                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


    GARY PATRICK McKEE,

                Plaintiff,

         v.
                                                           Civil Action No. 16-1674 (RDM)
    UNITED STATES DEPARTMENT OF
    JUSTICE, et al.,

                Defendants.


                             AMENDED MEMORANDUM OPINION

        Proceeding pro se, Plaintiff Gary Patrick McKee brings this action against the United

States Department of Justice, Gary Abramson (who is the President of Tower Companies), and

John Foster and Lance Fuchs (both of whom are lawyers in Florida). The case is currently

before the Court on an array of motions, including Defendants’ motions to dismiss, Dkts. 9, 13 &

15, and McKee’s motions to recuse the undersigned judge, Dkt. 20, to appoint counsel, Dkts. 19

& 35, for leave to amend his complaint, Dkt. 21, for summary judgment, Dkt. 31, and for a

hearing, Dkt. 29. The Court will DENY McKee’s motion for recusal; DENY his motion to

appoint counsel; DENY his motion for leave to amend the complaint as futile; GRANT the

pending motions to dismiss; and DENY all other pending motions as moot.

        Washington Automotive Company was a privately held company owned by members of

McKee’s family, and McKee was a minority shareholder.1 In September 2012, it sold a

leasehold interest in a piece of commercial real estate located in downtown Washington, D.C., to



1
 Plaintiff’s allegations of fact are taken as true solely for purposes of resolving the pending
motions. See, e.g., Klayman v. Zuckerberg, 753 F.3d 1354, 1357 (D.C. Cir. 2014).
the Tower Companies. Dkt. 1 at 5; Dkt. 13-2 at 6; Dkt. 13-1 at 1. In this action, McKee alleges

that Washington Automotive’s attorneys, John Foster and Lance Fuchs, colluded with the Gary

Abramson, the President of the Tower Companies, to defraud the McKee family. Dkt. 1 at 5–7.

The complaint also names former Attorney General Loretta Lynch and the United States

Department of Justice as defendants. The complaint premises the Court’s jurisdiction on the

diversity of citizenship of the parties, see 28 U.S.C. § 1332, but alleges that Plaintiff McKee and

Defendants Foster and Fuchs are all citizens of the State of Florida. Dkt. 1 at 2–4.

       Defendants have each filed motions seeking to dismiss. Dkts. 9, 13, 15. McKee, in turn,

has filed motions seeking the recusal of the undersigned judge, Dkt. 20, the appointment of

counsel, Dkts. 19 & 35, and leave to amend his complaint, Dkt. 21. The Court will first address

the motion for recusal.

                                                A.

       McKee raises two grounds for recusal: First, in his motion seeking recusal, he notes that

I previously served in the Department of Justice and was appointed to this Court by President

Obama. In his view, these facts warrant recusal because “the Department of Justice . . . is a

major defendant in this case” and because President Obama “appointed the two worst

Attorney[s] General[] the Department has ever had in [its] history.” Dkt. 20 at 1. Second, in a

separate motion seeking a hearing, McKee alleges that I am a member of the District of

Columbia Commission on Judicial Disabilities and Tenure, which dismissed a complaint he had

filed against four other judges on a different matter. Dkt. 29 at 1–2. McKee requests that I

“remove [myself] from this case because of being associated with the commission with Judge

Kessler.” Id. at 2.




                                                 2
       Recusal is required “in any proceeding in which [a judge’s] impartiality might reasonably

be questioned,” 28 U.S.C. § 455(a), or where, among other reasons, the judge “has a personal

bias or prejudice concerning a party,” id. § 455(b)(1), or “has served in governmental

employment and in such capacity participated as counsel, adviser or material witness concerning

the proceeding or expressed an opinion concerning the merits of the particular case in

controversy,” id. § 455(b)(3).2 The standard for recusal under § 455(a) is an objective one, and

turns on whether “a reasonable and informed observer would question the judge’s impartiality.”

United States v. Microsoft Corp., 253 F.3d 34, 114 (D.C. Cir. 2001) (en banc) (per curiam).

“The very purpose of § 455(a) is to promote confidence in the judiciary by avoiding even the

appearance of impropriety whenever possible.” Liljeberg v. Health Servs. Acquisition Corp.,

486 U.S. 847, 865 (1988).

       Taking the facts McKee alleges as true, there is no basis for recusal in this case. First,

McKee is correct that I once worked at the Department of Justice, but I left the Department over

fifteen years ago and had no involvement of any kind with this case or the predicate facts.

