Klayman v. Judicial Watch, Inc.

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LARRY KLAYMAN,

Plaintiff, Civil Action No. 06-670 (CKK) v.

JUDICIAL WATCH, INC., et al.,

Defendants.

MEMORANDUM OPINION (October 13, 2010)

Currently pending before the Court is Plaintiff Larry Klayman’s (“Klayman”) [345]

Motion to Disqualify this Court pursuant to 28 U.S.C. § 144. This represents Klayman’s second

attempt to disqualify this Court in this case based on the allegation that certain of the Court’s

rulings, combined with the fact that the undersigned was appointed by former President William

J. Clinton, are evidence that the Court has an extrajudicial bias or prejudice against him. As the

Court previously made clear in denying Klayman’s initial request for disqualification, such

allegations are legally insufficient to support a request for disqualification. Klayman’s most

recent filings offer no new factual or legal support to the contrary. Accordingly, upon a

searching review of Klayman’s motion and the parties’ respective briefing, the relevant case law

and statutory authority, and the entire record herein, the Court shall DENY Klayman’s [345]

Motion to Disqualify the Court pursuant to 28 U.S.C. § 144. In addition, the Court has

conducted its own independent review of the record and is satisfied that no reasonable and

informed observer would question this Court’s impartiality. Accordingly, for the reasons set

forth below, the Court concludes that recusal is neither required nor warranted in this case. I. BACKGROUND

The Court shall assume familiarity with the numerous opinions issued by both this Court

and Magistrate Judge Alan Kay, which set forth in detail the factual background and allegations

of this case, and shall therefore provide only a brief summary of the instant case as is necessary

to provide context for resolution of the motion now before the Court. See Klayman v. Judicial

Watch, Inc., Civil Action No. 06-670, 2007 WL 140978 (D.D.C. Jan. 17, 2007); Klayman v.

Judicial Watch, Inc., Civil Action No. 06-670, 2007 WL 1034936 (Apr. 3, 2007); and Klayman

v. Judicial Watch, Inc., Civil Action No. 06-670, 2007 WL 1034937 (Apr. 3, 2007). Defendant

Judicial Watch, Inc. is a 501(c)(3) organization formed under the laws of the District of

Columbia and headquartered in the District of Columbia. Klayman v. Judicial Watch, Inc., Civil

Action No. 06-670, 2007 WL 1034937, at *2 (Apr. 3, 2007). Defendant Fitton is President of

Judicial Watch, Defendant Orfanedes is the Secretary and a Director of Judicial Watch, and

Defendant Farrell is a Director of Judicial Watch. Id. Plaintiff Larry Klayman is the self-

described founder and former Chairman, General Counsel, and Treasurer of Judicial Watch, who

resides in and practices law in the State of Florida. Id. Klayman, an attorney, is currently

representing himself pro se in this matter.

Klayman’s Second Amended Complaint and Judicial Watch’s Amended Counterclaim in

this action include various legal claims stemming from events that occurred after Klayman left

Judicial Watch in September 2003. Id. Many of these claims arise out of the Severance

Agreement entered into by Klayman and Judicial Watch on September 19, 2003. Id. The Court

need not address the specifics of the parties’ claims at this time, other than to note that, inter alia,

Klayman asserts claims against the Defendants under the Lanham Act for unfair competition in

2 the form of false advertising and false endorsements and for breach of contract relating to the

Severance Agreement. 2d Am. Compl. ¶¶ 97-106; 115-162. Judicial Watch asserts

counterclaims against Klayman under the Lanham Act for trademark infringement, unfair

competition in the form of false advertising and false association, and cybersquatting. Am.

Count. ¶¶ 84-116.

The instant litigation was initially filed by Klayman on April 12, 2006. See generally

Compl. Resolution of this matter has been delayed for several years, largely as a result of

Klayman’s own repeated failure to comply with the Court’s deadlines in this matter. See, e.g.,

May 12, 2008 Order, Docket No. [166] (describing Klayman’s efforts to “stonewall” and

“obstruct[]” discovery in this matter); Mar. 24, 2009 Order, Docket No. [301] (describing the

“voluminous number of filings in this case resulting from Klayman’s obstinance at every stage of

this case”); see also Klayman v. Judicial Watch, Inc., 628 F. Supp. 2d 98, 106-08 (D.D.C. 2009)

(describing Klayman’s demonstrated failure to comply with Court-ordered deadlines).

The parties finally reached the summary judgment stage in late 2008. However, after the

parties’ cross-motions for summary judgment were ripe but before the Court had an opportunity

to rule on them, Klayman filed his first request for disqualification of this Court. See Pl.’s Mot.

for Recusal and/or Disqualification, Docket No. [298]. Klayman moved the Court to recuse

itself pursuant to 28 U.S.C. § 455(a), which permits a litigant to seek recusal of a federal judge

“in any proceeding in which his impartiality might reasonably be questioned.” As set forth in his

motion, Klayman alleged that recusal was warranted under section 455(a) for largely the same

reasons he now claims require recusal under section 144, namely: (1) various rulings issued by

the Court created an appearance of bias against him; and (2) that the undersigned was appointed

3 to the federal bench by former President Clinton, against whose administration Klayman was a

self-described “strong and controversial advocate,” created an appearance of bias as well. See id.

