United States District Court, W.D. Arkansas, Fayetteville Division
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE
Currently
before the Court is attorney Mosemarie Boyd's Motion for
Recusal of Judge from Review of CJA Form 20 (Doc. 91) and
Amended Motion for Recusal and Motion to Seal (Doc. 92). For
the reasons given below, Ms. Boyd's original Motion (Doc.
91) is MOOT due to the filing of her Amended
Motion, and the Amended Motion (Doc. 92) is
DENIED.
I.
BACKGROUND
On
March 6, 2018, Defendant Gary Smith was charged in a
one-count single-defendant indictment with conspiring to
distribute methamphetamine. (Doc. 1). Ms. Boyd was then a
member of this Court's CJA attorney panel, and on March
15, 2018, she was appointed to represent Mr. Smith. (Doc.
10). Four months later, on July 18, 2018, Mr. Smith pleaded
guilty. (Doc. 17). Mr. Smith was held accountable for
conspiring to distribute more than 500 grams of
methamphetamine. His Total Offense Level was 27, and he was
placed in Criminal History Category II, resulting in a
Guideline range of 78 to 97 months. (Doc. 33). On May 9,
2019, the Court varied downward and sentenced Mr. Smith to 60
months imprisonment. An appeal was not pursued.
On June
24, 2019, Ms. Boyd submitted a CJA voucher for attorney fee
compensation in the sum of $30, 286.40 and expense
reimbursements totaling $1, 807.21. Ms. Boyd initially waived
excess fee compensation, but in doing so she said, "[l]f
the reviewing Court finds that the merits of counsel's
work justify additional compensation for work on a complex
and extended case, then counsel withdraws waiver of fees
above the standard case maximum." She also requested
that the Court "consider whether recusal would be
appropriate with regard to review of this request for
compensation and recuse if deemed appropriate." More
recently, Ms. Boyd explicitly withdrew her waiver of excess
fee compensation and requested compensation in the full
amount itemized on the voucher. At the same time, she filed
her original motion for recusal, which she amended a few days
later. To be clear, the docket in Mr. Smith's case has
been closed since May 2019, and Ms. Boyd is not seeking
recusal on Mr. Smith's behalf. Rather, her concern is
that the undersigned judge is not capable of considering her
voucher in a fair and impartial manner, and/or that it would
constitute an appearance of impropriety for the undersigned
to do so.
Although
typically orders will refer to "the Court" or
"this Court," this particular Order will make
extensive use of the first-person, because the relief being
sought by the instant Motion pertains to the specific person
occupying the bench, rather than to the venue, forum, or
court. See, e.g., S.W. Bell Tel. Co. v. F.C.C., 153
F.3d 520 (8th Cir. 1998) (Hansen, J., employing the
first-person when explaining why he will not be recusing from
a case).
II.
LEGAL STANDARD
28
U.S.C. § 455(a) states, in its entirety, 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."[1] "A party introducing a motion to
recuse carries a heavy burden of proof; a judge is presumed
to be impartial and the party seeking disqualification bears
the substantial burden of proving otherwise." Pope
v. Fed. Express Corp., 974 F.2d 982, 985 (8th Cir.
1992). The decision whether to recuse is committed to a
district court's "sound discretion," but
"[r]ecusal is required when an average person knowing
all the relevant facts of a case might reasonably question a
judge's impartiality." Dossett v. First State
Bank, 399 F.3d 940, 953 (8th Cir. 2005). Where a judge
finds that the facts do not warrant recusal, he has an
obligation not to recuse. See S.W. Bell Tel. Co.,
153 F.3d at 523.
III.
DISCUSSION
As a
general proposition, Ms. Boyd's motion is vague and
consists mainly of her own self-serving perspective and
subjective conclusions. As best I can decipher, however, Ms.
Boyd seeks recusal because: (1) I held her in contempt during
a hearing on January 9, 2019; (2) she was removed from the
CJA panel by order of Chief Judge Susan O. Hickey in
September 2019; and (3) the length of time that the voucher
has been pending is excessive. None of these reasons warrant
recusal.
First,
it is true that Ms. Boyd was held in contempt and sanctioned
$100.00 for her conduct during a hearing on January 8, 2019,
for her "repeated failure to obey the Court's
directives, her repeated interruption of the Court's
proceedings, and her blatant disrespect for the Court's
authority -" (Doc. 55, p. 3). See also
Transcript from Hearing on January 8, 2019, Doc. 59, pp.
9-14, 31-32. Ms. Boyd paid the sanction on January 10, 2019.
My finding of contempt was premised on Ms. Boyd's
on-the-record conduct in open court. Ms. Boyd's recourse
was an appeal, not a motion to recuse. For, it is
well-settled black-letter law that "[a]dverse judicial
rulings . . . 'almost never' constitute a valid basis
for recusal; the proper recourse for a dissatisfied litigant
is appeal." See Dossett v. First State Bank,
399 F.3d 940, 953 (8th Cir. 2005) (quoting Liteky v.
United States, 510 U.S. 540, 555 (1994)). Moreover, if
recusal were appropriate each time a court imposed sanctions,
our judicial system would cease to function efficiently, for
the obvious reason that a party (or in this case an attorney)
could intentionally engage in contemptuous conduct for the
purpose of then seeking recusal. See Porous Media Corp.
v. Pall Corp., 201 F.3d 1058, 1059 (8th Cir. 2000)
(affirming the trial court's denial of a motion to recuse
following the court's imposition of Rule 11 sanctions on
an attorney).
Second,
although it is true that Ms. Boyd was removed from the CJA
panel on September 9, 2019, see No. 2:19-SM-0039,
that removal was not a "punitive" action that I
personally took against Ms. Boyd. It was an action taken by
the Western District of Arkansas in accordance with its CJA
plan. Specifically, the letter of explanation by the CJA
Panel Committee stated the following reasons for her removal:
Her actions in the [Smith] case resulted in Judge Brooks
holding Ms. Boyd in contempt, for the reasons set out in the
order of contempt (ECF Doc. 55). The recommendation for
removal is also based on the fact that Ms. Boyd
inappropriately contacted Judge Holmes in person at his
private ...