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Case 2:07-cv-02513-GMS Document 1908 Filed 12/16/16 Page 1 of 34

1 Robert J. Moossy, Jr.
Deputy Assistant Attorney General
2 Steven H. Rosenbaum (NY Bar No. 1901958)
3 Timothy D. Mygatt (DC Bar No. 1021564)
Jennifer L. Mondino (NY Bar No. 4141636)
4 Paul Killebrew (LA Bar No. 32176)
Matthew J. Donnelly (IL Bar No. 6281308)
5
Cynthia Coe (DC Bar No. 438792)
6 Maureen Johnston (WA Bar No. 50037)
U.S. Department of Justice, Civil Rights Division
7
Special Litigation Section
8 601 D St. NW, Suite 5200
Washington, D.C. 20004
9
Attorneys for the United States
10
11 IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF ARIZONA
12
13 Manuel de Jesus Ortega Melendres, on No. 2:07-cv-02513-GMS
14 behalf of himself and all others similarly
situated; et al. UNITED STATES’
15 Plaintiffs, OPPOSITION TO SHERIFF
16 ARPAIO, CHIEF DEPUTY
and SHERIDAN, AND
17 LIEUTENANT SOUSA’S
18 United States of America MOTION FOR RECUSAL OF
Plaintiff-Intervenor, THE COURT AND ITS
19 MONITOR
v.
20
21 Joseph M. Arpaio, in his official capacity as
Sheriff of Maricopa County, AZ; et al.
22 Defendants.
23
24
25
26
27
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Case 2:07-cv-02513-GMS Document 1908 Filed 12/16/16 Page 2 of 34

TABLE OF CONTENTS
1
2 TABLE OF AUTHORITIES................................................................................................ i
3 I. INTRODUCTION ....................................................................................................... 1
4
II. FACTS ......................................................................................................................... 2
5
A. The Court Appointed the Monitor as Its Agent Pursuant to the Permanent
6
Injunction. ........................................................................................................................ 2
7
8 B. The Court Repeatedly Advised the Parties of Its Communications With the
9 Monitor. ........................................................................................................................... 3
10 C. The Court’s Communications with the Monitor Concerned MCSO’s Non-
11 Compliance.. .................................................................................................................... 5
12
III. ARGUMENT ............................................................................................................ 7
13
A. Movants’ Motion Should Be Denied as Untimely Based on Their Years of
14
Inexcusable Delay. .......................................................................................................... 7
15
16 1. The Court Was Transparent About Communications With the Monitor, Yet

17 Movants Waited Years to Seek Recusal...................................................................... 8

18 2. Untimeliness Is Fatal to Movants’ Recusal Motion. .......................................... 9
19 3. Movants Filed This Recusal Motion for Impermissible Strategic Purposes. ..... 9
20
B. There Are No Grounds for Recusal of the Court or Its Monitor. ........................ 14
21
1. The Court’s Impartiality Cannot Reasonably Be Questioned Under 28
22
U.S.C. 455(a) Based on Communications with Its Compliance Monitor. ................ 15
23
24 2. Recusal Is Not Warranted Under 28 U.S.C. 455(b)(1) Based on Knowledge of
25 Disputed Evidentiary Facts. ...................................................................................... 21
26 3. A Court’s Communications With Its Compliance Monitor Do Not Undermine
27 the Adversarial Process. ............................................................................................ 23
28

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1 C. The Permanent Injunction Does Not Prohibit the Court’s Communications With
2 Its Monitor. .................................................................................................................... 24
3 CONCLUSION ................................................................................................................. 26
4
5
6
7
8
9
10
11
12
13
14
15
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Case 2:07-cv-02513-GMS Document 1908 Filed 12/16/16 Page 4 of 34

TABLE OF AUTHORITIES
1
2 CASES
3
Adesanya v. W. Am. Bank, 19 F.3d 25 (9th Cir. 1994) ........................................................ 9
4
Ascom Hasler Mailing Sys., Inc. v. U.S. Postal Serv., No. CIV.A. 00-1401, 2010 WL
5
4116858 (D.D.C. Oct. 19, 2010) ................................................................................... 10
6
Blixseth v. Yellowstone Mountain Club, 742 F.3d 1215 (9th Cir. 2014) .......................... 15
7
Cafasso v. Gen. Dynamics C4 Sys., Inc., No. CV06-1381PHX-NVW, 2008 WL 169636
8
(D. Ariz. Jan. 16, 2008) ............................................................................................. 9, 12
9
Clemens v. U.S. Dist. Court for Cent. Dist. of California, 428 F.3d 1175 (9th Cir. 2005)15
10
Cobell v. Norton, 237 F. Supp. 2d 71 (D.D.C. 2003)........................................................ 16
11
Cordoza v. Pacific States Steel Corp., 320 F.3d 989 (9th Cir. 2003) ......................... 16, 17
12
Datagate, Inc. v. Hewlett-Packard Co., 941 F.2d 864 (9th Cir. 1991) ......................... 7, 11
13
E. & J. Gallo Winery v. Gallo Cattle Co., 955 F.2d 1327 (9th Cir. 1992) ......................... 8
14
Edgar v. K.L., 93 F.3d 256 (7th Cir. 1996) ................................................................. 17, 18
15
Ex Parte American Steel Barrel Co. and Seaman, 230 U.S. 35 (1913) .............................. 8
16
Guenther v. Commissioner of Internal Revenue, 939 F.2d 758 (9th Cir. 1991) ............... 22
17
Hernandez v. Wheeler, No. 2:10-CV-00084-CWD, 2013 WL 139259 (D. Id. Jan. 10,
18
2013) .............................................................................................................................. 22
19
In re Brooks, 383 F.3d 1036 (D.C. Cir. 2004) ............................................................ 16, 20
20
In re Cargill, Inc., 66 F.3d 1256 (1st Cir. 1995) ............................................................... 13
21
In re DeAtley Litig., No. CV-06-0278-JLQ, 2008 WL 375086 (E.D. Wa. Feb. 11, 2008)12
22
In re International Business Machines Corp., 618 F.2d 923 (2d Cir. 1980) ...................... 8
23
In re Kensington, 368 F.3d 289 (3d Cir. 2004) ................................................................. 19
24
In re Owens Corning, 305 B.R. 175 (D. Del. 2004) ......................................................... 21
25
Kolon Indus. Inc. v. E.I. DuPont de Nemours & Co., 748 F.3d 160 (4th Cir. 2014) .... 9, 13
26
Lac Du Flambeau Band of Lake Superior Chippewa Indians v. Stop Treaty Abuse-
27
Wisconsin, Inc., 991 F.2d 1249 (7th Cir. 1993) ............................................................ 21
28

