COLLEEN KOLLAR-KOTELLY, United States District Judge
Presently before the Court is Plaintiffs' [11] Motion to Disqualify Judge Pursuant to 28 U.S.C. § 144. Plaintiffs move the Court to transfer this case to a different district court judge in order to prevent an "appearance of bias and prejudice" due to the undersigned judge being involved in "ongoing litigation" with Plaintiffs' Counsel. Pl.s' Mot. at 7. Upon a searching review of Plaintiffs' Motion,
Plaintiffs filed the present lawsuit on March 18, 2014, on behalf of themselves and their sons and stepsons, alleging that the Islamic Republic of Iran, Mahmoud Ahmadinejad, Ayatollah Sayyid Ali Hoseyni Khamenei, the Army of the Guardians of the Islamic Revolution, Hamid Karzai, the Afghan Operational Coordination Group, Khasa Amalyati Qeta/Qeta-e-Khas-e-Amalyati or the Afghan Special Operations Unit, the Afghan National Security Forces, the Islamic Republic of Afghanistan, the Taliban, and Al Qaeda violated Plaintiffs' and decedents' rights, engaged in racketeering and other prohibited activities, engaged in international terrorism, harbored and concealed terrorists, provided material support to terrorists and terrorist groups, directly and proximately caused the deaths of Plaintiffs' decedents, and directly and proximately caused mental anguish, severe emotional distress, emotional pain and suffering, and the loss of society, earnings, companionship, comfort, protection, care, attention, advice, counsel or guidance. Compl., ECF No. [1], at 3. The genesis of these allegations is the deaths of members of Navy SEAL Team VI and other Special Operations forces shot down in their helicopter by the Taliban on August 6, 2011. Id. ¶¶ 16-18.
This case was assigned to the undersigned judge on March 18, 2014. On March 19, 2014, Plaintiffs' Counsel filed a Motion to Transfer Case Pursuant to Rule 57.13(A) on the basis that Plaintiffs' Counsel was engaged in "ongoing litigation" with the undersigned judge. See ECF No. [3]. Based on the grounds stated in Plaintiffs' pleadings, the Court treated Plaintiffs' Motion as a Motion for Recusal pursuant to 28 U.S.C. § 455 and denied the same on April 8, 2014. See generally Mem. Op. (April 8, 2014), ECF No. [5]. The Court denied Plaintiffs' Motion after finding that "a judge is not required to recuse him or herself merely because a party files suit against him" and that "[g]ranting a motion to recuse solely because a party has sued the judge would transform such motions to recuse into vehicles for judge shopping." Id. at 2-3. Plaintiffs subsequently filed a Motion to Reconsider the Court's April 8, 2014, Memorandum Opinion, which the Court denied. See Mem. Op. (April 15, 2014), ECF No. [10], at 3.
On May 8, 2014, Plaintiffs filed the [11] Motion to Disqualify Judge Pursuant to 28 U.S.C. § 144 presently before the Court. Before the Court was able to rule on Plaintiffs' Motion, Plaintiffs' Counsel filed a Petition for Writ of Mandamus with the Court of Appeals for the District of Columbia Circuit seeking to have the Court of Appeals compel the undersigned judge to remove herself from this case either by recusal or disqualification. See generally Notice of Petition for Writ of Mandamus, ECF No. [13-1]. Plaintiffs' Petition for Writ of Mandamus remains pending before the Court of Appeals.
Recusal of a judge pursuant to 28 U.S.C. § 144 is appropriate "[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
The question of whether the motion and supporting affidavit is both timely and legally sufficient is for this Court to determine in the first instance. United States v. Haldeman, 559 F.2d 31, 131 (D.C.Cir.1976) ("It is well settled that the involved judge has the prerogative, if indeed not the duty, of passing on the legal sufficiency of a Section 144 challenge."); see also United States v. Heldt, 668 F.2d 1238, 1272 n. 69 (D.C.Cir.1981) (noting that "under section 144 ... the transfer to another judge for decision is `at most permissive'") (quoting Haldeman, 559 F.2d at 131). In determining whether the affidavit sets forth a legally sufficient basis for disqualification, the Court "must accept the affidavit's factual allegations as true even if the judge knows them to be false." S.E.C. v. Loving Spirit Found., 392 F.3d 486, 496 (D.C.Cir.2004); see also United States v. Hanrahan, 248 F.Supp. 471, 474 (D.D.C.1965) ("when presented with an application and affidavit such as this one, a Court may not pass upon the truth or falsity of the allegations, but must accept them as true for the purpose of determining the legal sufficiency of the affidavit"). However, the affidavit "must state facts as opposed to conclusions, and while the information and belief of the affiant as to the truth of the allegations are sufficient, mere rumors and gossip are not enough." Hanrahan, 248 F.Supp. at 475 (internal citations omitted). "The identifying facts of time, place, persons, occasion and circumstances must be set forth, with at least that degree of particularity one would expect to find in a bill of particulars." Id. (internal citations omitted). Importantly, given the requirement that the Court accept the facts stated in the affidavit as true, the statute mandates that "the attorney presenting the motion [] sign a certificate stating that both the motion and declaration are made in good faith." Loving Spirit Found., 392 F.3d at 496; see 28 U.S.C. § 144 (requiring that the affidavit "be accompanied by a certificate of counsel of record stating that it is made in good faith"). The certification requirement is key to the integrity of the recusal process and "guard[s] against the removal of an unbiased judge through the filing of a false affidavit." Loving Spirit Found., 392 F.3d at 496.
