MEMORANDUM OF DECISION DENYING MOTION TO RECUSE
[No hearing required pursuant to Federal Rule of Civil Procedure 78(b) and Local Bankruptcy Rule 9013-1(j)(3)]
ERNEST M. ROBLES, Bankruptcy Judge.
On January 23, 2017, Syed Aurangzeb Pirzada ("Debtor") filed a Motion to Recuse Judge Ernest Robles from the Above Case ("Recusal Motion") [Doc. No. 72]. Debtor did not schedule the Motion for hearing in accordance with the Local Bankruptcy Rules ("LBR"), and did not submit the Motion for adjudication on a negative-notice basis pursuant to LBR 9013-1(o). The Court finds this matter appropriate for disposition without oral argument pursuant to Civil Rule 78(b) and Local Bankruptcy Rule 9013-1(j)(3). For the reasons set forth below, the Recusal Motion is DENIED.
I. Factual Background
On May 14, 2015, Debtor commenced a voluntary Chapter 11 petition, Case No. 2:15-bk-17752-ER ("First Petition"). Debtor was represented by counsel in connection with the First Petition. On July 21, 2016, the Court denied the Debtor's motion to confirm a Plan of Reorganization ("Plan"), and dismissed the First Petition. See Order: (1) Denying Debtor's Motion to Confirm Chapter 11 Plan of Reorganization [Doc. No. 84]; and (2) Dismissing Debtor's Chapter 11 Case ("Dismissal Order") [Doc. No. 105, Case No. 2:15-bk-17752-ER]. The Court denied the Debtor's motion to confirm the Plan on the grounds that the Plan was not feasible. The Plan required the Debtor to pay administrative expenses on the Plan's effective date, and to make quarterly payments on account of priority tax claims over a five-year period. Because the Debtor was unemployed, had no source of income, and had no cash on hand, the Court found that it would not be possible for the Debtor to make the payments contemplated by the Plan. See Final Ruling Denying Confirmation Motion and Dismissing First Petition at 13-14 ("Dismissal Ruling") [Doc. No. 104, Case No. 2:15-bk-17752-ER; attached as Exhibit A and incorporated herein by reference as though set forth in full].
Based on the Debtor's inability to confirm the Plan, the Court found that cause existed to dismiss the First Petition. The Court found that dismissal, as opposed to conversion to Chapter 7, was in the best interests of creditors given that there was no evidence of any equity in the properties owned by the Debtor. See Dismissal Ruling at 14-15. Debtor did not appeal the Dismissal Order.
On August 18, 2016, Debtor commenced a second voluntary Chapter 11 petition, Case No. 2:15-bk-21026-ER ("Second Petition"). Debtor is not represented by counsel in the Second Petition.
Debtor's Recusal Motion
On January 23, 2017, Debtor filed a motion seeking to have the Hon. Ernest M. Robles disqualified from adjudicating the Second Petition. The two-paragraph Recusal Motion provides in its entirety:
The debtor Syed Aurangzeb request[s] the court to remove Judge Ernest M. Robles from the above case as his ruling[s] have been improper and has violated many codes displaying impropriety, favoritism, bias and willful pattern of harm towards the debtor on whom he has a history of discrimination.
A complaint has been filed against Judge Robles and a copy is being furnished to the Attorney General's office in Washington DC. The debtor will pursue investigation towards Judge Robles and harm he indulged towards the debtor was willfully and deliberate. He also hurt the unsecured creditors by his uncontrolled vengeance on the debtor due to religion and race. The declaration[s] are included to support this motion[.]
The Recusal Motion includes declarations from Donald Felich, Ronald Thomas, and Philip L. Hasel. Felich, Thomas, and Hasel state that they were creditors of the Debtor in connection with the First Petition and claim they were harmed by the Dismissal Order.
On January 20, 2017, Debtor filed a pro se complaint ("Original Complaint") against Judge Robles in the United States District Court for the Central District of California, Western Division (Case No. 2:17-cv-00506-SJO). On January 25, 2017, Debtor filed a First Amended Complaint. The allegations of the First Amended Complaint are substantially the same as those of the Original Complaint. The major difference is that unlike the Original Complaint, the First Amended Complaint is typed and contains numbered paragraphs.
The First Amended Complaint ("Complaint") alleges that a terrorist attack in France "drove Judge Robles insane" and motivated him to dismiss the First Petition, based on racial and religious animus toward Debtor, "who has a Muslim name and heritage." Complaint at ¶8. The Complaint alleges that Judge Robles "wanted revenge on" the Debtor, "enjoyed his sadistic activity," and "became more and more determined to harm" the Debtor. Id. at ¶¶8-9. The Complaint alleges that the dismissal was done "with evil intent to hurt" the Debtor, and with the recognition that upon dismissal, the Debtor "would suffer harm economically and become destitute and perhaps become destroyed, which may lead to the [Debtor's] death." Id. at ¶16. The Complaint seeks $1 million in compensatory damages and $50 million in punitive damages. Id. at ¶1123-24.
II. Findings and Conclusions
Title 28 U.S.C. §455(a) provides that "[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Section 455(b) sets forth examples of situations in which a judge must recuse himself. The Court concludes that the Debtor has not demonstrated either that the impartiality of the Court may reasonably be questioned or that any of the circumstances requiring recusal set forth in §455(b) apply.