By Order and Memorandum Opinion dated June 25, 2009, the Court denied Klayman’s motion

for recusal, finding that “Klayman’s allegation that recusal is warranted or that an appearance of

bias against him has been created because of the Court’s rulings in this case, along with the fact

that the undersigned was appointed by former President William J. Clinton, completely lack

merit.” Klayman v. Judicial Watch, Inc., 628 F. Supp. 2d 98, 111 (D.D.C. 2009). The Court

therefore proceeded to rule on the parties’ cross-motions for summary judgment.

With the parties’ dispositive motions resolved, the instant case proceeded to the pretrial

stage of litigation, and the Court held an initial pretrial status conference on April 30, 2010.

Because of deficiencies in the parties’ Joint Pretrial Statement — particularly as concerns

Klayman’s portion of the statement — the pretrial status was continued until July 7, 2010, and

the parties were ordered to submit an amended Joint Pretrial Statement. See Apr. 30, 2010

Order, Docket No. [334]. The pretrial conference and the parties’ deadline for submitting their

amendments were subsequently continued upon motion by Klayman for an extension of time.

See June 6, 2010 Order, Docket No. [338]. The parties’ revisions to the Joint Pretrial Statement

were therefore due by no later than July 12, 2010, and the final pretrial status conference was

scheduled for August 6, 2010. Id.

Klayman, however, did not file the required modifications to the Joint Pretrial Statement

by July 12, 2010, as ordered, instead filing that same day a Motion to Stay all Proceedings

Pending Adjudication of Motion to Disqualify Trial Judge. See Docket No. [341]. Importantly,

Klayman did not actually file the proposed motion to disqualify at that time; he instead simply

4 indicated that he intended to file a motion to disqualify pursuant to section 144 by no later than

July 16, 2010, and therefore requested a stay of all proceedings.1 Id. However, July 16, 2010,

came and went without any such motion being filed. Rather, on July 19, 2010, three days past

his own proposed deadline, Klayman instead filed a Notice with the Court repeating his intention

to file a motion to disqualify and indicating that such motion would now be filed by no later than

July 20, 2010. See Docket No. [343]. Once again, however, Klayman failed to file the proposed

motion by his own proposed deadline of July 20, 2010. Indeed, it was not until July 26, 2010,

that Klayman filed the now-pending Motion to Disqualify pursuant to 28 U.S.C. § 144. See Pl.’s

Mot. to Disqualify, Docket No. [345].

As set forth in the present Motion to Disqualify, Klayman contends that disqualification

of this Court is necessary because: (1) judicial rulings in this case, and in a separate, unrelated

civil action in which Klayman serves as counsel of record, are evidence of the Court’s

extrajudicial bias against him; and (2) the undersigned was appointed to the federal bench by

former President Clinton and is alleged to have connections to and associations with the

Democratic party, and is therefore biased against Klayman, who states that he filed numerous

lawsuits against the Clinton administration and has a self-described reputation of being “anti-

Democratic.” See generally Pl.’s Mot. to Disqualify. Defendants filed an opposition to the

Motion on August 12, 2010, asserting that it is both untimely and legally insufficient to support

1 As set forth in the accompanying Order, Klayman’s [341] Motion to Stay is now moot and shall be denied for that reason. In addition, Defendants have filed a related [342] Motion to Strike, in which Defendants seek to strike Klayman’s statement of the case, proposed list of witnesses, proposed list of exhibits and proposed deposition testimony, based upon Klayman’s failure to comply with this Court’s Orders governing the filing of the amended Joint Pretrial Statement. The Court shall hold in abeyance Defendants’ Motion to Strike and shall resolve the motion in the context of the final pretrial status conference in this case.

5 disqualification in this case and is yet another attempt by Klayman to further delay resolution of

this matter. See Defs.’ Opp’n, Docket No. [347]. After a delay of three weeks resulting from

Klayman’s multiple requests for an extension of time, see Docket Nos. [349]; [350]; [351];

[352], Klayman filed a reply in support of his Motion on September 15, 2010. See Pl.’s Reply,

Docket No. [354]. Accordingly, the Motion to Disqualify is now fully briefed and ripe for this

Court’s resolution.

II. LEGAL STANDARD AND DISCUSSION

To recuse a judge under section 144, a litigant must submit, along with its motion, an

affidavit stating “the facts and the reasons for [its] belief that bias or prejudice exists.” 28 U.S.C.

§ 144. Upon the filing of a “timely and sufficient affidavit,” section 144 mandates that the

assigned “judge shall proceed no further, but another judge shall be assigned to hear such

proceeding.” Id.; see also Bhd. of Locomotive Firemen and Enginemen v. Bangor & Aroostook

R.R. Co., 380 F.2d 570, 576 (D.C. Cir. 1967) (“The disqualification statute, 28 U.S.C. § 144, is

mandatory and automatic, requiring only a timely and sufficient affidavit alleging personal bias

or prejudice of the judge.”). “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.” Robertson v. Cartinhour, 691 F. Supp. 2d 65, 77

(D.D.C. 2010); see also United States v. Miller, 355 F. Supp. 2d 404, 405 (D.D.C. 2005)

(“disqualification is not automatic upon submission of affidavit and certificate”). Rather, recusal

is required only upon the filing of a “timely and sufficient affidavit.” 28 U.S.C. § 144.

