United States District Court, D. New Mexico
Erlinda O. Johnson Attorney for Mr. Awad
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 Plaintiff Mohammad
Awad's Amended 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. 37]. 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.
4, 2015, Plaintiff Mohammad Awad filed this action seeking
damages against the United States pursuant to the Federal
Tort Claims Act (“FTCA”), 28 U.S.C. §§
1346(b), 2671-2680, et seq. In his Complaint, he
alleged the United States had falsely imprisoned him for 173
days, and he asserted claims for negligence, false arrest
(intentional tort) and false arrest (negligence). [Doc. 1].
The United States filed a Motion to Dismiss for Lack of
Subject Matter Jurisdiction and Failure to State a Claim
[Doc. 14]. In response to the motion, Mr. Awad purported to
introduce new facts not alleged in the Complaint, including
facts regarding the existence, content and applicability of
certain Drug Enforcement Agency (“DEA”)
procedures and the DEA's misidentification of Mr. Awad as
his brother. In a Memorandum Opinion and Order dated February
24, 2016, the Court found deficiencies in the Complaint, but
denied the Motion to Dismiss without prejudice and granted
Mr. Awad an opportunity to file an Amended Complaint to
correct those deficiencies. [Doc. 22].
February 28, 2016, Mr. Awad filed his First Amended
Complaint, asserting the same claims and alleging additional
facts in support of those claims. [Doc. 23]. On March 31,
2016, the United States filed a Rule 12(b)(1) and Rule 56
Motion to Dismiss, in which it sought dismissal for lack of
subject matter jurisdiction and/or summary judgment. [Doc.
26]. Those motions came at issue on May 13, 2016. [Doc. 31].
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
order to discuss the pendency of the United States'
renewed Motion to Dismiss and/or Motion for Summary Judgment.
[Doc. 26]. The Court apologized for the delay in ruling on
the motion 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 instant 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 presiding Magistrate
Judge Carmen Garza. 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
this case and another pending case, JGE v. United
States, 14-CV-710-MV/WPL, 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
JGE without a motion. Id.
following day, February 16, 2018, Mr. Awad 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 for the Court's Recusal
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.
Anderson was sworn in on February 16, 2018. If the clerk
worked on this case before she went on medical leave, during
a time when her husband was in private practice and had no
connection to the case, her past involvement would not affect
the Court's impartiality towards this case going forward.
when the clerk returned to chambers after a medical leave of
nearly 20 months, the Court anticipated her husband's
appointment as U.S. Attorney and only assigned her work on
civil matters not involving the United States. The
Court's staff was instructed not to discuss with this
clerk any criminal cases or any civil cases to which the
United States is a party. Because the Court
“prophylactically screened this law clerk from working
on any criminal or civil case involving the United
States” before the conflict ...