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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

SHERRIE RUSSELL-BROWN,

Plaintiff,

v. CASE NO. 1:09-cv-00257-MP-AK

ROBERT H JERRY, II, LEVIN COLLEGE OF LAW, THE UNIVERSITY OF FLORIDA, THE

UNIVERSITY OF FLORIDA BOARD OF TRUSTEES,

Defendants.

_____________________________/

O R D E R

This matter is before the Court on Motion for Recusal by Sherrie Russell-Brown, Doc.

76. In this motion, Plaintiff alleges that the court’s impartiality might reasonably be questioned

in this proceeding and therefore this court should recuse itself. Defendants have responded, Doc.

82. Recusal of federal judges is governed by 28 U.S.C.A. § 455 (West Supp.1989), which

provides, in section 455(a), that a “judge ... shall disqualify himself in any proceeding in which

his impartiality might reasonably be questioned.” Although 28 U.S.C.A. § 144 continues to

provide for recusal upon affidavit submitted by a party, Congress rewrote section 455 in 1974 for

the specific purpose of “broaden[ing] and clarify[ing] the grounds for judicial disqualification.” 

Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194, 2197, 100 L.Ed.2d

855 (1988). 

Under the new version of section 455, a judge is under an affirmative, self-enforcing

obligation to recuse himself or herself sua sponte whenever the proper grounds exist. Section

455 does away with the old “duty to sit” doctrine and requires judges to resolve any doubts they

may have in favor of disqualification. See United States v. Alabama, 828 F.2d 1532, 1540 (11th

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Cir.1987), cert. denied sub nom. Alabama State Univ. v. Auburn Univ., 487 U.S. 1210, 108

S.Ct. 2857, 101 L.Ed.2d 894 (1988). 

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

even the appearance of impropriety whenever possible.” Liljeberg, 108 S.Ct. at 2205. Neither

actual partiality, nor knowledge of the disqualifying circumstances on the part of the judge

during the affected proceeding, are prerequisites to disqualification under this section. The duty

of recusal applies equally before, during, and after a judicial proceeding, whenever disqualifying

circumstances become known to the judge. See id. at 2202-03. The standard for recusal under 

section 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. Torkington, 874 F.2d 1441, 1446 (11th Cir.1989)

(quoting Parker v. Connors Steel Co., 855 F.2d 1510, 1524 (11th Cir.1988), cert. denied, 490

U.S. 1066, 109 S.Ct. 2066, 104 L.Ed.2d 631 (1989)). 

28 U.S.C. § 144, on its face, requires a party filing a motion to recuse to support it with a

“sufficient” affidavit. The test for legal sufficiency of an affidavit in support of recusal under

Section 144 includes showing that the facts are stated with particularity. United States v. State

of Alabama, 828 F.2d 1532, 1540 (11th Cir. 1987). “The affidavit must state with required

particularity the identifying facts of time, place, persons, occasion, and circumstances.” Hinman

v. Rogers, 831 F.2d 937, 939 (10th Cir. 1987). See also Roussel v. Tidelands Capital Corp., 438

F.Supp. 684, 690 (N.D. Ala. 1977) (under Section 144, “[a] minimal requirement would be

sufficient detail in the affidavit that the affiant would expose himself to a charge of perjury, if he

were guilty of swearing to statements that he knew to be false”). 

Similarly, 28 U.S.C. § 455(a) does not require a judge to accept as true all allegations

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in determining whether a reasonable person would harbor doubts concerning his impartiality.

Phillips v. Joint Legislative Committee, 637 F.2d 1014, 1019 n.6 (5th Cir. 1981), cert. denied,

456 U.S. 960, 102 S.Ct. 2035, 72 L.Ed. 2d 483 (1982). “If a party could bind a judge by its

factual allegations in a section 455 motion, free from the formal requirements and more

demanding standard of proof of section 144, the result would be a virtual open season for

recusal. Id. “[A] judge, having been assigned to a case, should not recuse himself on

unsupported, irrational, or highly tenuous speculation. If this occurred the price of maintaining

the purity of the appearance of justice would be the power of litigants or third parties to exercise

a veto over the assignment of judges.” United States v. Greenough, 782 F.2d 1556, 1558 (11th

Cir. 1986).

Plaintiff alleges that this Court has gained and continues to gain extra-judicial knowledge

of facts in dispute in this case from interaction with the University. Plaintiff fails to explain,

either in her memorandum of law or supporting affidavit, how this Court received any extrajudicial knowledge of facts in dispute. Plaintiff likewise fails to explain with any particularity

how she comes to assert that this Court has such extra judicial knowledge. Rather, she merely

alleges that this Court is Field Supervisor for interns assigned by the Levin College of Law, and

then speculates that I have acquired and continue to acquire knowledge of several facts in

dispute, such as her leaves of absence and her performance evaluations. Doc. 76, p. 6. She fails

to allege any personal knowledge of any meetings or circumstances at which I attained such

alleged extra-judicial knowledge. 

