United States District Court, E.D. Pennsylvania
J. PAPPERT, J.
Court has written extensively about this case. See,
e.g., (ECF Nos. 63, 104). Deanna Pierce is a Native
American woman who claimed that the City of Philadelphia
discriminated against her on the basis of race when she lost
out on a promotion to a Hispanic woman and then retaliated
against her when she complained about the alleged
discrimination. In short, this was a fairly straightforward
employment dispute. When all was said and done, the jurors
chose to credit the City's explanation for its promotion
decision and found in the City's favor on the
discrimination claims, though it concluded that the City
retaliated against Pierce. The jurors awarded one dollar in
lawyers all did a generally fine job and the trial went
smoothly, until Pierce's lawyer went too far in her
closing and rebuttal arguments-urging the jurors to consider
a point that was essential to the success of Pierce's
discrimination claims but for which there was no evidentiary
support. (Jan. 11, 2019 Hr'g Tr. (“Jan. 11
Tr.”) 55:20-56:3, 84:7-10); see (ECF No. 104
at 23-24). The Court was surprised and disappointed and
admonished counsel at sidebar for her conduct. (Jan. 11 Tr.
87:22- 89:17.) The Court considered the matter closed.
lunch break and before the jurors returned to the courtroom
for their instructions, the Court allowed counsel to make her
objections to the City's closing argument. Counsel
unfortunately used that opportunity to revisit her own
closing and again argue that she hadn't done anything
wrong. This forced the Court to address the unpleasant topic
a second time, which the Court did (Jan. 11 Tr. 93:12-96:23),
after which it again considered the matter closed.
trial, Pierce filed a motion for equitable and injunctive
relief (ECF No. 78), a motion for judgment as a matter of law
and for a new trial (ECF No. 86) and a second motion for a
new trial (ECF No. 101). None of these filings brought up the
controversy counsel created with the liberties taken in her
closing, nor did they touch on the Court's admonitions of
her behavior. They did, however, complain about the
City's closing argument. See (ECF No. 86 at
21-26). In its Response, the City pointed out that
Pierce's lawyer failed to object at trial to most aspects
of the City's closing, thereby waiving those arguments.
(ECF No. 88 at 24-27.)
then filed a Reply. (ECF No. 94.) Apparently determined to
debate the merits of her own conduct on the public docket,
counsel attempted to excuse her failure to object to most of
the City's closing argument on being rattled by the
Court's “hostil[ity]” and
“ang[er]” at her for her own improper argument.
(Id. at 6-9.) Rather than accept the fact that at
trial she made a deliberate, unhurried and presumably
strategic decision to focus on just one aspect of her
opponent's closing,  counsel tripled down in defense of an
overzealous mistake. Having done so, the Court was forced, in
its Memorandum denying Pierce's motions (ECF No. 104), to
provide the context and content of the entire exchange.
(Id. at 23-25.) It is this recitation that prompted
counsel to seek the Court's recusal. The Court denies her
moves for recusal under 28 U.S.C. § 455(a). Section
455(a) requires a federal judge to disqualify himself in any
proceeding in which his impartiality might reasonably be
questioned. The Court must determine “whether a
reasonable person, with knowledge of all the facts, would
conclude that the judge's impartiality might reasonably
be questioned.” In re Kensington Int'l
Ltd., 353 F.3d 211, 220 (3d Cir. 2003) (citing
Edelstein v. Wilentz, 812 F.2d 128 (3d Cir. 1987)).
Scienter is not an element of a violation of § 455(a).
Liljeberg v. Health Servs. Acquisition Corp., 486
U.S. 847, 859 (1988).
bias stemming from facts gleaned from the judicial
proceeding, rather than from an “extrajudicial source,
” is rarely grounds for recusal under § 455(a).
Securacomm Consulting, Inc. v. Securacom Inc., 224
F.3d 273, 278 (3d Cir. 2000) (citing United States v.
Antar, 53 F.3d 568, 574 (3d Cir. 1995)). As the Supreme
Court stated in Liteky v. United States, 510 U.S.
[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.
Liteky, 510 U.S. at 555; see also U.S. v.
Wecht, 484 F.3d 194, 213 (3d Cir. 2007).
“[E]xpressions 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” do not establish
bias or impartiality. Liteky, 510 U.S. at 555-56.
doesn't come close to meeting her burden. First of all,
the Motion is a superficial attempt to prevent the Court from
deciding the only remaining issue in the case-counsel's
fee petition. The day after the Court entered judgment
consistent with the jurors' verdict, counsel asked the
Court to “h[old] in abeyance” the deadline by
which counsel could file, based on the one dollar nominal
award, their motion for attorneys' fees and costs. (ECF
No. 76.) The Court granted the request that same day. (ECF
No. 77.) On June 13, 2019, the Court denied Pierce's
post-trial motions. (ECF Nos. 104, 105.) The next day,
counsel again wrote the Court, stating their intention to
appeal the Court's June 13 ruling and now asking that the
Court extend again the deadline for the filing of their
motion for fees and costs until after the Third Circuit
decides the appeal. (ECF No. 106.) On June 17, the Court
denied the request and ordered counsel to file their motion
for attorneys' fees and costs on or before June 28. (ECF
No. 107.) Counsel then filed the Motion to Recuse on June 25
(ECF No. 108) followed by the motion for attorneys' fees
and costs on June 28. (ECF No. 109.)
stated, counsel has not made, and cannot make, any argument
that the Court appears to so favor the City or be so
antagonistic to Ms. Pierce that it cannot fairly judge the
merits of the litigation. Indeed, the Court has already done
that, thoroughly explaining, among other things, why the jury
had a basis for its verdicts and why Pierce is not entitled
to any of the post-trial relief she sought. See (ECF
No. 104). The Court of Appeals will assess the Court's
decisions and explanations and rule as it sees fit. Counsel
is concerned solely about her fees and wants another judge to
decide how much, if anything, she should receive for her
Pyrrhic victory. If counsel were truly concerned about the
Court's ability to impartially judge the case's
merits, she would have sought recusal before the
Court ruled on the post-trial motions. She may now claim that
the Court's written assessment of her closing and
rebuttal arguments triggered the purported need for a new
judge, but the words on the page of the Court's opinion
are no worse or different than what the Court said to her at
the time, and lack the tone the Court used to personally
express its disappointment in how she went about things.
counsel fails to demonstrate that the Court's statements
display such “deep-seated favoritism or antagonism that
would make fair judgment impossible.” Liteky,
510 U.S. at 555. Counsel takes issue issue with remarks made
solely on the basis of facts and events that occurred during
the course of Pierce's judicial proceeding. These
“were merely assessments relevant to the case, whether
they are correct or not.” United States v.
Ciavarella, 716 F.3d 705, 719 (3d Cir. 2013) (quoting
Wecht, 484 F.3d at 220). “As such, they do not
demonstrate bias” under 28 ...