                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA



 RORY M. WALSH,

         Plaintiff,
             v.                                             Civil Action No. 15-348 (JEB)
 FBI DIRECTOR JAMES B. COMEY, JR.,
 et al.,

         Defendants.




                                  MEMORANDUM OPINION

       Pro se Plaintiff Rory M. Walsh filed this suit against an assortment of government

officials, alleging a conspiracy to surveil, intimidate, and harass him and his family. When he

claimed two Defendants had failed to respond, the Clerk of the Court entered default against

them, but the Court subsequently granted those Defendants’ Motion to Vacate Entry of Default.

See ECF Nos. 9, 37. Unhappy with this decision, Walsh now moves to recuse this Court from

presiding over his suit. As he has not alleged sufficient facts to warrant such relief, the Court

will deny the Motion.

       Plaintiff grounds his recusal request on two statutes: 28 U.S.C. § 455(a) and (b)(1), and

28 U.S.C. § 144, each of which is addressed in turn. Before proceeding with that analysis, the

Court notes that, while it has the option of forwarding the Motion to Recuse to another judge,

transfer is not required. See Karim-Panahi v. U.S. Congress, 105 F. App’x 270, 274-75 (D.C.

Cir. 2004). Since the issues presented here are neither complex nor compelling, the Court will

not impose on a colleague.



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       A. 28 U.S.C. § 455

       Title 28 U.S.C. § 455(a) provides that a judge “shall disqualify himself in any proceeding

in which his impartiality might reasonably be questioned.” Subsection (b)(1) requires

disqualification where the judge “has a personal bias or prejudice concerning a party, or personal

knowledge of disputed evidentiary facts concerning the proceeding.” The Court bears in mind

that “[t]he standard under section 455(a) is objective: a judge must recuse [him]self only if there

is a showing of an appearance of bias or prejudice sufficient to permit the average citizen

reasonably to question a judge’s impartiality.” Karim-Panahi, 105 F. App’x at 274 (citation and

internal quotation marks omitted) (emphasis added). Section (b)(1), conversely, provides

grounds for recusal from a court’s actual bias gained from extrajudicial sources. See id.; see also

United States v. Pollard, 959 F.2d 1011, 1031 (D.C. Cir. 1992) (discussing standards). As

Plaintiff notes, these two provisions “afford separate, though overlapping, grounds for recusal.”

Mot. at 4. While he does not clearly state which allegations of his pertain to which provision, his

Motion fails to satisfy either standard.

       In seeking recusal under § 455(a), Walsh alleges that this Court harbors a “deep seated

and unequivocal antagonism” and “resentment against disabled veteran Walsh [and] has

broadcast same resentment to his staff.” Mot. at 5-6; Exh. B (Counsel Certificate of Good Faith)

at 1. In support, he offers two central arguments. Walsh first points to the fact that the Court’s

Order instructing him to respond to Defendants’ Motion to Dismiss states that his case could

otherwise be dismissed with prejudice. He claims that Defendant’s Motion did not seek

dismissal with prejudice, and the Court’s Order thus reflects “open bias and prejudice” towards

him. See Mot. at 2-3.




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       Walsh is correct that Defendants did not specify whether they sought a dismissal with or

without prejudice. Because they left it ambiguous, and because such motions can result in

dismissal with prejudice, the Court added the phrase “with prejudice” to advise Plaintiff, per

Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992), and Local Rule 7(h), of all potential

ramifications should he fail to respond. In any event, “[t]o the extent that the plaintiff disagrees

with the Court’s orders issued to date in this case, such judicial actions alone almost never

establish a valid basis for a bias or partiality motion.” Caldwell v. Obama, 6 F. Supp. 3d 31, 43

(D.D.C. 2013), appeal dismissed (July 24, 2014); see SEC v. Loving Spirit Found. Inc., 392 F.3d

486, 494 (D.C. Cir. 2004) (“[W]e have found no case where this or any other federal court

recused a judge based only on his or her rulings. . . . ‘Almost invariably,’ the Supreme Court has

admonished, adverse judicial decisions give ‘proper grounds for appeal, not recusal.’”) (internal

citations omitted).

       Walsh next posits that the Court’s description of his current and previous lawsuits as

“frivolous,” “fanciful,” and “fantastical” reflects underlying partiality. See Mot. at 8-10. Such

adjectives, however, are supported by both an objective reading of Plaintiff’s Complaint and the

opinions of several courts faced with nearly identical iterations of his suit. See Walsh v. Jones,

No. 13-928, ECF No. 74 (Order) at 1, 2014 WL 8763339 (D.D.C. June 3, 2014) (“There is no

factual basis whatsoever for this motion. . . . It is simply another frivolous claim based on a

bizarre government conspiracy theory dismissed by Judge Roberts.”), aff’d, No. 14-5221, 2015

WL 1606937 (D.C. Cir. Mar. 13, 2015); Walsh v. Hagee, 10 F. Supp. 3d 15, 19 (D.D.C. 2013)

(“Walsh relies on conjecture and unsupported assertions to reiterate the same allegations.”),

aff’d, No. 14-5058, 2014 WL 4627791 (D.C. Cir. July 11, 2014); Walsh v. Hagee, 900 F. Supp.