Once it is established that the affidavit has been properly certified by
Hanrahan, 248 F.Supp. at 475-76 (internal citations and quotations omitted). "Importantly, to be disqualifying, the alleged bias usually `must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.'" Robertson, 691 F.Supp.2d at 78 (quoting United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966)); see also Liteky v. United States, 510 U.S. 540, 554, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) (predispositions developed during proceedings are rarely sufficient).
Plaintiffs' Motion to Disqualify must be denied because the facts set forth in Plaintiffs' supporting Affidavit, even if accepted as true, are legally insufficient to demonstrate actual bias warranting disqualification under section 144. Moreover, the Court has conducted its own independent review of the record in this case, including Plaintiffs' present Motion and Affidavit, and is satisfied that no reasonable and informed observer would question this Court's impartiality.
Plaintiffs seek to disqualify the undersigned judge because, as they allege, the undersigned judge's "long-running litigation" with Plaintiffs' counsel "will undoubtedly
On October 22, 2010, the Court dismissed Sataki in its entirety. Sataki, No. 10-534, 2010 WL 4260197 (D.D.C. Oct. 22, 2010). Plaintiff appealed the dismissal, but the Court of Appeals for the District of Columbia Circuit ultimately dismissed the appeal for lack of prosecution. Sataki, No. 11-5015 (D.C.Cir. Sept. 7, 2011). Following the Court's denial of Mr. Klayman's recusal motion in Judicial Watch, Plaintiff pursued both a mandamus petition and an interlocutory appeal, but the Court of Appeals for the District of Columbia Circuit denied the mandamus petition and dismissed the interlocutory appeal for lack of prosecution. See In re Larry Klayman, No. 08-5218 (D.C.Cir. Jul. 25, 2008) (per curiam) (order denying petition for Writ of Mandamus); Klayman v. Judicial Watch, Inc., No. 09-7068 (D.C.Cir. Sept. 1, 2009) (order dismissing appeal for lack of prosecution).
Believing that the undersigned judge's refusal to remove herself from both the
On August 14, 2013, Mr. Klayman filed another Petition for Writ of Mandamus with the Court of Appeals for the District of Columbia Circuit seeking, among other things, to have the undersigned judge "compelled to remove herself and vacate all prior orders from the ongoing Judicial Watch and prior Sataki case." Petition for Writ of Mandamus, In re Larry Klayman, No. 13-5258 (D.C.Cir. Aug. 14, 2013). The Court of Appeals for the District of Columbia Circuit denied plaintiff's mandamus petition on October 22, 2013. In re Larry Klayman, No. 13-5258, 2013 WL 7864078 (D.C.Cir. Oct. 22, 2013) (per curiam). Mr. Klayman subsequently petitioned for rehearing and rehearing en banc of his Petition for a Writ of Mandamus, but his petitions were denied. In re Larry Klayman, No. 13-5258 (D.C.Cir. Feb. 10, 2014) (per curiam) (order denying petition for rehearing); In re Larry Klayman, No. 13-5258 (D.C.Cir. Feb. 10, 2014) (per curiam). The only item now pending in this "long-lasting litigation" is the Petition for Writ of Certiorari Mr. Klayman filed with the Supreme Court on May 12, 2014, seeking review of the Court of Appeals' denial of his mandamus petition. In re Larry Klayman, No. 13-1365 (D.C.Cir. Aug. 14, 2013), petition for cert. filed, No. 13-5258 (U.S. May 14, 2014).
While Plaintiffs' Counsel has indeed been engaged in multi-year litigation over which the undersigned judge presided or in which the undersigned judge was implicated as a party, the Court finds that the nature of this litigation and its relation to the case presently before the Court would not lead a reasonable mind to believe that the undersigned judge harbors personal bias or prejudice towards Plaintiffs. The ongoing litigation that Plaintiffs claim taints the undersigned judge's ability to fairly and impartially preside over the present matter goes back to legal rulings the Court made many years ago — in 2007 and 2008 for Judicial Watch and in 2010 for Sataki. However, "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion." Liteky, 510 U.S. at 555, 114 S.Ct. 1147. Indeed, Plaintiffs' claims that the undersigned judge's legal rulings in Judicial Watch and
Since there is no basis for the requested disqualification, granting Plaintiffs' Motion would set a precedent that would permit judge shopping by litigants. As the Seventh Circuit held in In re Taylor — and as this Court explained in its two opinions addressing Plaintiffs' prior motions to transfer this case to another judge — "[t]here is no rule that requires a judge to recuse himself from a case, civil or criminal, simply because he was or is involved in litigation with one of the parties" because such a rule would "allow litigants to judge shop." Taylor, 417 F.3d at 652. This Court, as have many courts in other circuits, agrees that such a rule would encourage counsel and litigants to file complaints and/or lawsuits in order to disqualify a judge who had ruled adversely to counsel and/or parties on legal matters. Accordingly, the Court shall DENY Plaintiffs' [11] Motion to Disqualify Judge Pursuant to 28 U.S.C. § 144.
For the foregoing reasons, the Court DENIES Plaintiffs' [11] Motion to Disqualify Judge Pursuant to 28 U.S.C. § 144. However, as Plaintiffs have filed a Petition for Writ of Mandamus seeking to compel the undersigned judge's recusal or disqualification from this case and this Petition is currently pending before the Court of Appeals for the District of Columbia Circuit, the Court will STAY this case until resolution of the Petition for Writ of Mandamus. This case is not stayed, however, in so far as Plaintiff must still effect service on all Defendants by
An appropriate Order accompanies this Memorandum Opinion.