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Carr v. Grand Canyon University Inc.

United States District Court, D. Arizona

November 5, 2019

Eileen Carr, et al., Plaintiffs,
v.
Grand Canyon University Incorporated, et al., Defendants.

          ORDER

          Michael T. Liburdi United Stales District Judge

         Plaintiffs and putative class members Eileen Carr, Samuel Stanton, Jane Doe I, Jane Doe II, and Jane Doe III have filed a Motion to Recuse Pursuant to 28 U.S.C. § 144 and 28 U.S.C. § 455 (the “Motion”). (Doc. 13.) The Court denies the Motion as it pertains to 28 U.S.C. § 455. Pursuant to 28 U.S.C. § 144, the Court refers the remaining recusal issues to another United States District Judge in this District who “shall be assigned to hear such proceeding.”

         I. INTRODUCTION

         This action was initiated in this Court on September 18, 2019 and assigned by random selection to the undersigned Judge of the United States District Court. (Docs. 1 and 3.)[1] Each of the named Plaintiffs participate in Defendants' online doctoral program. On behalf of themselves and other similarly situated individuals, Plaintiffs contend that the Defendants, Grand Canyon University, Inc. and Grand Canyon Education, Inc. (collectively “Defendants” or “GCU”), falsely advertise the number of credit hours required to complete its doctoral program. Plaintiffs' Complaint states that Defendants advertise a doctoral degree is attainable with 60 credit hours of coursework, including “three dissertation courses worth three credit hours each.” (Doc. 1 at ¶ 20.) In reality, as averred by Plaintiffs,

GCU's representation that its doctoral programs can be completed in 60 credit hours is false. GCU does not provide the resources needed to complete the dissertation, and therefore the doctoral program, while taking the first three dissertation courses. The result is that GCU doctoral students must then enroll in additional courses to complete their dissertation. In fact, GCU has designed its dissertation program and requirements so that it is highly unlikely that its dissertation students can complete the program within 60 credit hours.

(Id.)

         On October 15, 2019, Defendants filed a Motion to Dismiss (Doc. 8), which is fully briefed, and a Motion to Compel Arbitration (Doc. 9), which is not. Then, on October 29, 2019, Plaintiffs filed the instant Motion. (Doc. 13.) In its own words, the objective of the Motion is to obtain the disqualification of this Judge “based on the prior relationship between Judge Liburdi and Grand Canyon University.”[2] (Id. at 1.)

         II. RECUSAL ANALYSIS UNDER 28 U.S.C. § 455

         A motion for judicial recusal under § 455 “is directed to the judge, rather than the parties, and is self-enforcing on the part of the judge.” United States v. Sibla, 624 F.2d 864, 867-68 (9th Cir. 1980). A judge who is the subject of a recusal motion filed under both §§ 144 and 455 may perform a recusal analysis under § 455 before referring the § 144 matter to a second judge. Id. at 868 (“[S]ection 455 modifies section 144 in requiring the judge to go beyond the section 144 affidavit and consider the merits of the motion pursuant to Section 455(a) & (b)(1).”). Thus the Court will begin with a § 455 review and analysis.

         A. Legal Standard

         Section 455(a) requires that a “judge of the United States shall disqualify himself in any proceeding in which his impartiality might be questioned.” It is well established in this Circuit that the test for recusal of a judicial officer is whether “a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned.” United States v. Carey, 929 F.3d 1092, 1104 (9th Cir. 2019) (quoting Yagman v. Republic Ins., 987 F.2d 622, 626 (9th Cir. 1993)). A reasonable person “in this context means a well-informed, thoughtful observer, as opposed to a hypersensitive or unduly suspicious person.” United States v. Holland, 519 F.3d 909, 914 (9th Cir. 2008) (quoting Clemens v. U.S. Dist. Court for Cent. Dist. of California, 428 F.3d 1175, 1178 (9th Cir. 2005)). “Disqualification under § 455(a) is necessarily fact-driven and may turn on subtleties in the particular case.” Carey, 929 F.3d at 1104 (quoting Holland, 519 F.3d at 913).

         B. Application

         The Motion states that the undersigned judge's “impartiality might reasonably be questioned based on the prior relationship between Judge Liburdi and Grand Canyon University.” (Doc. 13 at 1.) It goes on to say that from 2014 “to the time that Judge Liburdi was nominated for the Court in 2018, Judge Liburdi has been ‘tied at the hip' with [Arizona] Governor [Douglas] Ducey who, in turn, has been ‘tied at the hip' with Defendants.”[3] (Id.) To support this conclusion, the Motion cites as “facts” many generalized statements drawn from news reports, [4] public documents, and Plaintiffs' and their lawyers' own imaginations. When viewed from the perspective of a reasonable person with knowledge of all the facts, the Motion plainly lacks any merit.

         1.Former Government Lawyer

         Section 455(b)(3) provides the standard by which a former government lawyer serving as a judge should recuse from a matter.[5] Recusal is appropriate when a judge “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.” 28 U.S.C. § 455(b)(3). This recusal element was considered by then-Judge Kavanaugh of the D.C. Circuit in Baker & Hostetler LLP v. United States Dep't of Commerce, 471 F.3d 1355 (D.C. Cir. 2006). That case involved litigation under the Freedom of Information Act concerning public records in a softwood lumber dispute between the United States and Canada. Id. at 1357. On appeal, one of the parties moved for Judge Kavanaugh's recusal, citing concerns that, during his time as legal counsel for President George W. Bush, he may have “personally participated on issues relating to the Softwood Lumber dispute.” Id. Judge Kavanaugh's analysis is worth reproducing in full:

Before enacting that law in 1974, Congress carefully studied the issue, including obtaining guidance from the then-recently amended ABA Code of Judicial Conduct. See H.R.Rep. No. 93-1453 (1974), as reprinted in 1974 U.S.C.C.A.N. 6351. In the statute, Congress chose to draw the recusal line for prior government employment at participation in the proceeding or expression of an opinion concerning the merits of the particular case in controversy. It bears emphasis, moreover, that Congress chose the “personal-participation” rule for recusal based on prior government employment while simultaneously enacting a different and far broader “associational” rule for recusal based on prior law firm employment. See 28 U.S.C. § 455(b)(2).
As to prior government work, Congress was aware of the deeply rooted tradition of high-level Executive Branch and Legislative Branch officials assuming the bench. Based on that history and to avoid making it all but impossible for judges with such backgrounds to perform their judicial duties in many cases, Congress established the specific “personal-participation” rule in § 455(b)(3). In determining whether recusal is ...

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