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Woolum v. Secretary of the Air Force

December 6, 2006

CALVIN WOOLUM, PLAINTIFF,
v.
SECRETARY OF THE AIR FORCE, DEFENDANT.



The opinion of the court was delivered by: Chief Magistrate Judge Michael R. Merz

District Judge Thomas M. Rose

DECISION AND ORDER DENYING REQUEST TO RECUSE, WITHDRAWING REPORT AND RECOMMENDATIONS, AND ORDERING DEFENDANT TO FILE A REPLY MEMORANDUM

This case is before the Court on Plaintiff's Objections (Doc. No. 10) to the Magistrate Judge's Report and Recommendations (Doc. No. 9) recommending that this case be dismissed for lack of subject matter jurisdiction. The General Order of Reference for the Dayton location of court permits the Magistrate Judge to reconsider decisions or reports and recommendations when objections are filed.

As part of the Objections, Plaintiff states "I believe that there is a conflict of Magistrate Judge Mertz [sic] hearing this case, since he did not believe any of my testimony in the criminal case. I would like to request another Magistrate Judge to hear this case if possible." (Doc. No. 10 at 2.) The Court treat this as a motion to recuse.

It is correct that the undersigned tried United States v. Woolum, 3:04-po-057, which is the criminal case to which Plaintiff refers and in which he was the Defendant. Mr. Woolum was found not guilty on May 13, 2005. This case is related to the prior criminal case in that Plaintiff charges in this case that he was discriminated against on the basis of race and national origin by Paul Bracci, a management-level employee whom Mr. Woolum alleges made slanderous statements about him in the course of the investigation that led to the criminal charges.

A disqualifying prejudice or bias must ordinarily be personal or extra-judicial. United States v. Sammons, 918 F.2d 592 (6th Cir. 1990); Wheeler v. Southland Corp., 875 F.2d 1246, 1250 (6th Cir. 1989). That is, it "must stem from an extra-judicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case." United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed. 2d 778 (1966); see also Youn v. Track, Inc., 324 F.3d 409 (6th Cir. 2003);Bradley v. Milliken, 620 F.2d 1143 (6th Cir. 1980). The Supreme Court has written:

The fact that an opinion held by a judge derives from a source outside judicial proceedings is not a necessary condition for 'bias and prejudice' recusal, since predispositions developed during the course of a trial will sometimes (albeit rarely) suffice. Nor is it a sufficient condition for 'bias and prejudice' recusal, since some opinions acquired outside the context of judicial proceedings (for example, the judge's view of the law acquired in scholarly reading) will not suffice. ... [J]udicial rulings alone almost never constitute valid basis for a bias or partiality motion. See United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 16 L.Ed. 2d 778 (1966). ... 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."

Liteky v. United States, 510 U.S. 540, 127 L.Ed. 2d 474, 114 S.Ct. 1147 (1994). The Court went on to hold:

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.

Id. In Liteky the Supreme Court approved the common practice of retrial before the same judge after remand. Thus the fact that I tried the criminal case, which was randomly assigned to me as was this case, is not a basis for disqualification.

Mr. Woolum has filed with this Objections a copy of the EEOC right to sue notice which he was sent by the Commission. Plaintiff had not previously furnished this document to the Court, which resulted in the observation in the Report and Recommendations that "The Court also notes that Plaintiff has not provided the Court with any proof he received a right to sue letter from the EEOC." (R&R, Doc. No. 9, at 3, n.1.)

The Right to Sue Notice substantially changes the analysis which must be applied to Defendant's Motion to Dismiss. The Report and Recommendations treated the Complaint as making a claim under the Federal Tort Claims Act for slander by Mr. Bracci and recommended that it be dismissed for lack of subject matter jurisdiction because Mr. Woolum had not pursued an administrative claim prior to filing suit. That analysis is correct as far as any FTCA claim goes.

However, the Objections make it clear that this is a Title VII case. The Court has jurisdiction over such cases under 28 U.S.C. §1343 and the United States has waived its sovereign immunity to permit suit against it for violations of Title VII. See Brown v. General Services Administration, 425 U.S. 820 (1976). Therefore the recommendation to dismiss the case entirely for lack of subject matter jurisdiction is WITHDRAWN, although any Federal Tort Claims Act allegations should be dismissed on that basis.

Defendant also included in his Motion to Dismiss a branch under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted which was not analyzed in the prior Report and Recommendations because, absent the EEOC right to sue notice, there appeared to be a narrower ground of decision. However, given the ...


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