Clemens v. U.S. District Court for the Central District of California

FOR PUBLICATION*
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEFFREY L. CLEMENS, 
Petitioner,
v. No. 05-75631
UNITED STATES DISTRICT
COURT FOR THE CENTRAL  D.C. No.
CR-05-00548-SJO
DISTRICT OF CALIFORNIA,
Respondent, OPINION
UNITED STATES OF AMERICA,
Real Party in Interest.

Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted November 1, 2005**
Pasadena, California
Filed November 7, 2005
Before: Thomas G. Nelson, Sidney R. Thomas, and
Richard C. Tallman, Circuit Judges.
Per Curiam Opinion
*The panel has determined that this disposition warrants publication,
but that referring the case to an oral argument merits panel is not possible
because the case involves exigent circumstances arising from an emer-
gency motion and is a highly time-limited proceeding that cannot be
resolved by reference to a merits panel. See G.O. 6.5(b)(i).
**This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
15299
CLEMENS v. UNITED STATES DISTRICT COURT 15301
COUNSEL
Shereen J. Charlick and Steven L. Barth, Federal Defenders
of San Diego, Inc., San Diego, California, for the petitioner.
Robert J. Keenan and Wayne R. Gross, Assistant United
States Attorneys, Santa Ana, California, for real party in inter-
est United States of America.
OPINION
PER CURIAM:
Jeffrey Clemens seeks a writ of mandamus from the district
court’s denial of his motion to disqualify all of the district
court judges in the Central District of California from presid-
ing over his criminal trial. We deny the petition for a writ of
mandamus.
I
Clemens is charged in a four-count indictment with making
threats with intent to extort, assault, murder, or to inflict harm
upon three federal district court judges from the Central Dis-
trict of California, in violation of 18 U.S.C. §§ 876 and
115(a)(1)(B). The threats were made in connection with pro
se suits Clemens had filed in the Central District of Califor-
nia. He was arraigned July 12, 2005. Trial is set for November
15302 CLEMENS v. UNITED STATES DISTRICT COURT
8, 2005, before Hon. S. James Otero, a district judge in the
Central District of California.
Clemens filed a motion for an order, pursuant to 28 U.S.C.
§ 455(a), disqualifying all of the judges from the Central Dis-
trict of California from presiding over his criminal trial. Upon
request of Judge Otero, the Chief Judge of the Ninth Circuit
Court of Appeals ordered that the case be transferred tempo-
rarily to the Hon. James C. Mahan, United States District
Judge in and for the District of Nevada, for the purpose of rul-
ing on the disqualification motion and other motions filed by
Clemens.
Judge Mahan granted Clemens’ motion for the appointment
of new defense counsel from outside the Central District of
California and ordered the Federal Defenders of San Diego,
Inc., to select new counsel. He denied Clemens’ motion to
disqualify the United States Attorney for the Central District
of California. He also denied Clemens’ motion to disqualify
all of the district judges in the Central District of California.
Following these orders, Clemens filed a petition for a writ of
mandamus requiring the disqualification of all of the district
judges in the Central District of California.
II
[1] “The writ of mandamus is an ‘extraordinary’ remedy
limited to ‘extraordinary’ causes.” Burlington N. & Santa Fe
Ry. Co. v. U.S. Dist. Court for Dist. of Mont., 408 F.3d 1142,
1146 (9th Cir. 2005) (citing Cheney v. U.S. Dist. Court, 542
U.S. 367, 377, 380 (2004)). “In order to gain the benefit of the
writ, the party must have no other recourse; the right to the
writ must be ‘clear and indisputable’; and the appellate court
must be satisfied that the writ is appropriate under the circum-
stances.” Id.
In our Circuit, we have applied a five-factor test to deter-
mine whether mandamus relief is warranted, asking whether:
CLEMENS v. UNITED STATES DISTRICT COURT 15303
(1) The party seeking the writ has no other adequate
means, such as a direct appeal, to attain the relief he
or she desires.
(2) The petitioner will be damaged or prejudiced in
a way not correctable on appeal.
(3) The district court’s order is clearly erroneous as
a matter of law.
(4) The district court’s order is an oft-repeated error,
or manifests a persistent disregard of the federal
rules.
(5) The district court’s order raises new and impor-
tant problems, or issues of law of first impression.
Bauman v. United States Dist. Court, 557 F.2d 650, 654-55
(9th Cir. 1977) (internal citations omitted).
