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IN RE AFRICAN-AMERICAN SLAVE DESCENDANTS LITIGATION

January 26, 2004.

IN RE AFRICAN-AMERICAN SLAVE DESCENDANTS LITIGATION


The opinion of the court was delivered by: CHARLES NORGLE, District Judge

OPINION AND ORDER

Before the court is Plaintiffs' Motion to Recuse. For the following reasons, the motion is denied.

I. BACKGROUND

  On October 25, 2002, the Judicial Panel on Multidistrict Litigation transferred certain actions to this court for coordinated or consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407. See In re African-American Slave Descendants Litigation, No. 1491, 231 F. Supp.2d 1357 (Jud. Pan. Mult. Lit., Oct. 25, 2002). This litigation presently consists of nine individual lawsuits.

  Upon consolidation of pre-trial proceedings in this court, Plaintiffs agreed to the filing of a consolidated complaint, which was filed on June 16, 2003. According to that consolidated complaint, Plaintiffs, on behalf of themselves and the classes they seek to represent,*fn1 seek reparations on behalf of all "descendants of formerly enslaved Africans" and all living "formerly enslaved African-Americans." See Pls.' First Am. Consol. Compl. ¶ 60. Specifically, Plaintiffs seek an accounting, constructive trust, restitution, disgorgement and compensatory and punitive damages arising out of the named Defendants' alleged past and continued wrongful conduct relating to the institution of slavery. See id. ¶ 55. Page 2

  On July 18, 2003, Defendants filed a consolidated motion to dismiss. In that motion, Defendants argue that Plaintiffs' complaint should be dismissed based on lack of standing, statute of limitations defenses, the presentation of a non-justiciable political question, and failure to state a claim upon which relief can be granted. See Defs.' Consol. Mot. to Dismiss, at 4-5. The court set a briefing schedule for the motion to dismiss; requiring Plaintiffs' response to be due by September 9, 2003. Plaintiffs sought, over Defendants' objection, an extension of time to file their response. The court granted Plaintiffs' motion for extension in part, which allowed Plaintiffs' response to be filed by October 7, 2003.

  On October 2, 2003, Plaintiffs filed an emergency motion to file a second amended complaint. Plaintiffs sought to file the second amended complaint in lieu of a response to the motion to dismiss; however, Plaintiffs did not concede that Defendants' motion to dismiss was meritorious, nor that the proposed second amended complaint cured all of the defects raised in Defendants' motion. Thus, the court took the motion under advisement, pending a decision on the motion to dismiss, and set a briefing schedule. Thereafter, on October 7, 2003, Plaintiffs filed their response to Defendants' Motion to Dismiss. On October 28, 2003, Defendants filed their reply.

  On November 18, 2003, Plaintiffs filed a motion seeking permission to present oral argument on the motion to dismiss. The court denied that request, but with an abundance of caution, granted Plaintiffs an opportunity to file a sur-reply to the motion to dismiss. On December 10, 2003, Plaintiffs filed a sur-reply. Also on that date, Plaintiffs filed the present motion to recuse, which is fully briefed and now before the court. Page 3

  II. DISCUSSION

  Plaintiffs' Motion to Recuse is brought pursuant to the Due Process Clause of the 5th Amendment of the United States Constitution, 28 U.S.C. § 144, 28 U.S.C. § 455, and Federal Rule of Civil Procedure 63.*fn2 Plaintiffs' motion summarizes three grounds for recusal as follows: "Judge Norgle's clear bias against the applicable law, his possible knowledge of relevant facts and possible financial interest in the outcome of the litigation, are the bases for the Plaintiffs' request that Judge Norgle recuse himself. . . .". See Pls.' Mot. to Recuse ¶ 30. First, Plaintiffs point to statements made to the United States Senate Judiciary Committee during Judge Norgle's judicial confirmation as indicative of bias against either the Plaintiffs or their lawsuit, and the relief sought therein. See id. ¶¶ 10, 19, 21, Second, Plaintiffs allege that Judge Norgle may possess knowledge of facts that may be disputed in this litigation since he was formerly employed by Continental Illinois National Bank and Trust Co. ("Continental"), a part of which was subsequently acquired by J.P. Morgan Chase. See id. ¶¶ 6, 24. Plaintiffs hedge their second argument, stating: "Defendant J.P. Morgan Chase acquired part of Continental, though it may not have acquired the actual division in which Judge Norgle worked." Id. ¶ 9. Third, Plaintiffs argue that based on Judge Norgle's former employment with Continental, he may have a financial interest in the outcome of this litigation, which warrants his recusal. See id. ¶¶ 6. 27-29. Plaintiffs also make a brief argument that the court demonstrated its bias against Plaintiffs by reserving decision on their motion to file a second amended complaint in lieu of a response to Page 4 Defendants' motion to dismiss, allegedly contrary to standard practice of other district court judges in the Northern District of Illinois. See id. ¶ 20.