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

6 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). First, with respect to the timeliness of the motion, section 144 is itself silent as to “what

the timeliness requirement means where, as in this case, the recusal motion rests on events

occurring after proceedings began.” S.E.C. v. Loving Spirit Found., Inc., 392 F.3d 486, 492

(D.C. Cir. 2004). In such circumstances, courts “have required the affidavit to be filed ‘at the

earliest moment.’” Id. As the D.C. Circuit has made clear, the timeliness requirement is

“[c]rucial to the integrity of the judicial process,” as it “ensures that a party may not wait and

decide whether to file based on ‘whether he likes subsequent treatment that he receives.’” Id.

(quoting In re United Shoe Mach. Corp., 276 F.2d 77, 79 (1st Cir. 1960)).

Second, 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.” Loving Spirit Found., 392 F.3d at 496; 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 474 (internal citations omitted). “The identifying

facts of time, place, persons, occasion and circumstances must be set forth, with at least that

7 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 counsel of record

and that the facts set forth therein have been stated with sufficient particularity, the Court

must then

ascertain[] whether these facts would fairly convince a sane and reasonable mind that the judge does in fact harbor the personal bias or prejudice contemplated by the statute. It is well established that the facts must give fair support to the charge of a bent mind that may prevent or impede impartiality. The basis of the disqualification is that personal bias or prejudice exists, by reason of which the judge is unable to impartially exercise his functions in the particular case. The factual allegations must establish by more than a prima facie case, but not beyond a reasonable doubt that the mind of the judge is closed to justice; that the judge has a personal bias or prejudice against the affiant which is of such a nature, and of such intensity, that it would render the judge unable to give the affiant the fair trial to which every litigant is entitled. Obviously, such a showing could rarely be made.

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 (1966)); see also Liteky v. United States, 510 U.S. 540, 554 (1994) (predispositions

8 developed during proceedings are rarely sufficient). For the reasons set forth below, the Court

finds that the Motion to Disqualify and supporting Affidavit are both untimely and legally

insufficient to support disqualification.

A. The Motion to Disqualify Pursuant to Section 144 is Untimely

As observed above, the timeliness requirement is “[c]rucial to the integrity of the judicial

process” and is intended to ensure that a party is not simply filing the motion on the basis of

subsequent unfavorable rulings or treatment by the Court. Spirit Loving Found., 392 F.3d at 492.

Even the briefest review of the docket in this case confirms that Klayman’s Motion to Disqualify

is far from timely. For this reason alone, the motion must fail. See id. (affirming dismissal of

untimely motion to disqualify under section 144).

First, to the extent the request for disqualification is based on the undersigned’s alleged

association with the Democratic Party and appointment to the federal bench by former President

Clinton, it is readily apparent that Klayman did not file the instant motion at the “earliest

moment.” Klayman should have been aware as early as April of 2006, when this case was

originally assigned to this Court, that the undersigned had been appointed by former President

Clinton. Moreover, the other events identified by Klayman in his Affidavit and relied upon to

support his claim of bias arising from the undersigned’s alleged association with the Democratic

party, of which Klayman is reported to be critical, occurred as far back as the 1990’s, see Pl.’s

Aff. ¶ 13 (discussing events surrounding the undersigned’s nomination to the federal bench and

certain other events that occurred during the Clinton administration), with the most recent event

allegedly occurring in October 2009, see id. (indicating that Klayman released a book critical of

the judiciary, including the undersigned, in October of 2009). Klayman’s Motion is therefore

9 untimely insofar as it is premised on the undersigned’s alleged association with the Democratic

Party and appointment to the federal bench by former President Clinton. See Spirit Loving

Found., 392 F.3d at 492-93 (rejecting the timeliness of section 144 affidavit for recusal where

party waited more than two years after the first order of which it complained and over six months

after the last).

Second, insofar as Klayman’s Motion to Disqualify is premised on the Court’s rulings in

this case, the Motion is equally untimely. Klayman complains of decisions in this case dating as

far back as 2008, with the most recent substantive ruling identified in the Affidavit having been

issued in June 2009, more than a year prior to the filing of the instant Motion. See Pl.’s Aff. ¶

13. In particular, Klayman identifies the following decisions by this Court as demonstrating bias

and/or prejudice, listed below in chronological order:2

(a) the Court’s decision denying his request for a protective order, Pl.’s Aff. ¶ 13, which appears to refer to the Court’s April 2, 2008 Order affirming Magistrate Judge Kay’s decision denying a motion by Klayman to quash certain subpoenas issued by Defendants or, alternatively, for a protective order, see Apr. 2, 2008 Order, Docket No. [134];

