Assa'ad-Faltas v. South Carolina, The State of et al

Filing 7

ORDER denying 6 Motion for Recusal; denying 6 Motion for Hearing. Signed by Magistrate Judge Shiva V Hodges on 8/15/2012.(abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Marie Assa’ad-Faltas,
Plaintiff,
vs.
The State of South Carolina; The City of
Columbia, South Carolina,
Defendants.

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C/A No.: 1:12-2294-TLW-SVH

ORDER

This matter is before the court on Plaintiff’s motion for recusal of the undersigned
magistrate judge or for a hearing on all cases referred to the undersigned. [Entry #6]. All
pretrial proceedings in this case were referred to the undersigned pursuant to the
provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(e) (D.S.C.).
I.

Factual Background
In support of her motion for recusal, Plaintiff’s motion states that the

undersigned’s brother, Attorney Shahin Vafai, is a law partner of Stephen Savitz, whose
daughter, Sara Heather Savitz Weiss, “falsely prosecuted Dr. Assa’ad-Faltas and
allegedly suborned perjury against her.” [Entry #6]. Plaintiff contends “Attorney Shahin
Vafai may have counseled his law partner, Stephan Savitz’s, daughter without formally
representing her.” Id.

II.

Discussion
A.

Standard of Review

The Fourth Circuit has recognized that “there is as much obligation upon a judge
not to recuse himself when there is no occasion as there is for him to do so when there is.”
Nakell v. Attorney Gen. of N.C., 15 F.3d 319, 325 (4th Cir. 1994) (citations and
quotations omitted); see also Code of Judicial Conduct, Canon 3A(2) (“A judge should
hear and decide matters assigned, unless disqualified . . . .”). As the Ninth Circuit
summarized:
This proposition is derived from the “judicial [p]ower” with which we are
vested. See U.S. Const. art. III, § 1. It is reflected in our oath, by which we
have obligated ourselves to “faithfully and impartially discharge and
perform [our] duties” and to “administer justice without respect to persons,
and do equal right to the poor and to the rich.” 28 U.S.C. § 453. Without
this proposition, we could recuse ourselves for any reason or no reason at
all; we could pick and choose our cases, abandoning those that we find
difficult, distasteful, inconvenient or just plain boring . . . .
It is equally clear from this general proposition that a judge may not sit in
cases in which his “impartiality might reasonably be questioned.” 28 U.S.C.
§ 455(a); see also id. § 455(b) (enumerating circumstances requiring
recusal). We are as bound to recuse ourselves when the law and facts
require as we are to hear cases when there is no reasonable factual basis for
recusal. See Clemens v. U.S. Dist. Ct., 428 F.3d 1175, 1179 (9th Cir. 2005);
Nichols v. Alley, 71 F.3d 347, 352 (10th Cir. 1995). If it is a close case, the
balance tips in favor of recusal. United States v. Dandy, 998 F.2d 1344,
1349 (6th Cir. 1993).
United States v. Holland, 519 F.3d 909, 912 (9th Cir. 2008) (alterations and emphasis in
original).

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Recusal of federal judges is generally governed by 28 U.S.C. § 455.1 That statute
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.” 28
U.S.C. § 455(a). In the Fourth Circuit, this standard is analyzed objectively by considering
whether a person with knowledge of the relevant facts and circumstances might reasonably
question the judge’s impartiality. United States v. Cherry, 330 F.3d 658, 665 (4th Cir.
2003). For purposes of this statute, the hypothetical “reasonable person” is not a judge,
because judges, who are trained to regard matters impartially and are keenly aware of that
obligation, “may regard asserted conflicts to be more innocuous than an outsider would.”
United States v. DeTemple, 162 F.3d 279, 287 (4th Cir. 1998).
Section 455(a) does not require recusal “simply because of unsupported, irrational
or highly tenuous speculation,” or because a judge “possesses some tangential relationship
to the proceedings.” Cherry, 330 F.3d at 665 (internal quotation omitted). The Fourth
Circuit recognizes that overly cautious recusal would improperly allow litigants to
exercise a “negative veto” over the assignment of judges simply by hinting at impropriety.
DeTemple, 162 F.3d at 287. Recusal decisions under 28 U.S.C. § 455(a) are “fact-driven
and may turn on subtleties in the particular case.” Holland, 519 F.3d at 912.
The statute provides a list of specific instances where a federal judge’s recusal is
mandated, regardless of the perception of a reasonable observer. 28 U.S.C. § 455(b). For

Notably, 28 U.S.C. § 455 largely tracks the language of Canon 3C of the Code
of Conduct for United States Judges, which also governs recusal of federal judges.
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instance, a judge is disqualified “[w]here he has a personal bias or prejudice concerning a
party.” 28 U.S.C. § 455(b)(1).2 Bias or prejudice must be proven by compelling evidence.
Brokaw v. Mercer Cnty., 235 F.3d 1000, 1025 (7th Cir. 2000). Additionally, a judge
should recuse herself if:
(5) He or his spouse, or a person within the third degree of relationship to
either of them, or the spouse of such a person:
(i) Is a party to the proceeding, or an officer, director, or trustee of a
party;
(ii) Is acting as a lawyer in the proceeding;
(iii)Is known by the judge to have an interest that could be
substantially affected by the outcome of the proceeding;
(iv) Is to the judge’s knowledge likely to be a material witness in the
proceeding.
28 U.S.C. § 455(b)(5).
B.

Analysis

Here, Plaintiff’s only alleged basis for recusal is that the undersigned’s brother’s
law partner’s daughter prosecuted Plaintiff in a prior case (and allegedly suborned perjury
against her) in a state court. [Entry #6].3 Plaintiff speculates that the undersigned’s brother
may have counseled his law partner’s daughter without formally representing her. Id.

Similarly, 28 U.S.C. § 144 mandates recusal when a party to a “proceeding in a
district court” demonstrates by 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 favor
of any adverse party.” The procedures for seeking recusal under 28 U.S.C. § 144 differ
from those under § 455(b)(1). Furthermore, where actual bias is demonstrated pursuant
to 28 U.S.C. § 144, recusal will generally also be required in any event under 28 U.S.C. §
455(a)’s standard of an appearance of bias. Therefore, the standard stated herein focuses
on 28 U.S.C. § 455.
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To the extent Plaintiff claims the undersigned was aware of the alleged
relationship, such an allegation is unfounded.
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Such a tangential relationship will not support a basis for recusal. For example, the Fourth
Circuit found that recusal was not required in the following circumstances: (1) where a
bankruptcy judge indicated that he thought the president of the debtor corporation was a
“fine man”; (2) in a criminal prosecution arising out of bankruptcy fraud, the judge had
previously represented victims of the fraud; (3) where a government witness was the son
of the judge’s deceased godparents, but the judge had not had contact with the witness in
over ten years. See Cherry, 330 F.3d at 665–66 (internal citations omitted). Additionally,
the conditions for recusal listed in 28 U.S.C. 455(b)(5) do not apply here, as the
undersigned’s brother has no known involvement or interest in this case. Therefore,
because Plaintiff has not set forth a basis for recusal under the law or shown that a
reasonable person would question the undersigned’s impartiality in this matter, Plaintiff’s
motion for recusal must be denied.
III.

Conclusion
For the foregoing reasons, Plaintiff’s motion to recuse [Entry #6] is denied.

Further, the court denies Petitioner’s request for a hearing as otherwise unnecessary.
IT IS SO ORDERED.

August 15, 2012
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

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