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1 Liikane v. City of Seattle, No. C05-1829RSL, 2006 WL 2711766 (W.D. Wash. 2006) .. 22
2 Locricchio v. Cont'l Inv. Co., No. CIV. 10-00710 ACK, 2013 WL 593354 (D. Haw. Feb.
3 14, 2013) .......................................................................................................................... 7
4 Matter of Mason, 916 F.2d 384 (7th Cir. 1990) ................................................................ 15
5 Nat’l Org. for the Reform of Marijuana Laws v. Mullen, 828 F.2d 536 (9th Cir. 1987) .. 25
6 Noli v. C.I.R., 860 F.2d 1521 (9th Cir. 1988) .................................................................... 10
7 Polaroid Corp. v. Eastman Kodak Co., 867 F.2d 1415 (Fed. Cir. 1989).......................... 12
8 Preston v. United States, 923 F.2d 731 (9th Cir. 1991) ................................................ 7, 15
9 Reilly v. United States, 863 F.2d 149 (1st Cir. 1988) .................................................. 13, 18
10 Ruiz v. Estelle, 679 F.2d 1115 (5th Cir. 1982) .................................................................. 25
11 Salmeron v. United States, 724 F.2d 1357 (9th Cir. 1983). .............................................. 11
12 Skokomish Indian Tribe v. United States, 410 F.3d 506 (9th Cir. 2005) ............................ 8
13 Torres v. Chrysler Fin. Co., No. C 07-00915 JW, 2007 WL 3165665 (N.D. Cal. Oct. 25,
14 2007) .............................................................................................................................. 14
15 United States v. Apple Inc., 992 F. Supp. 2d 263 (S.D.N.Y. 2014) .................................. 25
16 United States v. Arant, No. C07-0509RSL, 2007 WL 3348443 (W.D. Wa. Nov. 9, 2007) 8
17 United States v. Bell, 79 F. Supp. 2d 1169 (E.D. Cal. 1999) ...................................... 14, 17
18 United States v. Branco, 798 F.2d 1302 (9th Cir. 1986) ................................................... 10
19 United States v. Conforte, 624 F.2d 869, 880 (9th Cir. 1980) ............................................ 9
20 United States v. Furst, 886 F.2d 558 (3d Cir. 1989) ......................................................... 11
21 United States v. Hernandez, 109 F.3d 1450 (9th Cir. 1997) ............................................. 11
22 United States v. Holland, 519 F.3d 909 (9th Cir. 2008) ................................................... 15
23 United States v. Patrick, 542 F.2d 381 (7th Cir. 1976) ..................................................... 21
24 United States v. Rogers, 119 F.3d 1377 (9th Cir. 1997) ..................................................... 7
25 United States v. Sampson, No. 4:11-CR-00155, 2011 WL 3651023 (M.D. Pa. Aug. 18,
26 2011) .............................................................................................................................. 22
27 United States v. Sanchez-Carrillo, 649 F. App'x 564 (9th Cir. 2016) .............................. 19
28 United States v. Sierra Pac. Indus., 759 F. Supp. 2d 1198 (E.D. Cal. 2010) ................... 12

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1 Waggoner v. Dallaire, 649 F.2d 1362 (9th Cir. 1981) ...................................................... 11
2 Wood v. McEwen, 644 F.2d 797 (9th Cir.1981) .................................................................. 7
3 Yagman v. Republic Ins., 987 F.2d 622 (9th Cir. 1993) .................................................... 15
4
STATUTES
5
6 28 U.S.C. § 455 (a) and (b) ............................................................................................... 17
7 28 U.S.C. § 455(b)(1) ........................................................................................................ 24
8 28 U.S.C. § 455 (a) and (b)(1) ............................................................................... 17, 19, 24
9 Fed. R. Civ. P. 53(b)(2) ..................................................................................................... 29
10 Fed. R. Civ. P. 53(b)(2)(B) ................................................................................................ 27
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

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1
2
I. INTRODUCTION
3
4 Sheriff Arpaio, Chief Deputy Sheridan, and Lieutenant Sousa (collectively