2d 51, 58-59 (D.D.C. 2012) (“This is the sort of bizarre conspiracy theory that warrants dismissal



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under the [patently insubstantial] standard.”), aff’d, No. 12-5367, 2013 WL 1729762 (D.C. Cir.

Apr. 10, 2013); Walsh v. FBI, 905 F. Supp. 2d 80, 82 n.1 (D.D.C. 2012) ) (“[Walsh] moved for

leave to file a petition for a writ of mandamus alleging fanciful, improbable allegations and

showing no good cause for the relief sought . . . .”), aff’d, No. 12-5386, 2015 WL 1606659 (D.C.

Cir. Mar. 9, 2015); Walsh v. United States, No. 05-0818, 2008 WL 2412968, at *2 n.11 (M.D.

Pa. June 10, 2008) (Walsh’s legal arguments are “replete with unsupported conclusions and

speculation . . . and [are] woefully insufficient.”), aff’d, 328 F. App’x 806 (3d Cir. 2009); Walsh

v. United States, 328 F. App’x 806, 810 (3d Cir. 2009) (“[W]e have considered the arguments in

Walsh’s briefs regarding all of his issues and find them to be of no merit.”). Plaintiff’s

argument, in short, fails to hold up in light of the plethora of court decisions characterizing his

allegations as fantastical and unsupported.

       Moving next to § (b)(1), the Court concludes that Plaintiff has not articulated any bias

emanating from outside the four corners of the case. Instead, all he can manage is an allegation

that differing entries on the Court’s docket somehow demonstrate that “extrajudicial” sources are

at play. See Mot. at 6. He says that such entries show “this action has been prejudiced as Judge

Boasberg openly boasts of his prejudice and bias to his clerks outside of his rulings.” Id. Putting

aside the fact that “a law clerk is essentially an extension of his judge,” Bishop v. Albertson’s,

Inc., 806 F. Supp. 897, 899 (E.D. Wash. 1992), Walsh has not alleged that the Court or its law

clerks made any decision based on anything learned outside the case.

       B. 28 U.S.C. § 144

       Title 28 U.S.C. § 144 provides that a judge should recuse himself whenever a party

“makes and files a timely and sufficient affidavit that the judge before whom the matter is

pending has a personal bias or prejudice either against him or in favor of any adverse party.” See



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Loving, 392 F.3d at 492 (discussing procedural requirements for filing § 144 Motion).

“Importantly, the mere fact that a party has filed a § 144 motion, accompanied by the requisite

affidavit and certificate of counsel, does not automatically result in the challenged judge's

disqualification. Rather, recusal is required only upon the filing of a ‘timely and sufficient

affidavit.’” Strange v. Islamic Republic of Iran, 46 F. Supp. 3d 78, 81 (D.D.C. 2014) (citing 28

U.S.C. § 144) (internal citations omitted) (emphasis in original). “The question of whether the

motion and supporting affidavit is . . . legally sufficient is for this Court to determine in the first

instance.” Id. Legal sufficiency requires that facts be set forth with sufficient particularity that

“would fairly convince a sane and reasonable mind that the judge does in fact harbor the personal

bias or prejudice contemplated by the statute.” Id. (citing United States v. Hanrahan, 248 F.

Supp. 471, 475 (D.D.C. 1965)).

        Plaintiff’s affidavit repeats, mostly word for word, the two allegations made in his

Motion. First, he reiterates his claim that the Court’s addition of the phrase “with prejudice” and

use of the adjective “fantastical” reflects prejudice. Compare Mot. at 2-4 with Exh. A (Affidavit

of Captain Rory M. Walsh) at 1. Second, he avers that this Court “openly boasts within his

office to his staff that he has prejudged this action,” and such “extrajudicial source” renders the

Court partial. Compare Mot. at 6 with Walsh Aff. at 1-2.

        For all of the reasons described with respect to § 455, the Court finds the § 144 claim

deficient for setting forth “merely conclusory and therefore legally insufficient” allegations. See

United States v. Bennett, 539 F.2d 45, 51 (10th Cir. 1976); Harris v. Geico Gen. Ins. Co., 961 F.

Supp. 2d 1223, 1230 (S.D. Fla. 2013) (denying motion for recusal that “merely restates in

conclusory fashion [plaintiff’s] belief that the [court’s] comments at the hearing are indicative of

bias”). Plaintiff, in short, has offered no facts that would fairly convince a sane and reasonable



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mind to question this Court’s impartiality. See Baldyga v. United States, 337 F. Supp. 2d 264,

270 (D. Mass. 2004) (district judge declined to recuse himself where plaintiff alleged judicial

conspiracy without any facts to support such claim); Rademacher v. City of Phoenix, 442 F.

Supp. 27, 28 (D. Ariz. 1977) (denying motion for recusal that was “comprised of either irrelevant

matters or mere conclusory assertions”).

       The Court, accordingly, will issue a contemporaneous Order denying the Motion.


                                                     /s/ James E. Boasberg
                                                     JAMES E. BOASBERG
                                                     United States District Judge

Date: June 22, 2015




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