McBrien v. United States

Federal Claims

McBrien v. United States

86 Fed. Cl. 390, 2009 WL 567203

CourtUnited States Court of Federal Claims

DecidedMarch 5, 2009

DocketNo. 08-840 C

StatusPublished

This text of 86 Fed. Cl. 390 (McBrien v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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McBrien v. United States, 86 Fed. Cl. 390, 2009 WL 567203 (uscfc 2009).

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Opinion

ORDER

JAMES F. MEROW, Senior Judge.

By motion, filed March 2, 2009, plaintiff seeks an order of disqualification pursuant to 28 U.S.C. § 455(a), expressing concern “that anyone with a background in the military would be hearing an action involving the military and Department of Defense.” (Pl.’s Mot. 2.) The undersigned fulfilled his then military service obligation by serving on active duty as an officer in the Army Judge Advocate General Corps from 1956 to 1959. Also, plaintiff requests reassignment of this case to a judge, “who has NOT worked for the Department of Justice or the FBI or other named agencies in the First Amended Complaint.” (Pl.’s Mot. 3.) The undersigned resigned from Department of Justice employment in 1978, upon being appointed a United States Court of Claims Trial Judge, [391]*391and has served thereafter as a judge or senior judge from 1978 to date.

Under 28 U.S.C. § 455(b)(3), certain prior government service compels disqualification. Such circumstances are not present here and plaintiff rests her motion on 28 U.S.C. § 455(a) which provides for recusal when a judge’s “impartiality might reasonably be questioned.” This provision requires recusal “only when a reasonable person with knowledge of all the facts” would harbor doubts about the judge’s ability to act impartially. Baldwin Hardware Corp. v. FrankSu Enter. Corp., 78 F.3d 550, 557 (Fed.Cir.1996) (quoting United States v. Winston, 613 F.2d 221, 223 (9th Cir.1980)). Section 455(a) sets forth an objective standard for recusal. See Liteky v. United States, 510 U.S. 540, 548, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). Distant military or governmental service, with no financial connection to the instant litigation, does not raise any reasonable question as to the randomly assigned judge’s impartiality. Maier v. Orr, 758 F.2d 1578, 1582 (Fed.Cir.1985); Cherokee Nation of Oklahoma v. United States, 26 Cl.Ct. 215, 218 (1992).

The objective standard for recusal established in 28 U.S.C. § 455(a) has not been met. Accordingly, it is ORDERED that plaintiffs Motion for an Order of Disqualification, filed March 2, 2009, is DENIED.

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ORDER

JAMES F. MEROW, Senior Judge.

By motion, filed March 2, 2009, plaintiff seeks an order of disqualification pursuant to 28 U.S.C. § 455(a), expressing concern “that anyone with a background in the military would be hearing an action involving the military and Department of Defense.” (Pl.’s Mot. 2.) The undersigned fulfilled his then military service obligation by serving on active duty as an officer in the Army Judge Advocate General Corps from 1956 to 1959. Also, plaintiff requests reassignment of this case to a judge, “who has NOT worked for the Department of Justice or the FBI or other named agencies in the First Amended Complaint.” (Pl.’s Mot. 3.) The undersigned resigned from Department of Justice employment in 1978, upon being appointed a United States Court of Claims Trial Judge, [391]*391and has served thereafter as a judge or senior judge from 1978 to date.

Under 28 U.S.C. § 455(b)(3), certain prior government service compels disqualification. Such circumstances are not present here and plaintiff rests her motion on 28 U.S.C. § 455(a) which provides for recusal when a judge’s “impartiality might reasonably be questioned.” This provision requires recusal “only when a reasonable person with knowledge of all the facts” would harbor doubts about the judge’s ability to act impartially. Baldwin Hardware Corp. v. FrankSu Enter. Corp., 78 F.3d 550, 557 (Fed.Cir.1996) (quoting United States v. Winston, 613 F.2d 221, 223 (9th Cir.1980)). Section 455(a) sets forth an objective standard for recusal. See Liteky v. United States, 510 U.S. 540, 548, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). Distant military or governmental service, with no financial connection to the instant litigation, does not raise any reasonable question as to the randomly assigned judge’s impartiality. Maier v. Orr, 758 F.2d 1578, 1582 (Fed.Cir.1985); Cherokee Nation of Oklahoma v. United States, 26 Cl.Ct. 215, 218 (1992).

The objective standard for recusal established in 28 U.S.C. § 455(a) has not been met. Accordingly, it is ORDERED that plaintiffs Motion for an Order of Disqualification, filed March 2, 2009, is DENIED.

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86 Fed. Cl. 390, 2009 WL 567203, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcbrien-v-united-states-uscfc-2009.

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