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Harley S. Bridgeman Jr v. United States of America

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


December 15, 2010

HARLEY S. BRIDGEMAN JR., PLAINTIFF,
v.
UNITED STATES OF AMERICA, ET AL., DEFENDANTS.
FEDERAL NATIONAL MORTGAGE ASSOCIATION, PLAINTIFF,
v.
HARLEY S. BRIDGEMAN, JR.; CHANDA J. BRIDGEMAN, DEFENDANTS.
HARLEY S. BRIDGEMAN, JR., COUNTERCLAIMANT,
v.
FEDERAL NATIONAL MORTGAGE ASSOCIATION, ET AL., COUNTERDEFENDANTS.
HARLEY S. BRIDGEMAN, JR., THIRD-PARTY PLAINTIFF,
v.
UNITED STATES OF AMERICA, ET AL., THIRD-PARTY DEFENDANTS.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Presently before the court are two motions for recusal filed by defendant Harley S. Bridgeman, Jr., who is the plaintiff in the matter of Bridgeman v. United States et al., No. 2:10-cv-1457 JAM KJN PS ("Bridgeman I"), and is the defendant, counterclaimant, and third-party claimant in the related, but not consolidated, matter of Fed. Nat'l Mortgage Ass'n v. Bridgeman, No. 2:10-cv-2619 JAM KJN PS ("Bridgeman II").*fn1 Mr. Bridgeman filed a Motion for Recusal in both above-captioned actions on December 8, 2010, and noticed his motion for a hearing to take place before the undersigned on January 6, 2011. (Bridgeman I, Dkt. No. 42; Bridgeman II, Dkt. No. 79.) Because oral argument would not be of material aid to the resolution of the pending motions, the undersigned submits this matter on the briefs and record and vacates the January 6, 2011 hearing date.*fn2 Having reviewed Mr. Bridgeman's moving papers and the record in this case, the undersigned denies the motions for recusal in Bridgeman I and Bridgeman II.

I. FACTUAL BACKGROUND

As indicated above, Mr. Bridgeman has filed two actions in this court that are pending before the undersigned. In Bridgeman I, Mr. Bridgeman alleges a number of claims arising from the termination of his employment and the subsequent foreclosure and sale of his home. All of the defendants in Bridgeman I filed motions to dismiss plaintiff's complaint.

Relevant here and as discussed below, the undersigned held a hearing on the motions to dismiss filed by defendants T.D. Service Company, Fremont Bank, and Federal National Mortgage Association on November 18, 2010. (Bridgeman I, Dkt. No. 66.) The undersigned submitted the motion to dismiss filed by defendant United States of America without a hearing. The undersigned has not yet entered any orders or findings and recommendations resolving the pending motions to dismiss.

In Bridgeman II, plaintiff Federal National Mortgage Association filed a single claim for unlawful detainer against Mr. Bridgeman and his estranged wife in California state court, and Mr. Bridgeman removed that matter to this court. Federal National Mortgage Association moved to remand Bridgeman II to state court, and the undersigned submitted the motion to remand without a hearing. The undersigned has not yet entered an order or findings and recommendations resolving that motion to remand.

On December 8, 2010, Mr. Bridgeman filed the instant motions for recusal of the undersigned. Briefly stated, Mr. Bridgeman moves the undersigned to recuse or disqualify himself from Bridgeman I and Bridgeman II pursuant to 28 U.S.C. § 144, on the grounds that the undersigned has "demonstrated a predisposition that is wrongful according to the Code of Judicial Conduct for United States Judges." (Motion for Recusal at 2.) As discussed below, Mr. Bridgeman's motions arise from an exchange between the undersigned and Mr. Bridgeman at the November 18, 2010 hearing in Bridgeman I, during which Mr. Bridgeman demanded in an elevated tone that the undersigned answer questions posed by Mr. Bridgeman regarding, among other things, the undesigned's knowledge about the Federal Rules of Civil Procedure and the court's Local Rules. The undersigned declined to answer the questions posed by Mr. Bridgeman. As communicated to Mr. Bridgeman on the record at the November 18, 2010 hearing, the undersigned held that hearing only in order to determine whether Mr. Bridgeman should be permitted leave to amend his operative complaint in Bridgeman I insofar as certain of the defendants were concerned. Mr. Bridgeman chose not to answer any of the questions posed by the undersigned and, in turn, Mr. Bridgeman hostilely demanded that the undersigned answer questions posed by Mr. Bridgeman.

