Motion to Disqualify Magistrate Judge — Wall v. CDC

Record facts

U.S. District Court for the Middle District of Florida (Orlando Division) · No. 6:21-cv-00975-PGB-DCI · Doc. 61 · 2021-06-25 · Docket on CourtListener

Full text

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UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF FLORIDA 
ORLANDO DIVISION 
 
 
LUCAS WALL,  
 
 
 
 
 
 
 
: 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
: 
 
 
 
 
Plaintiff,  
 
 
 
 
 
 
 
 
 
: 
Case No. 6:21-cv-975-PGB-DCI 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
: 
 
 
v.  
 
 
 
 
 
 
 
 
 
 
 
 
: 
District Judge Paul Byron 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
: 
 
 
CENTERS FOR DISEASE   
 
 
 
: 
Magistrate Judge Daniel Irick 
CONTROL & PREVENTION et al.    
: 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
: 
 
 
Defendants.  
 
 
 
 
 
 
 
 
: 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
PLAINTIFF’S MOTION TO DISQUALIFY  
MAGISTRATE JUDGE DANIEL IRICK 
 
 
COMES NOW plaintiff, pro se, and seeks disqualification from this case and the 
related action Wall v. Southwest Airlines (Case No. 6:21-cv-1008-PGB-DCI) of 
Magistrate Judge Daniel Irick for bias shown against me and violation of my Fifth 
Amendment right to due process in recently ruling on the Federal Defendants’1 
motion to strike and extend deadline (Doc. 48) ex parte despite the fact I filed a 
14-page opposition brief (Doc. 54) one day after the government submitted its mo-
tion – and a mere 16 minutes before Magistrate Judge Irick filed his June 22 Order 
(Doc. 55) granting the government everything it wanted without any consideration 
of my arguments.  
                                                 
1 The Federal Defendants named in this case are: Centers for Disease Control & Prevention, De-
partment of Health & Human Services, Transportation Security Administration, Department of 
Homeland Security, Department of Transportation, and President Joseph Biden. 
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I moved later June 22 for the district judge to vacate Magistrate Judge Irick’s 
Order (Doc. 56). The district judge has yet to rule on that emergency motion. How-
ever, even if granted that relief, it is not enough. Magistrate Judge Irick must be 
disqualified from this case (and my related action) for showing improper bias to-
ward the Federal Defendants, counsel for whom (U.S. Attorney’s Office for the 
Middle District of Florida) he used to work for from 2007 to 2016. Pl. Ex. 1. 
 
I. PROCEDURAL HISTORY 
 
The Federal Defendants filed June 21 a motion to strike and set briefing dead-
line (Doc. 48) concerning my two Motions for Preliminary Injunction (Docs. 33 & 
36). Even though Local Rule 3.01(c) allows me 14 days to respond in opposition to 
a motion, I submitted my brief (Doc. 54) the next day (June 22). Only 16 minutes 
later, I was shocked to see an e-mail from the Court that Magistrate Judge Irick 
had granted the government’s motion (Doc. 55) without considering any of the ar-
guments I raised in my 14-page opposition (Doc. 54). Furthermore, Magistrate 
Judge Irick’s Order read like a cut-and-paste of his former employer’s brief, with a 
few words changed to make it an Order.  
 
I moved later June 22 (Doc. 56) for the district judge to vacate the Order (Doc. 
55) on an emergency basis and reconsider Magistrate Judge Irick’s Order pursuant 
to Fed.R.Civ.P. 72(a). I requested a ruling by June 23, but did not receive one, so 
June 24 I filed an Emergency Petition for Permission to Appeal with the U.S. Court 
of Appeals for the 11th Circuit (Doc. 58) since this Court did not require the Federal 
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Defendants to file their oppositions to my Motions for PI by their June 24 and 25 
deadlines. I noted the nature of the emergency is that I have a flight from Orlando 
(MCO) to Frankfurt (FRA) July 1 to visit my brother and his wife, which necessi-
tates the Court ruling on my Motions for Preliminary Injunction to halt enforce-
ment of the Federal Transportation Mask Mandate and International Traveler 
Testing Requirement no later than June 30.  
 
II. ARGUMENT 
A. Magistrate Judge Irick’s Order (Doc. 55) is clearly erroneous and 
contrary to law as it was issued ex parte. This shows bias against me. 
 
 
I filed my opposition (Doc. 54) to the Federal Defendants’ motion (Doc. 48) at 
10:26 a.m. June 22. Doc. 56-1. Magistrate Judge Irick’s Order (Doc. 55) was filed 
at 10:42 a.m. Doc. 56-2. There is no mention in the Order that Magistrate Judge 
Irick considered my 14-page opposition – and it is simply impossible for him to 
have done so given that his Order was issued only 16 minutes after I filed my brief.
 
