Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.


United States District Court, Southern District of New York

August 2, 1991


The opinion of the court was delivered by: William C. Conner, District Judge.


This action is presently before the Court on plaintiffs' motion for recusal and replacement of Judge William C. Conner. For the reasons stated hereinafter, the motion is denied.


Allegations of Bias and Prejudice

A party may move that a judge disqualify himself pursuant to 28 U.S.C. § 144, 455. Section 144 requires that the affidavit in support of the motion be "sufficient" and timely. This Court does not question the timeliness of plaintiff's affidavit and motion. The requirement of legal sufficiency has been interpreted to mean a judge must rule whether the reasons and facts stated in the affidavit "give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment." Berger v. United States, 255 U.S. 22, 33-34, 41 S.Ct. 230, 233, 65 L.Ed. 481 (1921); United States v. International Business Machines Corp., 475 F. Supp. 1372, 1379 (S.D.N.Y. 1979), aff'd 618 F.2d 923 (2d Cir. 1980) (hereafter "IBM"). The affidavit must "show a true personal bias, and must allege specific facts and not mere conclusions or generalities." Brotherhood of Locomotive Firemen and Enginemen v. Bangor and Aroostook R. Co., 380 F.2d 570, 576 (D.C.Cir.), cert. denied, 389 U.S. 327, 88 S.Ct. 437, 19 L.Ed.2d 560 (1967). Moreover, the judge is presumed to be impartial, Wolfson v. Palmieri, 396 F.2d 121, 126 (2d Cir. 1968), and a substantial burden is imposed on the affiant to demonstrate that such is not the case.

Under 28 U.S.C. § 144, the court cannot inquire into the truth of the matters alleged but must accept them as true for the purpose of ruling upon their legal sufficiency, however unfounded they may be in fact. Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921). This statutory obligation, however, does not preclude the court from putting the facts alleged into their proper context and examining the surrounding circumstances. Rosen v. Sugarman, 357 F.2d 794 (2d Cir. 1966); IBM, 475 F. Supp. at 1379-80.

The allegations set forth in plaintiffs' affidavit are as follows:

  1. Judge Conner asked the permission of defendant to decide
  Claim 255.*fn1

  2. Judge Conner allowed the New York Times ("Times"),a
  non-party, to be present at the conference.*fn2

  3. James Baker, a Times employee, was disrespectful during the
  conference by making lewd hand gestures and offensive vocal
  insults. Judge Conner did not attempt to quell this

  4. Judge Conner allowed the attorney for the Times to take up
  the conference with irrelevant matters which Judge Conner

  indicated would have a bearing on the claim.*fn4

  5. Judge Conner said that he would not award plaintiffs their
  proposed remedy of placement on the Times' Group I list because
  of a possibility of similar actions from a group of like
  workers who would seek the same kind of action.*fn5

  6. Judge Conner terminated the conference abruptly to go to
  another conference that involved Union workers for the same
  hiring positions at the Times. Plaintiffs had requested that
  their hiring positions be frozen. Such action is alleged to
  show a predilection toward the Union workers and a bias toward
  the plaintiffs.*fn6

Plaintiffs, in their Reply Memorandum, cite the Administrator's "working relationship" with Judge Conner for "at least the last twelve years" as further evidence of bias.*fn7 Finally, plaintiffs allege that their "Fourteenth Amendment rights of Due Process have been violated not by the court's adverse rulings, but by its prejudgments of worker's merit on cause of action and evidence from initial notice of review."

Under sections 144 and 455(b)(1) alleged bias and prejudice claimed to disqualify a judge must stem from an extrajudicial source.*fn8 IBM, 475 F. Supp. at 1380. As the Court noted in IBM:

  This Court understands Wolfson to mean that comments and
  rulings by a judge may be considered as some evidence of bias
  or prejudice only if it is made explicit in such comments and
  rulings themselves that the bias or prejudice "must stem from
  an extrajudicial source and result in an opinion on the merits
  on some basis other than what the judge has learned from his
  participation in the case." It is only in this sense that
  judicial comments and rulings "may well be relevant" to show
  extrajudicial bias or prejudice.

