Rote v. Committee on Judicial Conduct and Disability of the Judicial Conference of the United States

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TIMOTHY ROTE, :
:
Plaintiff, : Civil Action No.: 19-01299 (RC)
:
v. : Re Document No.: 23
:
COMMITTEE ON JUDICIAL CONDUCT :
AND DISABILITY OF THE JUDICIAL :
CONFERENCE OF THE UNITED STATES, :
UNITED STATES DEPARTMENT OF :
JUSTICE, OREGON JUDICIAL :
DEPARTMENT, OREGON STATE BAR, :
OREGON STATE BAR PROFESSIONAL :
LIABILITY FUND, COLORADO JUDICIAL :
DEPARTMENT, THE HON. ROBERT :
KUGLER, ARBITRATOR WILLIAM B. :
CROW, THE HON. PAUL PAPAK, :
THE HON. ELIZABETH WEISHAUPL, THE :
HON. ROBERT HERNDON, THE HON. :
JAMES EGAN, BILLY WILLIAMS (in his :
official capacity as U.S. Attorney and chief law :
official in Oregon), CAROL BERNICK (in her :
official capacity as CEO of the OSBPLF), :
THE HON. SUSIE NORBY AND JOHN :
DOES (1-5) :
:
Defendants. :
MEMORANDUM OPINION
DENYING PLAINTIFF’S MOTION TO DISQUALIFY FOREIGN INTELLIGENCE SURVEILLANCE
COURT JUDGES
I. INTRODUCTION
The Plaintiff, Timothy Rote, has brought a complaint against Defendants Committee on
Judicial Conduct and Disability of the Judicial Conference of the United States, United States
Department of Justice, Oregon Judicial Department, Oregon State Bar, Oregon State Bar
Professional Liability Fund, Colorado Judicial Department, the Hon. Robert Kugler, Arbitrator
William B. Crow, the Hon. Paul Papak, the Hon. Elizabeth Weishaupl, the Hon. Robert Herndon,
the Hon. James Egan, Billy Williams, Carol Bernick, the Hon. Susie L. Norby, and John Does
(1-5). The Complaint, which seeks damages as well as declaratory and injunctive relief, alleges:
violations of Mr. Rote’s First, Fifth, and Fourteenth Amendment rights pursuant to 42 U.S.C. §
1983; a conspiracy to violate his civil rights under 42 U.S.C. § 1985; and, violations of his rights
conferred by Article I, sections 8, 10, and 20 of the Oregon Constitution. Mr. Rote moved,
pursuant to 28 U.S.C. § 455(a)–(b), to disqualify the undersigned judge. For the reasons
explained below, this Court denies Mr. Rote’s motion.
II. FACTUAL BACKGROUND
Mr. Rote alleges twenty-eight “acts” committed by various defendants in this action that
form the basis for his claims. See Compl., ECF No. 1. These “acts” relate to judicial
proceedings before the Hon. Robert E. Jones in the U.S. District Court for the District of Oregon
in 2001 regarding a business dispute, id. ¶¶ 20–24; a complaint that Mr. Rote’s former employee
filed with the Oregon Department of Justice and the Lane County District Attorney in 2003, id.
¶¶ 26–35; judicial proceedings before the Hon. Robert Kugler in a U.S. District Court in New
Jersey in 2004 also relating to Mr. Rote’s former employee, id. ¶¶ 36–39; criminal contempt of
court hearings in New Jersey stemming from the 2014 New Jersey litigation, id. ¶¶ 40–44;
arbitration proceedings in Oregon beginning in 2006 involving the same employee who initiated
the New Jersey litigation, id. ¶¶ 46–54; ethics complaints filed with the Oregon State Bar
Association, id. ¶¶ 55–56; judicial proceedings—considering a motion to vacate the award
resulting from the 2006 arbitration—before Federal Magistrate Judge Paul J. Papak in the U.S.
