Opinion
21-1248
07-30-2021
In re: MICHELE BROWN, Petitioner.
(D.C. No. 1:19-CV-03362-MEH) (D. Colo.)
Before HARTZ, KELLY, and McHUGH, Circuit Judges.
ORDER
Michele Brown, an attorney proceeding pro se, is suing the Colorado Judicial Department for employment discrimination, based upon her non-selection for a staff attorney position. Magistrate Judge Michael E. Hegarty presides over that suit by consent. Ms. Brown filed two motions for recusal, which the magistrate judge denied. She now petitions for a writ of mandamus requiring recusal. We deny the petition.
"It is established in this circuit . . . that mandamus is an appropriate vehicle by which to challenge a district court's denial of a recusal motion." Nichols v. Alley, 71 F.3d 347, 350 (10th Cir. 1995) (per curiam). "Mandamus is available only upon a showing of a clear and indisputable right to relief." Id. "A petitioner seeking mandamus relief must demonstrate a clear abuse of discretion, or conduct by the district court amounting to a usurpation of judicial authority." Id.
Ms. Brown requests recusal under 28 U.S.C. § 455(a) and (b)(1). First, she points out that Magistrate Judge Hegarty's career law clerk unsuccessfully applied for the staff attorney position that is the subject of the suit. After Ms. Brown informed him of the application, the magistrate judge privately interviewed his clerk to determine whether he should recuse. Ms. Brown argues that the private interview was inappropriate, and that it gave the magistrate judge personal knowledge of disputed evidentiary facts. She also asserts that it is inappropriate for the magistrate judge to rule on evidentiary issues related to his clerk's application. Second, identifying certain remarks and actions by the magistrate judge, Ms. Brown argues that he is biased in favor of the Colorado Judicial Department and prejudiced against her.
Section 455(a) provides that "[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Under this section, "we must determine whether a reasonable person, knowing all the facts, would harbor doubts about the judge's impartiality." Nichols, 71 F.3d at 350-51 (internal quotation marks omitted). "The scope of inquiry is limited to outward manifestations and reasonable inferences drawn therefrom." In re McCarthey, 368 F.3d 1266, 1269 (10th Cir. 2004).
Section 455(b)(1) provides that a judge shall also disqualify himself "[w]here he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding." Recusal under this provision is mandatory, if the circumstances qualify. See 28 U.S.C. § 455(e) ("No justice, judge, or magistrate judge shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b).").
Having carefully reviewed Ms. Brown's mandamus petition, the record, and the applicable law, we are not persuaded that Ms. Brown has established a "clear and indisputable right" to Magistrate Judge Hegarty's recusal.
A conflict for a law clerk does not automatically disqualify the clerk's judge. Although the circumstances here are unusual, it does not appear that the clerk will be called as a witness. The magistrate judge made disclosures on the record and committed to erecting a "wall" to keep the clerk from working on the case. We do not believe that a reasonable person, knowing all the facts, would harbor doubts about the judge's impartiality. We decline to grant Ms. Brown's request for an evidentiary hearing. See McCarthey, 368 F.3d at 1270 ("Section 455 does not provide for discovery, and no case we have reviewed has endorsed such a procedure.").
Ms. Brown initially stated she intended to depose the clerk and call her as a witness. But her mandamus petition does not clearly indicate that she continues with that intent. Rather, she states that the clerk's "application was individually processed and rejected with potentially discriminatory intent, the substance of which will be explored during depositions," presumably of the persons who processed and rejected the application. Pet. at 9.
Ms. Brown objects that it was too late to erect a wall once the clerk had worked on the case. But her petition does not adequately address what actions had taken place with regard to her claims before her first motion for recusal. She thus has failed to show a clear and indisputable right to recusal based on an allegedly tardy erection of the wall.
Further, the remarks and actions Ms. Brown identifies do not establish that the magistrate judge is impermissibly biased in favor of the Colorado Judicial Department and prejudiced against her. They are analogous to the "expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display," which the Supreme Court has held insufficient to support disqualification. Liteky v. United States, 510 U.S. 540, 555-56 (1994).
The petition for a writ of mandamus is denied.