The opinion of the court was delivered by: J. Andrew Smyser Magistrate Judge
(Magistrate Judge Smyser)
This is a pro se case that was assigned to Judge Jones and was referred to this magistrate judge pursuant to the Case Assignment Policy of this court. The plaintiff has filed a motion in which he asks for an order of disqualification of this magistrate judge. His motion states that he "is a professional writer engaged in a series of books and articles concerning systemic and endemic judicial and political corruption in Pennsylvania, and central Pennsylvania, including the counties of Dauphin and York." (Doc. 52). He states that "Magistrate Judge J. Andrew Smyser himself is a subject of several of [his] books on judicial and political corruption, including The Sins of Our Fathers (excerpts attached) and Maybe Four Steps." (Id.) He states opinions about how the undersigned judicial officer performed his responsibilities when he was an Assistant United States Attorney. He implies that the judicial officer would not be impartial due to the plaintiff's writings.
The plaintiff's motion is untimely. It was not filed when the case was referred to this magistrate judge on November 13, 2009, but rather was filed on March 19, 2010, after this magistrate judge had performed judicial responsibilities in the case including a March 9, 2010 Report and Recommendation recommending that the motions of some defendants to dismiss the case be granted.
A recusal motion must be timely. See 28 U.S.C. § 144. A party may not reasonably be permitted to await a judge's ruling(s) before seeking the disqualification of the judge, particularly not when the grounds that the party would assert are known to the party at the time of case assignment.
The plaintiff bases his motion for my disqualification upon his own earlier writings. He was, accordingly, plainly aware before this judicial officer began to make decisions in this case of his basis for his belief that he had grounds for seeking disqualification. He did not act upon his belief in a timely manner. He did not act upon his belief until after this judicial officer had issued a Report and Recommendation addressing motions to dismiss a number of the plaintiff's claims. The motion for disqualification will be denied on the basis that it is untimely.
If we were to decide the motion on the merits of the motion, it would be denied on the basis that it is not meritorious. The reasons for that decision are as follows.
A judge's duty to preside in a case randomly assigned to the judge pursuant to the court's case assignment policy is as strong when the judge has no legitimate reason to disqualify himself as is the judge's duty to disqualify himself when the law and the facts require disqualification. Accordingly, the judge should carefully and critically scrutinize a litigant's claim that the judge should disqualify himself.
A disqualification of a judicial officer is to be considered with reference to 28 U.S.C. § 455. The motion of the plaintiff will be considered under subsections 455(a) and (b)(1).
Whenever a judge's impartiality "might reasonably be questioned" in a proceeding, 28 U.S.C. § 455(a) commands the judge to disqualify himself sua sponte in that proceeding. For purposes of § 455(a) disqualification, it does not matter whether the district court judge actually harbors any bias against a party or the party's counsel. This is so because § 455(a) concerns not only fairness to individual litigants, but, equally important, it concerns "the public's confidence in the judiciary, which may be irreparably harmed if a case is allowed to proceed before a judge who appears to be tainted." In re School Asbestos Litigation, 977 F.2d 764, 776 (3d Cir.1992) (citing Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 859-60, 108 S.Ct. 2194, 2202-03, 100 L.Ed.2d 855 (1988); H.R.Rep. No. 93-1453, 93d Cong., 2d Sess. 5 (1974), reprinted in 1974 U.S.C.C.A.N. 6351, 6355 [hereinafter "House Report"] ). To achieve its highest function, " 'justice must satisfy the appearance of justice.' " School Asbestos Litigation, 977 F.2d at 782 (quoting In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955)).
The instruction to which we adhere "is designed to promote public confidence in the impartiality of the judicial process by saying, in effect, if there is a reasonable factual basis for doubting the judge's impartiality, he should disqualify himself and let another judge preside over the case." House Report, reprinted in 1974 U.S.C.C.A.N. at 6351, 6355. At the same time, in assessing ... [the judge's] impartiality, [the] judge [and, of course, we as a reviewing court] must be alert to avoid the possibility that those who would question [the judge's] impartiality are in fact seeking to avoid the consequences of his expected adverse decision. Disqualification for lack of impartiality must have a reasonable basis.... Litigants ought not have to face a judge where there is a reasonable question of impartiality, but they are not entitled to judges of their own choice. Id. As we are all too aware, the issue of disqualification "is a sensitive question of assessing all the facts and circumstances in order to determine whether the failure to disqualify was an abuse of sound judicial discretion." Id.
Alexander v. Primerica Holdings, Inc., 10 F.3d 155, 162 (3d Cir. 1993). "The test for recusal under § 455(a) is whether a reasonable person, with knowledge of all the facts, would conclude that the judge's impartiality might reasonably be questioned." In re Kensington Intern. Ltd., 353 F.3d 211, 220 (3d Cir. 2003). See U.S. v. Wecht, 484 F.3d 194, 213 (3d Cir. 2007).
The issue under subsection 455(a) is whether the impartiality of the judicial officer might reasonably be questioned. The plaintiff in the motion and supporting brief does not set forth a reasoned position that the judicial officer's impartiality might reasonably be questioned, apparently considering it to be self-evident that because the plaintiff in his writer capacity wrote negative opinions about the judge the judge's impartiality ...