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District Court for the District of Oregon in 2012, id. ¶¶ 57–60; judicial proceedings—considering
a motion to set aside the arbitration judgment—before Judge Papak in 2017, id. ¶¶ 61–62;
judicial proceedings before the Hon. Elizabeth Weishaupl in Colorado from 2009 through 2014
regarding a business dispute between Mr. Rote’s company and another entity, id. ¶¶ 63–66;
judicial proceedings before the Hon. Marco Hernandez in the U.S. District Court in Oregon
regarding a dispute between Mr. Rote and a former employee, id. ¶¶ 67–73, 86–87, 91–92, 94–
99; judicial proceedings before the Hon. Robert Herndon in Clackamas County, Oregon in 2016
regarding a defamation claim, id. ¶¶ 74–79, 83; an appeal to the Oregon Court of Appeals
resulting from the 2016 Clackamas County proceedings, id. ¶¶ 79–80, 84–85; an ethics
complaint filed with the Oregon State Bar regarding an alleged violation of certain provisions of
the Oregon Rules of Professional Conduct, id. ¶ 82; judicial proceedings in Clackamas County,
Oregon in 2018 regarding Mr. Rote’s claims of defamation and intentional infliction of
emotional distress, id. ¶¶ 88, 93; judicial proceedings before the Hon. Susie L. Norby in Oregon
regarding a “Motion to Set Aside the Judgment for legal fees in the Clackamas anti-SLAPP
Motion,” id. ¶ 90; and unspecified litigation before the Hon. Marco Hernandez in the U.S.
District Court in Oregon, id. ¶ 100.
Count I of the Complaint alleges that Defendants violated Mr. Rote’s First Amendment
rights and seeks relief under 42 U.S.C. § 1983. Id. ¶¶ 101–111. Count II of the Complaint
alleges that Defendants violated Mr. Rote’s due process rights under the Fifth and Fourteenth
Amendments and seeks relief under 42 U.S.C. § 1983. Id. ¶¶ 112–124. Count III of the
Complaint, pursuant to 42 U.S.C. § 1985, alleges that Defendants conspired to violate Mr. Rote’s
civil rights. Id. ¶¶ 125–139. Count IV seeks declaratory and equitable relief pursuant to 42
U.S.C. § 2201. Id. ¶¶ 140–144. Mr. Rote requests an award in excess of $10 million in
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economic damages and $50 million in noneconomic damages, in addition to equitable relief,
punitive damages, attorneys’ fees, and litigation expenses. Id. at 29–30.
Now before the Court is Mr. Rote’s motion to disqualify the undersigned judge, as well
as all judges of the United States Foreign Intelligence Surveillance Court (“FISC”), pursuant to
28 U.S.C. § 455(a) and § 455(b)(4). See Pl.’s Mot. to Disqualify Foreign Intelligence
Surveillance Court Judges (“Pl.’s Mot. to Disqualify”), ECF No. 23. At the crux of Mr. Rote’s
motion is that both the undersigned judge and Defendant Judge Kugler serve on the FISC. See
id.; Compl. ¶ 11. Mr. Rote alleges that Defendant Judge Kugler solicited other courts to violate
Mr. Rote’s rights and argues that he will continue to do the same with FISC judges. See Pl.’s
Mot. to Disqualify at 2. Mr. Rote further argues that Defendant Judge Kugler has a
“professional, and likely personal, relationship” with all the FISC judges, calling the impartiality
of each FISC judge into question. Id. Finally, Mr. Rote claims that evidence of bias at this stage
of litigation includes this Court’s failure to grant Mr. Rote ECF access, Mr. Rote’s “Motion for
Default against nonresponding parties,” and two hearings requested for other pending motions.
Id. at 4.
III. ANALYSIS
Mr. Rote requests that the undersigned judge—in addition to all judges of the FISC—
recuse from the present case on the ground that this Court’s impartiality is in question due to
both Defendant Judge Kugler and the undersigned judge serving on the FISC. See Pl.’s Mot to
Disqualify. This Court denies Mr. Rote's motion because it finds no basis for recusal.
A. Legal Standard
“[F]ederal judges must maintain the appearance of impartiality” because “[d]eference to
the judgments and rulings of courts depends upon public confidence in the integrity and
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independence of judges.” United States v. Microsoft Corp., 253 F.3d 34, 115 (D.C. Cir.
2001) (quoting Code of Conduct Canon 1 cmt.). Accordingly, the United States Constitution,
federal statutory law, and codes of judicial conduct each prescribe recusal standards under which
a judge may—or, under limited circumstances, must—remove himself from a case to protect the
integrity of the proceedings. See Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876–77
(2009); Microsoft Corp., 253 F.3d at 113–15. The Supreme Court has explained that due process
requires recusal “when, objectively speaking, ‘the probability of actual bias on the part of the
judge or decisionmaker is too high to be constitutionally tolerable.’” Rippo v. Baker, 137 S. Ct.
