The opinion of the court was delivered by: CHARLES NORGLE, District Judge
Before the court is Plaintiffs' Motion to Recuse. For the following
reasons, the motion is denied.
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.
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
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
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.
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,
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
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