McMahon v. Napolitano et al

Filing 64

ORDER. For the reasons stated in the attached Order, plaintiff's motions to recuse Judge Matsumoto and Judge Levy are denied. Ordered by Judge Kiyo A. Matsumoto on 1/20/2016. (Gong, LiJia)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JOYCE A. McMAHON,
ORDER
Plaintiff,

12-cv-5878 (KAM)(RML)
13-cv-1404 (KAM)(RML)

-againstJEH JOHNSON, Secretary, U.S. Department
of Homeland Security

Defendant.
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MATSUMOTO, United States District Judge:
Plaintiff Joyce A. McMahon (“plaintiff” or “Ms.
McMahon”) commenced two actions against Jeh Johnson1, the
Secretary of the Department of Homeland Security (“DHS” or
“defendant” or the “agency”), alleging that defendant
discriminated against her on the basis of her race, color,
national origin, sex, and age and then retaliated against
plaintiff for her complaint to the agency’s Equal Opportunity
Office (“EEO”) in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (“Title VII”) and the Age
Discrimination and Employment Act (“ADEA”) of 1967, 29 U.S.C. §§
621-634.
In September 2015, plaintiff filed identical motions to

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Pursuant to Federal Rule of Civil Procedure 25(d), Jeh Johnson, Secretary of
the U.S. Department of Homeland Security, is automatically substituted as the
defendant in this action.

recuse Judge Matsumoto in both cases.

(Mot. to Recuse, ECF No.

66, 12-cv-5878, dated Sept. 7, 2015; ECF No. 45, 13-cv-1404, dated
Sept. 8, 2015.)
response.

On October 16, 2015, the government filed its

(Response to Mot. to Recuse, ECF No. 79, 12-cv-5878,

dated Oct. 16, 2015; ECF No. 59, 13-cv-1404, dated Oct. 16, 2015.)
Plaintiff filed her reply in December 2015. (Reply in Supp. of
Mot. to Recuse (“Reply”), ECF No. 83, 12-cv-5878, dated Dec. 3,
2015; ECF No. 61, 13-cv-1404, dated Dec. 3, 2015.)

In her

objections to Judge Levy’s Report and Recommendations (“R&R”) in
the two cases, plaintiff also seeks Judge Levy’s recusal.

(Obj.

to R&R, ECF No. 77, 12-cv-5878, dated Oct. 8, 2015; ECF No. 58,
13-cv-1404, dated Oct. 13, 2015.)

For the reasons stated in this

order, plaintiff’s requests to recuse Judge Matsumoto and Judge
Levy are denied.
In her opening motion, plaintiff alleges that Georgetown
University, the Georgetown University Wall Street Alliance, the
Georgetown University Alumni Club of Caracas, and Georgetown
University Career Education Center were involved in “gang-stalking
activities” against plaintiff and attempted to frustrate her
search for employment.

(Mot. to Recuse at 2-3.)

In her reply,

plaintiff further alleges that Georgetown University “conceived,
created and brought to life” the Department of Homeland Security.
(Reply at 2.)

Plaintiff seeks the recusal of Judge Matsumoto on

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the ground that “[a]s a graduate of the Georgetown Law Center”
Judge Matsumoto “can be presumed to be protective” of the
reputation of the Georgetown University Law Center and her fellow
alumni and the law faculty.

(Id. at 3.)

Plaintiff seeks the

recusal of Judge Levy on the ground that he and his wife, who is a
current or former family court judge in New York City, “likely
know” the persons and organizations involved in the organized
gang-stalking of plaintiff.

(Obj. to R&R at 1-2.)

Section 455(a) of title 28 of the United States Code
provides that “[a]ny justice, judge, or magistrate judge . . .
shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.”

Liteky v. United

States, 510 U.S. 540, 546 (1994); Thomas v. New York City Hous.
Auth., No. 14-CV-4636, 2015 WL 2452576, at *2 (E.D.N.Y. May 20,
2015).

“[A] judge should be disqualified only if it appears

that he or she harbors an aversion, hostility or disposition of
a kind that a fair-minded person could not set aside when
judging the dispute.”

Liteky, 510 U.S. at 546; ISC Holding AG

v. Nobel Biocare Fin. AG, 688 F.3d 98, 107–08 (2d Cir. 2012)
(“The question, as we have put it, is whether ‘an objective,
disinterested observer fully informed of the underlying facts,
[would] entertain significant doubt that justice would be done
absent recusal.’” (quoting United States v. Carlton, 534 F.3d

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97, 100 (2d Cir. 2008)).
Plaintiff has not made any factual allegations to
suggest that an objective, disinterested observer would question
either this court’s or Judge Levy’s impartiality.

Judge

Matsumoto’s affiliation with Georgetown University Law Center as
an alumna, without more, does not merit recusal.

See, e.g.,

Lunde v. Helms, 29 F.3d 367, 370–71 (8th Cir. 1994) (in action
by former medical student against university, recusal not
warranted because judge's graduation from university's law
school, his making of alumni contributions and his participation
in educational programs at the law school did not provide an
objectively reasonable basis for questioning his impartiality);
cf. Longi v. New York, 363 Fed. App'x 57 (2d Cir. 2010)
(affirming denial of recusal motion where district judge and
magistrate judge were previously employed by defendants).
Plaintiff’s allegations that Judge Levy and his wife “are
likely” to know persons or organizations that are involved with
the “gang-stalking” of plaintiff are far too speculative to
merit recusal.

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Consequently, for the reasons stated herein,
plaintiff’s requests to recuse this court and Judge Levy are
hereby denied.

SO ORDERED.
Dated:

January 20, 2016
Brooklyn, New York
_______ ___/s/
Kiyo A. Matsumoto
United States District Judge

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