Courts have repeatedly rejected motions to recuse that were not supported with

affidavits based upon personal knowledge. See Henderson v. Department of Public Safety and

Corrections, 901 F.2d 1288, 1266 (5th Cir. 1990), (district court had correctly determined that

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the affidavit submitted in support of recusal was legally insufficient because it was not based on

personal knowledge); Weatherhead v. Globe International, Inc., 832 F.2d 1226 (10th Cir. 1987)

(trial judge did not abuse his discretion in denying motion to recuse where, inter alia, the recusal

affidavits did not allege personal knowledge of bias and prejudice on the part of the judge and,

consequently, were insufficient to warrant recusal); Jaris v. Macey, 2009 U.S. Dist. LEXIS

116961 (E.D. Pa. Dec. 14, 2009) (“his affidavit is insufficient to support recusal because he has

not attested the facts within his personal knowledge, rather, he has based his affidavit on

conjecture and unfounded belief”); Edwards v. Nestle Beverage Co., 1994 U.S. Dist. LEXIS 238

(E.D. La. Jan. 11, 1994).

Here, plaintiff Russell-Brown’s supporting Affidavit does not assert that it is based

upon her personal knowledge. See, e.g. Pace v. Capabianco, 283 F.3d 1275, 1278-79 (11th Cir.

2002). Moreover, in the hearing conducted on June 9, plaintiff’s counsel conceded that

Paragraph No. 5 of Plaintiff’s Affidavit is based upon nothing more than information and belief.

Accordingly, Plaintiff’s Affidavit fails to establish, through personal knowledge, that this Court

has acquired personal, extra-judicial knowledge of material facts in this case.

As stated during the hearing, this Court has never discussed or allowed to be discussed

the facts of Plaintiff’s case; has never met with Defendant Jerry concerning Plaintiff’s case; has

never met with Professor Davis, who actually runs the Levin College of Law internship program,

since 2001. As further stated at the hearing, this court does not even supervise the interns

assigned by the Levin College of Law, such duties being administered by my career Senior Law

Clerk . More importantly, though, there is simply no factual basis for Plaintiff’s conclusory

allegations. As her affidavit fails to explain how this Court could come into improper contact

with the facts of her case, it is insufficient to create an appearance of impropriety in any rational

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observer. 

Plaintiff’s argument may be summarized as follows: I am an alumnus of the University

of Florida, and the University of Florida Levin College of Law. I have a student from the Levin

College of Law interning in my chambers. Because I am an alumnus and have continuing

nominal contact with the Levin College of Law, I must have met with and continue to meet with

Defendants. Because I meet with Defendants, I have discussed her case with them. Because I

have discussed her case with them, Plaintiff asserts, I have extra-judicial knowledge of facts in

dispute and must recuse myself.

Conclusions such as those are not particularly alleged facts within the personal

knowledge of the affiant. Because her affidavit does not contain specific facts within her

personal knowledge, it is legally insufficient to support recusal. “In passing on the legal

sufficiency of the affidavit, the court must assume the truth of the factual assertions even if it

knows them to be false.” United States v. Sykes, 7 F.3d 1331, 1339 (7th Cir. 1993) (internal

citations omitted). “At the same time, the facts averred must be sufficiently definite and

particular to convince a reasonable person that bias exists; simple conclusions, opinions, or

rumors are insufficient.” Id. The conclusions asserted by Plaintiff in her affidavit are anything

but definite and particularly asserted facts. 

Plaintiff is correct to argue that it is not my mere status as an alumnus, or my mere

nominal continuing contact with Defendant University, that gives rise to this motion for recusal. 

Indeed, Plaintiff’s counsel admits that such contacts would be insufficient to cause any

reasonable observer to question my impartiality. See United States v. Alabama, 828 F.2d 1532,

1543 (11th Cir. 1987) (judge’s “background and associations” did not justify recusal; Levitt v.

University of Texas, 847 F.2d 221 (5th Cir. 1988) (school ties are insufficient to disqualify

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judge); McCann v. Communications Design Corp., 775 F.Supp. 1535, 1543-44 (D.Conn. 1991)

(same); Lunde v. Helms, 29 F.3d 367, 370-71 (8th Cir. 1994) (no abuse of discretion for failure

to recuse when judge was an alumnus of the defendant university’s law school, made financial

contributions to an alumni organization, and had presented education programs at the university).

Yet, Plaintiff’s counsel argues that because I have those nominal contacts, I have extrajudicial knowledge of facts in dispute, which he argues is an entirely different matter. Plaintiff’s

counsel is wrong. No particularly alleged facts connect this Court’s status as an alumnus, or as 

judge who allows an intern to work in chambers, to the alleged extra-judicial knowledge of

facts in dispute, making Plaintiff’s argument a thinly-veiled simulacrum of an alumni-status

argument that Plaintiff’s counsel admits is insufficient as a matter of law to support recusal. 

Instead of supporting her conclusions with particularly alleged facts, Plaintiff asserts that

bias has “manifested itself” in this court’s rulings so far in this case. “It is well settled that under

either Section 144 or Section 455 an allegation of bias sufficient to require disqualification must

demonstrate that the bias is personal as distinguished from judicial in nature. The alleged bias

and prejudice, in order to be personal and therefore disqualifying, ‘must stem from an

extrajudicial source and result in an opinion on the merits on some basis other than what the

judge learned from his participation in the case.’“ U.S. v. Phillips, 664 F.2d 971, 1002 (5th Cir.