Second, the identity of the President who appointed the judge assigned to a case has no bearing

on recusal. Even in cases (unlike this one) in which the appointing President is a party, neither

the recusal statute nor the Code of Conduct for United States Judges requires a judge’s recusal

from the case on that basis. See, e.g., In re Exec. Office of the President, 215 F.3d 25, 25 (D.C.

Cir. 2000) (order of Tatel, J.). Finally, a decision of the District of Columbia Commission on


2
   A separate statute calls for the recusal of a district court judge “[w]henever a party to [the]
proceeding . . . 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.” 28 U.S.C. § 144. McKee has not filed a “timely and sufficient affidavit,” and thus § 144
is inapplicable. But, even if he had, the facts that he posits would fail to satisfy the legal
requirements of a § 144 challenge. See United States v. Haldeman, 559 F.2d 31, 131 (D.C. Cir.
1976).

                                                 3
Judicial Disabilities and Tenure adverse to McKee does not constitute a basis for recusal, even

accepting the factual allegation that I am a member of that Commission (I am not). “[O]pinions

formed by the judge on the basis of facts introduced or events occurring in the course of the

current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality

motion unless they display a deep-seated favoritism or antagonism that would make fair

judgment impossible.” Liteky v. United States, 510 U.S. 540, 555 (1994) (emphasis added).

Even were a lesser standard than “deep-seated favoritism” rendering fair judgment “impossible”

to apply to prior non-judicial proceedings such as the Commission proceeding McKee adverts to

here, there is still no basis for recusal on the facts he (incorrectly) posits. It is even more of a

stretch, moreover, to suggest that my service on this Court with Judge Kessler, who was a

member of the Commission, raises a valid basis for recusal. No reasonable observer could find a

risk of bias or prejudice on that fact alone.

        The Court will, accordingly, deny McKee’s motion that I recuse myself from this matter.

                                                   B.

        McKee has also failed to identify sufficient grounds for the Court to appoint counsel.

Under 28 U.S.C. § 1915(e)(1), the Court “may request an attorney to represent any person unable

to afford counsel,” but under this Court’s local rules, “the Court must consider the nature and

complexity of the action, the potential merit of the pro se party’s claims, the demonstrated

inability of the pro se party to retain counsel by other means, and the degree to which the interest

of justice will be served by appointment of counsel.” Lamb v. Millennium Challenge Corp., 16-

cv-765, --- F. Supp. 3d ---, 2017 WL 74690, at *13 (D.D.C. Jan. 6, 2017) (citing L. Cv. R.

83.11(b)(3)). For various reasons, including those set forth below, the Court cannot conclude

that McKee’s claims have sufficient merit to justify the appointment of counsel.



                                                   4
       The Court will, accordingly, deny McKee’s motion for the appointment of counsel.

                                                 C.

       The jurisdictional defects in the complaint and in McKee’s proposed amended complaint

are self-evident. McKee’s complaint relies exclusively on diversity as the basis for the Court’s

jurisdiction. Dkt. 1 at 4. McKee, a citizen of Florida, has attempted to sue two other Florida

citizens (and others) while invoking the Court’s diversity jurisdiction under 28 U.S.C. § 1332.

He cannot do so. Federal diversity jurisdiction exists only in cases in which no plaintiff is a

citizen of the same state as any defendant; diversity jurisdiction “is lacking if there are any

litigants from the same state on opposing sides.” Saadeh v. Farouki, 107 F.3d 52, 55 (D.C. Cir.

1997) (internal quotation mark omitted) (quoting Prakash v. Am. Univ., 727 F.2d 1174, 1178

n.25 (D.C. Cir. 1984)). McKee makes only a cursory response on this point: “The diversity

statement is a joke by all the defendants, there are individuals in numerous states, so that’s out

the window.” Dkt. 35 at 1. Unfortunately for McKee, the fact that he seeks to sue “individuals

in numerous states” does not overcome the statutory requirement of complete diversity between

the opposing sides of a litigation. Because the Court, accordingly, lacks subject matter

jurisdiction, it must grant the pending motions to dismiss.3

                                                 D.