5 “Movants”) seek to recuse both the Court and its Monitor. The fundamental premise of
6 Movants’ motion is baseless: They seek to challenge the Court’s appropriate exercise of
7 its equitable powers to enforce its own orders through communications with its Monitor
8 that were necessary to supervise and direct the Monitor’s work – communications
9 Movants have known about for years.
10 Movants’ motion should be denied as untimely. Movants have known since April

11 of 2014 that the Court was communicating with its Monitor about MCSO’s compliance
12 with the Court’s orders – the Court repeatedly advised the parties of this in open court
13 and in its orders. And in August 2015, although Movants expressed concern about the
14 Court’s communications with the Monitor, they took no action until they filed this
15 motion in October 2016. Movants offer no excuse for their delay. That Movants waited
16 for the Court to rule against them in the contempt proceedings before seeking recusal
17 reveals the tactical purpose of this motion, and it should be denied as impermissible
18 judge-shopping after receiving an adverse ruling. As the Court observed in denying
19 Movants’ request for an emergency stay of the oversight of the Court and Monitor,
20 Sheriff Arpaio seeks recusal “after he has literally let years, millions of dollars and
21 thousands of hours of effort go by despite his earlier knowledge concerning the basis on
22 which he now makes his motion to recuse.” Order at 3 (December 5, 2016), Doc. 1900
23 (“Order Denying Emergency Stay”).
24 Even if Movants’ recusal motion were timely, however, it would fail on the merits.

25 The Monitor here is a properly-appointed judicial agent operating under the Court’s
26 direction and supervision. It is entirely appropriate – indeed, it is obligatory – for the
27 judge to supervise its agent in the performance of the agent’s duties. The Monitor was
28 appointed to assess MCSO’s compliance, and that is what the Court and Monitor

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1 discussed. The Court has been transparent with the parties about its communications
2 with the Monitor, and the Court’s detailed contempt findings demonstrate that the Court’s
3 rulings were based on the evidence presented during the hearings. There is no
4 appearance of bias that arises from the appropriate and necessary communications
5 between the Court and its Monitor, and the Court never relied on these communications
6 impermissibly in any of its findings.
7 II. FACTS
8 A. The Court Appointed the Monitor as Its Agent Pursuant to the
Permanent Injunction.
9
10 On October 2, 2013, this Court issued a Supplemental Permanent
11 Injunction/Judgment Order (October 2, 2013), Doc. 606 (“Permanent Injunction”), that
12 provided for a monitor as an agent of the Court to oversee compliance with the Court’s
13 orders. The term “Monitor” was defined as “a person or team of people who shall be
14 selected to assess and report on the Defendants’ implementation of this Order.” Id. at
15 ¶ 1(dd). The Permanent Injunction spelled out the role of the Monitor:
16 • “The Monitor shall be subject to the supervision and orders of the Court,
17 consistent with this Order.” ¶ 126.
• “The Monitor shall have the duties, responsibilities and authority conferred
18
by the Court and this Order, including, but not limited to . . . (10) assessing
19 the MCSO’s overall compliance with the Order.” ¶ 126(10).
20 • “The ultimate arbiter of compliance is the Court.” ¶ 128.
21 • “In carrying out these duties, the Monitor shall be permitted to have ex
parte communications with the Parties.” ¶ 129.
22
• “The Court may order the removal of the Monitor for any reason sua
23 sponte.” ¶ 122.
24
The Court appointed Robert Warshaw as Monitor on January 17, 2014. Order
25
Appointing Monitor (January 17, 2014), Doc. 649. Neither the Permanent Injunction nor
26
the Order Appointing Monitor referred to Fed. R. Civ. P. 53, which pertains to the
27
appointment of special masters.
28

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1 From the outset, the Court left no doubt that the Monitor was the agent of the
2 Court. As Movants stated in their opening brief, “The Court has repeatedly stated that
3 the Monitor is an arm and agent of the Court, and [] Defendants ‘should accept
4 instruction from [the Monitor] as instruction from [the Court.]’” Sheriff Arpaio, Chief
5 Deputy Sheridan, and Lieutenant Sousa’s Motion for Recusal of the Court and its
6 Monitor at 18 (October 26, 2016), Doc. 1878 (“Motion for Recusal”); Transcript of
7 Telephonic Conference at 30 (May 16, 2014), Doc. 715 (“May 16 Transcript”). The
8 Court also stated, “[W]hat [the Monitor] says has the complete imprimatur of this Court.”
9 Motion for Recusal at 18; May 16 Transcript at 28.
10 B. The Court Repeatedly Advised the Parties of Its Communications
With the Monitor.
11
12 Movants have known for years that the Court was communicating regularly with
13 its Monitor to supervise compliance with the Court’s orders, beginning with the Court’s
14 first substantive order following the Monitor’s appointment. In March 2014, the Court
15 issued an order stating, “The Monitor has considered various concerns expressed by the
16 parties and made a recommendation to the Court that it take early corrective action to
17 avoid the perpetuation of patterns of conduct that may not be in good faith compliance
18 with the Court’s Injunction.” Order on MCSO Compliance with Order at 17 (March 17,
19 2014), Doc. 656. The Court continued, “The Monitor has asked whether any of the
20 deadlines require adjustment because [the Monitor’s] selection and implementation has
21 taken longer than anticipated.” Id. at 17. The Court held a hearing to discuss these and
22 other questions. Id. at 17. Movants did not seek recusal based on the Court’s
23 communications with the Monitor.
24 As the Monitor continued his work, the Court issued orders making clear that the
25 Court and Monitor would communicate. In April 2014, the Court issued an Enforcement
26 Order stating that the Monitor “shall inform the Court of any MCSO personnel who
27 mischaracterize its [findings or orders], or who otherwise obstruct the implementation of
28 the Court’s October Order as amended.” Enforcement Order at 6 (April 17, 2014),