II. LEGAL STANDARDS

Pursuant to 28 U.S.C. § 144, a party may file a "timely and sufficient affidavit" seeking to preclude the assigned judge from presiding over the matter any further as a result of "a personal bias or prejudice" as to a party in the action. Section 144 provides, in its entirety:

Whenever 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, but another judge shall be assigned to hear such proceeding.

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

28 U.S.C. § 144.

Although not asserted as a basis for disqualification in Mr. Bridgeman's motions, a United States magistrate judge may disqualify himself or herself for several reasons presented in 28 U.S.C. § 455. Of note here, "[a]ny . . . magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

28 U.S.C. § 455(a). Moreover, a magistrate judge "shall also disqualify himself [or herself] . . .

[w]here he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding." Id. § 455(b)(1).

The standard used to review motions for recusal or disqualification under 28 U.S.C. § 144 and 28 U.S.C. § 455 is the same. The Ninth Circuit Court of Appeals has held that "[t]he substantive standard for recusal under 28 U.S.C. § 144 and 28 U.S.C. § 455 is the same: '[W]hether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned.'" United States v. Hernandez, 109 F.3d 1450, 1453-54 (9th Cir. 1997) (per curiam) (quoting United States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986)); accord Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir. 2008).

In United States v. Grinnell Corp., 384 U.S. 563 (1966), the United States Supreme Court stated that in order for the "alleged bias and prejudice to be disqualifying" in the context of a Section 144 affidavit, it must stem from an "extra-judicial source." Id. at 583. In Liteky v. United States, 510 U.S. 540 (1994), the Supreme Court extended the so-called "extra-judicial source doctrine" to disqualifications pursuant to 28 U.S.C. § 455, but clarified that the alleged bias must usually arise from an extra-judicial source. See id. at 554-55 (stating that "it would be better to speak of the existence of a significant (and often determinative) 'extra-judicial source' factor, than of an 'extra-judicial source' doctrine, in recusal jurisprudence). In so holding, the Court explained:

First, judicial 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 extra-judicial source; and can only in the rarest circumstances evidence the degree of favoritism or antagonism required (as discussed below) when no extra-judicial 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 extra-judicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.

Id. at 555 (citation omitted); see also United States v. Johnson, 610 F.3d 1138, 1147 (9th Cir. 2010) ("We have described the extra-judicial source factor as involving 'something other than rulings, opinions formed or statements made by the judge during the course of trial.'") (quoting United States v. Holland, 519 F.3d 909, 914 (9th Cir. 2008)). "'[E]xpressions of impatience, dissatisfaction, annoyance, and even anger' are not grounds for establishing bias or impartiality, nor are a judge's efforts at courtroom administration." Pesnell, 543 F.3d at 1044 (citing Liteky, 510 U.S. at 555-56).

III. DISCUSSION

Mr. Bridgeman contends that the undersigned "demonstrated a predisposition that is wrongful according to the Code of Judicial Conduct for United States Judges." (Motion for Recusal at 2.) Specifically, he asserts that during the November 18, 2010 hearing, "the magistrate judge was asked questions by [Mr.] Bridgeman and indicated that he never had to answer questions." (Id. at 3.) Mr. Bridgeman argues that the undersigned's purported indication "that he never had to answer questions . . . creates a question of whether or not the judge is being prejudice and biased in his decision making and casts doubt as to whether he is able to be impartial when following the rules." (Id.) He seeks disqualification on the basis of this "uncertainty" and relies on the following portion of the Commentary to Cannon 2B of the Code of Conduct for United States Judges:

Testimony as a character witness injects the prestige of the judicial office into the proceeding in which the judge testifies and may be perceived as an official testimonial. A judge should discourage a party from requiring the judge to testify as a character witness except in unusual circumstances when the demands of justice require. This Canon does not create a privilege against testifying in response to an official summons.

