Klayman v. Lim ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LARRY KLAYMAN,
Plaintiff,
v.
Civil Action No. 18-2209 (RDM)
ESTHER LIM, et al.,
Defendants.
MEMORANDUM OPINION
The matter is before the Court on Plaintiff Larry Klayman’s motion for reconsideration of
the Court’s order dismissing the complaint and motion for recusal or disqualification. Dkt. 25.
Having reviewed Plaintiff’s motion for reconsideration, id., Defendants opposition, Dkt. 26, and
Plaintiff’s reply, Dkt. 27, the Court concludes that Plaintiff’s motion merely rehashes his prior
arguments. The Court will, accordingly, deny the motion for the same reasons set forth in the
Court’s June 5, 2019 Memorandum Opinion, Dkt. 22. To the extent that Plaintiff seeks to bring
the Court’s attention additional examples of alleged misconduct by the Office of Disciplinary
Counsel (“ODC”), see Dkt. 27 at 1–2 (referring the Court to a “whistleblower report”); Dkt. 27-1
(Ex. 1) (“Whistleblower Report”), that information is irrelevant for present purposes. The Court
dismissed Plaintiff’s complaint based on the legal insufficiency of the allegations contained in
the complaint. Plaintiff cannot supplement those allegations by attaching an exhibit to a motion
for reconsideration.
The Court will also deny Plaintiff’s motion for recusal or disqualification pursuant to 28
U.S.C. §§ 144 and 455. Under 28 U.S.C. § 144, a litigant must submit an affidavit stating “the
facts and the reasons for his belief that bias or prejudice exists . . . not less than ten days before
the beginning of the term at which the proceeding is to be heard, or good cause shall be shown
for failure to file it within such a time.” Id. Similarly, although 28 U.S.C. § 455(a) “contains no
express timeliness provision, most circuits considering the matter have concluded that a litigant
must raise the disqualification issue within a reasonable time after the grounds for it are known.”
United States v. Barrett, 111 F.3d 947, 951 (D.C. Cir.1997) (citations omitted). Plaintiff did not
seek recusal or disqualification in this case until after the Court had granted Defendants’ motion
to dismiss. Absent some intervening development, that is too late. See SEC v. Loving Spirit
Found. Inc., 392 F.3d 486, 492 (D.C. Cir. 2004) (“Crucial to the integrity of the judicial process,
the timeliness requirement ensures that a party may not wait and decide whether to file based on
‘whether he likes subsequent treatment that he receives.’” (quoting In re United Shoe Mach.
Corp., 276 F.2d 77, 79 (1st Cir. 1960))); see also Klayman v. Judicial Watch, Inc., 278 F. Supp.
3d 252, 258 (D.D.C. 2017) (“[M]ere dissatisfy action with a ruling of this Court is insufficient to
warrant recusal or disqualification.”). Here, the only new fact that Plaintiff identifies is the
Court’s decision dismissing the complaint. His disagreement with that decision does not warrant
recusal.
In any event, Plaintiff’s motion also fails on the merits for the reasons set forth in the
Court’s opinion denying Plaintiff’s motion for recusal in Klayman v. Fox, No. 18-1579 (D.D.C.)
(ECF 5). In short, “[t]he fact of past political activity alone will rarely require recusal.”
Higganbotham v. Oklahoma ex rel. Okla. Transp. Comm’n, 328 F.3d 638, 645 (10th Cir. 2003).
That is because judges “separate themselves from politics when going on the bench.” MacDraw,
Inc. v. CIT Grp. Equip. Fin., Inc., 138 F.3d 33, 38 (2d Cir. 1998). Recusal in a case such as this
would not only be unwarranted but would foster the erroneous—and corrosive—perception that
judicial decisions are based on politics, rather than the relevant law and facts. Plaintiff’s only
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new argument in this case is that the Court is clearly biased because “Judge Moss dismissed [the
complaint] without prejudice,” thus revealing that “[he] knew that his order was wrong.” Dkt. 25
at 3–4. The Court does not follow the logic of that contention. It may be that Plaintiff would
face substantial—and, perhaps, insurmountable—hurdles in attempting to file an amended
complaint that would overcome the deficiencies the Court identified in his original complaint.
But providing him with the opportunity to try to do so hardly reflects judicial bias.
For the reasons stated above, the Court will DENY Plaintiff’s motion for reconsideration
and for recusal or disqualification, Dkt. 25. 1 Because Plaintiff has indicated that he does not
intend to file an amended complaint, see id. at 6, the Court will now enter final judgment.
A separate order will issue.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: August 8, 2019
1
The Court will also DENY Plaintiff’s “Renewed Motion for Oral Argument,” Dkt. 28, on the
ground that oral argument would not assist in the resolution of the Plaintiff’s motions.
3