On October 7, 2010, Sierra Pacific Industries (hereafter "SPI") filed a motion to recuse the undersigned. The government submitted its opposition to the motion on October 27, 2010, and SPI submitted a reply brief on November 3, 2010. The matter was heard and submitted on November 10, 2010. For the reasons stated below, the motion for recusal is denied.
Two weeks before SPI filed the recusal motion, the court had held a hearing on SPI's motion for additional discovery and the United States' motion for a protective order. SPI had asked for leave to depose thirty-seven fact witnesses and for leave to depose two witnesses for at least five days each. The court allowed ten extra depositions beyond the number that the parties had already agreed to, and allowed two days and four hours for each of the two witness depositions.
The court did not rule from the bench on the government's motion, which sought sanctions for SPI's counsel's conduct in violating the no-contact rule of professional responsibility, but took the matter under submission. At the end of the hearing the undersigned stated "I remain concerned . . . I have the same concerns now as I did when we began this hearing . . . . I'm going to hold you to [your] representation" that SPI would refrain from engaging in improper contacts with government employees "during the time it takes me to get an order out." Transcript, Dckt. No. 85, at 62.
That hearing was held on September 22, 2010. Fifteen days later, on October 7, 2010, the undersigned's staff received a phone call from counsel for SPI stating that the undersigned might want to refrain from issuing the order on the government's protective motion because SPI would be filing a motion for recusal. SPI filed its motion for recusal later that day.
SPI contends that it discovered on October 5, 2010 that when the undersigned was an Assistant United States Attorney he represented the United States Forest Service in Sierra Nevada Forest Protection Campaign v. U.S. Forest Service, 2:04-cv-2203 MCE GGH, 2005 WL 1366507 (E.D. Cal. May 26, 2005), aff'd 166 Fed. Appx. 923 (9th Cir. 2006) (hereafter "Sierra Nevada").*fn1 SPI contends that the case involved the Forest Service's implementation of the Herger-Feinstein Quincy Library Group Act, which required the Forest Service to implement a forest fire prevention pilot project on the land that SPI claims was burned in the Moonlight Fire.
SPI states that it has raised as an affirmative defense in this action a claim that if the Forest Service had implemented the Act on the land that burned in the Moonlight fire its damages would have been reduced or eliminated.
The predicate of SPI's recusal motion is that the undersigned allegedly was the "lead attorney" in Sierra Nevada and necessarily acquired personal knowledge of disputed evidentiary facts concerning this proceeding. Secondarily, SPI argues that because of the "lead attorney" designation the undersigned's impartiality might reasonably be questioned; that he may be called as a witness in this matter; and that he may have advised the Forest Service regarding issues that are disputed in this case.
The government argues that the undersigned did not actively represent the Forest Service in Sierra Nevada, but may have merely answered questions regarding local rules and customs within this district. Moreover, the government argues, that case did not involve any specific facts that are at issue in this case, and mere knowledge of the subject matter that is at issue in a proceeding does not constitute personal knowledge of disputed evidentiary facts.
The applicable recusal statute, 28 U.S.C. § 455, provides as follows:
(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary ...