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UNITED STATES COURT OF APPEALS
TERRY LYNN NICHOLS,
WAYNE E. ALLEY, District Judge,
UNITED STATES OF AMERICA,
Real Party in Interest.
ON PETITION FOR A WRIT OF MANDAMUS
TO THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. CR-95-110-A)
Submitted on the briefs:*
Michael B. Tigar, Austin, Texas, Ronald G. Woods, Houston, Texas, and D.
Kate Rubin, Oklahoma City, Oklahoma (Adam Thruschwell, Of Counsel), for
Patrick M. Ryan, United States Attorney, Jerome A. Holmes, Assistant
U.S. Attorney, Joseph H. Hartzler, Larry A. Mackey, and Sean Connelly,
Special Assistant U.S. Attorneys, Oklahoma City, Oklahoma, for Real
Party in Interest.
Harry F. Tepker, Jr., Norman, Oklahoma for Respondent.
Before ANDERSON, BALDOCK, and BRORBY, Circuit Judges.
On April 19, 1995, a bomb exploded at the Alfred P. Murrah Federal
Building in Oklahoma City. The explosion destroyed the Murrah Building,
killed 169 people, injured many others, and caused extensive damage in
the surrounding vicinity. The explosion inflicted massive damage
(upwards of $1,000,000) to the United States Federal Courthouse, which
is located one block south of the Murrah building. Over one hundred
windows shattered and were blown out. The explosion caused substantial
damage to interior ceilings, walls, and fixtures. The explosion
decimated the glass doors at the entrance to the courthouse. District
court chambers located on the third and fourth floors along the north
side of the courthouse, including Judge Alley's third floor chambers and
courtroom, were heavily damaged. Flying glass damaged woodwork and
furniture in Judge Alley's courtroom. Parts of the ceiling collapsed in
Judge Alley's chambers. Plaster ceiling tiles fell from the office
ceilings and light fixtures were dislodged and left hanging. The
skylight in Judge Alley's courtroom shattered, covering the courtroom
floor in an inch of broken glass.
Although Judge Alley lost no family or friends in the bombing, the
explosion slightly injured a member of his staff, and injured other
court personnel. Some court personnel and employees had friends or
relatives who were injured or killed in the Murrah building explosion.
It is likely that other court personnel and two judges would have been
severely injured had they been at their desks.
Timothy McVeigh and Terry Nichols were charged by grand jury indictment
with the bombing. The indictment charges defendants with a total of
eleven counts of violating the laws of the United States: one count of
Conspiracy to Use a Weapon of Mass Destruction in violation of 18 U.S.C.
2332a; one count of the Use of a Weapon of Mass Destruction in violation
of 18 U.S.C. Section 2332a and 2(a) & (b); one count of Destruction by
Explosive in violation of 18 U.S.C. Sections 844(f) and 2(a) & (b); and
eight counts of First Degree Murder in violation of 18 U.S. C. Sections
1114, 1111 and 2(a) & (b).
Mr. McVeigh filed a motion for recusal of the presiding judge, the
Honorable Wayne E. Alley, who had been randomly assigned to the case.
Thereafter, Mr. Nichols filed his own recusal motion, arguing additional
bases for recusal not presented by Mr. McVeigh. By order dated
September 14, 1995, Judge Alley denied both recusal motions. Mr.
Nichols then filed a petition for writ of mandamus with this court,
seeking disqualification of all judges of the Western District of
Oklahoma (including Judge Alley) or, in the alternative, an order
directing Judge Alley to permit discovery and hold an evidentiary
hearing regarding the factual bases for disqualification issues raised
in the recusal motion. Thus, this matter is before us as an original
proceeding in the nature of mandamus.
An order denying a motion to recuse is interlocutory and is, therefore,
not immediately appealable. Lopez v. Behles (In re American Ready Mix,
Inc.), 14 F.3d 1497, 1499 (10th Cir.), cert. denied, 115 S. Ct. 77
(1994). It is established in this circuit, however, that mandamus is an
appropriate vehicle by which to challenge a district court's denial of a
recusal motion. Id.; United States v. Cooley, 1 F.3d 985, 996 n.9 (10th
Cir. 1993) (collecting and comparing cases). Although a district
court's denial of a motion to recuse is reviewed for an abuse of
discretion, Maez V. Mountain States Tel. & Tel., Inc., 54 F.3d 1488,
1508 (10th Cir. 1995), because we are reviewing the district court's
order by means of mandamus, the higher standard dictated by that writ
governs our review, In re American Ready Mix, 14 F.3d at 1501. Mandamus
is available only upon a showing of a clear and indisputable right to
relief. Weston v. Mann (In re Weston), 18 F.3d 860, 864 (10th Cir.