(b) the Court’s discovery rulings permitting “discovery into [his] divorce,” Pl.’s Aff. ¶ 13, which appears to refer to the Court’s May 28, 2008 Order overruling Klayman’s objections to a discovery ruling issued by Magistrate Judge Kay in this case, see May 28, 2008 Order, Docket No. [185]; see also Klayman v. Judicial Watch, Inc., 628 F. Supp. 2d 98, 102-04 (D.D.C. 2009) (discussing in detail the Court’s rulings regarding Defendants’ request to take discovery from Klayman’s ex-wife);

2 The Court notes that Klayman has generally failed to specifically identify by docket number or date the particular orders of which he now complains. The public docket in this case, which was initially filed more than four years ago, contains in excess of 350 entries at present. Klayman’s failure to properly cite to the record or to identify the rulings of which he now complains has significantly and needlessly increased the difficulty in determining which of the hundreds of rulings in this case are now at issue. Nonetheless, to the extent the Court has been able to determine which of its rulings are likely described by Klayman in his Affidavit, the Court has identified these decisions above.

10 (c) the Court’s order denying his requests for an extension of time to file his summary judgment briefing, Pl.’s Aff. ¶ 13, by which he appears to refer to a series of Orders issued by the Court in late December 2008 and early January 2009, see Dec. 18, 2008 Min. Order; Dec. 23, 2008 Min. Order; Dec. 30, 2008 Order, Docket No. [293]; Jan. 7, 2009 Min. Order; see also Klayman v. Judicial Watch, Inc., 628 F. Supp. 2d 98, 105-09 (D.D.C. 2009) (discussing in detail the Court’s rulings regarding Klayman’s multiple requests for extensions of time);

(d) the Court’s ruling “dismiss[ing] most of [his] case and barr[ing] [him] from presenting evidence on damages,” Pl.’s Aff. ¶ 13, which appears to reference the Court’s June 25, 2009 Order and Memorandum Opinion resolving the parties’ cross- motions for summary judgment, see June 25, 2009 Mem. Op., Docket No. [319]; and

(e) the Court’s decision denying his initial motion for disqualification, Pl.’s Aff. ¶ 13, which was issued on June 25, 2009, see June 25, 2009 Mem. Op., Docket No. [315].

Given that Klayman’s allegations of bias focus on rulings that were all issued at least one year,

and in some cases more than two years, prior to the filing of his section 144 Motion, it is clear

that Klayman’s Motion to Disqualify is untimely insofar as it is based on the Court’s rulings in

this case. See Spirit Loving Found., 392 F.3d at 492-93.

Such a finding is particularly warranted where, as here, Klayman has continued to

actively participate in the present litigation, despite the occurrence of the events of which he now

complains. In the intervening time period since the Court first issued the rulings identified by

Klayman in his Affidavit, the parties have completed summary judgment briefing, the Court has

ruled on the merits of those motions, and the parties have begun preparing for trial in this matter.

Klayman’s participation in each of these substantive stages of litigation further counsels against

disqualification. Id. at 493 (“courts have observed that filing motions between the events

complained of and submission of the affidavit weighs heavily against a finding of timeliness”).

Indeed, Klayman himself alleges that this Court has acted with bias and/or prejudice towards him

“over the years.” Pl.’s Aff. ¶ 4. Yet, despite this claim, Klayman waited until shortly before the

11 final pretrial status conference in this case to file the instant Motion to Disqualify. The timing of

the motion strongly suggests that this is yet another attempt by Klayman to delay final resolution

of the pending litigation and to avoid rulings that may be unfavorable to his case. Cf. S.E.C. v.

Grossman, 887 F. Supp. 649, 658 (S.D.N.Y. 1995) (finding motion to disqualify untimely where

party “chose to delay any motion and gamble” on outcome of substantive rulings); E. & J. Gallo

Winery v. Gallo Cattle Co., 967 F.2d 1280, 1296 (9th Cir. 1992) (affirming denial of motion to

disqualify where “unexplained delay suggest[ed] that the recusal statute [was] being misused for

strategic purposes”).

Moreover, as to these first two allegations of bias, the Court’s finding of untimeliness is

further supported by the fact that these same allegations formed the basis of Klayman’s first

motion to disqualify this Court under 28 U.S.C. § 455(a) filed in February of 2009. See Mot. for

Recusal and/or Disqualification, Docket No. [298]. Pursuant to 28 U.S.C. § 455(a), a judge is

required to “disqualify himself in any proceeding in which his impartiality might reasonably be

questioned.” Given that these alleged sources of bias were known to Klayman at the time of the

filing of his first motion to disqualify in February 2009, it is clear that the present Motion to

Disqualify — based on those same factual allegations but filed more than a year and a half later

— is untimely. At a minimum, Klayman should have moved for recusal under section 144 at the

same time that he moved for recusal under section 455(a), to the extent that both motions are

premised on the same allegations of bias. Klayman has offered no explanation for such a lengthy

delay in filing the present motion.

Accordingly, to the extent Klayman’s Motion is based on the Court’s alleged political

affiliations and its rulings in this case, his unexplained delay in filing the Motion to Disqualify

12 renders the Motion untimely. Klayman’s reliance on the Court’s more recent rulings in Sataki v.