“Typically, a court will be hesitant to make an ex parte [ruling]. This is because 
the Fifth Amendment and the Fourteenth Amendment guarantee a right to due 
process, and ex parte motions – due to their exclusion of one party – risk violating 
the excluded party's right to due process.” Definition of ex parte from Cornell Law 
School’s Legal Information Institute.2 
 
“A party may respond to a motion within 14 days after service of the motion.” 
Local Rule 3.01(c). Therefore the deadline to file my response to the government’s 
                                                 
2 https://www.law.cornell.edu/wex/ex_parte (visited June 22, 2021) 
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motion (Doc. 48) was July 5. However, despite the fact I filed an opposition the 
morning of June 22, Magistrate Judge Irick issued an ex parte ruling 16 minutes 
later – 13 days before the deadline to oppose. 
 
Magistrate Judge Irick, in addition to failing to consider my opposition brief, 
stated no grounds for granting the Federal Defendants an additional 23 days to 
respond to my preliminary injunction motions when Local Rule 6.02(c) clearly sets 
the deadline at seven days, not 30. This decision is not only clearly erroneous, it 
must be interpreted by any reasonable person as a showing of bias in favor of the 
defendants.  
 
Confusingly, Magistrate Judge Irick’s order states “The remainder of Defend-
ants’ Motion (Doc. 48) is DENIED without prejudice.” Doc. 55. However, he 
granted ex parte both of the Federal Defendants’ requests – to strike my two PI 
motions and allow a 23-day extension of the seven-day deadline to respond to a PI 
motion under Local Rule 6.02(c). It is unclear what exactly was denied, as every-
thing the government asked for it its motion it was granted ex parte.  
 
“An ex parte judicial proceeding is conducted for the benefit of only one party. 
… Under the FIFTH AMENDMENT to the U.S. Constitution, ‘No person shall … be 
deprived of life, liberty, or property, without DUE PROCESS of law.’ A bedrock 
feature of due process is fair notice to parties who may be affected by legal pro-
ceedings. An ex parte judicial proceeding, conducted without notice to, and outside 
the presence of, affected parties, would appear to violate the Constitution.” Pl. Ex. 
2.   
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“Ex parte judicial proceedings are usually reserved for urgent matters where 
requiring notice would subject one party to irreparable harm. … Ex parte contact 
also describes a judge who communicates with one party to a lawsuit to the exclu-
sion of the other party or parties, or a judge who initiates discussions about a case 
with disinterested third parties. Canon 3(A)(4) of the AMERICAN BAR ASSOCIA-
TION (ABA) Model CODE OF JUDICIAL CONDUCT discourages judges from such 
ex parte communications.” Id. In this case, there was no urgency for Magistrate 
Judge Irick to decide the government’s motion without considering my opposition, 
as there was no irreparable harm the Federal Defendants would have suffered ab-
sent an ex parte order. 
 
Ex parte refers “to motions, hearings, or orders granted on the request of and 
for the benefit of one party only. This is an exception to the basic rule of court pro-
cedure that both parties must be present at any argument before a judge…” Pl. Ex. 
3. 
 
The purpose of the Due Process Clause is to protect all persons from mistaken 
or unjustified deprivations of life, liberty, or property. Carey v. Piphus, 435 U.S. 
247, 259 (1978). The clause guarantees every person the opportunity to contest any 
government action that deprives them of life, liberty, or property. Fuentes v. She-
vin, 407 U.S. 67, 81 (1972). In this case, the Federal Defendants have deprived me 
of the liberty to travel by enforcing illegal and unconstitutional mask mandates and 
testing requirements. Likewise they have deprived me of property (airline tickets I 
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purchased). Magistrate Judge Irick’s ex parte order granting the government’s mo-
tion to delay resolution of the Motions for Preliminary Injunction have contributed 
to these due-process violations to the extent I was forced to file an emergency ap-
peal with the 11th Circuit because I have a flight booked July 1 from Orlando to 
Germany to visit my brother and his wife. This declaration of bias against my pro-
cedural and constitutional rights requires disqualification, not just a vacating of 
the Order by the district judge or Court of Appeals. 
 
Every individual has the right to a neutral and impartial judge, so that he can 
present his case “with assurance that the arbiter is not predisposed to find against 
him.” Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980). An ex parte order strik-
ing, without cause, two time-sensitive motions and granting, again without cause, 
a 23-day deadline extension instead of following the Local Rules gives this litigant 
zero assurance that the arbiter is not predisposed to find against me. 
 