In analyzing the Bauman factors, we note that “[n]ot every
factor need be present at once; indeed, the fourth and fifth will
rarely be present at the same time.” Burlington N., 408 F.3d
at 1148. “However, the absence of the third factor, clear error,
is dispositive.” Id. (citing Gallo v. U.S. Dist. Court, 349 F.3d
1169, 1177 (9th Cir. 2003), cert. denied, 541 U.S. 1073
(2004)).
III
There was no clear error in the district judge’s decision
denying the disqualification motion. Indeed, the district
judge’s decision was entirely correct.
A
[2] Clemens’ disqualification motion was made pursuant to
28 U.S.C. § 455(a), which provides simply that “[a]ny justice,
15304 CLEMENS v. UNITED STATES DISTRICT COURT
judge, or magistrate [magistrate judge] of the United States
shall disqualify himself in any proceeding in which his impar-
tiality might reasonably be questioned.” In analyzing § 455(a)
disqualification motions, we employ an objective test:
“ ‘whether a reasonable person with knowledge of all the facts
would conclude that the judge’s impartiality might reasonably
be questioned.’ ” Herrington v. County of Sonoma, 834 F.2d
1488, 1502 (9th Cir. 1988) (quoting United States v. Nelson,
718 F.2d 315, 321 (9th Cir. 1983)). “Section 455(a) asks
whether a reasonable person perceives a significant risk that
the judge will resolve the case on a basis other than the mer-
its.” In re Mason, 916 F.2d 384, 385 (7th Cir. 1990). The
“reasonable person” in this context means a “well-informed,
thoughtful observer,” as opposed to a “hypersensitive or
unduly suspicious person.” Id. at 386.
In determining whether disqualification is warranted under
§ 455(a), we also apply the general rule that questions about
a judge’s impartiality must stem from “extrajudicial” factors,
Liteky v. United States, 510 U.S. 540, 554 (1994), that is,
from sources other than the judicial proceeding at hand. Pau
v. Yosemite Park and Curry Co., 928 F.2d 880, 885 (9th Cir.
1991) (citing Toth v. TransWorld Airlines, 862 F.2d 1381,
1388 (9th Cir. 1988)).
We are also mindful “that section 455(a) claims are fact
driven, and as a result, the analysis of a particular section
455(a) claim must be guided, not by comparison to similar sit-
uations addressed by prior jurisprudence, but rather by an
independent examination of the unique facts and circum-
stances of the particular claim at issue.” United States v.
Bremers, 195 F.3d 221, 226 (5th Cir. 1999). The Tenth Cir-
cuit has compiled a helpful, nonexhaustive list of various mat-
ters not ordinarily sufficient to require a § 455(a) recusal.
These include:
(1) Rumor, speculation, beliefs, conclusions, innu-
endo, suspicion, opinion, and similar non-factual
CLEMENS v. UNITED STATES DISTRICT COURT 15305
matters; (2) the mere fact that a judge has previously
expressed an opinion on a point of law or has
expressed a dedication to upholding the law or a
determination to impose severe punishment within
the limits of the law upon those found guilty of a
particular offense; (3) prior rulings in the proceed-
ing, or another proceeding, solely because they were
adverse; (4) mere familiarity with the defendant(s),
or the type of charge, or kind of defense presented;
(5) baseless personal attacks on or suits against the
judge by a party; (6) reporters’ personal opinions or
characterizations appearing in the media, media
notoriety, and reports in the media purporting to be
factual, such as quotes attributed to the judge or oth-
ers, but which are in fact false or materially inaccu-
rate or misleading; and (7) threats or other attempts
to intimidate the judge.
Nichols v. Alley, 71 F.3d 347, 351 (10th Cir. 1995) (citing
United States v. Cooley, 1 F.3d 985, 996 (10th Cir. 1993)). As
the Tenth Circuit also rightly observed, a judge has “as strong
a duty to sit when there is no legitimate reason to recuse as
he does to recuse when the law and facts require.” Id. at 351.
