Levin v. USA

Filing 138

Order Re: Recusal. The court finds that the Plaintiff has not satisfied his substantial burden of rebutting the presumption of impartiality. The undersigned recognizes her duty to sit in all cases that come before the court when there is no legitimate reason for recusal. This is such a case. Accordingly, the court shall not recuse itself. Signed by Chief Judge Frances M. Tydingco-Gatewood on 5/14/2014. (fad, )

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DISTRICT COURT OF GUAM
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TERRITORY OF GUAM
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CIVIL CASE NO. 05-00008

STEVEN A. LEVIN,
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Plaintiff,

ORDER RE: RECUSAL

vs.

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UNITED STATES OF AMERICA,

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Defendant.

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On February 25, 2014, Plaintiff Steven A. Levin (“Plaintiff”) filed pro se a Motion for

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Recusal (“Motion”). See ECF No. 128. Therein, Plaintiff questioned the undersigned Judge’s

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impartiality due to an unfavorable order dismissing one of Plaintiff’s claims. After a show cause

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hearing, the court disallowed the Motion as it was improperly filed, in violation of the Local

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Rules of Practice for the District Court of Guam.1 See ECF No.135.

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Notwithstanding the improper filing, this court finds that respect for the judiciary

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depends upon public confidence in the integrity and independence of judges. It is on this basis

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alone that this decision is rendered, addressing the issue raised in the Motion.2

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GR 19.1(a) provides: “Whenever a party has appeared by an attorney, the party may not thereafter appear or act in
his or her own behalf in the action, or take any step therein, unless an order of substitution shall first have been made
by the Court, after notice to the attorney of such party, and to all other parties; provided, that the Court may in its
discretion hear a party in open court, notwithstanding the fact that the party has appeared, or is represented by an
attorney.”
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As the Motion was previously determined to be improperly filed, the court will not make a ruling as to the Motion.

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A. Background
On March 2, 2005, Plaintiff filed a complaint for battery and negligent medical

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malpractice against the United States government and a United States Navy surgeon arising from

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Plaintiff’s unsuccessful cataract surgery. Compl., ECF No. 1.

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On October 18, 2007, the United States filed a motion for summary judgment, which was

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granted as to the medical malpractice claim, but was denied as to the battery claim. See ECF

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Nos. 74, 75, 84. On October 9, 2008, the United States filed a motion to dismiss the battery claim

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for lack of subject-matter jurisdiction, arguing that the Federal Tort Claims Act expressly

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preserves sovereign immunity against battery claims. See ECF No. 88. This court agreed and

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dismissed the battery claim, holding that the Gonzalez Act, 10 U.S.C. § 1089, does not authorize

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battery claims against the United States when military doctors operate without the patient’s

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consent. See ECF No. 110.

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The dismissal of the battery claim was affirmed by the Court of Appeals for the Ninth

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Circuit. Levin v. United States, 663 F.3d 1059 (9th Cir. 2011). The Supreme Court reversed the

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judgment of the Court of Appeals and remanded for further proceedings. Levin v. United States,

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133 S. Ct. 1224 (2013).

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B. Recusal
“Judicial impartiality is presumed.” First Interstate Bank of Arizona, N.A. v. Murphy,

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Weir & Butler, 210 F.3d 983, 987 (9th Cir. 2000). “Because a judge is presumed to be impartial,

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a party seeking recusal bears the substantial burden of proving otherwise.” United States v.

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Martinez, 446 F.3d 878, 883 (8th Cir. 2006).

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If “the judge before whom the matter is pending has a personal bias or prejudice either

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against [a party] or in favor of any adverse party, such judge shall proceed no further…” 28

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U.S.C. § 144. Additionally, a judge “shall disqualify himself in any proceeding in which his
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impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). The Ninth Circuit has held

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that under both recusal statutes “the substantive standard is ‘whether a reasonable person with

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knowledge of all the facts would conclude that the judge’s impartiality might reasonably be

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questioned.’” Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir. 2008) (brackets omitted)

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(quoting United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997)).

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In Liteky v. United States, 510 U.S. 540 (1994), the Supreme Court recognized that

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“extrajudicial source” is the common basis for establishing disqualifying bias or prejudice. Id. at

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551. The Court held:

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First, judicial rulings alone almost never constitute a valid basis for a bias or partiality
motion. In and of themselves (i.e., apart from surrounding comments or accompanying
opinion), they cannot possibly show reliance upon an extrajudicial source; and can only
in the rarest circumstances evidence the degree of favoritism or antagonism required (as
discussed below) when no extrajudicial source is involved. Almost invariably, they are
proper grounds for appeal, not for recusal. Second, 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.

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Id. at 555 (citation omitted).
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Plaintiff contends that “[a]llowing pervasive errors in the Order’s analysis to slip by
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could reasonably be seen as an indication that the Chief Judge acted with a predisposition that
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allowed a decision to be taken without due diligence.” Mot. at 2, ECF No. 128. Plaintiff does not
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establish that this court’s dismissal of his battery claim either relied upon an extrajudicial source
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or displayed a deep-seated favoritism or antagonism. Rather, Plaintiff purely relies upon the fact
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that the Supreme Court reversed the dismissal of his battery claim.
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The court finds that a reasonable person with knowledge of all the facts would not
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conclude that the court’s impartiality might reasonably be questioned. This court’s dismissal of
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Plaintiff’s battery claim was affirmed by the Court of Appeals for the Ninth Circuit, whose
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interpretation of the law is binding precedent for this jurisdiction. Recognizing a split between
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the Courts of Appeals on whether the Gonzalez Act authorizes battery claims against the United

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States when military doctors operate without the patient’s consent, the Supreme Court granted

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certiorari and subsequently reversed the Ninth Circuit’s judgment. The only basis for recusal

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proffered by Plaintiff is this court’s order dismissing the battery claim. The Supreme Court has

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held judicial rulings almost never constitute a valid basis for recusal and “only in the rarest

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circumstances” evince the degree of favoritism or antagonism required for recusal; such rare

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circumstances are not present in this instance.

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C. Conclusion
Based upon the foregoing, the court finds that Plaintiff has not satisfied his substantial

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burden of rebutting the presumption of impartiality. The undersigned recognizes her duty to sit in

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all cases that come before the court when there is no legitimate reason for recusal. This is such a

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case. Accordingly, the court shall not recuse itself.

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SO ORDERED.

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/s/ Frances M. Tydingco-Gatewood
Chief Judge
Dated: May 14, 2014

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