Opinion
01 Civ. 10137 (LAK).
September 10, 2002
ORDER
By letter dated September 6, 2002, plaintiff's counsel has requested that the case be reassigned to a different judge. The basis of the request is that a deposition and likely trial witness in this case, Michael Carey, a former president of the New York City Economic Development Corporation, years ago was an associate in the litigation department of the large New York City law firm of which the undersigned then was a partner. Counsel seeks to buttress the request with the fact that the undersigned has been critical of his conduct of discovery in this matter.
The Court construes the request as an application for recusal under 28 U.S.C. § 455. Quite clearly, Section 455(b) does not address the issue of recusal in circumstances such as this, so the question is whether recusal is called for by Section 455(a), which would so require if the Court's "impartiality might reasonably be questioned." "[T]he test of impartiality is what a reasonable person, knowing and understanding all the facts and circumstances, would believe." In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1309 (2d Cir. 1988), reh'g denied, 869 F.2d 116 (2d Cir.), cert. denied, 490 U.S. 1102 (1989).
Section 455(a) is relevant here because none of the subdivision of Section 455(b) even remotely addresses the question whether a judge should disqualify him — or herself in circumstances such as these. If Section 455(b) did address the question, Section 455(a) would not apply at all. As the Supreme Court explained in Liteky, it would be "unreasonable to interpret § 455(a) (unless the language requires it) as implicitly eliminating a limitation explicitly set forth in § 455(b)." To do otherwise, it held, would "cause the statute, in a significant sense, to contradict itself." Liteky v. United States, 510 U.S. 540, 552-53 (1994).
The first point to be made is that the application is untimely. Plaintiff's counsel has known of Mr. Carey's former employment since at least as early as August 15, 2002, yet did nothing until September 6, 2002. The delay, which has not been explained, waived the point.
Even if the point had not been waived, it would have lacked merit. Mr. Carey left the firm in 1987, as the Court understands it, more than 15 years ago. The firm even then had hundreds of lawyers. There is no suggestion in plaintiff's papers, despite the fact that counsel already has conducted Mr. Carey's deposition, of any relationship between Mr. Carey and the undersigned other than what is implicit in the fact that we both worked at the same large department of the same large law firm. Further, to the extent that counsel seeks to buttress his argument with the Court's expressed dissatisfaction with counsel's conduct of discovery, it should be noted that that dissatisfaction long antedated Mr. Carey's becoming a deposition witness in the action.
This Court is mindful of its obligations. Among them, however, is the obligation not to be deterred from sitting in cases simply to avoid baseless charges like this one. As Congress wrote in enacting the relevant statute:
"[I]n assessing the reasonableness of a challenge to his impartiality, each judge must be alert to avoid the possibility that those who would question his impartiality are in fact seeking to avoid the consequences of his expected adverse decision. Disqualification for lack of impartiality must have a reasonable basis. Nothing in this proposed legislation should be read to warrant the transformation of a litigant's fear that a judge may decide a question against him into a `reasonable fear' that the judge will not be impartial. Litigants ought not to have to face a judge where there is a reasonable question of impartiality, but they are not entitled to judges of their own choice."
H.R. REP. NO. 93-1453, 93d Cong., 2d Sess., reprinted in 3 U.S.C.C.A.N. 6351, 6353 (1974) (emphasis in original).
The application for reassignment is denied. To the extent that counsel's letter raises discovery issues, they will be dealt with in the usual way following receipt of a response on behalf of the defendants. To the extent it seeks other relief, counsel should make whatever motions he thinks appropriate. The Court will not address those issues on the basis of letters.
SO ORDERED.