United States District Court, D. New Mexico
Erlinda O. Johnson Attorney for Plaintiffs
Fuess Keegan ASSISTANT UNITED STATES ATTORNEY Attorney for
the United States
MEMORANDUM OPINION AND ORDER
VÁZQUEZ, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiffs Minor JGE et
al.'s Motion for Disqualification of the United States
Attorney's Office for the District of New Mexico and for
Recusal of the Honorable Martha Vazquez from Presiding Over
This Matter. [Doc. 86]. The Motion concerns the fact that the
Court's part time permanent law clerk is the spouse of
recently appointed United States Attorney for the District of
New Mexico, John Anderson. This Court, having considered the
Motion, briefs, relevant law and being otherwise fully
informed, hereby denies the motion.
October 12, 2014, Plaintiffs filed their First Amended
Complaint against the United States and six individual
defendants. [Doc. 19]. Plaintiffs asserted claims against the
United States pursuant to the Federal Tort Claims Act
(“FTCA”). Id. They asserted claims
against the six individual Defendants pursuant to Bivens
v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388
(1971), for violation of JGE's and Jason Estrada's
Fifth Amendment substantive due process rights to be free
from bodily harm, and for violation of the First Amendment
and Fifth Amendment rights of JGE, Gabriela Gallegos, Jolene
Estrada and Joyce Estrada to a continuing relationship with
Jason Estrada. Id.
individual defendants filed a Motion to Dismiss Based on
Qualified Immunity and Memorandum in Support. [Doc. 43]. The
United States filed a Motion to Dismiss for Failure to State
a Claim and Memorandum in Support [Doc. 44], and a Rule 12(c)
Motion for Judgment on the Pleadings Based on Lack of Subject
Matter Jurisdiction. [Doc. 59].
August 9, 2016, the Court granted the individual
Defendants' Motion to Dismiss Based on Qualified Immunity
and the United States' Rule 12(c) Motion for Judgment on
the Pleadings Based on Lack of Subject Matter Jurisdiction
[Doc. 75]. The Court found the United States' Motion to
Dismiss for Failure to State a Claim to be moot. Id.
On August 29, 2016, Plaintiffs filed their Motion to Alter or
Amend the Court's Memorandum Opinion and Judgment as to
Defendant United States Pursuant to Fed.R.Civ.P. 59(e). [Doc.
77]. That motion is pending before the Court.
Court's permanent law clerk is married to recently
appointed United States Attorney for the District of New
Mexico, John Anderson. She was initially hired as a law clerk
in 2002, left for private practice in 2005, and returned as
the Court's permanent clerk in September 2011. Mr.
Anderson was an Assistant United States Attorney in this
District from around fall 2008 to fall 2013. During that time
and even after Mr. Anderson returned to private practice in
2013, he was on this Court's recusal list. In early June,
2016, the Court's permanent clerk went on a sudden and
unexpected medical leave. She returned to work on January 22,
2018, on a part time basis. Upon her return to work, the
Court was already aware that Mr. Anderson was likely to be
appointed United States Attorney, as he had been nominated by
President Trump in November, 2017. Accordingly, in
anticipation of his confirmation, the Court ensured that his
wife would be screened from having any involvement in matters
to which the United States is a party.
Court has two other full time law clerks. However, in regards
to small a handful of civil matters to which the United
States is a party, the Court was concerned about the already
lengthy delay on pending motions and the potential for even
further delay as a result of its part time permanent clerk
being unable to work on these matters. On February 15, 2018,
the Court conducted a telephonic case status conference in
another case, Mohammad Awad v. United States, Civ.
No. 15-373-MV. The Court apologized for the delay in ruling
on a pending motion in the Awad case and advised the
parties that its permanent law clerk had developed a conflict
of interest as the result of the nomination and anticipated
confirmation of her husband as United States Attorney.
Id. The Court explained that in light of this
conflict, the permanent clerk would be firewalled from having
any involvement in matters to which the United States is a
party, including the Awad case.
Court explained that because it anticipated further delay due
to this conflict and the already heavy workloads of its two
full time clerks, the Court would inquire whether the parties
would consent to referral of the case to the presiding
Magistrate Judge. The Court advised that if the parties did
not consent, the motion would be referred to the Magistrate
Judge for a recommended disposition, in order to reduce
further delay. Id. Plaintiff's counsel Erlinda
Johnson then asked whether the Court would recuse itself from
the Awad case as well as the instant case, based on
the pending appointment of Mr. Anderson as United States
Attorney. She advised that she was contemplating filing
motions to disqualify the U.S. Attorney's office and for
the Court's recusal from both cases. Assistant U.S.
