Drevaleva v. U.S. Department of Veterans Affairs et al

Filing 380

Order by Chief Magistrate Judge Joseph C. Spero denying 369 Administrative Motion to Disqualify. (jcslc2S, COURT STAFF) (Filed on 5/11/2021)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7
TATYANA EVGENIEVNA
DREVALEVA,

8
9

Plaintiff,

10

ORDER DENYING MOTION TO
DISQUALIFY

v.

11
United States District Court
Northern District of California

Case No. 18-cv-03748-JCS

U.S. DEPARTMENT OF VETERANS
AFFAIRS, et al.,

12

Re: Dkt. No. 369

Defendants.

13
14
15

I.

INTRODUCTION

16

Plaintiff Tatyana Drevaleva, pro se, moves to disqualify the undersigned magistrate judge

17

from this case. She states no reason for disqualification except that she is “disappointed” with the

18

Court’s rulings on her motions and in setting a schedule for the case, as well as speculation that

19

the Court “wants to intentionally and maliciously prolong [her] case.” See Drevaleva Decl. (dkt.

20

369-1) ¶ 14. For the reasons discussed below, the motion to disqualify is DENIED.1

21

II.

22

LEGAL STANDARD
Drevaleva has not provided the Court with any legal basis for her motion. The Court

23

assumes that Drevaleva’s motion is made pursuant to 28 U.S.C. §§ 144 and 455. Section 144

24

provides:

25

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
is pending has a personal bias or prejudice either against him or in

26
27
28

1

The parties have consented to the jurisdiction of the undersigned magistrate judge for all
purposes pursuant to 28 U.S.C. § 636(c).

1
2
3
4
5
6
7
8
9
10

favor of any adverse party, such judge shall proceed no further
therein, but another judge shall be assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the belief that
bias or prejudice exists, and shall be filed not less than ten days before
the beginning of the term at which the proceeding is to be heard, or
good cause shall be shown for failure to file it within such time. A
party may file only one such affidavit in any case. It shall be
accompanied by a certificate of counsel of record stating that it is
made in good faith.
28 U.S.C. § 144.
Section 455 provides in relevant part:
(a) Any . . . magistrate judge . . . shall disqualify himself in any
proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party
....

United States District Court
Northern District of California

11
12

28 U.S.C. § 455(a)–(b).

13

“The test for personal bias or prejudice in section 144 is identical to that in section

14

455(b)(1), and the decisions interpreting this language in section 144 are controlling in the

15

interpretation of section 455(b)(1).” United States v. Sibla, 624 F.2d 864, 867 (citations omitted).

16

A motion properly brought under § 144 will therefore also raise a question concerning recusal

17

under section 455(b)(1). Id. “The substantive standard for recusal under 28 U.S.C. § 144 and 28

18

U.S.C. § 455 is the same: Whether a reasonable person with knowledge of all the facts would

19

conclude that the judge’s impartiality might reasonably be questioned.” United States v.

20

Hernandez, 109 F.3d 1450, 1453 (9th Cir.1997) (per curiam) (brackets and internal quotation

21

marks omitted).

22

“Although the substantive test for bias or prejudice is identical in sections 144 and 455, the

23

procedural requirements of the two sections are different.” Sibla, 624 F.2d at 867. For § 144,

24

relief is conditioned upon the filing of a timely and legally sufficient affidavit. See id. (citing

25

Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979); United States v. Azhocar, 581 F.2d

26

735, 738–40 (9th Cir. 1978); United States v. Bennett, 539 F.2d 45, 51 (10th Cir. 1976)). If the

27

judge “determines that the accompanying affidavit specifically alleges facts stating grounds for

28

recusal under § 144, the legal sufficiency of the affidavit has been established, and the motion
2

1

must be referred to another judge for a determination of its merits.” Id.; see also Civ. L.R. 3-14

2

(requiring that an affidavit of bias under § 144 be referred to another judge only where the

3

presiding judge “has determined not to recuse him or herself and found that the affidavit is neither