905, 907 (2017) (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)). Thus, “[t]he Court asks
not whether a judge harbors an actual, subjective bias, but instead whether . . . the average judge
in his position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for
bias.’” Williams v. Pennsylvania, 136 S. Ct. 1899, 1905 (2016) (quoting Caperton, 556 U.S. at
881). Under this framework, the Supreme Court has recognized only very few circumstances in
which the appearance of bias mandates recusal. See, e.g., Caperton, 556 U.S. at 872 (holding
that due process required recusal where a party was a substantial donor to judge's election
campaign); Mayberry v. Pennsylvania, 400 U.S. 455, 466 (1971) (holding that it may violate due
process when a judge presides over a criminal contempt case that resulted from the defendant's
hostility toward the judge); Tumey v. Ohio, 273 U.S. 510, 523–24 (1927) (holding that a judge
may not preside over a case in which he has a “direct, personal, substantial, pecuniary interest”).
However, “most questions concerning a judge's qualifications to hear a case are not
constitutional ones.” Bracy v. Gramley, 520 U.S. 899, 904 (1997).
Recusal of federal district court judges is more often discussed by reference to 28 U.S.C.
§§ 144 and 455. See, e.g., SEC v. Loving Spirit Found., Inc., 392 F.3d 486, 492–93 (D.C. Cir.
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2004). Section 144 provides that “[w]henever a party to any proceeding in a district court makes
and files a timely and sufficient affidavit that the judge before whom the matter is pending has a
personal bias or prejudice either against him or in favor of any adverse party, such judge shall
proceed no further therein.” 28 U.S.C. § 144. But “the mere fact that a party has filed a
[Section] 144 motion, accompanied by the requisite affidavit . . . does not automatically result in
the challenged judge's disqualification.” Strange v. Islamic Republic of Iran, 46 F. Supp. 3d 78,
81 (D.D.C. 2014) (quoting Robertson v. Cartinhour, 691 F. Supp. 2d 65, 77 (D.D.C. 2010)); see
also United States v. Miller, 355 F. Supp. 2d 404, 405 (D.D.C. 2005) (“[D]isqualification is not
automatic upon submission of affidavit and certificate . . . .”). Rather, “the judge must review
[the affidavit] for legal sufficiency . . . and construe [it] strictly against the movant to prevent
abuse.” Miller, 355 F. Supp. 2d at 405 (citing United States v. Haldeman, 559 F.2d 31, 135
(D.C. Cir. 1976); James v. District of Columbia, 191 F. Supp. 2d 44, 46–47 (D.D.C. 2002)).
While the judge “must accept the affidavit's factual allegations as true even if the judge knows
them to be false,” the affidavit still “must state facts as opposed to conclusions, and . . . mere
rumors and gossip are not enough.” Loving Spirit Found., 392 F.3d at 496 (citing Berger v.
United States, 255 U.S. 22, 35–36 (1921) ); Strange, 46 F. Supp. 3d at 81 (citing United States v.
Hanrahan, 248 F. Supp. 471, 475 (D.D.C. 1965)). An affidavit is sufficient as a matter of law
when it states material facts with particularity, it would convince a reasonable person that a bias
exists, and the alleged bias is personal in nature and stems from an extrajudicial source. See
Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287, 1301 (D.C. Cir. 1988); James, 191 F.
Supp. 2d at 47.
Similarly, recusals under Section 455 focus on standards of personal bias and
partiality. See 28 U.S.C. § 455. Section 455(a) states that a judge “shall disqualify himself in
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any proceeding in which his impartiality might reasonably be questioned,” unless the parties
waive the grounds for disqualification. Id. § 455(a), (e). “The standard for disqualification
under [Section] 455(a) is an objective one.” Microsoft Corp., 253 F.3d at 114. “The question is
whether a reasonable and informed observer would question the judge’s impartiality.” Id.
