F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS DEC 20 2000 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
WILLIAM H. PAYNE,
Plaintiff-Appellant, No. 00-2021 (D.C. No. CIV-99-270-LFG/KBM) v. (D. N.M.)
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION; GILBERT CASELLAS; CHARLES BURTNER; LARRY J. TRUJILLO; RICHARD TRUJILLO; THOMAS J. SCHLAGETER; NICHOLAS M. INZEO; A. JACY THURMOND; ALETHA L. BROWN; THOMAS SPELLMAN, all individually; DEPARTMENT OF ENERGY; WILLIAM B. RICHARDSON; SANDRA SCHNEIDER; STEVE DILLINGHAM; GEORGE BREZNAY; WILLIAM JAMES LEWIS, all individually; SANDIA NATIONAL LABORATORIES; C. PAUL ROBINSON; MICHAEL G. ROBLES; LINDA VIGIL LOPEZ; G.H. LIBMAN; D. B. DAVIS; W.R. GEER; J.D. GIACHINO; A.M. TORNEBY; C.W. CHILDERS; D.S. MIYOSHI; R.A. POLONCASZ; M.B. COURTNEY; C.A. SEARLS; R.L. EWING; R.B. CRANER; E. DUNCKEL; J.J. MCAULIFFE; J.D. MARTIN; R. C. BONNER, all individually; AMERICAN TELEPHONE AND TELEGRAPH CORPORATION; LOCKHEED MARTIN CORPORATION,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before TACHA , EBEL , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Plaintiff William H. Payne, appearing pro se, appeals the district court’s
dismissal of his Privacy Act complaint against Sandia Corporation, a private
corporation that operates the Sandia National Laboratories (Sandia) and
individual employees of Sandia; the Equal Employment Opportunity Commission
(EEOC) and individual employees of the EEOC; the Department of Energy (DOE)
and individual employees of the DOE; American Telephone & Telegraph; and
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
-2- Lockheed Martin Corporation. Plaintiff claimed that Sandia released false and
defaming personnel documents pertaining to his termination to the EEOC in
violation of the Privacy Act of 1974, 5 U.S.C. § 552a.
Upon consent of the parties, the matter was heard by Magistrate Judge
Lorenzo Garcia pursuant to 28 U.S.C. § 636(c), who, in separate orders, dismissed
the claims against all defendants. Construing his pro se arguments liberally,
plaintiff contends on appeal that (1) the magistrate judge was biased and should
have recused himself from the proceedings pursuant to 28 U.S.C. § 144, and
(2) that he was denied a jury trial in violation of the Seventh Amendment to the
United States Constitution and Fed. R. Civ. P. 38. We have jurisdiction pursuant
to 29 U.S.C. § 1291, and we affirm.
We first address plaintiff’s contention that the magistrate judge acted with
bias and prejudice against him and improperly failed to recuse himself under
28 U.S.C. § 144. We review the denial of a motion to recuse only for an abuse of
discretion. United States v. Burger , 964 F.2d 1065, 1070 (10th Cir. 1992).
On June 8, 1999, several months after filing his complaint and consenting
to proceed before Magistrate Judge Garcia, plaintiff filed an affidavit seeking to
disqualify the magistrate judge for bias. By then, the magistrate judge had
already ruled adversely to plaintiff on numerous motions. Plaintiff’s affidavit
claimed the magistrate judge was biased against him because he had not
-3- responded to plaintiff’s earlier motion seeking to disqualify another judge who
had previously been assigned to the case, but who had since been reassigned.
Plaintiff also made conclusory allegations that the magistrate judge was biased in
favor of the federal government and disregarded the United States’ laws and rules
of civil procedure. The magistrate judge denied plaintiff’s motion because it was
untimely, it was based solely on plaintiff’s dissatisfaction with the court’s rulings,
and it was his second attempt to disqualify a judge assigned to the case. Plaintiff
then filed at least nine more motions, demands or requests seeking the magistrate
judge’s recusal. He claims on appeal that all of the magistrate judge’s judgments
and rulings after June 8, 1999 are invalid or void, premised on his erroneous
belief that the magistrate judge was disqualified from the case simply by virtue of
plaintiff’s demand for his recusal.
Contrary to plaintiff’s contention, it is well settled that the mere filing of
an affidavit under § 144 does not automatically disqualify a judge. United States
v. Bray , 546 F.2d 851, 857 (10th Cir. 1976). To prevail under § 144, a litigant
must file a timely and sufficient affidavit establishing that the judge has a
personal bias or prejudice. Hinman v. Rogers , 831 F.2d 937, 938 (10th Cir. 1987)
(per curiam). Under § 144, an affidavit filed in support of recusal is construed
against the affiant, and “there is a substantial burden on the moving party to
demonstrate the judge is not impartial.” Id. at 939. “The affidavit must state with
-4- required particularity the identifying facts of time, place, persons, occasion, and
circumstances” necessitating recusal: “conclusions . . . beliefs, and opinions are
not sufficient to form a basis for disqualification.” Id. Moreover, the party
seeking recusal must act in a timely fashion to request recusal, and a recusal
motion is considered untimely when the objecting party delays filing until
interlocutory matters are adversely ruled upon. Singer v. Wadman , 745 F.2d 606,
608 (10th Cir. 1984). We conclude the magistrate judge did not abuse his
discretion in refusing to grant plaintiff's recusal requests, both because those
requests were untimely and because plaintiff failed to make a sufficient showing
of either the actual or apparent bias or prejudice of the magistrate judge.
Plaintiff next claims that he was deprived of his Seventh Amendment right
to a jury trial. As explained by the magistrate judge in dismissing plaintiff’s
claims against the private corporations and individuals, the Privacy Act authorizes
suit only against an “agency” of the United States Government. 5 U.S.C.
§ 552a(a)(1), (g)(1); Parks v. IRS , 618 F.2d 677, 684 (10th Cir. 1980). In general,
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS DEC 20 2000 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
WILLIAM H. PAYNE,
Plaintiff-Appellant, No. 00-2021 (D.C. No. CIV-99-270-LFG/KBM) v. (D. N.M.)
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION; GILBERT CASELLAS; CHARLES BURTNER; LARRY J. TRUJILLO; RICHARD TRUJILLO; THOMAS J. SCHLAGETER; NICHOLAS M. INZEO; A. JACY THURMOND; ALETHA L. BROWN; THOMAS SPELLMAN, all individually; DEPARTMENT OF ENERGY; WILLIAM B. RICHARDSON; SANDRA SCHNEIDER; STEVE DILLINGHAM; GEORGE BREZNAY; WILLIAM JAMES LEWIS, all individually; SANDIA NATIONAL LABORATORIES; C. PAUL ROBINSON; MICHAEL G. ROBLES; LINDA VIGIL LOPEZ; G.H. LIBMAN; D. B. DAVIS; W.R. GEER; J.D. GIACHINO; A.M. TORNEBY; C.W. CHILDERS; D.S. MIYOSHI; R.A. POLONCASZ; M.B. COURTNEY; C.A. SEARLS; R.L. EWING; R.B. CRANER; E. DUNCKEL; J.J. MCAULIFFE; J.D. MARTIN; R. C. BONNER, all individually; AMERICAN TELEPHONE AND TELEGRAPH CORPORATION; LOCKHEED MARTIN CORPORATION,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before TACHA , EBEL , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Plaintiff William H. Payne, appearing pro se, appeals the district court’s
dismissal of his Privacy Act complaint against Sandia Corporation, a private
corporation that operates the Sandia National Laboratories (Sandia) and
individual employees of Sandia; the Equal Employment Opportunity Commission
(EEOC) and individual employees of the EEOC; the Department of Energy (DOE)
and individual employees of the DOE; American Telephone & Telegraph; and
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
-2- Lockheed Martin Corporation. Plaintiff claimed that Sandia released false and
defaming personnel documents pertaining to his termination to the EEOC in
violation of the Privacy Act of 1974, 5 U.S.C. § 552a.
Upon consent of the parties, the matter was heard by Magistrate Judge
Lorenzo Garcia pursuant to 28 U.S.C. § 636(c), who, in separate orders, dismissed
the claims against all defendants. Construing his pro se arguments liberally,
plaintiff contends on appeal that (1) the magistrate judge was biased and should
have recused himself from the proceedings pursuant to 28 U.S.C. § 144, and
(2) that he was denied a jury trial in violation of the Seventh Amendment to the
United States Constitution and Fed. R. Civ. P. 38. We have jurisdiction pursuant
to 29 U.S.C. § 1291, and we affirm.
We first address plaintiff’s contention that the magistrate judge acted with
bias and prejudice against him and improperly failed to recuse himself under
28 U.S.C. § 144. We review the denial of a motion to recuse only for an abuse of
discretion. United States v. Burger , 964 F.2d 1065, 1070 (10th Cir. 1992).