4

legally insufficient nor interposed for delay” (emphasis added)).
“Section 455, on the other hand, sets forth no procedural requirements. That section is

5

directed to the judge, rather than the parties, and is self-enforcing on the part of the judge,” with

7

“no provision for referral of the question of recusal to another judge.” Sibla, 624 F.2d at 868

8

(citing Davis v. Bd. of Sch. Comm’rs, 517 F.2d 1044, 1051 (5th Cir. 1975); Nicodemus v. Chrysler

9

Corp., 596 F.2d 152, 157 & n.10 (6th Cir. 1979)). Instead, a motion under § 455 requires a judge

10

to determine “whether all the circumstances call for recusal under the self-enforcing provisions of

11
United States District Court
Northern District of California

6

section 455(a) & (b)(1), a matter which rests within the sound discretion of the judge.” Id. (citing

12

United States v. Schreiber, 599 F.2d 534, 536 (3d Cir. 1979)).

13

III.

14

ANALYSIS
The Court first considers whether, for purpose of § 144, Drevaleva’s motion includes a

15

“legally sufficient” affidavit. An affidavit filed pursuant to § 144 is generally “not legally

16

sufficient unless it specifically alleges facts that fairly support the contention that the judge

17

exhibits bias or prejudice directed toward a party stemming from an extrajudicial source,” Sibla,

18

624 F.2d at 868, i.e., a source other than “conduct or rulings made during the course of the

19

proceeding,” see Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1388 (9th Cir. 1988) (finding

20

an affidavit “legally insufficient” where it was based on “conduct during the judicial proceeding”).

21

A judge’s views on legal issues also may not serve as the basis for motions to disqualify.

22

Azhocar, 581 F.2d at 738. As the Supreme Court has explained:

23
24
25
26
27
28

opinions formed by the judge on the basis of facts introduced or
events occurring in the course of the current proceedings, or of prior
proceedings, do not constitute a basis for a bias or partiality motion
unless they display a deep-seated favoritism or antagonism that would
make fair judgment impossible. Thus, judicial remarks during the
course of a trial that are critical or disapproving of, or even hostile to,
counsel, the parties, or their cases, ordinarily do not support a bias or
partiality challenge.
Liteky v. United States, 510 U.S. 540, 555 (1994); see also United States v. Wilkerson, 208 F.3d
3

1

794, 799 (9th Cir. 2000) (“To disqualify a judge, the alleged bias must constitute animus more

2

active and deep-rooted than an attitude of disapproval toward certain persons because of their

3

known conduct.” (internal quotation marks omitted)).
Under that standard, Drevaleva’s motion and declaration are “legally insufficient,” because

4
5

she presents no facts suggesting that the Court has any bias against her “stemming from an

6

extrajudicial source.” See Sibla, 624 F.2d at 868. Instead, she cites only the Court’s decisions in

7

this case with which she disagrees. It is the role of the Court to make such decisions, and virtually

8

inevitable that one party or another will be dissatisfied with at least some of them. Mere

9

disagreement with the Court’s decisions is not evidence of bias or grounds for disqualification.
Because the motion is legally insufficient, the Court need not refer it to another judge.

11
United States District Court
Northern District of California

10

Drevaleva’s motion to disqualify the Court is DENIED.
As for § 455, the Court has considered whether the instant motion identifies any ground

12
13

upon which disqualification would be warranted, as well as whether there is any other ground for

14

disqualification, and finds no such ground exists. The Court has no deep-seated favoritism or

15

antagonism that would make fair judgment impossible, nor is the Court aware of any

16

circumstances that would cause its impartiality to reasonably be questioned.

17

IV.

18
19
20
21
22
23

CONCLUSION
The Court finds no basis to refer Drevaleva’s motion to disqualify to another judge. For

the reasons discussed above, the motion is DENIED.
IT IS SO ORDERED.
Dated: May 11, 2021
______________________________________
JOSEPH C. SPERO
Chief Magistrate Judge

24
25
26
27
28
4