1994). A petitioner seeking mandamus relief must demonstrate a clear
abuse of discretion, or conduct by the district court amounting to a
usurpation of judicial authority. Mallard v. United States District
Court, 490 U.S. 296, 309 (1989). "To ensure that mandamus remains an
extraordinary remedy, petitioners must show that they lack adequate
alternative means to obtain the relief they seek. . . ." Id.
Mr. Nichols argues that Judge Alley's recusal is mandated by 28 U.S.C.
Section 455(a), which states that a judge "shall disqualify himself in
any proceeding in which his impartiality might reasonably be
questioned."1 In order to "promote public confidence in the integrity
of the judicial process," the statute was broadened in 1974 by replacing
the subjective standard with an objective test. Liljeberg v. Health
Servs. Acquisition Corp., 486 U.S. 847, 858 n.7 (1988). "[W]hat matters
is not the reality of bias or prejudice but its appearance." Liteky v.
United States, 114 S. Ct. 1147, 1154 (1994). Given the statutory
parameters, we must determine "'whether a reasonable person, knowing all
the relevant facts, would harbor doubts about the judge's
impartiality.'" Cooley, 1 F.3d at 993 (quoting United States v. Burger,
964 F.2d 1065, 1070 (10th Cir. 1992)(further quotation omitted)); see
also Maez, 54 F.3d at 1508; United States v. Greenspan 26 F.3d 1001,
1005 (10th Circ. 1994); Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir.
The goal of section 455(a) is to avoid even the appearance of
partiality. If it would appear to a reasonable person that a judge has
knowledge of facts that would give him an interest in the litigation
then an appearance of partiality is created even though no actual
partiality exists because the judge does not recall the facts, because
the judge actually has no interest in the case or because the judge is
pure in heart and incorruptible. Liljeberg, 486 U.S. at 860 (quotation
omitted). In applying this objective standard, the initial inquiry is
whether a reasonable factual basis exists for questioning the judge's
impartiality. Cooley, 1 F.3d at 993. We are limited in this regard to
outward manifestations and reasonable inferences drawn therefrom. Id.
"In applying 455(a), the judge's actual state of mind, purity of
heart, incorruptibility, or lack of partiality are not the issue." Id.
Having stated what Section 455(a) is intended to accomplish and the
standards for analyzing a recusal motion under that statute, we now note
the cautions that must accompany our analysis. The statute "'must not
be so broadly construed that it becomes, in effect, presumptive, so that
recusal in mandated upon the merest unsubstantiated suggestion of
personal bias or prejudice.'" Id. (quoting Franks V. Nimmo, 796 F.2d
1230, 1235 (10th Cir. 1986)(further quotation omitted)). Neither is the
statute intended to bestow veto power over judges or to be used as a
judge shopping device. Greenspan, 26 F.3d at 1006; Cooley, 1 F.3d at
993. Further, we are mindful that a judge has as strong a duty to sit
when there is no legitimate reason to recuse as he does to recuse when
the law and facts require. Greenspan, 26 F.3d at 1005; In re American
ready Mix, Inc., 14 F.3d at 1501; Hinman, 831 F.2d at 939.
We begin our application of the legal standards to these facts by
recognizing that cases within Section 455(a) are extremely fact driven
"and must be judged on [their] unique facts and circumstances more than
by comparison to situations considered in prior jurisprudence." United
States v. Jordan, 49 F.3d 152, 157 (5th Cir. 1995). As a starting
point, in Cooley this court supplied a nonexhaustive list of various
matters not ordinarily sufficient to require Section 455(a) recusal:
(1) Rumor, speculation, beliefs, conclusions, innuendo, suspicion,
opinion, and similar non-factual matters; (2) the mere fact that a judge
has previously expressed an opinion on a point of law or has expressed a
dedication to upholding the law or a determination to impose severe
punishment within the limits of the law upon those found guilty of a
particular offense; (3) prior rulings in the proceeding, or another
proceeding, solely because they were adverse; (4) mere familiarity with
the defendant(s), or the type of charge, or kind of defense presented;
(5) baseless personal attacks on or suits against the judge by a party;
(6) reporters' personal opinions or characterizations appearing in the
media, media notoriety, and reports in the media purporting to be
factual, such as quotes attributed to the judge or others, but which are
in fact false or materially inaccurate or misleading; and (7) threats or
other attempts to intimidate the judge.