Broadcasting Board of Governors, Civ. Action No. 10-534, an unrelated, separate civil action in

which Klayman serves as counsel of record, does not save the Motion from this finding of

untimeliness. Klayman contends that, notwithstanding the Court’s allegedly long-standing bias

against him, the present Motion is timely filed because such bias has “recently . . . become much

more acute,” as demonstrated by the Court’s rulings in the Sataki matter. See Pl.’s Aff. ¶ 4.

However, the Court’s last substantive ruling in the Sataki civil action was issued on July 7, 2010

— more than two-and-a-half weeks prior to the filing of the instant Motion to Disqualify. Once

again, Klayman offers no explanation for this delay. In such circumstances, D.C. Circuit

precedent counsels that an unexplained delay of this length renders the filing of his Affidavit for

disqualification untimely. See Smuck v. Hobson, 408 F.2d 175, 183 (D.C. Cir. 1969) (expressing

“serious doubt” about the timeliness of an affidavit based on remarks made by the judge “more

than two weeks before” and a law review published by the judge “more than a year” earlier). See

also In re Martin-Trigona, 573 F. Supp. 1237, 1244-45 (D. Conn. 1983) (12-day delay from time

movant indicated probability of recusal motion to time motion was actually filed rendered motion

untimely); Bumpus v. Uniroyal Tire Co., 385 F. Supp. 711, 712 (E.D. Pa. 1974) (finding section

144 motion and affidavit untimely where based on events occurring “from two weeks to as far

back as two months before”). It is therefore clear that Klayman’s Motion to Disqualify under

section 144 is untimely. For this reason alone, Klayman’s Motion to Disqualify pursuant to 28

U.S.C. § 144 must be denied.

13 B. The Motion to Disqualify Does Not Strictly Comply with the Certification Requirement Set Forth in 28 U.S.C. § 144

In addition, although neither party has raised the issue, the Court notes that section 144

requires that a party’s affidavit submitted in support of a motion for disqualification under this

statutory provision “be accompanied by a certificate of counsel of record stating that it is made in

good faith.” 28 U.S.C. § 144. The certification requirement is not simply a pro forma procedural

obligation but is key to the integrity of the recusal process. Because the Court must accept as

true all factual allegations asserted in the affidavit, even if the Court knows such allegations to be

untrue, the certification requirement is essential to “guard against the removal of an unbiased

judge through the filing of a false affidavit.” Loving Spirit Found., 392 F.3d at 496. The

certification requirement therefore serves as a “check on abuse of the recusal process,” assuring

the Court that the statements in the affidavit are made in good faith. Id. Given the importance of

the certification, the failure to comply with this requirement is not simply a procedural error.

United States v. Miller, 355 F. Supp. 2d 404, 405-06 (D.D.C. 2005) (“failure to make this

certification is grounds for denying the motion”).

Here, there are two problems with the certification submitted by Klayman in support of

this Motion to Disqualify. First, although Klayman is himself a licensed attorney admitted to

practice before this Court, he is acting as a pro se Plaintiff in the instant action and not as counsel

of record. Whether a pro se litigant is in fact able to file a motion for disqualification under

section 144, notwithstanding the statutory requirement that the accompanying affidavit be

certified as made in good faith by the “counsel of record,” appears to be one of first impression in

this Circuit, and courts in other jurisdictions have varied in their treatment of pro se motions

14 under section 144. For example, some courts have held that a pro se party cannot file a motion

for disqualification under section 144 as they cannot comply with the statute’s explicit

certification requirement. See, e.g., Buckenberger v. Reed, Civ. Action No. 6-7393, 2010 WL

3523021, at *1 (E.D. La. Aug. 31, 2010) (concluding “that a pro se litigant may not use 28

U.S.C. § 144 as a means to seek recusal because of the certification requirement” and therefore

denying the motion). Other courts have concluded that a pro se litigant may file a motion under

this provision so long as the party provides a certificate of good faith signed by a member of the

bar, albeit not counsel of record. See, e.g., United States v. Rankin, 1 F. Supp. 2d 445, 450 (E.D.

Pa. 1998) (holding that Ҥ 144 requires that, in the case of a pro se movant, the certificate of

good faith that accompanies the § 144 affidavit be signed by any member of the bar of the

court”). Still other courts have determined that it is appropriate to consider the merits of a pro se

litigant’s section 144 motion notwithstanding the lack of any certification of good faith by

counsel of record and/or a member of the bar. See, e.g., Melvin v. Social Sec. Admin., Civ.

Action No. 5:09-235, 2010 WL 3743543, at *2 (E.D.N.C. Sept. 14, 2010) (noting “that the plain

language of § 144 precludes a pro se plaintiff bringing [] a motion [for disqualification] without a

certificate of good faith signed by a member of the bar,” but nonetheless “ proceed[ing] to

address the merits of plaintiff’s motion in the spirit of the liberality afforded to pro se litigants”);

Williams v. New York City Housing Auth., 287 F. Supp. 2d 247, 249 (S.D.N.Y. 2003) (noting the

insufficiency of the pro se movant’s affidavit where it lacked the certificate of counsel, but

addressing the movant’s arguments). The Court ultimately finds that it need not resolve the

question of whether Klayman, as a pro se litigant, may move for disqualification under section

144. As discussed below, the Court finds that Klayman’s Affidavit, even if considered, is legally

15 insufficient to support disqualification under section 144.

