award resulting from the 2006 arbitration-before Federal
Magistrate Judge Paul J. Papak in the U.S. District Court for
the District of Oregon in 2012, id. ¶¶
57-60; judicial proceedings-considering a motion to set aside
the arbitration judgment-before Judge Papak in 2017,
id. ¶¶ 61-62; judicial proceedings before
the Hon. Elizabeth Weishaupl in Colorado from 2009 through
2014 regarding a business dispute between Mr. Rote's
company and another entity, id. ¶¶ 63-66;
judicial proceedings before the Hon. Marco Hernandez in the
U.S. District Court in Oregon regarding a dispute between Mr.
Rote and a former employee, id. ¶¶ 67-73,
86-87, 91-92, 94- 99; judicial proceedings before the Hon.
Robert Herndon in Clackamas County, Oregon in 2016 regarding
a defamation claim, id. ¶¶ 74-79, 83; an
appeal to the Oregon Court of Appeals resulting from the 2016
Clackamas County proceedings, id. ¶¶
79-80, 84-85; an ethics complaint filed with the Oregon State
Bar regarding an alleged violation of certain provisions of
the Oregon Rules of Professional Conduct, id. ¶
82; judicial proceedings in Clackamas County, Oregon in 2018
regarding Mr. Rote's claims of defamation and intentional
infliction of emotional distress, id. ¶¶
88, 93; judicial proceedings before the Hon. Susie L. Norby
in Oregon regarding a “Motion to Set Aside the Judgment
for legal fees in the Clackamas anti-SLAPP Motion, ”
id. ¶ 90; and unspecified litigation before the
Hon. Marco Hernandez in the U.S. District Court in Oregon,
id. ¶ 100.
of the Complaint alleges that Defendants violated Mr.
Rote's First Amendment rights and seeks relief under 42
U.S.C. § 1983. Id. ¶¶ 101-111. Count
II of the Complaint alleges that Defendants violated Mr.
Rote's due process rights under the Fifth and Fourteenth
Amendments and seeks relief under 42 U.S.C. § 1983.
Id. ¶¶ 112-124. Count III of the
Complaint, pursuant to 42 U.S.C. § 1985, alleges that
Defendants conspired to violate Mr. Rote's civil rights.
Id. ¶¶ 125-139. Count IV seeks declaratory
and equitable relief pursuant to 42 U.S.C. § 2201.
Id. ¶¶ 140-144. Mr. Rote requests an award
in excess of $10 million in economic damages and $50 million
in noneconomic damages, in addition to equitable relief,
punitive damages, attorneys' fees, and litigation
expenses. Id. at 29-30.
before the Court is Mr. Rote's motion to disqualify the
undersigned judge, as well as all judges of the United States
Foreign Intelligence Surveillance Court (“FISC”),
pursuant to 28 U.S.C. § 455(a) and § 455(b)(4).
See Pl.'s Mot. to Disqualify Foreign
Intelligence Surveillance Court Judges (“Pl.'s Mot.
to Disqualify”), ECF No. 23. At the crux of Mr.
Rote's motion is that both the undersigned judge and
Defendant Judge Kugler serve on the FISC. See id.;
Compl. ¶ 11. Mr. Rote alleges that Defendant Judge
Kugler solicited other courts to violate Mr. Rote's
rights and argues that he will continue to do the same with
FISC judges. See Pl.'s Mot. to Disqualify at 2.
Mr. Rote further argues that Defendant Judge Kugler has a
“professional, and likely personal, relationship”
with all the FISC judges, calling the impartiality of each
FISC judge into question. Id. Finally, Mr. Rote
claims that evidence of bias at this stage of litigation
includes this Court's failure to grant Mr. Rote ECF
access, Mr. Rote's “Motion for Default against
nonresponding parties, ” and two hearings requested for
other pending motions. Id. at 4.
Rote requests that the undersigned judge-in addition to all
judges of the FISC- recuse from the present case on the
ground that this Court's impartiality is in question due
to both Defendant Judge Kugler and the undersigned judge
serving on the FISC. See Pl.'s Mot to
Disqualify. This Court denies Mr. Rote's motion because
it finds no basis for recusal.