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1 Doc. 680. In October 2014, the Court advised the parties that the “Monitor has prepared
2 a report for the Court evaluating MCSO’s [Armendariz] investigation.” Order at 1
3 (October 7, 2014), Doc. 746. In November 2014, the Court entered an order concerning
4 the Monitor’s oversight of the MCSO Professional Standards Bureau, stating “Nothing in
5 this Order prevents the Monitor from communicating any information to the Court.”
6 Order at 18 ¶ 3 (November 20, 2014), Doc. 795 (“Nov. 20 Order”). In May 2015, the
7 Court denied Sheriff Arpaio’s recusal motion, stating “[t]he Monitor is an agent of the
8 court and, in this role, has communicated with the Court as necessary to oversee and
9 coordinate Defendants’ compliance with existing judicial orders on the Court’s behalf.”
10 Order Denying Motion for Recusal or Disqualification at 20 (July 10, 2015), Doc. 1164. 1
11 Movants did not seek recusal based on the Court’s communications with the Monitor.
12 In addition, the Court told the parties in open court that it was closely supervising
13 the work of the Monitor. In May 2014, the Court praised the Monitor: “[T]he Monitor is
14 very good at keeping me apprised of everything that’s going on. It’s one of his many
15 strengths.” Transcript of Status Conference at 47 (May 7, 2014), Doc. 697. A week
16 later, the Court told the parties that “the Monitor is in constant communication with the
17 Court regarding the performance of his services” and referred to “regular, almost daily
18 meetings with the Monitor when he is in Maricopa County, and frequent contact
19 regarding developments and inquiries when he is not.” Transcript of Status Conference
20 at 4 (May 14, 2014), Doc. 684.
21 Indeed, Movants knew over a year ago about the exact issue that is the basis of
22 this recusal motion. On August 11, 2015, counsel for MCSO told the Court that “[e]x
23 parte communications between the monitor with respect to interviews concerns me a
24
25 1
Movants previously sought recusal on May 22, 2015, on the grounds that the judge’s
26 spouse was likely to be a material witness. See Motion for Recusal or Disqualification of
District Court Judge G. Murray Snow at 2, 10 (May 22, 2015), Doc. 1117. Although
27 Movants knew the Court was communicating with the Monitor, Movants did not seek
28 recusal on those grounds.

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1 great deal with respect to protecting my client’s due process rights.” Transcript,
2 August 11, 2015; Motion for Recusal at 16. The Court overruled the objection,
3 explaining that the communications were necessary for the Court “to supervise the
4 monitor in his work. . . . I don’t know how to do that without having some
5 communication with the monitor.” Id. at 57.
6 Despite that exchange, Movants did not lodge this motion for recusal until
7 October 26, 2016 – almost 14 months after the Court overruled the objection.
8 C. The Court’s Communications with the Monitor Concerned MCSO’s
Non-Compliance.
9
10 Movants cite several statements of the Court in support of their recusal motion.
11 Motion for Recusal at 20-9. In each communication between the Court and the Monitor,
12 the Court is supervising the Monitor’s work of overseeing MCSO’s compliance with the
13 Court’s orders:
14 Efforts to Preserve Video Recordings. In May 2014, the Court learned of the
15 existence of numerous recordings of traffic stops that MCSO had not disclosed to
16 plaintiffs in discovery, in violation of Court orders. The Court consulted with MCSO and
17 the Monitor to learn what had happened and to devise a plan to obtain the recordings.
18 Motion for Recusal at 20; see Nov. 20 Order at 5.
19 Handling of Internal Affairs Investigations. In October 2014, the Monitor
20 informed the Court that MCSO had closed the Armendariz investigations. Later, the
21 Court learned that MCSO had restricted the scope of Investigator Vogel’s internal affairs
22 investigations. Motion for Recusal at 21-22, 26. These actions suggested that MCSO
23 was manipulating the internal affairs process in violation of the Permanent Injunction.
24 Nov. 20 Order at 7.
25 MCSO Activities That Undermined Compliance. The Court ordered MCSO to
26 preserve and disclose documents related to MCSO’s Seattle investigation. The Court
27 explained that it “had not anticipated that Mr. Montgomery would have done a file dump
28 with the MCSO of those files” that he allegedly procured from the CIA. Transcript of