As a matter of due process, a judge who fails the “appearance of impartiality” 
test may not sit as the judge in the case. Hurls v. Ryan, 752 F.3d 768 (9th Cir. 
2011). 
 
As a country, we believe one of the tenants of due process is fair notice to parties 
who may be affected by legal proceedings. Absent exigent circumstances, a judge 
should never rule on a motion without hearing from both sides. It’s the equivalent 
of an umpire calling a strike when the ball is only halfway from the pitcher’s mound 
to home plate, or a referee signaling a touchdown when the ball carrier is still on 
the 10 yardline. Ruling on a nonemergency, procedural motion ex parte without 
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notice to the adverse party is a violation of basic judicial ethics that warrants im-
mediate disqualification. 
 
 
B. Magistrate Judge Irick’s conduct meets the legal standards for dis-
qualification. 
 
 
“Any justice, judge, or magistrate judge of the United States shall disqualify 
himself in any proceeding in which his impartiality might reasonably be ques-
tioned.” 28 USC § 455(a).  
 
Federal judges must abide by the Code of Conduct for United States Judges 
(“CCUSJ”), a set of ethical principles and guidelines adopted by the Judicial Con-
ference of the United States. The CCUSJ provides guidance for judges on issues of 
judicial integrity and independence, judicial diligence and impartiality, permissi-
ble extra-judicial activities, and the avoidance of impropriety or even its appear-
ance. 
 
“A judge shall disqualify himself or herself in a proceeding in which the judge’s 
impartiality might reasonably be questioned, including but not limited to instances 
in which: (a) the judge has a personal bias or prejudice concerning a party…” 
CCUSJ Canon 3(C)(1)(a).  
 
In a constitutional system grounded by the rule of law, it is imperative that 
judges make decisions according to that law, unclouded by personal bias or con-
flicts of interest. Moreover, the Due Process Clause has been construed to guaran-
tee litigants the right to a “neutral and detached” judge. Ward v. Village of Mon-
roeville, 409 U.S. 57 (1972).  
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It is not enough that judges be impartial; the public must perceive them to be 
so. The CCUSJ therefore admonishes judges to “act at all times in a manner that 
promotes public confidence in the integrity and impartiality of the judiciary” and 
to “avoid impropriety and the appearance of impropriety in all activities.”  
 
When the impartiality of a judge is in doubt, the appropriate remedy is to dis-
qualify that judge from hearing further proceedings in the matter. In Caperton v. 
A.T. Massey Coal Co., 556 U.S. 868 (2009), the Supreme Court reaffirmed that 
litigants have a due-process right to an impartial judge, and that under circum-
stances in which judicial bias is probable, due process requires disqualification. 
 
No judge may decide a case if he is biased for or against any party. Tunney v. 
Ohio, 273 U.S. 510, 523 (1927); Goldberg v. Kelly, 397 U.S. 254, 271 (1970). 
 
A judge shall not hear a case if “the probability of actual bias on the part of the 
judge or decision maker is too high to be constitutionally tolerable.” Withrow v. 
Larkin, 421 U.S. 35, 47 (1975). In such cases, “the inquiry is an objective one. The 
Court asks not whether the judge is actually, subjectively biased, but whether the 
average judge in his position is ‘likely’ to be neutral, or whether there is an uncon-
stitutional ‘potential for bias.’” Caperton. 
 
28 USC § 455 deals not only with actual bias and other forms of partiality but 
also with the appearance of partiality. Any reasonable American would see issu-
ing an ex parte order thwarting a plaintiff’s attempts to get critical, time-sensitive 
injunctive relief from illegal and unconstitutional Centers for Disease Control & 
Prevention orders as appearing to be biased, if not demonstrating actual bias. 
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 “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). And, “the standard for 
recusal under § 455(a) is whether an objective, disinterested, lay observer, fully 
informed of the facts underlying the grounds on which recusal was sought would 
entertain a significant doubt about the judge’s impartiality.” United States v. Kelly, 
888 F.2d 732, 745 (11th Cir. 1989). (internal quotations omitted); Parker v. Con-
nors Steel Co., 855 F.2d 1510, 1524 & n.12 (11th Cir. 1988) (emphasizing that the 
test is whether a “lay observer,” and not one “trained in the law,” would reasonably 
question the judge’s impartiality).  
 
Under this standard, all doubts must be “resolved in favor of recusal.” Id. Fur-
ther, “objective standards may also require recusal whether or not actual bias exists 
or can be proved.” Caperton at 886 (citing In re Murchison, 349 U.S. 133, 136 
(1955), for the proposition that “[d]ue process ‘may sometimes bar trial by judges 
who have no actual bias and who would do their very best to weigh the scales of 
justice equally between contending parties.’”). Thus, 455(a) “clearly mandates … a 
judge err on the side of caution and disqualify himself in a questionable case.” Pot-
ashnick v. Port City Const. Co., 609 F.2d 1101, 1112 (5th Cir. 1980).  
 