Second, although Klayman has purported to file his own certification of good faith under

section 144, he has certified therein only that the “motion is being filed in good faith;” he has not

similarly certified that the accompanying Affidavit and the substantive factual allegations

contained therein have also been filed in good faith. See Pl.’s Mot. to Disqualify at 1-2. Nor

does his Affidavit itself contain any language certifying that the factual allegations set forth

therein have been submitted in good faith. See generally Pl.’s Aff. Accordingly, even assuming

that Klayman’s own certification of good faith as a pro se litigant is sufficient under section 144,

Klayman has not presented a signed “certificate stating that both the motion and declaration are

made in good faith.” Loving Spirit Found., 392 F.3d at 496 (emphasis added). Again, however,

because the Court finds that the substantive factual allegations set forth in the Affidavit, even if

considered on the merits, are not legally sufficient to warrant disqualification, the Court shall

proceed to consider the merits of the present Motion to Disqualify, notwithstanding Klayman’s

failure to submit a certification of good faith, either by himself as a pro se litigant or by counsel

of record, as to both the motion and affidavit.3

C. The Facts Set Forth in Klayman’s Affidavit are Legally Insufficient to Warrant Disqualification

Ultimately, Klayman’s Motion to Disqualify must be denied because the facts set forth in

the supporting Affidavit, even if accepted as true, are legally insufficient to demonstrate actual

3 The Court is also cognizant that section 455 imposes a duty upon this Court to consider recusal sua sponte, and, for this reason as well, shall proceed to consider Klayman’s substantive allegations in support of his Motion to Disqualify. See United States v. Barrett, 111 F.3d 947, 955 (D.C. Cir. 1997) (recognizing that “section 455 requires judges to consider recusal sua sponte”).

16 bias warranting disqualification under section 144. Moreover, the Court has also conducted its

own independent review of the record in this case, including Klayman’s present Motion and

Affidavit, and is satisfied that no reasonable and informed observer would question this Court’s

impartiality. Indeed, the Court has already ruled that allegations of bias based on the Court’s

appointment by former President Clinton and the Court’s judicial rulings are legally insufficient

to warrant or justify disqualification. See Klayman v. Judicial Watch, Inc., 628 F. Supp. 2d 98

(D.D.C. 2009).4 Klayman offers no new factual or legal support that would suggest the Court’s

prior rulings on this point were in error, and for good reason. The case law is clear that neither

the Court’s judicial rulings nor its alleged political affiliations support disqualification.

1. The Court’s Judicial Rulings Do Not Form a Proper Basis for Disqualification

First, as the Court has previously made clear, “judicial rulings alone almost never

constitute a valid basis for a bias or partiality motion.” Liteky, 510 U.S. at 555. Such rulings by

4 While Klayman’s initial motion for disqualification and the Court’s ruling denying that motion were each based on section 455(a) — and the present motion by contrast focuses on section 144 — the substantive standard for recusal based on alleged bias under the two sections is largely the same. See, e.g., Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287, 1301 (D.C. Cir. 1988) (“It is well settled that a motion for recusal under 28 U.S.C. § 144 or § 455, must be based upon prejudice from an extra-judicial source.”); United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997) (“The 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.’”) (quoting United States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986)). To the extent the standard under the sections differ, it is that section 144 requires proof of actual bias whereas section 455(a) requires only the reasonable appearance of bias. Hoffman v. Caterpillar, Inc., 368 F.3d 709, 718 (7th Cir. 2004); cf. Apple v. Jewish Hosp. & Med. Ctr., 829 F.2d 326, 333 (2d Cir. 1987) (recognizing that, while section 455(a) provides “broader grounds for disqualification than . . . § 144,” “when, as here, a party has not alleged any grounds for recusal other than those relating to the district court’s alleged bias or prejudice, those broader grounds are not implicated”). Accordingly, a failure to show an appearance of bias under section 455(a) invariably results in a failure to show actual bias under section 144.

17 themselves “cannot possibly show reliance upon an extrajudicial source” and “can only in the

rarest circumstances evidence the degree of favoritism or antagonism required . . . when no

extrajudicial source is involved.” Id. Here, although Klayman complains that the Court has

ruled unfavorably against him, he has failed to identify with the required degree of particularity

any extrajudicial source of bias related to the Court’s rulings. See generally Pl.’s Aff. As the

Court’s discussion above makes clear, “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

Grinnell Corp., 384 U.S. at 583); see also Liteky, 510 U.S. at 554 (predispositions developed

during proceedings are rarely sufficient); Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d

1287, 1301 (D.C. Cir. 1988) (“It is well settled that a motion for recusal under 28 U.S.C. § 144 or

§ 455 must be based upon prejudice from an extra-judicial source.”). Klayman’s conclusory

allegations and statements of opinion that the Court “has demonstrated an extra-judicial bias and

prejudice” against him are wholly insufficient on this point. See Hanrahan, 248 F. Supp. at 474

