United States District Court, E.D. New York
RESIDENTS AND FAMILIES UNITED TO SAVE OUR ADULT HOMES et al., Plaintiffs,
HOWARD ZUCKER, M.D., et al, Defendants.
MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS, UNITED STATES DISTRICT JUDGE.
bring this action against Defendants the New York State
Department of Health ("DOH"), Howard Zucker, M.D.,
in his official capacity as Commissioner of DOH, the New York
State Office of Mental Health ("OMH"), and Anne
Marie T. Sullivan, M.D., in her official capacity as Acting
Commissioner of OMH, challenging certain regulations (the
"Regulations") promulgated by DOH and OMH, which
limit admissions to adult homes.
the court is the Residents Plaintiffs' motion for the
judicial disqualification of the undersigned, the Honorable
Nicholas G. Garaufis (the "Motion"). (Residents
Pls. Not. of Mot. for Disqualification ("Mot.")
(Dkt. 50); Residents Pls. Mem. in Supp. of Mot.
("Mem.") (Dkt. 51).) The Empire
Plaintiffs (together with the Residents Plaintiffs,
"Plaintiffs") join in this Motion. (See
Luntz Affirmation (Dkt. 53) ¶ 5.) Defendants oppose the
Motion. (Defs. Mem. in Opp'n to Mot. ("Defs.
Opp'n") (Dkt. 54).) For the following reasons, the
Motion is DENIED.
seek disqualification of the undersigned pursuant to 28
U.S.C. § 455(a), the Due Process Clause of the Fifth
Amendment to the U.S. Constitution, and the Code of Conduct
for United States Judges. (See generally Mem.) The
court outlines the legal standard for each of the proffered
bases for disqualification below.
28 U.S.C. § 455(a)
to 28 U.S.C. § 455(a), a judge "shall disqualify
himself in any proceeding in which his impartiality might
reasonably be questioned." The Supreme Court has
explained that "[t]he goal of section 455(a) is to avoid
even the appearance of partiality." Tiljeberg v.
Health Servs. Acquisition Corp., 486 U.S. 847, 865
(1988) (internal citation omitted). Whether a judge's
impartiality might reasonably be questioned is determined by
whether "an objective, disinterested observer fully
informed of the underlying facts, [would] entertain
significant doubt that justice would be done absent recusal,
or alternatively, whether a reasonable person, knowing all
the facts, would reasonably question the judge's
impartiality." United States v. Yousef, 327
F.3d 56, 169 (2d Cir. 2003) (internal quotations omitted);
see also United States v. Amico, 486 F.3d 764, 775
(2d Cir. 2007) (noting that the "test deals exclusively
with appearances" and that "[i]ts purpose is the
protection of the public's confidence in the impartiality
of the judiciary").
rulings alone almost never constitute a valid basis for a
bias or partiality motion." Liteky v. United
States, 510 U.S. 540, 555 (1994). Accordingly,
"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." Id. (noting that judicial
rulings "can only in the rarest of circumstances
evidence the degree of favoritism or antagonism
required" to justify recusal); see Id. at 551
(stating that some courts refer to this limited exception as
the "pervasive bias" exception to the judicial
source doctrine); see also United States v. Carlton,
534 F.3d 97, 100 (2d Cir. 2008) ("[O]pinions held by
judges as a result of what they learned in earlier
proceedings in a particular case are not ordinarily a basis
for recusal." (internal quotation marks and citation
"judicial remarks during the course of a trial 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." Liteky, 510 U.S. at 555.
However, "[t]hey may do so if they reveal an
opinion that derives from an extrajudicial source; and they
will do so if they reveal such a high degree of
favoritism or antagonism as to make fair judgment
the standards governing disqualification have not been met,
disqualification is not optional; rather, it is
prohibited." In re Aguinda, 241 F.3d 194, 201
(2d Cir. 2001). "[A] judge is as much obliged not to
recuse himself when it is not called for as he is obliged to
when it is, " Id. (internal citation omitted).
Due Process Clause
the Due Process Clause, "a judge must recuse himself
when he has a direct, personal, substantial, pecuniary
interest in a case." Caperton v. A.T. Massey Coal
Co., Inc., 556 U.S. 868, 876 (2009) (interpreting the
Due Process Clause of the Fourteenth Amendment and noting
that "[a] fair trial in a fair tribunal is a basic
requirement of due process" but "most matters
relating to judicial disqualification [do] not rise to a
constitutional level" (alterations in original)
(internal citation omitted)). The relevant inquiry is
"not whether the judge is actually, subjectively biased,
but whether the average judge in his position is
'likely' to be neutral, or whether there is an
unconstitutional 'potential for bias."'
Id. at 881.
recusal statutes, including 28 U.S.C. § 455, "were
designed to protect Fifth Amendment guarantees, and therefore
'it would be anomalous to hold that a claim under the
statutes insufficient on its merits could nevertheless
satisfy the constitutional standard.'" United
States v. Int'l Bus. Machs. Corp., 857 F.Supp. 1089,
1097 (S.D.N.Y.1994) (citing In re Int'l Bus. Machs.
Corp., 618 F.2d 923, 932 n.11 (2d Cir. 1980)).