The CCUSJ instructs judges to “avoid impropriety and the appearance of im-
propriety in all activities,” Canon 2, and specifically to “respect and comply with 
the law and [to] act at all times in a manner that promotes public confidence in the 
integrity and impartiality of the judiciary,” Canon 2(A).  
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“An appearance of impropriety occurs when reasonable minds, with knowledge 
of all the relevant circumstances … would conclude that the judge’s honesty, im-
partiality, temperament, or fitness to serve as a judge is impaired.” Commentary 
to Canon 2(A).  
 
The impartiality of judges, and the appearance of impartiality, are important 
for ensuring public confidence in our federal courts. A pro se litigant going up 
against the might of the federal government can’t have any confidence in the 
Court’s impartiality when it issues an ex parte ruling blocking him from even the 
chance of obtaining critical injunctive relief so he may visit his family in Germany.  
 
“Under § 455, the standard is whether an objective, fully informed lay observer 
would entertain significant doubt about the judge’s impartiality.” Thomas v. 
Tenneco Packaging Co., 293 F.3d 1306, 1329 (11th Cir. 2002) (quoting Christo v. 
Padgett, 223 F.3d 1324, 1333 (11th Cir. 2000)). 
 
“The critical question presented by this statute ‘is not whether the judge is im-
partial in fact. It is simply whether another, not knowing whether or not the judge 
is actually impartial, might reasonably question his impartiality on the basis of all 
the circumstances.’” United States v. DeTemple, 162 F.3d 279, 286 (4th Cir. 1998) 
(quoting Hathcock v. Navistar Int’l Transp. Corp., 53 F.3d 36, 41 (4th Cir. 1995)). 
In this case, there is no doubt that one observing these proceedings would question 
Magistrate Judge Irick’s impartiality after the June 22 ex parte decision granting 
the government, whom he used to work for, everything it desired to stall a decision 
on my Motions for Preliminary Injunction. 
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An essential component of equal justice under the law is a neutral and detached 
judge to preside over the court proceedings. Accordingly, it’s not the judge’s own 
beliefs, nor even the presence of actual bias that matters, but instead, the “objective 
risk of actual bias that required … recusal.” Caperton at 886. 
 
The law “focuses on the appearance of impartiality, as opposed to the existence 
in fact of any bias or prejudice; a judge faced with a potential ground for disquali-
fication ought to consider how his participation in a given case looks to the average 
person on the street. Use of the word ‘might’ in the statute was intended to indicate 
that disqualification should follow if the reasonable man, were he to know all the 
circumstances, would harbor doubts about the judge's impartiality.” Potashnick v. 
Port City Const. Co., 609 F.2d 1101, 1111 (5th Cir. 1980). 
 
“Once a judge whose impartiality toward a particular case may reasonably be 
questioned presides over that case, the damage to the integrity of the system is 
done.” Durhan v. Neopolitan, 875 F.2d 91, 97 (7th Cir. 1989). 
 
“[A] judge must recuse [himself] if a reasonable, objective person, knowing all 
of the circumstances, would have questioned the judge's impartiality." United 
States v. Hartsel, 199 F.3d 812, 820 (6th Cir. 1999) (quoting Hughes v. United 
States, 899 F.2d 1495, 1501 (6th Cir. 1990)). 
 
 
 
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WHEREFORE, I request this Court issue an order disqualifying Magistrate 
Judge Daniel Irick from this case and my related action, Wall v. Southwest Airlines 
(Case No. 6:21-cv-1008-PGB-DCI). The clerk should be directed to reassign an-
other magistrate judge to both matters. 
 
Respectfully submitted this 25th day of June 2021. 
 
Lucas Wall, plaintiff 
435 10th St., NE 
Washington, DC 20002 
Telephone: 202-351-1735 
E-Mail: Lucas.Wall@yahoo.com 
 
 
 
 
 
Local Rule 3.01(g) Certification 
I conferred by e-mail June 25 with Stephen Pezzi, counsel for the Federal Defend-
ants. He informed me that the government opposes this motion.  
 
Also June 25, I conferred by e-mail with Dan Gerber, counsel for Defendant 
Greater Orlando Aviation Authority. He informed me GOAA also opposes this mo-
tion. 
 
I have not conferred with Defendant Central Florida Transportation Authority be-
cause, although it has been served with the Complaint, it has yet to appear. 
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