Under §455(a), recusal is required "where `a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned.'" Glick v. Edwards, 803 F.3d 505, 508 (9th Cir. 2015), cert. denied, 137 S.Ct. 144, 196 L. Ed. 2d 112 (2016). "It is well established that the recusal inquiry must be `made from the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances.' Cheney v. US. Dist. Court for D.C., 541 U.S. 913, 924 (2004) (emphasis in original). "All evaluations of bias or prejudice under section 455 are made using an objective standard." Goodwin v. Durkin (In re Goodwin), 194 B.R. 214, 222 (9th Cir. BAP 1996). In determining a motion to recuse, "the judge is not required to take the factual allegations as true." Goodwin, 194 B.R. at 222 (internal citation omitted). "A judge is presumed to be qualified to hear a matter and the burden is upon the moving party to prove otherwise. Stated otherwise, a party seeking recusal has the burden of producing facts which would raise reasonable doubt as to the impartiality of the judge." In re Spirtos, 298 B.R. 425, 431 (Bankr. C.D. Cal. 2003).
Where a judge holds an opinion derived from an "extrajudicial source"—a source outside judicial proceedings—recusal is sometimes, but not always, required. Liteky v. United States, 510 U.S. 540, 554 (1994). As the Supreme Court explained in Litekey:
[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion. In and of themselves (i.e., apart from surrounding comments or accompanying opinion), they cannot possibly show reliance upon an extrajudicial source; and can only in the rarest circumstances evidence the degree of favoritism or antagonism required (as discussed below) when no extrajudicial source is involved. Almost invariably, they are proper grounds for appeal, not for recusal. Second, 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. Thus, 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. They 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.
An example of the latter (and perhaps of the former as well) is the statement that was alleged to have been made by the District Judge in Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921), a World War I espionage case against German-American defendants: "One must have a very judicial mind, indeed, not [to be] prejudiced against the German Americans" because their "hearts are reeking with disloyalty." Id., at 28 (internal quotation marks omitted). Not establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display. A judge's ordinary efforts at courtroom administration—even a stern and short-tempered judge's ordinary efforts at courtroom administration—remain immune.
Liteky, 510 U.S. at 555-56.
Debtor alleges that the Court dismissed the First Petition based on religious and racial animus against the Debtor. However, Debtor fails to identify any evidence of the alleged religious and racial bias. The Court has issued multiple, detailed rulings in connection with the Debtor's cases, and there is nothing in any of those rulings indicative of religious or racial bias. The Debtor's argument is that the Court must be biased against him because the Court issued rulings that were adverse to the Debtor's interests. The Debtor's reasoning is tautological, and has been rejected by the Ninth Circuit, which has held that allegedly erroneous rulings are not evidence of bias and do not support a partiality motion. See Focus Media v. National Broadcasting Co. (In re Focus Media, Inc.), 378 F.3d 916, 930 (9th Cir. 2004) (""Focus argues that these rulings were erroneous and that such error is itself evidence of bias. This argument does not support a recusal motion. `Judges are known to make procedural and even substantive errors on occasion. The errors alleged here would be the basis for appeal, not recusal.'"). The Debtor's argument is also foreclosed by Liteky, which held that judicial opinions cannot show that the Court improperly relied upon an extrajudicial source.
A "reasonable person with knowledge of all the facts," Glick, 803 F.3d at 508, would not question the Court's impartiality, and would not conclude that the dismissal of the First Petition resulted from racial or religious animus. An objective outside observer would instead conclude that the First Petition was dismissed because the Debtor's lack of funds made the plan he proposed unfeasible, as explained in the Dismissal Ruling.
An objective observer's conclusion that the Dismissal Ruling was not motivated by racial bias would be bolstered by the Debtor's history of making unsubstantiated and inflammatory allegations against parties who take positions adverse to him in litigation. The United States Trustee ("UST") filed a motion to dismiss the Second Petition, based on the Debtor's failure to comply with reporting requirements. In opposition to that motion, the Debtor accused Dare Law, an attorney for the UST, of deliberately serving the motion upon an incorrect address; of acting in a "destructive manner" in performing her responsibilities monitoring the Debtor's case; of deliberately destroying information submitted to the UST's office by the Debtor in an attempt to facilitate dismissal of the case; of being "corrupt and racist"; and of assisting the Debtor's secured creditors in committing "borderline white-collar criminal act[s]." See Reply to U.S. Trustees [sic] Motion to Dismiss or Convert Case [Doc. No. 52]. The Court found that there was no merit to any of the Debtor's allegations against Ms. Law, and struck the paper containing the allegations from the docket. See Order Granting United States Trustee's Motion to Strike Sur-Reply Relating to Motion to Dismiss or Convert [Doc. No. 58].
Given the Debtor's history of making incendiary allegations when litigation does not go his way, an objective observer would not question the Court's impartiality based upon the Debtor's latest series of allegations. Rather, such an observer would perceive the allegations as yet another instance of the Debtor crying wolf in a tactical attempt to avoid the consequences of adverse judicial rulings.
The Debtor's filing of the Complaint does not require recusal. In Focus Media, the court found that recusal was not required where a litigant filed a complaint alleging judicial misconduct with the Judicial Council of the Ninth Circuit. The Focus Media court explained that requiring recusal under such circumstances would "open the door to misuse of the judicial misconduct complaint process as a means of removing a disfavored judge from a case." Focus Media, 378 F.3d at 930. The reasoning articulated in Focus Media applies with equal force to the present situation, in which the party seeking recusal has filed a complaint in the District Court.
Finally, recusal is not required under 28 U.S.C. §455(b). None of the specifically enumerated circumstances set forth in §455(b) apply to this case.
Conclusion
Based upon the foregoing, the Recusal Motion is DENIED. The Court will enter an order consistent with this Memorandum of Decision.
Exhibit A—Dismissal Ruling