(the affidavit “must state facts as opposed to conclusions” and must do so with “particularity”);

cf. Karim-Panahi v. U.S. Congress, No. 03-5186, 2004 WL 1588167, at *4 (D.C. Cir. Jul. 14,

2004) (per curiam) (holding that under section 455, “[a] judge should not recuse himself based

upon conclusory, unsupported or tenuous allegations”).5 Accordingly, while his dissatisfaction

5 The only specific allegation that could arguably be construed as asserting an extrajudicial source of bias, as is required under section 144, is Klayman’s assertion that he published a book in October of 2009, in which he was “critical of [the undersigned], among other jurists and politicians and media figures.” Pl.’s Aff. ¶ 6. Importantly, however, Klayman himself does not allege that the Court itself was actually aware of the existence of this book or the allegedly critical comments contained therein. See id. Therefore, even assuming the truth of the allegations in the Affidavit, as the Court must, there is no claim that this Court had

18 with the Court’s rulings may provide a proper ground for appeal, his mere disagreement with the

Court’s judicial rulings does not provide a proper ground for recusal. See Liteky, 510 U.S. at

540; Spirit Loving Found., 392 F.3d at 494 (“Indeed, we have found no case where this or any

other federal court recused a judge based only on his or her rulings.”); Karim-Panahi, 2004 WL

1588167, at *4 (where plaintiff has failed to point “to anything that would suggest that [the

Court] has formed an opinion on some basis other than her participation in this case,” recusal is

inappropriate).

The Court has previously addressed in great detail many of Klayman’s complaints

regarding the Court’s rulings in the instant case, and therefore need not do so again here, as it is

clear that such rulings do not constitute a valid basis for recusal. See Klayman v. Judicial Watch,

Inc., 628 F. Supp. 2d 98, 101-10 (D.D.C. 2009). Moreover, to the extent Klayman complains of

the Court’s decisions in the Sataki matter, the Court notes that the plaintiff in that action has

voluntarily dismissed nearly all of the substantive claims in that case, see Civ. Action No. 10-

534, Docket No. [67] (Notice of Voluntary Dismissal), and has failed to appeal the Court’s ruling

denying her request for a preliminary injunction. The D.C. Circuit has cautioned that under such

circumstances, “even if a particular ruling or a series of rulings revealed bias, we doubt very

much that a recusal motion would be proper where, as here, the movant could have appealed the

challenged decisions but failed to do so.” Spirit Loving Found., 392 F.3d at 494.

Thus, while it is clear that Klayman is displeased with the Court’s rulings in the instant

action and in the Sataki matter, his disagreement with the Court’s decisions does not provide a

proper ground for recusal. Liteky, 510 U.S. at 555. As the D.C. Circuit has aptly observed, “if

knowledge of this book or any of the statements allegedly made therein.

19 disqualification were required ‘merely as a result of counsel’s disagreement with judicial

conclusions reached in the course of litigation, the judicial system would grind to a halt.’”

Loving Spirit Found., 392 F.3d at 494 (quoting Barnett v. City of Chicago, 952 F. Supp. 1265,

1269 (N.D. Ill. 1998)). Klayman’s allegations of bias premised on the Court’s judicial rulings

are therefore legally insufficient and do not warrant disqualification.6

2. The Court’s Alleged Political Affiliations and Appointment to the Federal Bench by Former President Clinton Do Not Form a Proper Basis for Disqualification

Second, as the Court has previously made clear, the fact that the undersigned was

appointed to the federal bench by former President Clinton, of whom Klayman has allegedly

been critical in the past, does not warrant or justify disqualification. See Klayman v. Judicial

Watch, Inc., 628 F. Supp. 2d 98, 110-11 (D.D.C. 2008) (“[I]t is clear that the mere fact that the

undersigned was appointed by the former Clinton administration — where former President

Clinton is neither a party to or otherwise involved with this lawsuit — does not warrant or

require recusal in the instant case.”). Nor does the claim that the Court is allegedly connected to

and associated with the Democratic party, even if assumed true, support recusal of this Court.

The case law is clear that recusal is not warranted in this circumstance. See Karim-Panahi, 2004

WL 1588167, *4 (affirming lower court’s denial of motion for recusal based on allegations that

the judge was “biased because of her ‘political-religious connections’ and her alleged loyalty to

6 Cognizant that the Court is required to accept Klayman’s allegations as true in evaluating the legal sufficiency of his section 144 Affidavit, the Court has not addressed herein the actual merits or veracity of such allegations regarding the Court’s prior judicial rulings. The Court only pauses here briefly to emphasize that its silence should not be read as agreement with Klayman’s characterization of the record in this case; to the contrary, review of the Court’s rulings demonstrates that Klayman’s Motion to Disqualify is premised on a flawed and wholly inaccurate characterization of this Court’s prior judicial decisions.

20 those who selected, confirmed and appointed her”); see also MacDraw, Inc. v. CIT Grp. Equip.