       McKee has moved for leave to file an amended complaint, but his proposed amendment

does not cure the jurisdictional problem. Because McKee moved for leave to amend more than


3
  The complaint also names former Attorney General Loretta Lynch and the United States
Department of Justice as defendants. See Dkt. 1 at 1. Even if the Court were to construe the
complaint to assert some basis for jurisdiction other than diversity with respect to the claims
against the federal defendants, the Court would still lack jurisdiction to consider McKee’s claim
for “900 million dollars in damages for massive fraud,” id. at 7. See 28 U.S.C. § 2680(h)
(intentional tort exception to the Federal Tort Claims Act); 28 U.S.C. § 1346(a)(2) (Little Tucker
Act).

                                                  5
21 days after the service of a responsive pleading, he may amend only with “the opposing party’s

written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). He does not have the written

consent of Defendants, but the Court must nevertheless “freely give leave [to amend] when

justice so requires.” Id. The Court must deny leave to amend, however, when “the proposed

claim would not survive a motion to dismiss.” James Madison Ltd. by Hecht v. Ludwig, 82 F.3d

1085, 1099 (D.C. Cir. 1996).

        McKee’s proposed amended complaint again seeks to invoke the Court’s diversity

jurisdiction, but it also asserts federal question jurisdiction for alleged violations of 42 U.S.C.

§ 1983, as well as constitutional violations under Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388 (1971). Dkt. 21 at 4. The unavailability of diversity

jurisdiction discussed above persists, because the proposed amended complaint names the same

two Florida citizens named in his original complaint and seeks to add a third Florida citizen. Id.

at 2, 3. McKee is himself a Florida citizen, and thus his proposed amended complaint, again,

fails the test of complete diversity. See Saadeh, 107 F.3d at 55.

        McKee’s federal law allegations, moreover, are too insubstantial to survive a motion to

dismiss. To survive a motion to dismiss, a complaint must “contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is

facially plausible if it recites “factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. But the Court need not

accept as true any legal conclusions disguised as factual allegations, nor need it accept “‘naked

assertion[s]’ devoid of ‘further factual enhancement,’” or a “formulaic recitation of the elements

of a cause of action.” Id. (quoting Twombly, 550 U.S. at 555, 557) (alterations in original).



                                                   6
Here, the proposed amended complaint contains several conclusory allegations against the

federal Defendants, such as the following:

       This case is one of the most corrupt cases we have had before the court because of
       the alarming way the political and disgraceful Department of Justice interfered in a
       criminal way. Eric Holder and Loretta Lynch have destroyed the reputation of [t]he
       Justice Department and have turned it into a criminal enterprise that helps only their
       friends. Plaintiff will show how the Justice [D]epartment, through a group of rogue
       agents working with Homeland Security, destroyed the livelihoods of many people
       with their lies on the street and by inserting themselves in business contracts with
       banks, government contracts, and state jobs.

Dkt. 21 at 7. Similarly, the proposed amended complaint alleges:

       This was just the beginning of this corruption by the Federal Government
       employees for the Abramson[s]. They started the most vicious lies about the family
       and put these lies out all over Palm Beach, Florida where the entire family goes
       from Washington DC to spend the winter. The Abramson[s] pulled in all their
       markers with corrupt agents from all departments and then they told . . . lies [about
       the McKee family] to the state employees.

Id. at 9. These passages, and others like them, including lengthy allegations against the Small

Business Administration and the Department of Transportation, contain no factual allegation

sufficient to “allow[ ] the [C]ourt to draw the reasonable inference that [D]efendant[s] [are]

liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. The alleged violations of federal law,

therefore, would not survive a motion to dismiss.

       The Court will, accordingly, deny McKee’s motion for leave to amend as futile.

                                                E.

       Having resolved these issues, the Court need not—and, because it lacks jurisdiction, may

not—decide the remaining motions pending before it. The Court will, accordingly, deny those

motions as moot.

                                         CONCLUSION

       For the reasons explained above, the Court will DENY McKee’s motion for recusal,

DENY his motion for the appointment of counsel; DENY his motion for leave to file an
                                                 7
amended complaint; GRANT the pending motions to dismiss; and DENY all other pending

motions as moot.

      A separate order will issue.



                                               /s/ Randolph D. Moss
                                               RANDOLPH D. MOSS
                                               United States District Judge


Date: May 24, 2017




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