(citations omitted). Further, Section 455(b) enumerates specific grounds that require a judge to
recuse, such as where the judge has “an interest that could be substantially affected by the
outcome of the proceeding.” 28 U.S.C. § 455(b)(5)(iii). Even though recusal may be justified
when a judge possesses interests that “tempt [the judge] to disregard neutrality,” “bald
allegations of bias or prejudice” are insufficient. Caperton, 556 U.S. at 878 (finding
disqualification appropriate when judge had direct financial interests in the proceeding’s
outcome); Karim-Panahi v. U.S. Cong., 105 Fed. App’x 270, 275 (D.C. Cir. 2004) (affirming
district court’s denial of motion to disqualify judge because the record did not reflect the
appearance of bias or prejudice).
To compel recusal under Section 455(a), the movant must demonstrate that the judge’s
reliance on “‘an extrajudicial source’ . . . creates an appearance of partiality.” To compel recusal
under Section 455(b), the movant must demonstrate that the judge has “actual bias or prejudice
based upon an extrajudicial source.” Tripp v. Exec. Office of the President, 104 F. Supp. 2d 30,
34 (D.D.C. 2000). Where no extrajudicial source is involved, the movant must show a “deep-
seated favoritism or antagonism that would make fair judgment impossible.” Id. (quoting Liteky
v. United States, 510 U.S. 540, 555 (1994)). Thus, judicial rulings and opinions formed by the
judge during the course of proceedings generally do not support recusal. See Liteky, 510 U.S. at
555. Indeed, this Circuit has declared that “[a] judge should not recuse himself based upon
conclusory, unsupported or tenuous allegations.” In re Kaminski, 960 F.2d 1062, 1065 n.3 (D.C.
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Cir. 1992) (per curiam) (citation omitted); see also SEC v. Bilzerian, 729 F. Supp. 2d 19, 22
(D.D.C. 2010) (“[A] judge has as much an obligation not to recuse himself where there is no
reason to do so as he does to recuse himself when proper.” (citation omitted)).
B. The Court Denies the Motion to Disqualify FISC Judges
In the present motion, Mr. Rote alleges that the impartiality of the undersigned judge may
be called into question because both Defendant Judge Kugler and the undersigned judge serve on
the FISC. See Pl.’s Mot. to Disqualify at 2. Mr. Rote alleges that Defendant Judge Kugler
“engaged in nonimmune activity soliciting other courts to deny plaintiff his right of due
process,” “solicited Constitutional violations from many courts and on information and belief
will continue to do so confidentially with the FISA Judges,” 1 “has solicited constitutional
violtions [sic] to retaliate against plaintiff for publishing information on Judge Kugler’s
relationship with a former [New Jersey] law clerk who is associated with downloading and
disseminating child porn,” and “Judge Mosman (also a FISA Judge) intervened at the request of
Judge Kugler.” Id. Mr. Rote, therefore, calls for the disqualification of all the FISC judges
“because they all have at least a professional, and likely personal, relationship with the other
members of the FISA court, as there are only eleven (11) FISA Judges, that could substantially . .
. affect this case.” Id. As evidence of bias thus far in this case, Mr. Rote claims that this Court
refused to (1) grant Mr. Rote ECF access; (2) “grant a Motion for Default against nonresponding
parties; (3) grant a hearing on the pending Motion to Dismiss nonimmune state court actors
named in this case; and (4) grant a hearing on the Motion to Transfer Venue to the U.S. District
of Oregon.” Id. at 4. Mr. Rote, therefore, argues that the undersigned judge should disqualify
himself because “his impartiality might reasonably be questioned,” 28 U.S.C. § 455(a), and he
1
The Court understands Mr. Rote’s references to “FISA Judges” to mean FISC judges.
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has an “interest that could be substantially affected by the outcome of the proceeding,” 28 U.S.C.
§ 455(b)(4). Id. at 2, 4. Mr. Rote’s arguments fail under both provisions.
In Reddy v. O’Connor, the plaintiff filed a § 455 motion to recuse Judge Bates, arguing
that because Defendant Chief Justice Roberts appointed Judge Bates to the FISC, Judge Bates
“ha[d] a ‘close personal relationship’ with the Chief Justice resulting in a real or potential bias in
[the Chief Justice’s] favor.” 520 F. Supp. 2d 124, 128 (D.D.C. 2007). Rejecting this argument,
the Court found that “no reasonable and informed observer would question the impartiality of
[Judge Bates] based on the Chief Justice’s appointment.” Id. The Court noted that the
appointment resulted in a professional relationship that did not implicate any “personal or
financial concerns,” “and such professional relationships generally are not grounds for recusal
where official action is at issue.” Id. (citation omitted). Similarly, the court in Sibley v Roberts
rejected the plaintiff’s argument that no D.C. District Court judge could hear his case on the
grounds that one of the defendants was the former Chief Judge of the District and the other is the
Clerk of the Court. 224 F. Supp. 3d 29, 34–35 (D.D.C. 2016). Applying the analysis in Reddy,
the court found that recusal was not warranted because the relationships between the judge and
“both defendants are professional, not personal,” and the defendants’ official action was at issue.