1 F. 3d at 993-94 (citations omitted). We are faced with none of those
circumstances here. Neither do we have a case in which a judge is
threatened and the judge determines that recusal is at least one of the
movant's objective. Greenspan, 26 F.3d at 1006. Further, all of the
reasons Mr. Nichols asserts for recusal under Section 455(a) arise from
extra-judicial sources, a consideration the Supreme Court recently
should be a factor in our analysis. The Court held, however, that
acquisition of alleged bias or prejudice from extra-judicial sources is
neither a necessary nor sufficient condition for Section 455(a) recusal.
Liteky, 114 S. Ct. at 1157.
Needless to say, there is no case with similar facts to which we can
look for guidance in our application of the law to the facts in this
case. Both the government and Judge Alley, in his invited response to
the mandamus petition, point to several cases in which courts have held
that the situation was not such that a judge's impartiality might
reasonably be questioned. Those cases are all legally sound, strong
authority for the general principles for which they are cited.
Unfortunately, however, they do not particularly aid our analysis
because, as we stated previously, our determination in this case is
extremely fact driven, and all those cases, in addition to those
uncovered by our own research, are factually inapposite. If the
question of whether Section 455(a) requires disqualification is a close
one, the balance tips in favor of recusal. United States v. Dandy, 998
F.2d 1344, 1349 (6th Cir. 1993), cert. denied, 114 S. Ct. 1188 (1994).
In light of the settled principle that a judge has as strong an
obligation not to recuse when the situation does not require as he has
to recuse when it is necessary, we commend Judge Alley for his integrity
in upholding what he sees as his clear judicial duty. There is
certainly no allegation here of judicial impropriety; Judge Alley has
conducted himself and these proceeding with true professionalism. Were
the standard by which we must judge this case a subjective one, we could
end our discussion here. But our task is to address the objective
requirements of Section 455(a).
The government maintains that no reasonable person could have a basis
for questioning the judge's impartiality. We disagree. We conclude
based on the extraordinary circumstances of this case that a "reasonable
person, knowing all the relevant facts, would harbor doubts about the
judge's impartiality." Cooley, 1 F.3d at 993. Judge Alley's courtroom
and chambers were one block away from the epicenter of a massive
explosion that literally rocked downtown Oklahoma City, heavily damaged
the Murrah building, killed 169 people, and injured many others. The
blast crushed the courthouse's glass doors, shattered numerous windows,
ripped plaster from ceiling, dislodged light fixtures, showered floors
with glass, damaged Judge Alley's courtroom and chambers, and injured a
member of his staff, as well as other court personnel and their
families. Based on these circumstances, we conclude that a reasonable
person could not help but harbor doubts about the impartiality of Judge
Alley, Because Judge Alley's "impartiality might reasonably be
questioned" in the instant case, 28 U.S.C. Section 455(a) mandates
Based on the extraordinary facts of this case, we further conclude that
Mr. Nichols has satisfied the demanding standard for mandamus relief and
has established a clear and indisputable right to relief. See Mallard,
490 U.S. at 309; In re Weston, 18 F.3d at 864. Further, Mr. Nichols has
no adequate alternative means to obtain the relief he seeks. See
Mallard, 490 U.S. at 309. Consequently, we hold that Mr. Nichols has
discharged his burden of proving he is entitled to a writ of mandamus.
As the Fifth Circuit concluded in Jordan, "[p]ublic respect for the
judiciary demands this result." 49 F.3d at 157. The effect of our
decision today may, indeed, be to "bar trial by [a] judge who ha[s] no
actual bias and who would do [his] very best to weigh the scales of
justice equally between contending parties. But to perform its high
function in the best way justice must satisfy the appearance of
justice." Id. (quotation omitted). In reaching this result, we have
considered the totality of the circumstances and looked to the future of
this case. United States v. Ritter, 540 F.2d 459, 464 (10th Cir.),
cert. denied, 429 U.S. 951 (1976). We have also balanced the possible
questioning of impartiality by a reasonable person against the relative
ease of replacing Judge Alley with an available judge from a very large
pool of judges outside the State of Oklahoma.
Finally, we have considered and reject as meritless all other arguments
raised. The petition for writ of mandamus solely as it pertains to the
named respondent is GRANTED, and the matter is referred to the Chief
Judge for the Tenth Circuit for reassignment. See Texaco v. Chandler,
354 F.2d 655, 657 (10th Cir. 1965), cert. denied, 383 U.S. 936 (1966).2
*After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist
the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir.
R. 34.1.9. The motion for oral argument is therefore denied and the
case ordered submitted on the briefs.
1 Mr. Nichols also urges recusal based on actual bias and prejudice
under 28 U.S.C. Sections 144 & 455(b)(1). In light of our disposition
under Section 455(a), we do not reach these remaining statutory
2 Petitioner's request to file a reply brief is denied. The Petitoner's
motion to supplement the record is denied.
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