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In re Smith

United States District Court, N.D. Ohio, Eastern Division

December 20, 2019

IN RE RONALD J. SMITH, Appellant

          MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NO. 3]

          Benita Y. Pearson United States District Judge.

         Pending is Appellant Ronald J. Smith's motion for recusal. ECF No. 3. Appellee has not responded and the time to do so has passed. For the reasons explained below, the motion is denied.

         I. Background

         Appellant has appealed decisions of the Bankruptcy Court for the Northern District of Ohio.[1] ECF No. 1. Appellant's motion for recusal relies primarily on a prior litigation between the same parties now before the undersigned that was dismissed in 2018. ECF No. 3. For context, the Court discusses that prior case below.

         In 2017, Appellant, as plaintiff, filed an action against Appellee, as a defendant[2], for allegedly violating the Fair Credit Reporting Act, the Fair Debt Collections Practices Act, and the Federal Trade Commission Act. ECF No. 39 at PageID #: 365.[3] Appellee filed a motion to dismiss and the Court granted the motion. Id. at PageID #: 364. Among other reasons, the Court found that Appellant had no standing because he failed to demonstrate a cognizable injury.[4] Id. at PageID #: 374-78. Appellant filed a motion to reconsider which was denied. ECF No. 44. Appellant appealed and the Sixth Circuit affirmed the dismissal. ECF No. 49.

         II. Standard of Review

         The conduct of federal judicial officers is governed by Code of Conduct for United States Judges. See Code of Judicial Conduct for United States Judges. The advice imparted is organized in Canons. Canons are rules of reason. They should be applied consistently with constitutional requirements, statutes, other court rules and decisional law, and in the context of all relevant circumstances. The Code is to be construed so it does not impinge on the essential independence of judges in making judicial decisions. Id.

         Canon 2A instructs that a judge should avoid impropriety and the appearance of impropriety in all activities. Id. “An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge's honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired.” Id., Commentary 2A. Canon 2B cautions that a judicial officer should not allow relationships, including, family, social, political, financial, or other relationships to influence judicial conduct or judgment.

         Canon 3 directs that a judge should perform the duties of the office fairly, impartially and diligently. It further instructs that a judge shall disqualify herself in a proceeding in which the judge's impartiality might reasonably be questioned. Id., Canon 3(C)(1). That same canon mandates that “[a] judge should hear and decide matters assigned, unless disqualified.” Id., Canon 3(A)(2).

         The decision of whether to recuse lies within the discretion of the judicial officer. United States v. Wilensky, 757 F.2d 594, 599600 (3d Cir. 1985). There are two federal statutes that dictate the circumstances under which a federal judge should recuse. Appellant relies primarily on only one.[5] Section 455(a) of Title 28 of the United States Code provides in pertinent part 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.” 28 U.S.C. § 455(a). Recusal is only required when “the probability of actual bias on the part of the judge or decisionmakers is too high to be constitutionally tolerable.” Rippo v. Baker, 137 S.Ct. 905, 907 (2017) (quoting Withrow v. Larkin, 421 U.S. 35, 47 (2016)).

         When reviewing motions for recusal, the Sixth Circuit has held that § 455(a) requires recusal “if a reasonable, objective person, knowing all of the circumstances, would have questioned the judge's impartiality.” Hughes v. United States, 899 F.2d 1495, 1501 (6th Cir. 1990); see also Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 861-63 (1988); Liteky v. United States, 510 U.S. 540, 548 (1994). However, “a federal judge has a duty to sit where not disqualified which is equally as strong as the duty to not sit where disqualified.” Laird v. Tatum, 409 U.S. 824, 837 (1972).

         III. Discussion

         A. § 455(a)

         The standard for recusal is whether, under the circumstances of this case, a reasonable, objective person knowing all the circumstances would have questioned the Court's impartiality. See Easley v. Univ. ...


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