judges must maintain the appearance of impartiality”
because “[d]eference to the judgments and rulings of
courts depends upon public confidence in the integrity and
independence of judges.” United States v. Microsoft
Corp., 253 F.3d 34, 115 (D.C. Cir. 2001) (quoting Code
of Conduct Canon 1 cmt.). Accordingly, the United States
Constitution, federal statutory law, and codes of judicial
conduct each prescribe recusal standards under which a judge
may-or, under limited circumstances, must-remove himself from
a case to protect the integrity of the proceedings. See
Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876-77
(2009); Microsoft Corp., 253 F.3d at 113-15. The
Supreme Court has explained that due process requires recusal
“when, objectively speaking, ‘the probability of
actual bias on the part of the judge or decisionmaker is too
high to be constitutionally tolerable.'” Rippo
v. Baker, 137 S.Ct. 905, 907 (2017) (quoting Withrow
v. Larkin, 421 U.S. 35, 47 (1975)). Thus, “[t]he
Court asks not whether a judge harbors an actual, subjective
bias, but instead whether . . . the average judge in his
position is ‘likely' to be neutral, or whether
there is an unconstitutional ‘potential for
bias.'” Williams v. Pennsylvania, 136
S.Ct. 1899, 1905 (2016) (quoting Caperton, 556 U.S.
at 881). Under this framework, the Supreme Court has
recognized only very few circumstances in which the
appearance of bias mandates recusal. See, e.g.,
Caperton, 556 U.S. at 872 (holding that due process
required recusal where a party was a substantial donor to
judge's election campaign); Mayberry v.
Pennsylvania, 400 U.S. 455, 466 (1971) (holding that it
may violate due process when a judge presides over a criminal
contempt case that resulted from the defendant's
hostility toward the judge); Tumey v. Ohio, 273 U.S.
510, 523-24 (1927) (holding that a judge may not preside over
a case in which he has a “direct, personal,
substantial, pecuniary interest”). However, “most
questions concerning a judge's qualifications to hear a
case are not constitutional ones.” Bracy v.
Gramley, 520 U.S. 899, 904 (1997).
of federal district court judges is more often discussed by
reference to 28 U.S.C. §§ 144 and 455. See,
e.g., SEC v. Loving Spirit Found., Inc., 392 F.3d 486,
492-93 (D.C. Cir. 2004). Section 144 provides that
“[w]henever a party to any proceeding in a district
court makes and files a 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, such judge shall proceed no further
therein.” 28 U.S.C. § 144. But “the mere
fact that a party has filed a [Section] 144 motion,
accompanied by the requisite affidavit . . . does not
automatically result in the challenged judge's
disqualification.” Strange v. Islamic Republic of
Iran, 46 F.Supp.3d 78, 81 (D.D.C. 2014) (quoting
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)
(“[D]isqualification is not automatic upon submission
of affidavit and certificate . . . .”). Rather,
“the judge must review [the affidavit] for legal
sufficiency . . . and construe [it] strictly against the
movant to prevent abuse.” Miller, 355
F.Supp.2d at 405 (citing United States v. Haldeman,
559 F.2d 31, 135 (D.C. Cir. 1976); James v. District of
Columbia, 191 F.Supp.2d 44, 46-47 (D.D.C. 2002)). While
the judge “must accept the affidavit's factual
allegations as true even if the judge knows them to be false,
” the affidavit still “must state facts as
opposed to conclusions, and . . . mere rumors and gossip are
not enough.” Loving Spirit Found., 392 F.3d at
496 (citing Berger v. United States, 255 U.S. 22,
35-36 (1921)); Strange, 46 F.Supp.3d at 81 (citing
United States v. Hanrahan, 248 F.Supp. 471, 475
(D.D.C. 1965)). An affidavit is sufficient as a matter of law
when it states material facts with particularity, it would
convince a reasonable person that a bias exists, and the
alleged bias is personal in nature and stems from an
extrajudicial source. See Liberty Lobby, Inc. v. Dow
Jones & Co., 838 F.2d 1287, 1301 (D.C. Cir. 1988);
James, 191 F.Supp.2d at 47.
recusals under Section 455 focus on standards of personal
bias and partiality. See 28 U.S.C. § 455.
Section 455(a) states that a judge “shall disqualify
himself in any proceeding in which his impartiality might
reasonably be questioned, ” unless the parties waive
the grounds for disqualification. Id. § 455(a),
(e). “The standard for disqualification under [Section]
455(a) is an objective one.” Microsoft Corp.,
253 F.3d at 114. “The question is whether a reasonable
and informed observer would question the judge's
impartiality.” Id. (citations omitted).
Further, Section 455(b) enumerates specific grounds that
require a judge to recuse, such as where the judge has
“an interest that could be substantially affected by
the outcome of the proceeding.” 28 U.S.C. §
455(b)(5)(iii). Even though recusal may be justified when a
judge possesses interests that “tempt [the judge] to
disregard neutrality, ” “bald allegations of bias
or prejudice” are insufficient. Caperton, 556
U.S. at 878 (finding disqualification ...