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Residents and Families United to Save Our Adult Homes v. Zucker

United States District Court, E.D. New York

November 22, 2017

HOWARD ZUCKER, M.D., et al, Defendants.



         Plaintiffs 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.[1]

         Before the court is the Residents Plaintiffs'[2] 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[3] (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.


         Plaintiff 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.

         A. 28 U.S.C. § 455(a)

         Pursuant 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").

         "Judicial rulings alone almost never constitute a valid basis for a bias or partiality motion." Liteky v. United States, 510 U.S. 540, 555 (1994).[4] 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 omitted)).

         Relatedly, "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 impossible."[5] Id.

         "[W]here 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).

         B. Due Process Clause

         Under 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.

         The 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.

         C. Code of Conduct for United States Judges

         Canon 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 3(C)(1)(a) (2014),

         The 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.

         II. BACKGROUND[6]

         The 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 (E.D.N.Y. 2009).

         The 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.").

         In 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)[7].) 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)[8]; 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).)

         The adult homes did not participate in DAII and they are not parties to DAI II or signatories to the Settlement Agreement.[9] 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 source.


         The 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.

         A. The Undersigned's Remarks ...

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