Halibut Trust v. Floerchinger

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
HALIBUT TRUST,
Plaintiff,
v.
BEVERLY FLOERCHINGER,
Defendant. Case No. 4:20-cv-00005-SLG
ORDER RE PLAINTIFF’S MOTION TO RECUSE
Before the Court at Docket 121 is Plaintiff’s Motion to Recuse Judge Sharon
L. Gleason per 28 U.S.C. 455(a).2 Defendant did not file any response to the
motion. Plaintiff contends that the undersigned judge “has made numerous
prejudicial findings against Donald A. Tangwall.”3 Plaintiff maintains that because
Mr. Tangwall has supplied an affidavit in this case, “[a] reasonable person could
1 Plaintiff also filed a request to recuse at Docket 4.
2 Due to the coronavirus pandemic, by Miscellaneous General Order 20-11, the District of
Alaska imposed a stay on all civil matters for 30 days, effective March 30, 2020. The
District of Alaska subsequently extended that stay until June 1, 2020. See Miscellaneous
General Order 20-13. The undersigned judge, presiding in this matter, hereby lifts the
stay in this case. See Miscellaneous General Order 20-13 at 5–6.
3 Docket 12 at 1.
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believe [the undersigned judge] is prejudiced against Donald A. Tangwall and must
recuse herself.”4
Under 28 U.S.C. § 455(a), a judge must recuse herself “if a reasonable
person with knowledge of all the facts would conclude that [her] impartiality might
reasonably be questioned.”5 A party seeking a judge’s recusal bears the burden
of proving facts that would justify recusal.6 Actual bias is not required; “the
appearance of impropriety can be a sufficient basis for judicial recusal.”7 And yet
a judge “must not simply recuse out of an abundance of caution when the facts do
not warrant recusal. Rather, there is an equally compelling obligation not to recuse
where recusal [is] not appropriate.”8
Although Plaintiff does not specify what was prejudicial about the findings
against Mr. Tangwall, Plaintiff’s motion appears to be based on a disagreement
with the Court’s rulings against Mr. Tangwall in other proceedings. However, such
disagreement is not a valid basis for recusal; “[t]he alleged prejudice must result
4 Docket 12 at 1.
5 Perry v. Schwarzenegger, 630 F.3d 909, 911 (9th Cir. 2011) (quoting United States v.
Nelson, 718 F.2d 315, 321 (9th Cir. 1983)).
6 DeNardo v. Municipality of Anchorage, 974 F.2d 1200, 1201 (9th Cir. 1992).
7 Blixseth v. Yellowstone Mountain Club, LLC, 742 F.3d 1215, 1219 (9th Cir. 2014).
8 United States v. Sierra Pac. Indus., 759 F. Supp. 2d 1198, 1200–01 (E.D. Cal. 2010)
(citing United States v. Holland, 519 F.3d 909, 912 (9th Cir. 2008)) .
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from an extrajudicial source; a judge’s prior adverse ruling is not sufficient cause
for recusal.”9 As explained by the United States Supreme Court:
[J]udicial rulings alone almost never constitute a valid basis for a bias
or partiality motion. See United States v. Grinnell Corp., 384 U.S., at
583, 86 S.Ct., at 1710. 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 . . . 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. 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. They may do so if they reveal an opinion that
derives from an extrajudicial source; and they will do so if they reveal
such a high degree of favoritism or antagonism as to make fair
judgment impossible. . . . Not establishing bias or partiality, however,
are expressions of impatience, dissatisfaction, annoyance, and even
anger, that are within the bounds of what imperfect men and women,
even after having been confirmed as federal judges, sometimes
display. A judge’s ordinary efforts at courtroom administration—even
a stern and short-tempered judge’s ordinary efforts at courtroom
administration—remain immune.10
Thus, given that it appears that the Court’s prior rulings against Mr. Tangwall
form the basis of Plaintiff’s motion to recuse, Plaintiff’s motion fails. Moreover, the
undersigned judge has no personal bias or prejudice against either party to this
9 United States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986).
10 Liteky v. United States, 510 U.S. 540, 555–56 (1994) (emphasis in original).
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action. In light of the foregoing, Plaintiff’s motion to recuse at Docket 12 is
DENIED.
DATED this 28th day of April, 2020 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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