Id. at 35 (citing Reddy, 520 F. Supp. 2d at 126–27).
Here, applying the reasoning of Reddy and Sibley, the Court finds that the undersigned
judge’s relationship to all other FISC judges is professional and that “such professional
relationships generally are not grounds for recusal where official action is at issue.” Reddy, 520
F. Supp. 2d at 128. Furthermore, the undersigned notes that he and the two other identified FISC
judges serve in different cities and do not serve as duty judges on the FISC simultaneously.
Thus, even their professional relationships are quite limited. Therefore, just as the professional
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relationship that exists between two judges sitting in one district does not prohibit a judge from
hearing a case in which a colleague judge is a defendant, see Sibley, F. Supp. 3d at 34–35, the
professional relationship between the undersigned judge and another FISC judge does not
warrant the undersigned judge’s recusal when another FISC judge appears as a defendant.
Moreover, Mr. Rote’s attempt to demonstrate bias through his allegation that Defendant Judge
Kugler “solicited Constitutional violations from many courts and on information and belief will
continue to do so confidentially with the FISA Judges,” Pl.’s Mot. to Disqualify at 2, is a bald
allegation without evidentiary support and is therefore unavailing. See Karim-Panahi, 105 Fed.
App’x at 275 (holding that “bald allegations” are insufficient to disqualify judge); United States
v. Nixon, 267 F. Supp. 3d 140, 149 (D.D.C. 2017) (“[S]uch speculation cannot support [a]
request for recusal.” (citation omitted)).
While it is unclear whether Mr. Rote’s allegations concerning the undersigned judge’s
decisions in this case are posed as further grounds for recusal or as evidence of bias arising out of
the professional relationship between the undersigned judge and Defendant Kugler, these
allegations do not persuade the Court that recusal is warranted. All of Mr. Rote’s allegations,
including that this Court refused Mr. Rote ECF access, failed to grant a Motion for Default
against unresponsive parties, and failed to grant hearings on two other pending motions, involve
discretionary decisions that are not grounds for recusal. See Liteky, 510 U.S. at 549 (“[T]he
recusal statute ‘was never intended to enable a discontented litigant to oust a judge because of
adverse rulings made.’” (quoting Ex parte American Steel Barrel Co., 230 U.S. 35, 44 (1913))).
Therefore, regardless of the reasons Mr. Rote levies these allegations, they do not further his
cause for disqualifying the undersigned judge.
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In sum, Mr. Rote has failed to meet the recusal standards under 28 U.S.C. § 455. An
objective observer would not question the undersigned judge’s impartiality under the present
circumstances because Mr. Rote has not shown that this Court’s “impartiality might reasonably
be questioned,” 28 U.S.C. § 455(a), nor that this Court has any “interest that could be
substantially affected by the outcome of the proceeding,” 28 U.S.C. § 455(b)(4). Furthermore,
Mr. Rote has not shown that this Court acted with a level of “deep-seated favoritism or
antagonism that would make fair judgment impossible.” Liteky, 510 U.S. at 555. Instead, Mr.
Rote makes “conclusory, unsupported [and] tenuous allegations” that are wanting of facts. In re
Kaminski, 960 F.2d at 1065 n.3 (citation omitted). Insofar as judges have a duty to recuse
themselves when partiality exists, judges have an equal duty to not recuse themselves when there
is no basis for recusal. See Bilzerian, 729 F. Supp. 2d at 22. Accordingly, Mr. Rote's motion
requesting that this judge recuse himself is denied.
IV. CONCLUSION
For the foregoing reasons, the Court DENIES Mr. Rote’s Motion to Disqualify Foreign
Intelligence Surveillance Court Judges. An order consistent with this Memorandum Opinion is
separately and contemporaneously issued.
Dated: November 6, 2019 RUDOLPH CONTRERAS
United States District Judge
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