                                                          F I L E D
                                                    United States Court of Appeals
                                                            Tenth Circuit
                UNITED STATES COURT OF APPEALS
                                                           DEC 20 2000
                       FOR THE TENTH CIRCUIT
                                                      PATRICK FISHER
                                                                Clerk

WILLIAM H. PAYNE,

          Plaintiff-Appellant,                 No. 00-2021
                                    (D.C. No. CIV-99-270-LFG/KBM)
v.                                              (D. N.M.)

EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION;
GILBERT CASELLAS; CHARLES
BURTNER; LARRY J. TRUJILLO;
RICHARD TRUJILLO; THOMAS J.
SCHLAGETER; NICHOLAS M.
INZEO; A. JACY THURMOND;
ALETHA L. BROWN; THOMAS
SPELLMAN, all individually;
DEPARTMENT OF ENERGY;
WILLIAM B. RICHARDSON;
SANDRA SCHNEIDER; STEVE
DILLINGHAM; GEORGE
BREZNAY; WILLIAM JAMES
LEWIS, all individually; SANDIA
NATIONAL LABORATORIES;
C. PAUL ROBINSON; MICHAEL G.
ROBLES; LINDA VIGIL LOPEZ;
G.H. LIBMAN; D. B. DAVIS;
W.R. GEER; J.D. GIACHINO;
A.M. TORNEBY; C.W. CHILDERS;
D.S. MIYOSHI; R.A. POLONCASZ;
M.B. COURTNEY; C.A. SEARLS;
R.L. EWING; R.B. CRANER;
E. DUNCKEL; J.J. MCAULIFFE;
J.D. MARTIN; R. C. BONNER, all
individually; AMERICAN
TELEPHONE AND TELEGRAPH
CORPORATION; LOCKHEED
MARTIN CORPORATION,

               Defendants-Appellees.



                            ORDER AND JUDGMENT           *




Before TACHA , EBEL , and BRISCOE , Circuit Judges.




       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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Plaintiff William H. Payne, appearing pro se, appeals the district court’s

dismissal of his Privacy Act complaint against Sandia Corporation, a private

corporation that operates the Sandia National Laboratories (Sandia) and

individual employees of Sandia; the Equal Employment Opportunity Commission

(EEOC) and individual employees of the EEOC; the Department of Energy (DOE)

and individual employees of the DOE; American Telephone & Telegraph; and


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

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Lockheed Martin Corporation. Plaintiff claimed that Sandia released false and

defaming personnel documents pertaining to his termination to the EEOC in

violation of the Privacy Act of 1974, 5 U.S.C. § 552a.

      Upon consent of the parties, the matter was heard by Magistrate Judge

Lorenzo Garcia pursuant to 28 U.S.C. § 636(c), who, in separate orders, dismissed

the claims against all defendants. Construing his pro se arguments liberally,

plaintiff contends on appeal that (1) the magistrate judge was biased and should

have recused himself from the proceedings pursuant to 28 U.S.C. § 144, and

(2) that he was denied a jury trial in violation of the Seventh Amendment to the

United States Constitution and Fed. R. Civ. P. 38. We have jurisdiction pursuant

to 29 U.S.C. § 1291, and we affirm.

      We first address plaintiff’s contention that the magistrate judge acted with

bias and prejudice against him and improperly failed to recuse himself under

28 U.S.C. § 144. We review the denial of a motion to recuse only for an abuse of

discretion. United States v. Burger , 964 F.2d 1065, 1070 (10th Cir. 1992).

      On June 8, 1999, several months after filing his complaint and consenting

to proceed before Magistrate Judge Garcia, plaintiff filed an affidavit seeking to

disqualify the magistrate judge for bias. By then, the magistrate judge had

already ruled adversely to plaintiff on numerous motions. Plaintiff’s affidavit

claimed the magistrate judge was biased against him because he had not


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responded to plaintiff’s earlier motion seeking to disqualify another judge who

had previously been assigned to the case, but who had since been reassigned.