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1 Status Conference (May 8, 2015) at 29 (“May 8 Transcript”). The Court was concerned
2 about why MCSO was funding a confidential informant “when the MCSO should have
3 been spending their time, money, and resources in implementing [the Court’s] order,” as
4 MCSO was only in 29 percent compliance. May 8 Transcript at 46-7.
5 Existence of MCSO Video Recording Policies. The Monitor and Court discussed
6 whether MCSO had internal policies concerning deputies’ self-recording of traffic stops.
7 The Permanent Injunction required MCSO to install audio and video recording
8 equipment in patrol vehicles and required deputies to activate the equipment during stops.
9 Motion for Recusal at 28; see Nov. 20 Order at 2; Permanent Injunction ¶¶ 61-2.
10 Praise for MCSO Personnel Who Complied With Court Orders. The Monitor and
11 Court praised the cooperation of certain MCSO attorneys and staff in the implementation
12 of the Permanent Injunction. Motion for Recusal at 25; Nov. 20 Order at 6.
13 Scope of the Monitor’s Authority. The Monitor raised with the Court concerns
14 about whether some of MCSO’s activities fell within the scope of the Permanent
15 Injunction and sought direction from the Court. Motion for Recusal at 28.
16 Implementation of Community Outreach. The Monitor apparently recommended
17 to the Court a more sensible way to structure community outreach meetings. Transcript
18 of Status Conference at 43 (April 3, 2014), Doc. 672; Motion for Recusal at 29.
19 Community outreach meetings were one of Sheriff Arpaio’s duties under the Permanent
20 Injunction, but he objected to performing those duties. Permanent Injunction ¶¶ 117-8;
21 Order at 2-3 (March 27, 2014), Doc 663.
22 In each of these communications, the Court was supervising the Monitor’s work as
23 an agent of the Court overseeing the implementation of the Court’s orders. This is
24 consistent with the Monitor’s role under the Permanent Injunction: the Court engaged the
25 Monitor to do what the Court does not have the time and resources to do alone: oversee
26 the reform of a broken institution. Since the Court issued the Permanent Injunction, the
27 Court has directed the work of the Monitor and stayed informed as reform progressed,
28 issuing orders to address impediments as they arose. When the Monitor’s work revealed

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1 a lack of compliance with the Court’s orders in the spring of 2015, the Court instituted
2 contempt proceedings, accompanied by full due process protections for all the parties,
3 and based its detailed findings on the evidence presented during those proceedings.
4 III. ARGUMENT
5
Movants’ recusal motion should be denied because: (1) it is untimely and was
6
filed for impermissible strategic reasons; and (2) the Court’s communications with its
7
Monitor were an appropriate exercise of its authority to oversee compliance with its own
8
orders.
9
A. Movants’ Motion Should Be Denied as Untimely Based on Their Years
10 of Inexcusable Delay.
11
“It is well established that a motion to disqualify or recuse a judge under 28 U.S.C.
12
§ 144 [as well as] § 455 must be made in a timely fashion.” Preston v. United States, 923
13
F.2d 731, 732–33 (9th Cir. 1991) (recusal motion was timely where grounds for recusal
14
were not known until ten days before filing). A motion for recusal is untimely when it is
15
not made with “reasonable promptness after the ground for such a motion is ascertained.”
16
Locricchio v. Cont'l Inv. Co., No. CIV. 10-00710 ACK, 2013 WL 593354, at *6 (D.
17
Haw. Feb. 14, 2013). When a party delays moving for recusal long after the basis for
18
recusal is discovered, the motion is untimely. Wood v. McEwen, 644 F.2d 797, 802 (9th
19
Cir.1981) (per curiam) (recusal motion under 28 U.S.C. § 144 untimely where made
20
sixteen months after grounds for disqualification arose); United States v. Rogers, 119
21
F.3d 1377, 1382 (9th Cir. 1997) (recusal motion untimely when movant waited “more
22
than one and one-half years after he was aware of the grounds for disqualification”);
23
Datagate, Inc. v. Hewlett-Packard Co., 941 F.2d 864, 872 (9th Cir. 1991) (recusal motion
24
untimely based on six weeks of delay); Locricchio, 2013 WL 593354, at *6 (finding
25
motion untimely where movant waited 17 months and filed after the judge took action
26
detrimental to movant’s case).
27
28

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1 The timeliness requirement exists for a good reason. Allowing tardy motions for
2 recusal increases the risk that litigants will use recusal motions for strategic purposes. Ex
3 Parte American Steel Barrel Co. and Seaman, 230 U.S. 35, 44 (1913). See United States
4 v. Arant, No. C07-0509RSL, 2007 WL 3348443, at *1 (W.D. Wa.. Nov. 9, 2007) (“The
5 losing party often disagrees with the judge's ruling but cannot use the recusal process for
6 a strategic purpose or to ‘judge shop.’”). Permitting untimely recusal motions “would
7 result in increased instances of wasted judicial time and resources.” In re International
8 Business Machines Corp., 618 F.2d 923, 933 (2d Cir.1980) (noting that the reason for the
9 timeliness requirement is “practical” where the investment of judicial time and energy as
10 well as that of the parties has been “immense”). Indeed, allowing untimely recusal
11 motions also “would encourage parties to withhold recusal motions, pending a resolution
12 of their dispute on the merits, and then if necessary invoke section 455 in order to get a
13 second bite at the apple.” E. & J. Gallo Winery v. Gallo Cattle Co., 955 F.2d 1327, 1343
14 (9th Cir.) (recusal motion untimely when movant waited until judge had entered
15 unfavorable judgment on the merits), opinion amended and superseded on other grounds,
16 967 F.2d 1280 (9th Cir. 1992).
17 1. The Court Was Transparent About Communications With
the Monitor, Yet Movants Waited Years to Seek Recusal.
18
19 Movants knew years ago about the same communications they now cite as
20 justifying recusal. Movants describe 14 instances between April 2014 and October 9
21 2015 in which the Court described in open court its communications with the Monitor
22 about overseeing compliance with its orders. Motion for Recusal at 20-9. The Court’s
23 orders contain several more. Movants sought recusal on other grounds in 2015, but did
24 not challenge these communications between the Court and its Monitor. Order Denying
25 Emergency Stay at 2. This Court should not entertain Movants’ belated request for
26 recusal when Movants knew about the alleged grounds for recusal long ago. See
27 Skokomish Indian Tribe v. United States, 410 F.3d 506, 519 (9th Cir. 2005) (recusal
28 motion denied as untimely when movant admitted it knew of grounds seven months