Code of Conduct for United States Judges, Cannon 2B, Commentary (Rev. ed. July 1, 2009).*fn3

A. Whether Section 144 applies to United States Magistrate Judges At the outset, the undersigned notes that one magistrate judge of this court has raised the question of whether 28 U.S.C. § 144 applies to judicial officers other than district judges, such as magistrate judges. See Cohea v. Pliler, No. CIV S-00-2799 FCD EFB P, 2007 WL 2028578, at *1 (E.D. Cal. July 10, 2007) (unpublished) ("The application of section 144 to judicial officers other than district court judges is not a settled question."). In Cohea, the court noted decisions of the Ninth Circuit Court of Appeals that have suggested that Section 144 only applies to "district judges." See Smith v. Edwards & Hale, Ltd. (In re Smith), 317 F.3d 918, 932 (9th Cir. 2002) (stating that "section 144 applies only to district court judges and not to bankruptcy court judges"), abrogated on other grounds in Lamie v. United States, 540 U.S. 536 (2004); Bernard v. Coyne (In re Bernard), 31 F.3d 842, 843 n.3 (9th Cir. 1994) (stating that "section 144 applies only to district judges, not appellate judges"). Rather than attempt to resolve whether Section 144 applies to United States magistrate judges, who are judges that hear cases in the district court, the undersigned follows the course adopted in Cohea and assumes that Section 144 applies to United States magistrate judges for the purposes of this order.

B. Whether the Undersigned May Consider the Motions for Recusal Mr. Bridgeman noticed his motions for recusal for a hearing before the undersigned. However, so that there may be no doubt regarding who may initially pass on these motions for recusal under Section 144, the undersigned clarifies that the undersigned may consider the timeliness and legal sufficiency of the motions for recusal.

In part, 28 U.S.C. § 144 provides: "Whenever 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, but another judge shall be assigned to hear such proceeding" (emphasis added). The Ninth Circuit Court of Appeals has held that "Section 144 expressly conditions relief upon the filing of a timely and legally sufficient affidavit." United States v. Sibla, 624 F.2d 864, 867 (9th Cir. 1980); see also In re Bernard, 31 F.3d at 843 n.3 ("[I]f a party files an affidavit properly alleging prejudice on the part of a district judge under 28 U.S.C. § 144, the judge must turn the matter over to a colleague."). The Court of Appeals has further held that, as a result of this conditional phrasing, "the judge against whom an affidavit of bias is filed may pass on its legal sufficiency." United States v. Azhocar, 581 F.2d 735, 738 (9th Cir. 1978), cert. denied, 440 U.S. 907 (1979); see also United States v. Studley, 783 F.2d 934, 940 (9th Cir. 1986) ("We have held repeatedly that the challenged judge himself should rule on the legal sufficiency of a recusal motion in the first instance."). "Only after the legal sufficiency of the affidavit is determined does it become the duty of the judge to 'proceed no further' in the case." Azhocar, 581 F.2d at 738; accord Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1388 (9th Cir. 1988).

Accordingly, the undersigned will review the timeliness and legal sufficiency of the affidavits*fn4 filed by Mr. Bridgeman. The undersigned will address the timeliness and legal sufficiency of these essentially identical affidavits in turn.

C. Whether Mr. Bridgeman's Motions Are Timely In regards to the timeliness of an affidavit of bias or prejudice, 28 U.S.C. § 144 provides that such an affidavit "shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time." Mr. Bridgeman all but concedes that he did not file his motions in a timely fashion. This is plainly true because Mr. Bridgeman filed his motions approximately 20 days after the November 18, 2010 hearing.

Instead of arguing that his motions are timely, Mr. Bridgeman asserts in both motions that he "has not made an earlier filing in this matter . . . because he has had to take some time in attempting to ascertain which rules the judge(s) and the court are following and there has been no self-disqualification under 28 U.S.C. 455(a)." (Mot. for Recusal at 3.) The undersigned finds that this statement of good cause is not sufficient to cure the lateness of Mr. Bridgeman's affidavits. Initially, whether a judge disqualifies himself or herself pursuant to 28 U.S.C. § 455(a) is simply not determinative of good cause to excuse of late-filed affidavits under 28 U.S.C. § 144. If anything, Mr. Bridgeman's pro se status and relative unfamiliarity with the law serves as a more colorable basis for a finding of good cause. That said, Mr. Bridgeman has demonstrated an ongoing ability in his cases to locate and cite relevant statutes and case law. The undersigned remains unconvinced that Mr. Bridgeman has shown good cause excusing his tardiness. Although Mr. Bridgeman's affidavits do not meet the timing or good cause requirements of Section 144, the undersigned will address the sufficiency of Mr. Bridgeman's affidavits as alternative grounds for denying the motions for recusal.

D. Whether Mr. Bridgeman's Affidavits Are Legally Sufficient Even assuming that Mr. Bridgeman's motions are timely, they are not legally sufficient such that they warrant recusal or disqualification of the undersigned or referral of the motions for recusal to another judge. In short, the extra-judicial source factor explained in Liteky and other cases is dispositive.