Fin., Inc., 138 F.3d 33, 38 (2d Cir. 1998), cert. denied, 525 U.S. 874 (1998) (plaintiff’s7

allegation that “a judge is not impartial solely because an attorney is embroiled in a controversy

with the administration that appointed the judge” is insufficient grounds for recusal). As the

Second Circuit has persuasively stated,

Judges generally have political backgrounds to one degree or another but must be presumed, absent more, to be impartial. At least in the federal system, judges separate themselves from politics when going on the bench, and their life tenure reduces any felt reliance on political patrons. Indeed, a suggestion of partiality based on the appointing administration may often be a double-edged sword. If a Democratic appointee’s impartiality toward lawyers publicly identified as active Republicans may be questioned, a Republican appointee’s impartiality toward lawyers’ adversaries might similarly be questioned on the ground that a Republican judge might favor the Republican lawyers.

MacDraw, 138 F.3d at 38. Indeed, courts have held that recusal is not warranted even when the

President responsible for nominating the judge is actually a party to the litigation. See, e.g., In re

Executive Office of President, 215 F.3d 25, 25 (D.C. Cir. 2000) (“Hearing a case involving the

conduct of the President who appointed me will not create in reasonable minds, with knowledge

of all relevant circumstances that a reasonable inquiry would disclose, a perception that [my]

ability to carry out judicial responsibilities with integrity, impartiality, and competence [would

be] impaired.”) (internal citation and quotation marks omitted). Cf. Reddy v. O’Connor, 520 F.

Supp. 2d 124, 128 (D.D.C. 2007) (in a case involving Chief Justice John Roberts, concluding

that “no reasonable and informed observer would question the impartiality of the undersigned

based on the Chief Justice’s appointment of the undersigned [Judge John D. Bates] to the

7 The Court notes that Klayman was counsel of record for plaintiff in this case. See MacDraw, 138 F.3d at 35.

21 [Foreign Intelligence Surveillance Court].”). Accordingly, neither the fact that the undersigned

was appointed by the former Clinton administration nor the Court’s alleged connection to the

Democratic party warrant or require recusal in the instant case.8

III. CONCLUSION

In conclusion, the Court finds that Klayman has failed to submit a “timely and sufficient

affidavit” as is required to support disqualification under 28 U.S.C. § 144. First, the Motion to

Disqualify and supporting Affidavit were not timely filed at the “earliest moment,” and the

Motion must be denied for this reason alone. Second, Klayman has failed to comply with the

certification requirement set forth in 28 U.S.C. § 144. Third and finally, the factual allegations

set forth in the Affidavit are, even if true, legally insufficient to support a finding that the Court

has an actual extrajudicial bias or prejudice. The Affidavit largely consists of conclusory

assertions and opinions, which lack the necessary degree of particularity required in a section 144

affidavit. Moreover, neither of the grounds asserted in Klayman’s Affidavit warrant or require

disqualification under section 144. It is well settled that complaints regarding the Court’s

8 The Court notes that Klayman also alleges that recusal is warranted because the undersigned’s spouse, also a lawyer, “played a role which was useful to President Clinton during the infamous Monica Lewinsky scandal.” Pl.’s Aff. ¶ 6. It is entirely unclear from Klayman’s vague and conclusory assertions how this alleged fact, even if true, would tend to foster or create an actual bias on the part of the undersigned in this case. Nor has Klayman provided any legal support for his apparent claim that recusal is warranted and necessary where, a decade or more ago, the presiding judge’s spouse represented an individual, who is not a party to the instant litigation, in a matter wholly unrelated to the current lawsuit. Accordingly, as Klayman alleges no financial or personal concerns implicated by the representation nor provides any facts or evidence that would cause a reasonable and informed observer to question this Court’s impartiality, the Court finds that this claim, even if true, is legally insufficient to support disqualification. Cf. Microsoft Corp. v. United States, 530 U.S. 1301, 1301 (2000) (order by Chief Justice William H. Rehnquist denying motion to recuse where his son’s law firm represented a party but his personal and financial concerns were unaffected).

22 judicial rulings in this case as well as in the separate, unrelated Sataki matter do not provide a

proper ground for recusal. Although it is clear that Klayman is displeased with the substance of

certain of those decisions, disqualification is not required merely because he disagrees with the

Court’s judicial rulings, and Klayman has failed to identify with particularity any alleged

extrajudicial source of bias. It is also equally established that disqualification is not warranted or

required merely because the undersigned was appointed to the federal bench by former President

Clinton and is alleged to have connections to and associations with the Democratic party.

Accordingly, consistent with its obligation to determine in the first instance whether the

Motion and supporting Affidavit are timely filed and legally sufficient to require disqualification,

the Court finds that the instant Motion to Disqualify is both untimely and legally insufficient.

Disqualification under 28 U.S.C. § 144 is therefore neither required nor warranted. The Court is

also satisfied, upon its own independent review of the record, that no reasonable and informed

observer would question this Court’s impartiality. Klayman’s [345] Motion to Disqualify this

Court pursuant to 28 U.S.C. § 144 is DENIED. An appropriate Order accompanies this

Memorandum Opinion.

Date: October 13, 2010

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge