Wine v. Merit Systems Protection Board

• Court: District Court, N.D. California
• Decided: September 24, 2025
• Docket: 3:25-cv-03336
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 MITCHELL WINE, 7 Case No. 25-cv-03336-JCS Plaintiff, 8 v. ORDER DENYING MOTION TO 9 DISQUALIFY JUDGE MERIT SYSTEMS PROTECTION 10 BOARD, et al., Re: Dkt. No. 50 11 Defendants.

12 13 I. INTRODUCTION 14 Plaintiff has brought a Motion to Disqualify Judge Under 28 U.S.C. § 144 (“Motion”). 15 Section 144 provides, in relevant part: 16 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 17 is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further 18 therein, but another judge shall be assigned to hear such proceeding. 19 28 U.S.C. § 144. Pursuant to Civil Local Rule 3-14, a request for disqualification under this 20 section is referred to the Clerk for random assignment to another judge only where the affidavit of 21 bias is “neither legally insufficient nor interposed for delay.” Civ. L. R. 3-14. For the reasons 22 stated below, the undersigned concludes that Plaintiff’s affidavit is legally insufficient and 23 therefore, that the Motion may properly be decided by the undersigned. The Court further 24 concludes that Plaintiff has not established that disqualification is warranted based on “personal 25 bias or prejudice[,]” for the reasons set forth below. 26 II. BACKGROUND 27 Plaintiff filed this case on April 15,2025, originally naming only the Merit System 1 0752- 18-0116-C-5. Dkt. no. 1, Compl. at ECF p. 1. On May 2, 2025, Plaintiff filed an amended 2 complaint seeking review of a different MSPB decision, in case number DA-1221-24-0451-W-1. 3 Dkt. no. 6, Amended Compl. at ECF p. 1. In his Amended Complaint, Plaintiff sued not only 4 MSPB but also the U.S. Department of the Interior (“DOI”) and DOI Supervisor Chris Davidson 5 in his “personal and professional capacities”; U.S. Department of Homeland Security (“DHS”) 6 and DHS Officer Adrian Henry in his “personal and professional capacities”; and the State of 7 Arkansas and Officer John Crisman in his “personal and professional capacities.” A summons 8 attached to Plaintiff’s “Proof of Service,” dkt. no. 8, also lists Arkansas Governor Sarah Sanders 9 as a defendant. Dkt. no. 8 at ECF p. 10. 10 On June 25, 2025, the “Federal Agency Defendants” (MSPB, DOI, Chris Davidson in his 11 official capacity, DHS, and Adrian Henry in his official capacity) asked the Court to continue the 12 deadlines for conducting a Rule 26(f) and ADR conference until after resolution of a motion to 13 dismiss it anticipated filing, citing judicial economy and failure to properly serve certain 14 defendants. Dkt. no. 10. The Court granted that request, stating that the dates of the parties’ Rule 15 26(f) conference, ADR process selection, initial disclosures under Rule 26(a) and General Order 16 71, and joint case management statement would be “determined based on the Court’s resolution of 17 Federal Agency Defendants’ forthcoming motion to dismiss.” The Court vacated the scheduled 18 Case Management Conference, stating that it would be “reset as necessary.” Dkt. No. 11 (“June 19 26 Scheduling Order”). 20 On July 8, 2025, Plaintiff brought a motion for relief from the Court’s June 26 Scheduling 21 Order, asserting that initial disclosures prior to the Court’s consideration of Defendants’ motions 22 to dismiss were “indispensable.” Dkt. no. 15 (“Initial Disclosure Motion”). In particular, he 23 asserted Defendants should by ordered to produce documents in connection with his allegation 24 that “the [Department of Justice](via the U.S. Attorney) is conflicted in this matter due to their 25 interest in maliciously prosecuting Plaintiff to conceal information in their possession related to 26 the early parole of convicted spy Tai Shen Kuo.” Initial Disclosure Motion at 2-3. The Court 27 denied the Initial Disclosure Motion without prejudice to Plaintiff’s renewal of his requests for 1 Between July 28, 2025 and August 5, 2025, three separate motions to dismiss were filed, 2 advancing a multitude of jurisdictional challenges. Dkt. nos. 22, 26, 29. Those motions were 3 noticed for hearing on September 2 and 10, 2025. Plaintiff then filed a Motion for Declaratory 4 Judgment and Injunctive Relief asking the Court to rule on the merits of his claims based on “all 5 pleadings to date.” Dkt. no. 36 (“Declaratory Relief Motion”). That motion was filed on August 6 10, 2025, with briefing to be completed by September 2, 2025. Based on the Court’s preliminary 7 review of the four pending motions, it concluded that there was significant overlap of issues and 8 that all of the motions should be heard together. Accordingly, on August 11, 2025, the Court set 9 all four motions for hearing on October 15, 2025 – the first available date on the Court’s calendar.1 10 Between August 13 and 15, 2025, Plaintiff sent four emails to Ms. Galang, Judge Spero’s 11 Courtroom Deputy, seeking legal advice about the case. On August 14, Ms. Galang responded in 12 an email stating: 13 I have informed Judge Spero that you seek clarification regarding the initial disclosure obligations of some of the defendants in this case. 14 He has asked me to advise you that any requests for clarification must be filed as a formal motion, consistent with the requirements of the 15 Court’s Local Rules. 16 Plaintiff responded with another email seeking legal advice, to which Ms. Galang responded 17 (correctly): “I cannot give you any legal advice. Any request to the court must be made by formal 18 motion on the docket. Thank you.” At this point, Plaintiff began sending Ms. Galang a series of 19 improper emails. 20 On August 15 at 12:21 pm, Plaintiff sent an email to Ms. Galang stating: 21 Ms. Galang, Thank you for the response. Actually, you're paid by tax dollars to 22 provide me with legal advice on such matters. What law, rule, or court guidance are you citing to in order to make the false claim that you 23 "...cannot give..." me legal advice? Please provide your citations in reply to this email. 24 Thank you, 25 1The Court also inadvertently set the initial case management conference on that date, contrary to 26 its ruling in the June 26 Scheduling Order that the initial case management conference would be scheduled after the motions to dismiss were decided. The Court corrected that error in its 27 September 11, 2025 order, docket no. 45, in which it moved the case management conference to Mitch Wine 1 2 On August 16 at 5:54 pm, Plaintiff sent Ms. Galang an email stating: 3 Ms. Galang, this is not a trick question. Why are you prohibited from providing me with legal advice? Where did you get that advice? 4 Because, if it came from Judge Spero, we might need to have a conference. 5 Opposing counsels, y'all want to opine. Or? 6 On August 16 at 7:36 pm Plaintiff sent Ms. Galang another email, stating: 7 I have requested legal advice, and my tax dollars fund your salary. You've claimed you cannot provide legal advice notwithstanding my 8 payments to you. Please explain. 9 10 On August 15, 2025, Plaintiff filed a motion for “immediate” clarification regarding 11 service of process on the individual defendants. Dkt. no. 38 (“Immediate Clarification Motion”). 12 As the Court explained in an order issued three days later, that motion was not in compliance with 13 the Court’s Civil Local Rules. Dkt. no. 39 (August 18 Order”). Nonetheless, the Court ordered 14 that the individual defendants file a response to the motion. August 18 Order at 1-2. The Court 15 also ordered: . . . Plaintiff may not seek legal advice from Court staff. If Plaintiff 16 desires legal advice regarding the prosecution of his case he must retain an attorney to advise him. Court staff are not authorized to 17 provide legal advice to litigants. Furthermore, Plaintiff’s excessive and improper emails impose a significant burden on the Court and 18 will no longer be permitted. Going forward, Plaintiff is prohibited from emailing or telephoning Courtroom Deputy Jenny Galang for 19 any reason. Any future communications with the Court must be made in filed documents. Further, Plaintiff may only file a document in this 20 case if he has a reasonable and good faith belief that it is permitted under the Federal Rules of Civil Procedure and the Civil Local Rules 21 of this Court. 22 Id. at 2. On September 11, 2025, the Court denied the Immediate Clarification Motion, declining 23 to decide whether service on the individual defendants was proper and noting that although it was 24 denying the motion, Plaintiff would not be barred from “asserting arguments concerning the 25 propriety of service on the individuals in future motion practice so long as the arguments are 26 raised only in a proper motion or opposition brief that is filed in accordance with the schedule of 27 this case, the Federal Rules of Civil Procedure, the Civil Local Rules of this Court and the Court’s 1 In the meantime, Plaintiff continued to email the Court demanding rulings and other 2 actions in this case. On September 2, 2025 and September 10, 2025, he sent emails to 3 JCSPO@cand.uscourts.gov – a mailbox to be used only for proposed orders and courtesy copies 4 of filed documents. Plaintiff’s September 10 email requested that a hearing be set on September 5 16 or 17, bypassing the requirements of this Court’s Civil Local Rules governing administrative 6 motions and motions to expedite. And on September 11, 2025, Plaintiff sent an email to the Chief 7 Judge of this Court complaining that the case was “in limbo” due to the undersigned’s “inaction.” 8 On September 16, 2025, Plaintiff sent another email to the JCSPO mailbox demanding a ruling on 9 the Declaratory Relief Motion. 10 On September 12, 2025, Plaintiff filed a letter asking the Court to decide his Declaratory 11 Relief Motion on the papers without waiting for the scheduled October 15 hearing, asserting that 12 oral argument was not necessary. Dkt. no. 47. The Court denied the request, stating: 13 Pursuant to Civil Local Rule 7-1(b), “[i]n the Judge’s discretion, or upon request by counsel and with the Judge’s approval, a motion may 14 be determined without oral argument . . . .” Based on its preliminary review of the extensive briefing on Plaintiff’s motion and the three 15 pending motions to dismiss, the Court declines to exercise its discretion to vacate the motion hearing at this time. 16 17 Dkt. no. 48. 18 On September 18, 2025, Plaintiff sent another email to the Chief Judge asserting that 19 “Judge Spero is refusing to rule on the matter or provide any further guidance on what information 20 he is lacking that would be presented in oral arguments” and asking that the undersign be 21 “direct[ed] . . . to the docket for rulings.” The Court then issued an order prohibiting “further 22 harassing email communications with the Court.” Dkt. no. 49. The Court pointed to its August 18 23 Order stating that “Plaintiff’s excessive and improper emails impose a significant burden 24 on the Court and will no longer be permitted.” Id. The Court noted that that Order expressly 25 required that “[a]ny future communications with the Court must be made in filed documents” and 26 found that Plaintiff’s continued emails violated this Court’s August 18 Order and rose to the level 27 of harassment. Id. 1 against him, citing the fact that the Court has not yet opened up discovery in the case and has 2 deferred the initial case management conference until after the motions to dismiss are decided, for 3 which he contends there is “no good cause” and shows “blatant bias.” He further asserts that the 4 undersigned is biased against him based on its description of his emails to the Court as 5 “harassing[,]” which he calls “baseless defamation.” 6 III. DISCUSSION 7 Under Section 144, “personal bias or prejudice” is established only if the alleged bias or 8 prejudice “stems from an extrajudicial source and not from conduct or rulings made during the 9 course of the proceeding.” Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1387–88 (9th Cir. 10 1988). In Toth, for example, the affidavit of bias stated that the presiding judge had observed in 11 open court that a litigant’s attorney’s “credibility with the judge [was] ‘about zero[]’ ” and that 12 “this counsel ha[d] been violating every court order of the magistrate and his court orders.” Id. 13 The court of appeals found that the affidavit was legally insufficient because the “bias or prejudice 14 alleged arose from conduct during the judicial proceeding.” Id. Accordingly, the court affirmed 15 the order of the presiding judge denying the litigant’s motion to disqualify. Id. 16 Here, all of the examples of bias cited by Plaintiff in his affidavit arise from conduct or 17 rulings in this case. In particular, he points to the Court’s rulings that discovery should await 18 resolution of the motions to dismiss as a matter of judicial efficiency, its order refusing to exercise 19 its discretion at this time to decide the Declaratory Relief Motion without a hearing and take the 20 scheduled motion hearing off calendar, and orders addressing Plaintiff’s improper conduct with 21 respect to emails to Court staff related to this action. He also apparently alleges bias on the basis 22 that the motion hearing was continued approximately one month to allow the Court to consider the 23 extensive briefing that has been filed by multiple defendants on the pending motions to dismiss, 24 which raise jurisdictional challenges that must be decided before the Court can consider granting 25 any relief on Plaintiff’s Declaratory Relief motion. In sum, Plaintiff has pointed to no bias or 26 prejudice stemming from an extrajudicial source. Therefore, the affidavit of bias is legally 27 insufficient. 1 IV. CONCLUSION 2 For the reasons stated above, the Motion is DENIED. 3 IT IS SO ORDERED. 4 5 Dated: September 24, 2025 6 J PH C. SPERO 7 nited States Magistrate Judge 8 9 10 11 a 12

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