Gagan v. U.S.Department of Justice

Filing 8

ORDER to Dismiss in Part and to Draw Case to A District Judge and to a Magistrate Judge. Plaintiffs motion for disqualification 3 is denied. Plaintiffs second claim for relief that is asserted pursuant to the Administrative Procedure Act is dismissed. Defendants Eric Holder, Jr., and John Walsh, III, are dismissed as parties to this action. This case shall be drawn to a district judge and to a magistrate judge. By Judge Lewis T. Babcock on 12/14/2011.(sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-03062-BNB
CARY GAGAN,
Plaintiff,
v.
ERIC HOLDER, JR., Attorney General,
JOHN WALSH, III, U.S. Attorney, and
U.S. DEPARTMENT OF JUSTICE,
Defendants.

ORDER TO DISMISS IN PART AND TO DRAW CASE
TO A DISTRICT JUDGE AND TO A MAGISTRATE JUDGE

Plaintiff, Cary Gagan, is a prisoner in the custody of the Colorado Department of
Corrections at the Sterling Correctional Facility in Sterling, Colorado. Mr. Gagan has
filed pro se a Prisoner Complaint asserting claims pursuant to the Freedom of
Information Act (FOIA) and the Administrative Procedure Act (APA). As relief he asks
that Defendants be ordered to immediately process his records request and disclose to
him in their entirety the records he has requested. Mr. Gagan also has filed a motion
(Doc. #3) seeking the disqualification of all active and senior judges in the District of
Colorado and appointment of a judge from outside the Tenth Circuit. For the reasons
stated below, the motion for disqualification will be denied and the action will be
dismissed in part.
The Court must construe the papers filed by Mr. Gagan liberally because he is
not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972);

