United States District Court, D. Nebraska
P. KELLY United States Attorney RICHARD E. ZUCKERMAN
Principal Deputy Assistant Attorney General, SAMUEL PETER
ROBINS Trial Attorney, Tax Division
J. MONAGHAN Attorney for CHRISTINE L. SWANSON DORNAN, TROIA
A. BENTZEN Attorney for Neerpark, Inc. REMBOLT, LUDTKE LAW
MEMORANDUM AND ORDER
R. Zwart United States Magistrate Judge
the call held today, Nancy Black argued the undersigned
magistrate judge has a conflict of interest, colluded with
Swanson's counsel to distribute funds to other parties
and steal funds from Ms. Black, and purposefully delayed the
progression of this case. (Filing No. 68). The court
interprets these statements as a motion to recuse. For the
reasons stated below, that motion will be denied.
judicial officer must satisfy herself that she is actually
unbiased toward the parties in each case and that her
impartiality is not reasonably subject to question.
The judge presiding over a case is in the best position to
appreciate the implications of those matters alleged in a
recusal motion. In deciding whether to recuse [her]self, the
trial judge must carefully weigh the policy of promoting
public confidence in the judiciary against the possibility
that those questioning [her] impartiality might be seeking to
avoid the adverse consequences of [her] presiding over their
In re Kansas Public Employees Retirement System, 85
F.3d 1353, 1358 (8th Cir. 1996) (quoting In re
Drexel, 861 F.2d 1307, 1312 (2d Cir. 1988). See also,
United States v. Balistrieri, 779 F.2d 1191, 1202-03
(7th Cir. 1985) (decisions with respect to disqualification
should be made by the judge sitting in the case, and not by
party introducing a motion to recuse carries a heavy burden
of proof; a judge is presumed to be impartial and the party
seeking disqualification bears the substantial burden of
proving otherwise.” Fletcher v. Conoco Pipe Line
Co., 323 F.3d 661, 664 (8th Cir. 2003). “[T]he
recusal inquiry must be made from the perspective of a
reasonable observer who is informed of all the surrounding
facts and circumstances.” Cheney v. U.S. Dist.
Court for Dist. of Columbia, 541 U.S. 913, 924 (2004);
O'Bannon v. Union Pac. R.R. Co., 169 F.3d 1088,
1091 (8th Cir.1999); Lunde v. Helms, 29 F.3d at 370.
A judge must recuse herself if her “impartiality might
reasonably be questioned, ” (28 U.S.C. §455(a)).
But she has an equal obligation not to recuse herself when
there is no reason to do so. Southwestern Bell Telephone
Co. v. F.C.C, 153 F.3d 520, 523 (8th Cir. 1998). As the
legislative history of 28 U.S.C. §455 explains,
disqualification for lack of impartiality must have a
reasonable basis. Litigants should not have to face a judge
where there is a reasonable question of impartiality, but
they are not entitled to a judge of their own choice.
House Report No. 93-1453, adopting Senate Report No.
93-419, 3 U.S.Code Cong. & Admin. News, 93rd Cong., 2d
Sess. 1974, pp. 6351-6363 at 6355.
support of her motion for recusal, Ms. Black claims that I
previously worked with Thomas J. Monaghan, Swanson's
counsel, as we have both worked for the federal government,
and I therefore have a conflict of interest. I have never
worked with or for Mr. Monaghan. With specific reference to
any federal employment, Mr. Monaghan served as the U.S.
Attorney for the District of Nebraska from 1993 until 2001. I
have never worked for the U.S. Attorney's Office. My only
government employment has been for the court, and that did
not begin until August of 2001. And I have no relationship
with Mr. Monaghan beyond reviewing, managing, and ruling on
court filings. No. conflict of interest exists.
Ms. Black's allegation that this court, and the
undersigned magistrate judge specifically, colluded with
Swanson's counsel to misappropriate and improperly
distribute funds deposited with the court, those funds were
distributed pursuant to a stipulation and court orders,
copies of which are attached. (See, also Filing Nos. 50, 51,
61). I was not involved in those distributions or the
decision to distribute any of the funds deposited with the
Black's claim that I delayed case progression likewise
has no merit. This case has been managed no differently than
any other case. The speed of case progression depends largely
on the number of filings, the number of parties, and the
complexity of the issues. In this case, the parties navigated
amounts owed to the IRS and to a homeowner's association,
ultimately leaving only Swanson and Black as claimants to the
remainder of the money deposited with the court.
reasonable observer informed of all the surrounding facts and
circumstances would not conclude that I am unable to fairly