Accordingly, where a movant's claim of bias under Section
455 fails on the merits and does not mandate recusal, recusal
is likewise unwarranted under the Due Process Clause. In
re Int'l Bus. Machs. Corp., 618 F.2d at 932 n.11.
Code of Conduct for United States Judges
3C of the Code of Conduct for United States Judges (the
"Code of Conduct") provides that "a judge
shall disqualify himself or herself in a proceeding in which
the judge's impartiality might reasonably be questioned,
including but not limited to instances in which . .. the
judge has a personal bias or prejudice concerning a
party." Code of Conduct for United States Judges, Canon
requirements of Section 455(a) and Canon 3C of the Code of
Conduct mirror one another. See Liljeberg, 486 U.S.
at 858 n.7 (noting that Section 455 was amended in 1974
"to conform with ... Canon 3C"); In re Literary
Works in Elec. Databases Copyright Litig., 509
F.3d 136, 140 (2d Cir. 2007) (holding that Canon 3C is a
"more-or-less identical analogue" to Section 455).
Accordingly, a claim that fails under Section 455(a) also
fails under Canon 3C of the Code of Conduct.
undersigned has presided over litigation pertaining to adult
homes for over fourteen years. Disability Advocates. Inc.
v. Paterson et al., No. 03-CV-3209 (NGG) (MDG)
("DALE"), which was filed in this court in 2003,
involved years of litigation, including extensive discovery
and multiple expert reports. That action concluded with a
five-week bench trial during which 29 witnesses testified,
more than 300 exhibits were admitted into evidence, and
excerpts from the deposition transcripts of 23 additional
witnesses were entered into the record. The court issued a
210-page Memorandum and Order finding that the plaintiff,
Disability Advocates, Inc., had established a violation of
the "integration mandate" of Title II of the
American with Disabilities Act and Section 504 of the
Rehabilitation Act. DAII, 653 F.Supp.2d 184, 187-88
Second Circuit reversed the judgment in DAI I on the
grounds that Disability Advocates, Inc., lacked associational
standing; however, the appellate court noted that, should the
action be re-filed by the United States or by individual
plaintiffs with standing, it would be appropriate for the
undersigned to handle the matter. See Disability
Advocates, Inc. v. NY. Coalition for Quality Assisted Living,
Inc., 675 F.3d 149, 162 (2d Cir. 2012) ("We are not
unsympathetic to the concern that our disposition will delay
the resolution of this controversy and impose substantial
burdens and transaction costs on the parties, their counsel,
and the courts. Should that situation arise, we are confident
that the experienced and able district judge, as a
consequence of his familiarity with prior proceedings, can
devise ways to lessen those burdens and facilitate an
appropriate, efficient resolution.").
2013, the United States and private plaintiffs re-filed the
action against the State of New York; Andrew M. Cuomo, in his
official capacity as Governor of the State of New York; DOH
and the Commissioner of DOH; and OMH and the Commissioner of
OMH. See United States v. New York, No. 13-CV-4165
(NGG) (ST)); O'Toole et al. v. Cuomo et al., No.
13-CV-4166 (NGG) (ST) (together with United States v. New
York, "DAI II”). Then-Chief Judge
Carol Bagley Amon assigned the case to the undersigned.
(Order Reassigning Case (DAI II Dkt. 4).) Shortly
thereafter, the court certified the class of private
plaintiffs (collectively, the "DAI Class" and
individually, the "DAI Class Members"), and the
parties entered into a settlement agreement (the
"Settlement Agreement"). (See Nov. 20, 2013, Order
(Class Dkt. 23); Proposed Stip. & Order of Settlement
(DAI II Dkt. 5).) After two separate revisions of
the proposed settlement and after conducting a fairness
hearing on the proposed settlement, the court so-ordered the
Settlement Agreement. (See Oct. 10, 2013, Order (Class Dkt.
12); Mar. 17, 2014, Order (Class Dkt. 59).) The court
continues to oversee implementation of the Settlement
Agreement, meeting with the parties at least quarterly to
discuss their progress towards the goals outlined in the
agreement. (See 2d Am. Stip. & Order of Settlement
("2d Am. Settlement") (DAI II Diet. 112).)
adult homes did not participate in DAII and they are
not parties to DAI II or signatories to the
Settlement Agreement. Notwithstanding, in the course of
adjudicating these cases, as well as the instant case, the
court has become familiar with the practices of the adult
homes and their counsel. The undersigned's opinions-or,
more aptly put, perceived opinions- of the adult homes are
based on facts developed in the course of DAII,
DAI II, and this case, rather than any extrajudicial
undersigned has reviewed Plaintiffs' allegations and
determines that there is no basis for recusal,
Plaintiffs' claim under 28 U.S.C. § 455(a) fails as
"a reasonable person, knowing all the facts, would [not]
reasonably question the judge's impartiality."
Yousef, 327 F.3d at 169 (2d Cir. 2003). Because
Plaintiffs cannot sustain their claim under Section 455(a),
their arguments for disqualification under the Due Process
Clause and Canon 3C of the Code of Conduct also fail. See
supra Sections I.B.-C. Accordingly, Plaintiffs'
Motion is denied.
The Undersigned's Remarks ...