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1 before filing the motion); Adesanya v. W. Am. Bank, 19 F.3d 25 (9th Cir. 1994) (recusal
2 motion was untimely when made sixteen months after movant learned the grounds for
3 disqualification); Kolon Indus. Inc. v. E.I. DuPont de Nemours & Co., 748 F.3d 160, 171
4 (4th Cir. 2014) (recusal motion was untimely where movant “knew every fact that
5 eventually predicated its recusal motion almost a year before it first suggested recusal
6 might be appropriate . . . [and] over a year before it finally filed its first recusal motion).
7 Moreover, Movants have made no attempt to explain their delay in seeking
8 recusal. See Cafasso v. Gen. Dynamics C4 Sys., Inc., No. CV06-1381PHX-NVW, 2008
9 WL 169636, at *11 (D. Ariz. Jan. 16, 2008) (finding recusal motion untimely when
10 movant “does not even try to explain why [one-year] delay was reasonable”). Movants
11 were at all times represented by capable counsel, and Movants or their attorneys were
12 present each time the Court described the communications of which Movants now
13 complain. The circumstances here do not amount to the “exceptional circumstances” that
14 might permit a movant to avoid a finding of untimeliness. United States v. Conforte, 624
15 F.2d 869, 880 (9th Cir. 1980) (leaving open the possibility that untimeliness might be
16 excused in “exceptional circumstances” but finding the recusal motion untimely).
17 Finally, Movants argue that their recusal motion is timely because counsel
18 objected to communications between the Court and Monitor in 2013 and raised the
19 subject again in August 2015. Motion for Recusal at 7. An objection alone is not
20 sufficient, however; a party must file a motion to recuse if it is warranted, and do so in a
21 reasonable period of time, which Movants failed to do. Movants waited 14 months from
22 their last objection to move for recusal, and that is not “reasonable promptness.”
23 Locricchio, 2013 WL 593354, at *6
24 2. Untimeliness Is Fatal to Movants’ Recusal Motion.
25
To avoid the untimeliness bar, Movants suggest that that there is no timeliness
26
requirement when the court’s disqualifying conduct is “patent.” Motion for Recusal at 3.
27
MCSO offers no authority for this proposition, and there is none. If anything, the
28

9
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1 opposite is true: The more apparent and obvious the alleged violation is, the more
2 dilatory the movant for failing to seek recusal promptly. See generally United States v.
3 Branco, 798 F.2d 1302, 1305 (9th Cir. 1986) (recusal motion was untimely when it was
4 based on the judge’s statements in a published opinion nine years earlier and so could
5 have been discovered earlier); Ascom Hasler Mailing Sys., Inc. v. U.S. Postal Serv., No.
6 CIV.A. 00-1401, 2010 WL 4116858, at *1 (D.D.C. Oct. 19, 2010) (where a magistrate
7 presided over settlement discussions in defendant’s case, defendant’s recusal motion
8 three-and-one-half years later based on magistrate’s participation in those settlement
9 discussions was untimely). Excusing untimeliness because the disqualifying conduct is
10 “patent” would lead to the anomalous result that parties with actual knowledge of an
11 obvious basis for recusal could sit on their knowledge, saving their recusal motion for the
12 most strategically beneficial moment.
13 Next, Movants claim that courts “routinely” reach the merits of recusal motions,
14 “even if those motions could have been brought earlier in the proceedings.” Motion for
15 Recusal at 4. Movants cite cases in which appellate courts addressed the merits of
16 recusal motions for the first time on appeal, not cases where a recusal motion at the
17 district court level is untimely. Motion for Recusal at 4 n.1. If no recusal motion or an
18 inadequate motion was made to the district court, the appellant will bear a greater burden
19 on appeal in demonstrating that the district court committed reversible error in denying
20 recusal. See Noli v. C.I.R., 860 F.2d 1521, 1527 (9th Cir. 1988) (appellate courts may
21 consider recusal for the first time on appeal, but the party seeking recusal “bear[s] a
22 greater burden on appeal in demonstrating that the judge . . . . [erred] in failing to grant
23 recusal”). At the district court level, however, a showing of timeliness is mandatory, and
24 Movants have cited no case in which a trial court found a recusal motion untimely,
25 reached the merits, and granted the motion. 2
26
27
2
The other cases Movants cite to argue that the Court should reach the merits
28
notwithstanding the timeliness requirement also dealt with recusal raised for the first time
10
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1 Movants then propose an exception to the timeliness requirement, arguing that
2 timeliness is not required when the movant only seeks “prospective recusal.” Motion for
3 Recusal at 3. This argument is both misleading and unsupported in the law. Movants are
4 not seeking only “prospective recusal”; they have indicated they may in the future request
5 that this Court’s orders and findings be vacated, depending on the outcome of discovery
6 they have requested. Motion for Recusal at 2. Moreover, Movants’ reliance on
7 Waggoner v. Dallaire, 649 F.2d 1362, 1370 (9th Cir. 1981) is misplaced. In Waggoner,
8 the appellate court upheld the district court’s denial of a recusal motion asserting that the
9 judge displayed bias. The appellate court reversed on other grounds and noted that the
10 appellant could renew the recusal motion on remand if the judge displayed bias during
11 the proceedings on remand. Waggoner and the other cases Movants cite (Motion for
12 Recusal at 5-7) stand for the proposition that if an appellant wins the appeal on other
13 grounds, the appellant can seek recusal following remand based on the judge’s actions on
14 remand, but not for prior conduct of the judge when a motion to recuse was not timely
15 filed. 3
16 Movants also argue that the Ninth Circuit “routinely addresses the recusal motion
17 on the merits, even if it alternatively denies the motion as untimely.” Motion for Recusal
18 at 4-5. Movants misread the three Ninth Circuit opinions they cite. 4 In those cases, the
19
on appeal. See Motion for Recusal at 4. None of those cases excused untimeliness of the
20 sort Movants present in this case.
21 3
Movants suggest that United States v. Furst, 886 F.2d 558 (3d Cir. 1989), stands for the
22 proposition that a recusal motion is not untimely so long as it is filed “while there
remained some proceeding over which the judge would preside and the motion was
23 directed only to that proceeding.” Id. at 581. Furst did not excuse the movant’s
24 untimeliness – it explicitly found the motion timely because the movant “did not
unreasonably delay in filing this motion.” Id. at n.30 (finding less than 10 business days
25 between when movant learned of basis for recusal and filing of motion).
26 4
United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997); Datagate, Inc. v.
27 Hewlett-Packard Co., 941 F.2d 864, 871 (9th Cir. 1991); Salmeron v. United States, 724
28 F.2d 1357, 1365 n.5 (9th Cir. 1983).