Mr. Bridgeman's motions for recusal are plainly not based on any extra-judicial source. Mr. Bridgeman has premised his motions only on events that occurred during the November 18, 2010 court hearing, and has identified no extra-judicial source that purportedly gives rise to any prejudice or bias on the part of the undersigned. In the absence of some extra-judicial source, a motion for recusal or disqualification brought pursuant to Section 144 as a result of comments made during a judicial proceeding almost invariably fails. And Mr. Bridgeman has not alleged "a high degree of favoritism or antagonism as to make fair judgment impossible." Liteky, 510 U.S. at 555. Mr. Bridgeman alleges that the undersigned's decision not to answer hostilely-presented questions creates an "uncertainty" about the undersigned's impartiality. (Mot. for Recusal at 3.) At most, the undersigned's decision not to answer Mr. Bridgeman's questions constitutes ordinary efforts at courtroom administration, which do not support recusal. Liteky, 510 U.S. at 556 ("A judge's ordinary efforts at courtroom administration-even a stern and short-tempered judge's ordinary efforts at courtroom administration-remain immune.")

Even setting aside whether an extra-judicial source is implicated by the motions for recusal, Mr. Bridgeman reliance on the Commentary to Cannon 2B of the Code of Conduct for Judges is plainly misplaced. As noted above, he relies on the Commentary to Cannon 2B, which provides in relevant part:

Testimony as a character witness injects the prestige of the judicial office into the proceeding in which the judge testifies and may be perceived as an official testimonial. A judge should discourage a party from requiring the judge to testify as a character witness except in unusual circumstances when the demands of justice require. This Canon does not create a privilege against testifying in response to an official summons.

First, Mr. Bridgeman has not asserted that the undersigned acted as a character witness in this proceeding or any other proceeding. Second, Mr. Bridgeman has not claimed that any party attempted to require the undersigned to testify as a character witness in this proceeding or any other proceeding. Third, the undersigned has never asserted a "privilege against testifying in response to an official summons," and Mr. Bridgeman has not argued to the contrary. Mr. Bridgeman appears to be asserting that the undersigned generally asserted a "privilege" not to testify. However, a judge is not testifying when conducting a hearing on a law and motion calendar. Moreover, the undersigned never asserted a privilege. The undesigned simply declined to answer Mr. Bridgeman's questions, which were presented in an objectively hostile tone at the November 18, 2010 hearing, or engage in a debate with Mr. Bridgeman. Notably, the undersigned was not required to even conduct a hearing and could have submitted the matters heard on November 18, 2010, without a hearing. See Fed. R. Civ. P. 28; E. Dist. Local Rule 230(g). Accordingly, Mr. Bridgeman's reliance on the above-quoted Commentary to Cannon 2B is inapposite and does not render Mr. Bridgeman's affidavits legally sufficient.

Mr. Bridgeman's affidavits filed pursuant to 28 U.S.C. § 144 are neither timely nor legally sufficient. Accordingly, the undersigned is not required to refer the motions for recusal to another judge, and Mr. Bridgeman's motions for recusal are denied.

E. Recusal Under 28 U.S.C. § 455 Finally, although Mr. Bridgeman has not moved to disqualify the undersigned pursuant to 28 U.S.C. § 455, the undersigned addresses potential disqualification under that statute. Two subsections of Section 455 are potentially relevant here. First, Section 455(a) provides that "[a]ny . . . magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). Second, a magistrate judge "shall also disqualify himself [or herself] . . . [w]here he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding." Id. § 455(b)(1). The extra-judicial source factor applies to disqualifications under Sections 455(a) and 455(b)(1), see Liteky, 510 U.S. at 551-54, and, accordingly, the undersigned finds no reason to disqualify himself as a result of bias or prejudice for the reasons stated above with respect to 28 U.S.C. § 144. The reasons set forth above addressing disqualification apart from the extra-judicial source factor further support that there is no sufficient basis for disqualification under 28 U.S.C. § 455.

IV. CONCLUSION

For the foregoing reasons, the court HEREBY ORDERS that:

1. Harley S. Bridgeman's Motion for Recusal filed in case number 2:10-cv-1457 JAM KJN PS (Dkt. No. 79) is denied.

2. Harley S. Bridgeman's Motion for Recusal filed in case number 2:10-cv-2619 JAM KJN PS (Dkt. No. 42) is denied.

3. The Clerk of Court is directed to file this order in both above-captioned cases.

IT IS SO ORDERED.


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