1981) (quoting U.S. v. Grinnell Corp, 384 U.S. 563, 583 (1966). “Thus, a motion for recusal

may not ordinarily be predicated upon the judge's rulings in the same or a related case. An

exception to the general rule that the disqualifying bias must stem from extrajudicial sources is

the situation in which ‘such pervasive bias and prejudice is shown by otherwise judicial conduct

as would constitute bias against a party.’“ Id at 1002-03 (quoting Davis v. Board of School

Comm’rs of Mobile County, 517 F.2d 1044, 1051 (5th Cir. 1975). It appears that Plaintiff is

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familiar with the relevant doctrines, and instead of simply asserting that she is upset with this

Court’s rulings, she avers conclusions of extrajudicial sources to explain her motion practice

setbacks. 

Plaintiff complains specifically that she was not given an opportunity under Local Rule

7.1(C)(1) to respond to Defendants’ Motion to Withdraw Exhibits, Doc. 50, and a Motion for

Extension of Time, Doc. 66. Plaintiff does not explain how she is entitled to respond with

Memoranda of Law under Local Rule 7.1(C)(1) to motions that do not require a Memorandum of

Law under Local Rule 7.1. As neither the Motion to Withdraw Exhibits and Re-File Under Seal,

Doc. 50, nor the Motion for an Extension of Time, Doc. 66, require a Memorandum of Law, the

party opposing those motions is not entitled to respond to them before they are ruled on by the

Court. Additionally, the Court rules routinely on motions such as these (motions for extensions,

or to seal previously unsealed documents) without requiring comment from the opposing party. 

Additionally, Plaintiff’s Motion for Recusal fails to note that in the case of Defendant’s

request to remove exhibits from the public record and re-file them under seal, Doc. 50, was made

to protect her own interests. Defendant requested to seal Plaintiff’s medical records after she

threatened additional lawsuits for alleged violations of the Family Medical Leave Act nondisclosure provisions based on their exhibits in this lawsuit. Plaintiff fails to explain in her

Motion for Recusal how Defendant and the Court’s swift action to seal those records, protecting

her allegedly private information, is a manifestation of bias against her. 

Plaintiff further complains that her allegedly confidential medical information should not

be on the record. Plaintiff recites that she did not consent to Defendant filing records with the

Court, and did not consent to them being re-filed under seal. The undersigned has not relied on

these medical records in any of its legal analysis thus far. Additionally, the Court notes that

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Plaintiff could have filed a Motion for Reconsideration of this Court’s order granting

Defendant’s motion to withdraw those exhibits and re-file them under seal, Doc. 56, but she has

not. Nor has she filed any motion to strike them from the record. Instead, she merely recites in

her Motion for Recusal that it is her opinion that they are irrelevant and should be permanently

withdrawn from the record. 

Finally, Plaintiff complains of ex parte communication between chambers and

Defendant’s counsel concerning a pending motion. In Plaintiff’s Motion to Continue and

Extension of Time, Doc. 69, Plaintiff recited that she was unable to reach Defendant’s counsel to

ascertain if Defendant would oppose the motion. The motion was filed two days before the

scheduled hearing that Plaintiff wished to continue, so chambers contacted Defendant’s counsel

to direct them to file a motion stating their opposition or non-opposition to Plaintiff’s motion. 

The result of the complained-about communication is that the Plaintiff’s motion was granted and

the hearing continued in order to accommodate Plaintiff’s schedule. Plaintiff fails to explain

how the Court’s grant of relief for Plaintiff would raise a perception of judicial bias against her

in a reasonable, informed observer. Nor does Plaintiff describe how this instance of

communication is different or more blameworthy than the time she personally called chambers to

discuss her case with my law clerk. 

In short, Plaintiff notes that I am an alumnus of Defendant law school, and have nominal

contacts therewith. Plaintiff is displeased at how the litigation has progressed do far with respect

to my rulings on motions. Neither of those two items would raise a doubt in any reasonable

observer as to my impartiality. So, Plaintiff concludes that the reason I have ruled as I have on

her motions is that I must be having some sort of impermissible ex parte communication with

Defendants, and that communication must yield some sort of impermissible extra-judicial

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knowledge of facts in dispute, and that impermissible knowledge must form in me some

impermissible bias. No rational observer would credit Plaintiff’s conclusory allegations. No

reasonable jurist would hold her affidavit sufficiently pled based on facts of which she has

personal knowledge to be legally sufficient to support a motion for recusal. Since recusal is not

warranted, there is also no reason to stay this case pending analysis of the recusal request. 

Accordingly, it is

ORDERED AND ADJUDGED:

1. Motion for Recusal, Doc. 76, is DENIED. 

2. Motion to Stay Regarding Motion for Recusal, Doc. 77, is DENIED. 

3. The Clerk is directed to set a live hearing on open motions in this case by separate

notice. 

DONE AND ORDERED this 12th day of July, 2010

 s/Maurice M. Paul 

 Maurice M. Paul, Senior District Judge

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