Walsh v. Comey , 110 F. Supp. 3d 73 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RORY M. WALSH,
Plaintiff,
v. Civil Action No. 15-348 (JEB)
FBI DIRECTOR JAMES B. COMEY, JR.,
et al.,
Defendants.
MEMORANDUM OPINION
Pro se Plaintiff Rory M. Walsh filed this suit against an assortment of government
officials, alleging a conspiracy to surveil, intimidate, and harass him and his family. When he
claimed two Defendants had failed to respond, the Clerk of the Court entered default against
them, but the Court subsequently granted those Defendants’ Motion to Vacate Entry of Default.
See ECF Nos. 9, 37. Unhappy with this decision, Walsh now moves to recuse this Court from
presiding over his suit. As he has not alleged sufficient facts to warrant such relief, the Court
will deny the Motion.
Plaintiff grounds his recusal request on two statutes: 28 U.S.C. § 455(a) and (b)(1), and
28 U.S.C. § 144, each of which is addressed in turn. Before proceeding with that analysis, the
Court notes that, while it has the option of forwarding the Motion to Recuse to another judge,
transfer is not required. See Karim-Panahi v. U.S. Congress, 105 F. App’x 270, 274-75 (D.C.
Cir. 2004). Since the issues presented here are neither complex nor compelling, the Court will
not impose on a colleague.
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A. 28 U.S.C. § 455
Title 28 U.S.C. § 455(a) provides that a judge “shall disqualify himself in any proceeding
in which his impartiality might reasonably be questioned.” Subsection (b)(1) requires
disqualification where the judge “has a personal bias or prejudice concerning a party, or personal
knowledge of disputed evidentiary facts concerning the proceeding.” The Court bears in mind
that “[t]he standard under section 455(a) is objective: a judge must recuse [him]self only if there
is a showing of an appearance of bias or prejudice sufficient to permit the average citizen
reasonably to question a judge’s impartiality.” Karim-Panahi, 105 F. App’x at 274 (citation and
internal quotation marks omitted) (emphasis added). Section (b)(1), conversely, provides
grounds for recusal from a court’s actual bias gained from extrajudicial sources. See id.; see also
United States v. Pollard, 959 F.2d 1011, 1031 (D.C. Cir. 1992) (discussing standards). As
Plaintiff notes, these two provisions “afford separate, though overlapping, grounds for recusal.”
Mot. at 4. While he does not clearly state which allegations of his pertain to which provision, his
Motion fails to satisfy either standard.
In seeking recusal under § 455(a), Walsh alleges that this Court harbors a “deep seated
and unequivocal antagonism” and “resentment against disabled veteran Walsh [and] has
broadcast same resentment to his staff.” Mot. at 5-6; Exh. B (Counsel Certificate of Good Faith)
at 1. In support, he offers two central arguments. Walsh first points to the fact that the Court’s
Order instructing him to respond to Defendants’ Motion to Dismiss states that his case could
otherwise be dismissed with prejudice. He claims that Defendant’s Motion did not seek
dismissal with prejudice, and the Court’s Order thus reflects “open bias and prejudice” towards
him. See Mot. at 2-3.
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Walsh is correct that Defendants did not specify whether they sought a dismissal with or
without prejudice. Because they left it ambiguous, and because such motions can result in
dismissal with prejudice, the Court added the phrase “with prejudice” to advise Plaintiff, per
Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992), and Local Rule 7(h), of all potential
ramifications should he fail to respond. In any event, “[t]o the extent that the plaintiff disagrees
with the Court’s orders issued to date in this case, such judicial actions alone almost never
establish a valid basis for a bias or partiality motion.” Caldwell v. Obama, 6 F. Supp. 3d 31, 43
(D.D.C. 2013), appeal dismissed (July 24, 2014); see SEC v. Loving Spirit Found. Inc., 392 F.3d
486, 494 (D.C. Cir. 2004) (“[W]e have found no case where this or any other federal court
recused a judge based only on his or her rulings. . . . ‘Almost invariably,’ the Supreme Court has
admonished, adverse judicial decisions give ‘proper grounds for appeal, not recusal.’”) (internal
citations omitted).
Walsh next posits that the Court’s description of his current and previous lawsuits as
“frivolous,” “fanciful,” and “fantastical” reflects underlying partiality. See Mot. at 8-10. Such
adjectives, however, are supported by both an objective reading of Plaintiff’s Complaint and the
opinions of several courts faced with nearly identical iterations of his suit. See Walsh v. Jones,
No. 13-928, ECF No. 74 (Order) at 1, 2014 WL 8763339 (D.D.C. June 3, 2014) (“There is no
factual basis whatsoever for this motion. . . . It is simply another frivolous claim based on a
bizarre government conspiracy theory dismissed by Judge Roberts.”), aff’d, No. 14-5221, 2015
WL 1606937 (D.C. Cir. Mar. 13, 2015); Walsh v. Hagee, 10 F. Supp. 3d 15, 19 (D.D.C. 2013)
(“Walsh relies on conjecture and unsupported assertions to reiterate the same allegations.”),
aff’d, No. 14-5058, 2014 WL 4627791 (D.C. Cir. July 11, 2014); Walsh v. Hagee, 900 F. Supp.