11
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1 Ninth Circuit remanded on other grounds and reached the recusal question so the district
2 court judge would know whether he or she could proceed on remand. Those cases in no
3 way relieve Movants from the obligation of establishing that their recusal motion is
4 timely at the trial court level.
5 Finally, Movants invoke “the balancing of equity/fairness considerations” in
6 urging the Court not to base its decision “on the mere passage of time.” Motion for
7 Recusal at 10-11. Movants cite cases in which a court recused itself and the remaining
8 issue was whether recusal required vacating the court’s prior decisions. Those cases have
9 nothing to do with timeliness – indeed, the fact that the court recused itself suggests the
10 motion was timely – and establish only that prior rulings of a recused judge are not
11 disturbed. See Polaroid Corp. v. Eastman Kodak Co., 867 F.2d 1415 (Fed. Cir. 1989)
12 (finding “[n]o basis in law, equity or fairness” justifying vacating over six years of
13 rulings before recusal). The equities cut against Movants in any event, as this motion is a
14 tardy attempt to upend lengthy proceedings to address MCSO’s non-compliance with
15 Court orders. See Order Denying Emergency Stay at 3.
16 3. Movants Filed This Recusal Motion for Impermissible
Strategic Purposes.
17
18 Judges “must be alert to the possibility that those who would question their
19 impartiality may be in fact seeking to delay or avoid an impending adverse decision.” In
20 re DeAtley Litig., No. CV-06-0278-JLQ, 2008 WL 375086, at *7 (E.D. Wa. Feb. 11,
21 2008) (noting that the justice system must be protected “from the corrosive effects of
22 judge shopping by litigants”). The court’s obligation not to recuse “is perhaps at its
23 highest when the motion has been brought after the party seeking recusal has sustained an
24 adverse ruling in the course of the action.” United States v. Sierra Pac. Indus., 759 F.
25 Supp. 2d 1198, 1205–06 (E.D. Cal. 2010). A judge evaluating a recusal motion may take
26 into consideration “the history of delay” in the case. DeAtley Litig., 2008 WL 375086, at
27 *8. See also Cafasso, 2008 WL 169636, at *11 (finding strategic motivation where
28

12
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1 movant “has, in effect, granted herself a seven week continuance on the discovery issues
2 by the strategic timing of her delayed motion for recusal”).
3 Here, Movants’ approach to compliance with the Permanent Injunction has been
4 delay and obstruction. Movants sought an emergency stay of the Court’s and Monitor’s
5 oversight, which would have derailed months of work of the Monitor team. In denying
6 Movants’ request for an emergency stay, the Court held that Movants sat on known
7 information while the Court made intervening rulings. See Order Denying Emergency
8 Stay at 4. This recusal motion – coupled with Movants’ contemporaneous request for
9 broad discovery of the Court and Monitor – is yet another attempt for disruption and
10 delay to avoid oversight.
11 In addition to the indicia of strategic delay, Movants’ conduct reflects “an element
12 of sandbagging.” Reilly v. United States, 863 F.2d 149, 160 (1st Cir. 1988). In Reilly,
13 appellant challenged the trial court’s appointment of an advisor in economics for complex
14 medical malpractice litigation. Appellant knew of the court’s plan to consult with the
15 advisor but “waited to see which way the wind blew,” failing to voice a concerns until
16 “the case turned out disastrously.” Id. In upholding the advisor’s appointment, the court
17 wrote, “[W]hen a trial judge announces a proposed course of action which litigants
18 believe to be erroneous, the parties detrimentally affected must act expeditiously to call
19 the error to the judge’s attention or to cure the defect, not lurk in the bushes waiting to
20 ask for another trial when their litigatory milk curdles.” See also Kolon Indus, 748 F.3d
21 at 170 (recusal motion denied where movant engaged in “tactical sandbagging”); In re
22 Cargill, Inc., 66 F.3d 1256, 1264 (1st Cir. 1995) (declining mandamus seeking recusal
23 because petitioner's course of conduct “whether conniving or merely slipshod” created
24 the appearance of sandbagging). Here, the Court told Movants that he was
25 communicating with the Monitor about compliance in March 17, 2014 – 59 days after the
26 Monitor was appointed – and Movants concede knowledge of this by April 2014.
27 Movants cannot remain silent as the Court repeatedly discloses its communications with
28