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not
be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
The Court first will address the motion for disqualification, which Mr. Gagan
apparently asserts pursuant to 28 U.S.C. § 455(a). Section § 455(a) provides that a
judge “shall disqualify himself in any proceeding in which his impartiality might
reasonably be questioned.” The goal of this provision is to avoid even the appearance
of partiality. See Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 860
(1988). Pursuant to § 455, the Court is not required to accept factual allegations as true
“and the test is whether a reasonable person, knowing all the relevant facts, would
harbor doubts about the judge’s impartiality.” Glass v. Pfeffer, 849 F.2d 1261, 1268
(10th Cir. 1988) (internal quotation marks omitted). The standard is completely objective
and “[t]he inquiry is limited to outward manifestations and reasonable inferences drawn
therefrom.” See United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993).
Mr. Gagan argues that disqualification of the entire bench is appropriate because
Judge Marcia S. Krieger and other individuals conspired to violate various federal laws
during the course of Mr. Gagan’s federal criminal case. See United States v. Gagan,
No. 02-cr-00193-MSK (D. Colo. June 15, 2004). One other court official allegedly
implicated in the conspiracy is Clerk of Court Gregory C. Langham. Although the
alleged conspiracy did not involve any other members of the bench, Mr. Gagan
contends that disqualification of the entire bench is necessary for the following reason:
Obviously, the relationship of the judges of this Court
to Judge Marcia S. Krieger & Clerk Gregory C. Langham is
presumably so intimate and the related esteem so high that
the average person on the street, knowing all the relevant
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facts, would harbor doubts about any judge of this Court
being able to act impartial in this case and in any other
litigation brought in this Court by the Plaintiff.
(Doc. #3 at 16.)
The Court does not agree that Mr. Gagan’s allegations regarding a conspiracy
involving the district judge who presided over his criminal case and the Clerk of the
Court would cause a reasonable person to doubt the impartiality of every other judge in
the District of Colorado. “[S]ection 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.” United States v. Hines, 696
F.2d 722, 729 (10th Cir. 1982). “The statute is not intended to give litigants a veto power
over sitting judges, or a vehicle for obtaining a judge of their choice.” Cooley, 1 F.3d at
993. Therefore, the Court finds that disqualification under § 455(a) is not appropriate
and the motion for disqualification will be denied.
The Court next will address Mr. Gagan’s claims in the Prisoner Complaint. Mr.
Gagan alleges that on February 13, 2011, he submitted a FOIA request for certain
public records to Defendant John Walsh, the United States Attorney for the District of
Colorado. Mr. Gagan further alleges that his FOIA request was referred to the
Executive Office for United States Attorneys (EOUSA) and that on March 31, 2011, the
EOUSA denied his request because no records responsive to the request were found.
Mr. Gagan asserts that he appealed the action of the EOUSA to the United States
Department of Justice Office of Information Policy and that on September 19, 2011, he
was advised that his request had been remanded to the EOUSA for a further search.
Mr. Gagan maintains that he was advised in the September 19 notification that he could
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file suit in federal district court if he was dissatisfied with the action taken.
Mr. Gagan specifically asserts two claims for relief challenging an alleged failure
to respond to his request for expedited processing of his FOIA request, although he fails
to allege when he made a request for expedited processing. He first claims that the
failure to respond to his request for expedited processing violates FOIA and Department
of Justice regulations. Mr. Gagan’s second claim is that the failure to respond in a
timely manner to his request for expedited processing of his FOIA request constitutes
agency action unlawfully withheld in violation of the APA. The named Defendants are
United States Attorney General Eric Holder, United States Attorney for the District of
Colorado John Walsh, and the Department of Justice.
The Court first will address Mr. Gagan’s APA claim. Under the APA, a person
aggrieved by agency action is entitled to judicial review. See 5 U.S.C. § 702. However,
the APA provides for judicial review of final agency action only when “there is no other
adequate remedy in a court.” 5 U.S.C. § 704; see also Bowen v. Massachusetts, 487
U.S. 879, 903 (1988) (stating that “Congress did not intend the general grant of review
in the APA to duplicate existing procedures for review of agency action.”). Therefore, if
the relief Mr. Gagan seeks is available under FOIA, he cannot seek the same relief
under the APA. See Feinman v. F.B.I., 713 F. Supp.2d 70, 76 (D.D.C. 2010) (stating
that “[t]his Court and others have uniformly declined jurisdiction over APA claims that
sought remedies made available by FOIA.”).
To the extent Mr. Gagan is seeking a release of records that he contends have
been wrongfully withheld, it is clear that FOIA provides an adequate remedy. More
specifically, FOIA provides that a district court “has jurisdiction to enjoin the agency from
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withholding agency records and to order the production of any agency records
improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). To the extent Mr.
Gagan is seeking judicial review of the alleged failure to respond to his request for
expedited review, that relief also is available in a FOIA action. Under FOIA, agencies
are required to promulgate regulations “providing for expedited processing of requests
for records” in certain circumstances. 5 U.S.C. § 552(a)(6)(E)(i). The statute also
provides that “[a]gency action to deny or affirm denial of a request for expedited
processing . . . and failure by an agency to respond in a timely manner to such a
request shall be subject to judicial review” under § 552(a)(4). 5 U.S.C. §
552(a)(6)(E)(iii). Therefore, because all of the relief Mr. Gagan seeks in this action is
available under FOIA, he may not pursue the same relief under the APA and the APA
claim will be dismissed.
With respect to Mr. Gagan’s FOIA claim, the Court notes that “FOIA authorizes
suit against federal agencies, but does not create a right of action against individual
employees of the agency.” Scherer v. United States, 241 F. Supp.2d 1270, 1278 (D.
Kan. 2003). Therefore, the individuals named as Defendants in the Prisoner Complaint,
Attorney General Holder and United States Attorney Walsh, will be dismissed as parties
to this action.
The Court will not address at this time the merits of Mr. Gagan’s FOIA claim
against the Department of Justice. Instead, the action will be drawn to a district judge
and to a magistrate judge as provided in D.C.COLO.LCivR 8.2D because the Court has
completed its review pursuant to D.C.COLO.LCivR 8.2C. Accordingly, it is
ORDERED that Plaintiff’s motion for disqualification (Doc. #3) is denied. It is
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FURTHER ORDERED that Plaintiff’s second claim for relief that is asserted
pursuant to the Administrative Procedure Act is dismissed. It is
FURTHER ORDERED that Defendants Eric Holder, Jr., and John Walsh, III, are
dismissed as parties to this action. It is
FURTHER ORDERED that this case shall be drawn to a district judge and to a
magistrate judge.
DATED at Denver, Colorado, this

14th

day of

December

, 2011.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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