Plaintiff also made conclusory allegations that the magistrate judge was biased in

favor of the federal government and disregarded the United States’ laws and rules

of civil procedure. The magistrate judge denied plaintiff’s motion because it was

untimely, it was based solely on plaintiff’s dissatisfaction with the court’s rulings,

and it was his second attempt to disqualify a judge assigned to the case. Plaintiff

then filed at least nine more motions, demands or requests seeking the magistrate

judge’s recusal. He claims on appeal that all of the magistrate judge’s judgments

and rulings after June 8, 1999 are invalid or void, premised on his erroneous

belief that the magistrate judge was disqualified from the case simply by virtue of

plaintiff’s demand for his recusal.

       Contrary to plaintiff’s contention, it is well settled that the mere filing of

an affidavit under § 144 does not automatically disqualify a judge.     United States

v. Bray , 546 F.2d 851, 857 (10th Cir. 1976). To prevail under § 144, a litigant

must file a timely and sufficient affidavit establishing that the judge has a

personal bias or prejudice.   Hinman v. Rogers , 831 F.2d 937, 938 (10th Cir. 1987)

(per curiam). Under § 144, an affidavit filed in support of recusal is construed

against the affiant, and “there is a substantial burden on the moving party to

demonstrate the judge is not impartial.”    Id. at 939. “The affidavit must state with


                                            -4-
required particularity the identifying facts of time, place, persons, occasion, and

circumstances” necessitating recusal: “conclusions . . . beliefs, and opinions are

not sufficient to form a basis for disqualification.”      Id. Moreover, the party

seeking recusal must act in a timely fashion to request recusal, and a recusal

motion is considered untimely when the objecting party delays filing until

interlocutory matters are adversely ruled upon.         Singer v. Wadman , 745 F.2d 606,

608 (10th Cir. 1984). We conclude the magistrate judge did not abuse his

discretion in refusing to grant plaintiff's recusal requests, both because those

requests were untimely and because plaintiff failed to make a sufficient showing

of either the actual or apparent bias or prejudice of the magistrate judge.

       Plaintiff next claims that he was deprived of his Seventh Amendment right

to a jury trial. As explained by the magistrate judge in dismissing plaintiff’s

claims against the private corporations and individuals, the Privacy Act authorizes

suit only against an “agency” of the United States Government. 5 U.S.C.

§ 552a(a)(1), (g)(1); Parks v. IRS , 618 F.2d 677, 684 (10th Cir. 1980). In general,

the United States is immune from being sued unless it consents.         United States v.

Sherwood , 312 U.S. 584, 586 (1941). Even when it consents, the general rule is

that the Seventh Amendment does not grant a plaintiff the right to trial by jury.

Lehman v. Nakshian , 453 U.S. 156,160 (1981). Thus, when the government does

consent to being sued, the plaintiff has a right to a jury trial only when the right


                                              -5-
has been “unequivocally expressed” by Congress.       Id. at 160-61. The Privacy Act

is silent as to any right to a jury trial. Consequently, plaintiff had no right to a

jury trial under the Privacy Act. Plaintiff also includes an allegation that he was

entitled to a jury trial under Fed. R. Civ. P. 38. Rule 38, however, simply states

that Seventh Amendment or statutory rights to jury trial shall be preserved in the

federal courts. The rule does not provide an independent entitlement to a jury

trial. Moreover, the proper dismissal of a complaint under Fed. R. Civ. P.

12(b)(6) does not violate the Seventh Amendment.       Christensen v. Ward , 916 F.2d

1462, 1466 (10th Cir. 1990). It is clear from our de novo review that the

magistrate judge correctly dismissed plaintiff’s complaint against all defendants.

      The judgment of the United States District Court for the District of New

Mexico is AFFIRMED. The mandate shall issue forthwith.



                                                       Entered for the Court



                                                       Deanell Reece Tacha
                                                       Circuit Judge




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