IBM, 475 F. Supp. at 1381 (citing United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966)) (emphasis supplied). Plaintiffs offer merely judicial acts and statements and a conclusory charge that such allegations "indicate[] a bias and prejudice against plaintiffs in this action that prevents the impartial and fair judgment requirement in the handling of the entire life of a Federal suit." The facts alleged in plaintiffs' affidavit, even if true, would fail to establish that the alleged bias and prejudice is extrajudicial in nature. Such a failure is fatal to plaintiffs' motion under 28 U.S.C. § 144 and 28 U.S.C. § 455(b)(1).

Plaintiffs argue that the "extra-judicial" standard adopted by this Court in IBM is incorrect and that in its place the Court must adopt a "reasonable man" standard. In fact, the two standards are interrelated. Section 455 establishes an objective test for disqualification of a judge: whether a reasonable person knowing and understanding all relevant facts would conclude that the judge's impartiality might reasonably be questioned.

Section 455(a) does not contain the term "personal" found in section 455(b)(1) and the Second Circuit Court has therefore ruled that it is not an absolute requirement that the disqualifying bias spring from an extrajudicial source, although the source of bias remains a relevant consideration.*fn9 United States v. Coven, 662 F.2d at 168; Lamborn v. Dittmer, 726 F. Supp. 510 (S.D.N.Y. 1989). While it is possible for trial-related events to make out a sufficient case for recusal under section 455(a), courts have generally denied motions for recusal where the facts allegedly showing prejudice are all trial-related. IBM, supra, 618 F.2d at 929; King v. United States, 576 F.2d 432, 437 (2d Cir. 1978), cert. denied, 439 U.S. 850, 99 S.Ct. 155, 58 L.Ed.2d 154 (1978); United States v. Schwartz, 535 F.2d 160, 165 (2d Cir. 1976), cert. denied, 430 U.S.906, 97 S.Ct. 1175, 51 L.Ed.2d 581 (1977); United States v. Bernstein, 533 F.2d 775, 784-85 (2d Cir. 1976), cert. denied, 429 U.S. 998, 97 S.Ct. 523, 50 L.Ed.2d 608 (1976).

Section 455(a) does not require that I accept all allegations of the moving party as true, United States v. Greenough, 782 F.2d 1556, 1558 (11th Cir. 1986), and, as noted above, most if not all allegations are without any basis in fact.*fn10 The Court finds that plaintiffs have not established prejudice under section 455(a) because no reasonable person, knowing and understanding all the relevant facts would conclude that there is even an appearance of partiality.

There is as much obligation upon a judge not to recuse himself when there is no occasion for him to do so as there is for him to do so when there is. Wolfson v. Palmieri, 396 F.2d 121, 124 (2d Cir. 1968). Whether examined individually or in the aggregate, plaintiffs' allegations demonstrate no extrajudicial bias or prejudice on the part of the court. This Court has no interest in the outcome of this case other than the interest of every judicial officer that the truth be discovered and the law correctly applied. Plaintiffs' motion to recuse is therefore denied.

Jurisdiction of the Court

The complaint states that:

  [T]his suit is brought under 5 U.S.C. § 702 and 5 U.S.C.
  section 706(1) and (2) a, d, and f. The jurisdiction is brought
  under 28 U.S.C. § 1331.

The sections of the Code relied upon by plaintiffs, 5 U.S.C. § 702 and 706, refer to judicial review of agency actions and are inapplicable to the case at bar. Mr. Ellis, as Administrator under a consent decree, is not an "agency" of the United States Government as defined in 5 U.S.C. § 701. Plaintiffs, having lost on their direct appeal to the Court from the Administrator's ruling against them in Claim 255, attack that decision collaterally under the guise of an action against him under two statutes providing for judicial review of agency action. Because these statutes are clearly inapplicable, and there is apparently no diversity or other ground of federal jurisdiction, plaintiffs are ordered to show cause before this Court on the 13th day of September, 1991, at 11:45 a.m. in Room 1902, United States Courthouse, Foley Square, New York, New York why this action should not be dismissed for want of subject matter jurisdiction.


For the reasons set forth above, plaintiffs' motion for recusal is denied and plaintiffs are ordered to show cause why this action should not be dismissed for want of jurisdiction.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.