  In response, Defendants argue that none of Judge Norgle's statements to the United States Senate Judiciary Committee even remotely support Plaintiffs' bias argument. See Defs.' Resp. to Pls.' Mot. to Dismiss, at 1, 7. Also, Defendants argue that Plaintiffs have proffered no evidence that Judge Norgle has knowledge of facts that might be disputed in this litigation nor that he has a financial interest in the outcome of this litigation. See id. at 12-13, Additionally, Defendants argue that Plaintiffs' motion is untimely. See id. at 14-15.

  In essence, recusal motions brought pursuant to any of the authorities cited in Plaintiffs' motion seek to ensure that litigants receive a fair trial by an impartial judge. However, there are subtle nuances that differentiate these authorities. The court addresses each of the Plaintiffs' arguments for recusal, under the appropriate statutory or constitutional authorities for recusal, in turn.

  A. 28 U.S.C. § 455

  Section 455 of Title 28 of the United States Code is a collection of various grounds for recusal. Grounds for recusal under § 455 are divided into two sections. See Microsoft Corp. v. United States, 530 U.S. 1301 (2000). Section 455(b) enumerates certain instances where recusal is required; with subsection (1) covering bias and prejudice grounds and subsections (2-5) covering interest and relationship grounds. See 28 U.S.C. § 455(b)(1-5); see also Liteky v. United States, 510 U.S. 540, 547-48 (1994). The other section, § 455(a), has been termed the "`catchall' recusal provision, covering both `interest and relationship' and `bias and prejudice' grounds." Liteky, 510 U.S. at 548. While § 455(b) is concerned with the reality of bias, Page 5 prejudice, interest or relationship; in contrast, § 455(a) is concerned only with the appearance of impartiality. See id.

  1. Timeliness of Section 455 Motion

  As a preliminary matter, Defendants argue that Plaintiffs' Motion to Recuse brought pursuant to 28 U.S.C. § 455 is untimely, as the grounds relied on for the motion occurred twenty years ago and could have been raised more than a year ago when Judge Norgle was assigned to this litigation by the Judicial Panel on Multidistrict Litigation. Defendants also argue that Plaintiffs' purpose in filing their motion at this time is tactical, arguing that the court is about to rule on their fully-briefed motion to dismiss. In support of this argument, Defendants state: "The law is settled that `one must raise the disqualification of the judge at the earliest moment after knowledge of the facts demonstrating the basis for such disqualification.'" Defs.' Resp. to Pls.' Mot. to Recuse. at 14 (quoting United States v. Patrick, 542 F.2d 381, 390 (7th Cir. 1976Y).

  The case law in the Seventh Circuit is unclear on this point. After Patrick, in SCA Services, Inc. v. Morgan, 557 F.2d 110, 117 (7th Cir. 1977), the Seventh Circuit held that there are no limits on motions for recusal brought pursuant to § 455. The Morgan court reached its holding by reasoning that since Congress did not incorporate the Department of Justice's recommendation that a time limit be included in the text of the statute, to impose such a time limit would frustrate the purpose of the statute. Id. The Morgan decision failed to discuss Patrick, and has been called into question. In United States v. Murphy, 768 F.2d 1518.1539 (7th Cir. 1985), the Seventh Circuit indicated that the Morgan decision stands alone among the Courts of Appeal, but refused to reconsider it based on the facts presented in that case. Further, in Union Carbide Corp. v. U.S. Cutting Service, Inc., 782 F.2d 710, 716 (7th Cir. 1986), the Seventh Circuit stated that the Morgan decision has been "uniformly rejected in the other Page 6 circuits," as well as questioned in Murphy and undermined in United States v. Balistrieri, 779 F.2d 110 (7th Cir. 1985). It has also been stated that Morgan "is weak precedent because it had not cited Patrick, which had established the law of this circuit on the question." Schurz Communications, Inc. v. FCC, 982 F.2d 1057. 1060 (7th Cir. 1992).

  While the court finds Defendants' argument on the timeliness of Plaintiffs' motion under § 455 to be meritorious, the court need not rely on this basis for dismissal for two reasons. First, the existing conflict between Morgan and Patrick on the issue of timeliness under § 455 makes the law uncertain. Second, a decision on the ...


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