addressed only to the alleged appearance of impropriety, claimed to stem from the "dual employment" of Mr. Shiffman. Under Section 144, only specific factual allegations of personal bias or prejudice will suffice to disqualify a judge; the statute has been strictly construed, so as to safeguard the judiciary from frivolous attacks upon its dignity. U.S. v. Moore, 405 F. Supp. 771, 772 (S.D.W. Va. 1976), Sperry Rand Corporation v. Pentronix, Inc., 403 F. Supp. 367, 371-372 (E.D. Pa. 1975). Plaintiff has filed neither the affidavit, nor the accompanying good faith certification, by counsel, which is required by the express terms of Section 144. The absence of these documents is a significant defect in a motion to disqualify a judge, Walters v. U.S., 404 F. Supp. 996, 998 (S.D. N.Y. 1975); we have, on a prior occasion, ruled that such procedural defects in themselves are ordinarily sufficient to defeat a motion for disqualification. U.S. v. Clark, 398 F. Supp. 341, 362 (E.D. Pa. 1975), aff'd, 532 F.2d 748 (3d Cir. 1976).
In the absence of the requisite affidavit, however, other courts on occasion have held that an assigned judge may recuse himself and have the case reassigned, solely as a matter of discretion. See, e.g., Smith v. State of North Carolina, 528 F.2d 807, 810 (4th Cir. 1975). Even as a matter of discretion, however, we do not believe that the factual situation before us requires recusal in this case. In the usual Section 144 determination, the sitting judge is presented with a party's affidavit and with counsel's good faith certification; the judge's task is to determine whether or not the factual allegations contained in the affidavit are legally sufficient to warrant recusal; he must accept the factual allegations as true, and is not permitted to inquire into their truth. Sperry Rand Corporation v. Pentronix, Inc., supra, at 369-370. Since, in the matter presently before us, we have no factual affidavit, we will, as noted, accept the factual allegations of plaintiff's motion as true. Yet, even accepting those allegations as true, we conclude that plaintiff has not set forth a sufficient basis for recusal. Considering all the circumstances of this case, we do not believe plaintiff's motion establishes a sufficient claim of "personal bias or prejudice" on the part of this judge. While we are sensitive to the conclusory allegation of an "appearance of impropriety," that allegation alone is not sufficient to justify recusal under Section 144, and is not, in any event, supported by the specific factual allegations of the plaintiff's motion.
Recusal and reassignment is not a matter to be lightly undertaken by a district judge. While, in proper cases, we have a duty to recuse ourselves, in cases such as the one before us, we have a concomitant obligation not to recuse ourselves; absent a valid reason for recusal, there remains what has sometimes been termed a "duty to sit". See, U.S. v. Moore, supra, at 772; Sperry Rand Corp. v. Pentronix, Inc., supra, at 373.
B. Disqualification under Section 455 is not warranted.
Similar considerations govern the issue of whether recusal might be justified under Section 455, as amended in 1974, which is arguably broader in its scope than Section 144. But see, Sperry Rand Corporation v. Pentronix, Inc., supra, at 373-374, fn. 11. The relevant portions of Section 455 call for disqualification in any case where a judge's "impartiality might reasonably be questioned," as well as where the judge has a "personal bias or prejudice," 28 U.S.C. §§ 455(a), 455(b)(1). No factual affidavits, or certifications of good faith, are required to justify recusal under Section 455. As applied to the matter before us, the governing issue is whether, under all the circumstances of this case, our own impartiality might reasonably be questioned; the standard is whether plaintiff has stated specific facts sufficient to convince a reasonable man that the judge possesses bias or prejudice, or could not be impartial. See, Curry v. Jensen, 523 F.2d 387, 388 (9th Cir.), cert. denied, 423 U.S. 998, 46 L. Ed. 2d 373, 96 S. Ct. 428 (1975); U.S. v. Moore, supra, at 733. Even employing this objective standard of "reasonableness," we are not satisfied that the factual situation presented to us calls for our disqualification, under the Section 455 standards.
Based upon our consideration of all the facts, we do not believe that a reasonable man could question our own impartiality in this litigation; we cannot see how Mr. Shiffman's presence in our chambers could possibly lead a reasonable man to question our ability to adjudicate the pending litigation fairly and without bias or prejudice to either party. It is also noteworthy that this case will be tried to a jury; hence that body will determine all factual matters.
While some courts have stated that the 1974 amendments to 28 U.S.C. § 455 were intended to overrule the "duty to sit" cases, see, e.g. Davis v. Board of School Commissioners of Mobile County, 517 F.2d 1044, 1052, (5th Cir. 1975), cert. denied, 425 U.S. 944, 48 L. Ed. 2d 188, 96 S. Ct. 1685 (1976), other decisions suggest or imply that the "duty to sit" principle may have continuing vitality. See, U.S. v. Moore, supra at 772; Lazofsky v. Sommerset Bus Co., Inc., 389 F. Supp. 1041, 1044-45, (E.D. N.Y. 1975). In any event, we are sensitive to the burdens which our recusal, and the consequent reassignment of the case, would place upon our colleagues in this district, particularly with the matter so close to trial. Recusal is not to be undertaken lightly, and, given all the circumstances presently before us, we are convinced that proper and reasonable grounds for disqualification have not been advanced by the plaintiff. An Order will be entered accordingly.
HERBERT A. FOGEL J. / United States District Court
AND NOW, this 22th day of December, 1976, upon consideration of plaintiff's Motion to Re-Assign Case, and of defendant's letters of November 30, 1976, and December 7, 1976, and for the reasons set forth in the accompanying Opinion.
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff's Motion be, and the same hereby is, DENIED.
BY THE COURT:
HERBERT A. FOGEL, / United States District Court
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