Holcomb v. Colvin

Filing 12

ORDER that the undersigned DECLINES to recuse voluntarily and plaintiff's motion to recuse the undersigned hereby is REFERRED to Chief Judge Marsha J Pechman for decision. This action is stayed pending resolution of the recusal issue. Signed by Magistrate Judge Karen L Strombom. (CMG; cc to Plaintiff)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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JAMES BYRON HOLCOMB,
Case No. 3:13-cv-05256-KLS

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Plaintiff,
v.

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CAROLYN W. COLVIN, Commissioner of
Social Security, 1

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ORDER DECLINING TO RECUSE
VOLUNTARILY, REFERRING THE
MOTION TO THE CHIEF JUDGE, AND
STAYING THE ACTION

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Defendant.

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Plaintiff has brought this matter for judicial review of defendant’s dismissal of his claim

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for spousal benefits. Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73 and

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Local Rule MJR 13, the parties have consented to have this matter heard by the undersigned

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judge. This matter comes before the Court on plaintiff’s filing of objection to the undersigned’s

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order denying his motion to strike defendant’s motion to dismiss, request for review and motion

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for reconsideration by the Chief Judge, and motion to recuse the undersigned. See ECF #11. For

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the reasons set forth below, the undersigned hereby declines to voluntarily recuse herself from

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this case, refers this matter to the Chief Judge for a decision on plaintiff’s motion for recusal and

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stays this matter this matter pending that decision.

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Pursuant to 28 U.S.C. § 455(a), a judge of the United States shall disqualify herself in any

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proceeding in which her impartiality “might reasonably be questioned.” A federal judge also
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On February 14, 2013, Carolyn W. Colvin became the Acting Commissioner of the Social Security
Administration. Therefore, under Federal Rule of Civil Procedure 25(d)(1), Carolyn W. Colvin is substituted for
Commissioner Michael J. Astrue as the Defendant in this suit. The Clerk of Court is directed to update the
docket accordingly.

ORDER - 1

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shall disqualify herself in circumstances where she has a personal bias or prejudice concerning a

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party or personal knowledge of disputed evidentiary facts concerning the proceeding. 28 U.S.C.

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§ 455(b)(1). Pursuant to 28 U.S.C. § 144:

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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 favor of any
adverse party, such judge shall proceed no further therein, but another judge
shall be assigned to hear such proceeding.
Under both 28 U.S.C. § 144 and 28 U.S.C. § 455, recusal of a federal judge is appropriate
if “a reasonable person with knowledge of all the facts would conclude that the judge’s

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impartiality might reasonably be questioned.” Yagman v. Republic Insurance, 987 F.2d 622, 626

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(9th Cir.1993). This is an objective inquiry concerned with whether there is the appearance of

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bias, not whether there is bias in fact. Preston v. United States, 923 F.2d 731, 734 (9th Cir.1992);

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United States v. Conforte, 624 F.2d 869, 881 (9th Cir.1980). In Liteky v. United States, 510
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U.S. 540 (1994), the United States Supreme Court further explained the narrow basis for recusal:
[J]udicial rulings alone almost never constitute a valid basis for a bias or
partiality motion. . . . [O]pinions 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.
Id. at 555.
This court makes rulings in each case based upon the issues presented by the parties or
upon sua sponte review by the court. Plaintiff does not assert any instance of bias or lack of
impartiality on the part of the undersigned, but merely alleges he is unable to comply with the

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directive contained in the undersigned’s order denying his motion to strike, which he asserts is
both “‘harsh’ and ‘drastic’” and inequitable with respect to his position in this case. ECF #7, p. 4,
ORDER - 2

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see also ECF #10-#11. That directive consisted of a warning to plaintiff that he – as with respect

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to any other party appearing before the Court – was expected to abide by both the Federal Rules

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of Civil Procedure and the Local Rules of this Court, including Local Rule 7, and was issued in

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response to plaintiff’s express statement that he intended to file a response to defendant’s motion

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to dismiss in excess of the page limits allowed by Local Rule 7. See ECF #10.
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The undersigned finds nothing untoward or biased or otherwise improper in this warning

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particularly given the express intent to exceed what is allowable by Local Rule made by plaintiff,

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and thus declines to recuse voluntarily. Pursuant to Local General Rule 8(c), therefore, this

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matter is referred to the Chief Judge. Accordingly, it is hereby ordered that the undersigned

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DECLINES to recuse voluntarily, and plaintiff’s motion to recuse the undersigned hereby is

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REFERRED to Chief Judge Marsha J. Pechman for decision.

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The Clerk is directed to send a copy of this order to plaintiff and to counsel for defendant,
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and to place the motion to recuse the undersigned on Chief Judge Pechman’s calendar.
THIS ACTION IS STAYED PENDING RESOLUTION OF THE RECUSAL
ISSUE.
DATED this 16th day of August, 2013.

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A

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Karen L. Strombom
United States Magistrate Judge

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ORDER - 3