On June 8, 1999, several months after filing his complaint and consenting
to proceed before Magistrate Judge Garcia, plaintiff filed an affidavit seeking to
disqualify the magistrate judge for bias. By then, the magistrate judge had
already ruled adversely to plaintiff on numerous motions. Plaintiff’s affidavit
claimed the magistrate judge was biased against him because he had not
-3- responded to plaintiff’s earlier motion seeking to disqualify another judge who
had previously been assigned to the case, but who had since been reassigned.
Plaintiff also made conclusory allegations that the magistrate judge was biased in
favor of the federal government and disregarded the United States’ laws and rules
of civil procedure. The magistrate judge denied plaintiff’s motion because it was
untimely, it was based solely on plaintiff’s dissatisfaction with the court’s rulings,
and it was his second attempt to disqualify a judge assigned to the case. Plaintiff
then filed at least nine more motions, demands or requests seeking the magistrate
judge’s recusal. He claims on appeal that all of the magistrate judge’s judgments
and rulings after June 8, 1999 are invalid or void, premised on his erroneous
belief that the magistrate judge was disqualified from the case simply by virtue of
plaintiff’s demand for his recusal.
Contrary to plaintiff’s contention, it is well settled that the mere filing of
an affidavit under § 144 does not automatically disqualify a judge. United States
v. Bray , 546 F.2d 851, 857 (10th Cir. 1976). To prevail under § 144, a litigant
must file a timely and sufficient affidavit establishing that the judge has a
personal bias or prejudice. Hinman v. Rogers , 831 F.2d 937, 938 (10th Cir. 1987)
(per curiam). Under § 144, an affidavit filed in support of recusal is construed
against the affiant, and “there is a substantial burden on the moving party to
demonstrate the judge is not impartial.” Id. at 939. “The affidavit must state with
-4- required particularity the identifying facts of time, place, persons, occasion, and
circumstances” necessitating recusal: “conclusions . . . beliefs, and opinions are
not sufficient to form a basis for disqualification.” Id. Moreover, the party
seeking recusal must act in a timely fashion to request recusal, and a recusal
motion is considered untimely when the objecting party delays filing until
interlocutory matters are adversely ruled upon. Singer v. Wadman , 745 F.2d 606,
608 (10th Cir. 1984). We conclude the magistrate judge did not abuse his
discretion in refusing to grant plaintiff's recusal requests, both because those
requests were untimely and because plaintiff failed to make a sufficient showing
of either the actual or apparent bias or prejudice of the magistrate judge.
Plaintiff next claims that he was deprived of his Seventh Amendment right
to a jury trial. As explained by the magistrate judge in dismissing plaintiff’s
claims against the private corporations and individuals, the Privacy Act authorizes
suit only against an “agency” of the United States Government. 5 U.S.C.
§ 552a(a)(1), (g)(1); Parks v. IRS , 618 F.2d 677, 684 (10th Cir. 1980). In general,
the United States is immune from being sued unless it consents. United States v.
Sherwood , 312 U.S. 584, 586 (1941). Even when it consents, the general rule is
that the Seventh Amendment does not grant a plaintiff the right to trial by jury.
Lehman v. Nakshian , 453 U.S. 156,160 (1981). Thus, when the government does
consent to being sued, the plaintiff has a right to a jury trial only when the right
-5- has been “unequivocally expressed” by Congress. Id. at 160-61. The Privacy Act
is silent as to any right to a jury trial. Consequently, plaintiff had no right to a
jury trial under the Privacy Act. Plaintiff also includes an allegation that he was
entitled to a jury trial under Fed. R. Civ. P. 38. Rule 38, however, simply states
that Seventh Amendment or statutory rights to jury trial shall be preserved in the
federal courts. The rule does not provide an independent entitlement to a jury
trial. Moreover, the proper dismissal of a complaint under Fed. R. Civ. P.
12(b)(6) does not violate the Seventh Amendment. Christensen v. Ward , 916 F.2d
1462, 1466 (10th Cir. 1990). It is clear from our de novo review that the
magistrate judge correctly dismissed plaintiff’s complaint against all defendants.
The judgment of the United States District Court for the District of New
Mexico is AFFIRMED. The mandate shall issue forthwith.
Entered for the Court
Deanell Reece Tacha Circuit Judge
-6-