2d 51, 58-59 (D.D.C. 2012) (“This is the sort of bizarre conspiracy theory that warrants dismissal
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under the [patently insubstantial] standard.”), aff’d, No. 12-5367, 2013 WL 1729762 (D.C. Cir.
Apr. 10, 2013); Walsh v. FBI, 905 F. Supp. 2d 80, 82 n.1 (D.D.C. 2012) ) (“[Walsh] moved for
leave to file a petition for a writ of mandamus alleging fanciful, improbable allegations and
showing no good cause for the relief sought . . . .”), aff’d, No. 12-5386, 2015 WL 1606659 (D.C.
Cir. Mar. 9, 2015); Walsh v. United States, No. 05-0818, 2008 WL 2412968, at *2 n.11 (M.D.
Pa. June 10, 2008) (Walsh’s legal arguments are “replete with unsupported conclusions and
speculation . . . and [are] woefully insufficient.”), aff’d, 328 F. App’x 806 (3d Cir. 2009); Walsh
v. United States, 328 F. App’x 806, 810 (3d Cir. 2009) (“[W]e have considered the arguments in
Walsh’s briefs regarding all of his issues and find them to be of no merit.”). Plaintiff’s
argument, in short, fails to hold up in light of the plethora of court decisions characterizing his
allegations as fantastical and unsupported.
Moving next to § (b)(1), the Court concludes that Plaintiff has not articulated any bias
emanating from outside the four corners of the case. Instead, all he can manage is an allegation
that differing entries on the Court’s docket somehow demonstrate that “extrajudicial” sources are
at play. See Mot. at 6. He says that such entries show “this action has been prejudiced as Judge
Boasberg openly boasts of his prejudice and bias to his clerks outside of his rulings.” Id. Putting
aside the fact that “a law clerk is essentially an extension of his judge,” Bishop v. Albertson’s,
Inc., 806 F. Supp. 897, 899 (E.D. Wash. 1992), Walsh has not alleged that the Court or its law
clerks made any decision based on anything learned outside the case.
B. 28 U.S.C. § 144Title 28 U.S.C. § 144 provides that a judge should recuse himself whenever a party
“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.” See
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Loving, 392 F.3d at 492 (discussing procedural requirements for filing § 144 Motion).
“Importantly, the mere fact that a party has filed a § 144 motion, accompanied by the requisite
affidavit and certificate of counsel, does not automatically result in the challenged judge's
disqualification. Rather, recusal is required only upon the filing of a ‘timely and sufficient
affidavit.’” Strange v. Islamic Republic of Iran, 46 F. Supp. 3d 78, 81 (D.D.C. 2014) (citing 28
U.S.C. § 144) (internal citations omitted) (emphasis in original). “The question of whether the
motion and supporting affidavit is . . . legally sufficient is for this Court to determine in the first
instance.” Id. Legal sufficiency requires that facts be set forth with sufficient particularity that
“would fairly convince a sane and reasonable mind that the judge does in fact harbor the personal
bias or prejudice contemplated by the statute.” Id. (citing United States v. Hanrahan, 248 F.
Supp. 471, 475 (D.D.C. 1965)).
Plaintiff’s affidavit repeats, mostly word for word, the two allegations made in his
Motion. First, he reiterates his claim that the Court’s addition of the phrase “with prejudice” and
use of the adjective “fantastical” reflects prejudice. Compare Mot. at 2-4 with Exh. A (Affidavit
of Captain Rory M. Walsh) at 1. Second, he avers that this Court “openly boasts within his
office to his staff that he has prejudged this action,” and such “extrajudicial source” renders the
Court partial. Compare Mot. at 6 with Walsh Aff. at 1-2.
For all of the reasons described with respect to § 455, the Court finds the § 144 claim
deficient for setting forth “merely conclusory and therefore legally insufficient” allegations. See
United States v. Bennett, 539 F.2d 45, 51 (10th Cir. 1976); Harris v. Geico Gen. Ins. Co., 961 F.
Supp. 2d 1223, 1230 (S.D. Fla. 2013) (denying motion for recusal that “merely restates in
conclusory fashion [plaintiff’s] belief that the [court’s] comments at the hearing are indicative of
bias”). Plaintiff, in short, has offered no facts that would fairly convince a sane and reasonable
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mind to question this Court’s impartiality. See Baldyga v. United States, 337 F. Supp. 2d 264,
270 (D. Mass. 2004) (district judge declined to recuse himself where plaintiff alleged judicial
conspiracy without any facts to support such claim); Rademacher v. City of Phoenix, 442 F.
Supp. 27, 28 (D. Ariz. 1977) (denying motion for recusal that was “comprised of either irrelevant
matters or mere conclusory assertions”).
The Court, accordingly, will issue a contemporaneous Order denying the Motion.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: June 22, 2015
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