Attorney Ruth Keegan stated that the government would oppose
any motion for disqualification or recusal. The Court advised
the parties it would not recuse from either this case or
Awad without a motion. Id.
following day, February 16, 2018, Plaintiffs filed the
instant motion, contending that (1) the U.S. Attorney's
Office for the District of New Mexico must be disqualified
based on Mr. Anderson's appointment as United States
Attorney for the District of New Mexico; and (2) the Court
should recuse from the case in order to avoid the appearance
of impropriety. The Court first addresses the recusal motion.
Plaintiff's Motion to Recuse
28 U.S.C. § 455(a), federal judges must recuse
themselves “in any proceeding in which [their]
partialities might reasonably be questioned.” The test
in this circuit is “whether a reasonable person,
knowing all the relevant facts, would harbor doubts about the
judge's impartiality.” Switzer v. Berry,
198 F.3d 1255, 1257 (10th Cir. 2000) (citations omitted). The
Tenth Circuit “has long held that ‘section 455(a)
must not be so broadly construed that it becomes, in effect,
presumptive, so that recusal is mandated upon the merest
unsubstantiated suggestion of personal bias or prejudice,
” and moreover, “[t]he statute is not intended to
give litigants a veto power over sitting judges, or a vehicle
for obtaining a judge of their choice.” Id.
(citing United States v. Cooley, 1 F.3d 985, 993
(10th Cir. 2000) (internal citations omitted)).
is a substantial burden on the moving party to demonstrate
the judge is not impartial.” Hinman v. Rogers,
831 F.2d 937, 939 (10th Cir. 1987) (citations omitted).
See also In re Medtronic, Inc. Sprint Fidelis Leads
Product Liability Litigation, 601 F.Supp.2d 1120, 1124
(D. Minn. 2009) (“Judges are presumed to be impartial;
accordingly a party seeking recusal bears “the
substantial burden of proving otherwise.”)
(emphasis in original) (quotation marks and citation
omitted)). The fundamental test under § 455(a) is
whether the reasonable person knowing all the relevant facts
would harbor doubts about the judge's impartiality.
U.S. v. Stewart, 378 Fed.Appx. 773, 777 (10th Cir.
2010) (citing Hinman, supra). The test is
an objective one, Harris v. Champion, 15 F.3d 1538,
1571 (10th Cir. 1994), and the appearance of bias must be
reasonable in light of all the facts-not just those facts
selected by the movant. Hinman, supra. The
hypothetical reasonable person “is not a person unduly
suspicious or concerned about a trivial risk that a judge
might be biased.” United States v. DeTemple,
162 F.3d 279, 287 (4th Cir. 1998).
“[i]f a clerk has a possible conflict of interest, it
is the clerk, not the judge, who must be disqualified.”
Mathis v. Huff & Puff Trucking, Inc., 787 F.3d
1297, 1311 (quoting Hunt v. Am. Bank & Trust
Co., (11th Cir. 1986)). “If a law clerk continues
to work on the case in which his or her impartiality might
reasonably be questioned, however, the clerk's actual or
potential conflict may be imputed to the judge.”
Id. (citing Hall v. Small Bus. Admin., 695
F.2d 175, 180 (5th Cir. 1983)).
Court has made every effort to comprehend Plaintiff's
concerns about the appearance of the Court's
impartiality. However, Plaintiff has not shown why the
Court's steps to screen its permanent clerk from any
involvement in the instant case are insufficient to prevent
the clerk's conflict from being imputed to the Court.
When the permanent law clerk returned to work part time on
January 22, 2018, the Court was aware of her husband's
impending confirmation as United States Attorney and only
assigned her work on civil cases to which the United States
is not a party. The Court's staff was instructed not to
discuss with this clerk cases involving the United States.
Plaintiff's Motion does not seem to take issue with these
steps. Rather, Plaintiff repeatedly mentions that the
possibility that this clerk worked on this matter in the
past, before her husband became U.S. Attorney, raises a
reasonable question as to the Court's impartiality. The
Court does not follow or agree with this reasoning. The law
clerk's conflict did not come into being until Mr.