B
[3] With these guiding principles at hand, we turn to the
circumstances involved in this case. Clemens seeks disqualifi-
cation of all the district judges in the Central District of Cali-
fornia because of threats he allegedly made on the life and
health of three judges in the district. Although we have not
considered the question, other circuits have held that recusal
of an individual judge pursuant to § 455(a) may be required
when the judge himself has been the subject of a personal
threat, unless the threat was motivated by a desire to recuse
the judge. See, e.g., United States v. Yousef, 327 F.3d 56, 170
(2d Cir. 2003); United States v. Greenspan, 26 F.3d 1001,
1006-07 (10th Cir. 1994). For example, in Nichols, the Tenth
15306 CLEMENS v. UNITED STATES DISTRICT COURT
Circuit found recusal warranted under § 455(a) because of
“extraordinary” circumstances: the defendant was charged
with bombing the Murrah Federal Building in Oklahoma City
and the judge’s personal chambers had been damaged by the
explosion. 71 F.3d at 352. The Tenth Circuit elected to draw
a replacement judge “from a very large pool of judges outside
the State of Oklahoma,” but it did not hold that the entire
bench of the District of Oklahoma was subject to mandatory
disqualification pursuant to § 455(a). Id. Similarly, the Sev-
enth Circuit has held that recusal of all of the district court
judges in a district was required because the defendant had
been accused of planning to bomb the building in which all
of the district bench had chambers. In re Nettles, 394 F.3d
1001, 1002-03 (7th Cir. 2005).
[4] The circumstances of these cases, to the extent they are
relevant here, are far different from the situation in the case
at hand. Where other circuits have required recusal, the
recused judge was an intended victim of the alleged crime. In
Nettles, all the judges of the district in question could have
been fairly viewed as intended victims of the charged offense.
There is no such allegation in this case, either toward the
assigned judge or the entire bench. Nor could a reasonable
person draw an inference of a threat against the entire bench.
The government alleges only that the defendant made per-
sonal threats against three individual judges in the district, not
to any other judge.
[5] Nor could any reasonable observer draw the inference
that a threat was intended against the entire bench. The Cen-
tral District of California has three divisions. The Eastern
Division comprises the counties of Riverside and San Bernar-
dino. The Western Division comprises the counties of Los
Angeles, San Luis Obispo, Santa Barbara, and Ventura. The
Southern Division comprises Orange County. 28 U.S.C. § 84.
District judges in the Central District have chambers in four
separate courthouses. The district judges in Los Angeles sit in
two different courthouses. At present, the Central District has
CLEMENS v. UNITED STATES DISTRICT COURT 15307
27 authorized district judgeships. 28 U.S.C. § 133. There are
currently 34 active and senior district judges in the Central
District. No reasonable observer could conclude that a threat
against three judges based on their handling of the defen-
dant’s pro se cases should be construed as a threat against all
the judges of the district. Furthermore, the threats that the
defendant allegedly made were in no way related to com-
plaints about the Central District as an entity. On the contrary,
the threats were aimed at particular judges perceived to have
made unfavorable rulings in the defendant’s pro se cases.
Clemens argues that no judge of the district could preside
impartially over his trial, given the nature of the allegations.
However, we have previously rejected an attempt to disqual-
ify a judge based on his relationship with the victim. See
United States v. Gordon, 974 F.2d 1110, 1114 (9th Cir. 1992)
(holding that a district judge was not required to recuse him-
self under § 455(a) in a case involving a Presidential assassi-
nation attempt simply because the judge was appointed by the
President and the President might be required to testify).
Clemens speculates—but does not tender any evidence—
about personal relationships among the judges of the Central
District that might give rise for a reasonable observer to ques-
tion the impartiality of the judges. Section 455(a) does not
require recusal based on speculation. Cf. Yagman v. Republic
Ins., 987 F.2d 622, 626 (9th Cir. 1993) (recusal not warranted
under § 144 or § 455 based on speculation).
[6] Given that mandatory disqualification of a single judge
is not warranted simply because of a professional relationship
with a victim, it follows perforce that disqualification of an
entire district is not justified except under highly exceptional
circumstances, which are not present here.
C
[7] The district court correctly held that mandatory disqual-
ification of all judges in the Central District of California was
15308 CLEMENS v. UNITED STATES DISTRICT COURT
not justified under § 455(a). In the absence of a clear error of
law by the district court, we must deny the petition for a writ
of mandamus. Given our resolution of this factor, we need not
discuss the remaining Bauman factors.
IV
In closing, we regretfully must also observe that we live in
a time when threats against federal judges are not uncommon.
Many of these actions are made with the intent of altering the
outcome of judicial proceedings. Despite these threats to
themselves and their colleagues, judges throughout the coun-
try continue to administer the law fairly and professionally.
We cannot, and will not, presume otherwise. There are occa-
sions, as we have discussed, when a well-informed, thought-
ful observer might reasonably question the impartiality of a
judge because of threats made against the judge or his or her
colleagues. However, we must be especially careful not to
allow threats of violence to succeed in altering the normal
course of litigation. To do otherwise would be destructive of
the independence of the judiciary, which is, as former Chief
Justice Rehnquist aptly observed “one of the crown jewels of
our system of government.”
PETITION DENIED.