13
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1 the Monitor and then seek recusal only when they realize there will be consequences for
2 their non-compliance.
3 Indeed, this recusal motion comes on the heels of a string of adverse rulings
4 against Movants, including extensive findings of civil contempt, additional remedies in a
5 supplemental permanent injunction, an expansion of the scope of monitoring, and
6 criminal referrals. Movants’ motivation in seeking a new judge and monitor is evident,
7 and the motion should be denied because it was filed for impermissible reasons.
8 B. There Are No Grounds for Recusal of the Court or Its Monitor.
9
Movants claim that the Court’s supervision of and communication with its
10
Monitor is an insidious plot to deprive them of their rights, and therefore recusal is
11
required. This argument is specious; there is no basis for recusal of the Court or its
12
Monitor.
13
Movants seek recusal based on 28 U.S.C. § 455 (a) and (b)(1):
14
(a) Any justice, judge, or magistrate judge of the United States shall
15 disqualify himself in any proceeding in which his impartiality might
16 reasonably be questioned.

17 (b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or
18
personal knowledge of disputed evidentiary facts concerning the
19 proceeding; . . . .
20 28 U.S.C. § 455 (a) and (b). The party seeking recusal “bears a substantial burden to
21 show that the judge is biased.” Torres v. Chrysler Fin. Co., No. C 07-00915 JW, 2007
22 WL 3165665, at *1 (N.D. Cal. Oct. 25, 2007) (“mere allegations” of bias are insufficient
23 to justify recusal). A motion for recusal is committed to the sound discretion of the
24 district court. United States v. Bell, 79 F. Supp. 2d 1169, 1171 (E.D. Cal. 1999) (recusal
25 motion denied where movants did not demonstrate a “special relationship, improper
26 influence or irreconcilable conflict”).
27 Recusal is appropriate where “a reasonable person with knowledge of all the facts
28 would conclude that the judge's impartiality might reasonably be questioned.” Yagman v.

14
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1 Republic Ins., 987 F.2d 622, 626 (9th Cir. 1993). Accordingly, recusal will be justified
2 either by actual bias or the appearance of bias. Preston, 923 F.2d at 734. Courts evaluate
3 the appearance of bias “by considering how the conduct would be viewed by a reasonable
4 person, not someone ‘hypersensitive or unduly suspicious.’” Blixseth v. Yellowstone
5 Mountain Club, 742 F.3d 1215, 1219 (9th Cir. 2014) (holding that excluding the founder
6 of a bankrupt business from a meeting with the judge, business representatives, and
7 creditors was not a basis for recusal) (citation omitted).
8 Reasonableness is an objective standard. Cf. Matter of Mason, 916 F.2d 384, 386
9 (7th Cir. 1990) (“Because some people see goblins behind every tree, a subjective
10 approach would approximate automatic disqualification.”). In evaluating the propriety of
11 recusal under Section 455(a), courts should conduct “an independent examination of the
12 unique facts and circumstances of the particular claim at issue.” Clemens v. U.S. Dist.
13 Court for Cent. Dist. of California, 428 F.3d 1175, 1178 (9th Cir. 2005) (section 455(a)
14 claims are “fact driven”). In the absence of a legitimate reason for recusal, however, “a
15 judge should participate in cases assigned.” United States v. Holland, 519 F.3d 909, 912
16 (9th Cir. 2008) (where judge received a threatening phone call from the defendant,
17 recusal was not warranted on grounds of appearance of partiality against the defendant).
18 Here, the record is clear that there is no reason to question the Court’s impartiality,
19 as the Court was appropriately supervising the actions of its agent.
20 1. The Court’s Impartiality Cannot Reasonably Be Questioned
Under 28 U.S.C. 455(a) Based on Communications with Its
21 Compliance Monitor.
22
Movants raise only one basis for recusal: communications between the Court and
23
Monitor concerning MCSO’s compliance with the Permanent Injunction. Motion for
24
Recusal at 8. Movants are incorrect in their characterization of the Court’s and the
25
Monitor’s communications and the applicable law, and there is no basis for recusal here.
26
Rather, the record is clear that the Court was fulfilling its obligations to oversee the court-
27
appointed Monitor as the Monitor assessed compliance with the Court’s orders. See e.g.
28

15
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1 Cordoza v. Pacific States Steel Corp., 320 F.3d 989, 999 (9th Cir. 2003) (district court
2 has the power “as well as the responsibility” to supervise a special master).
3 Cobell v. Norton, 237 F. Supp. 2d 71 (D.D.C. 2003), is instructive. There, the
4 district court appointed a special master to oversee discovery and records preservation
5 and a monitor to review the defendants’ institutional reform activities. Id. at 75. The
6 monitor and special master were authorized to have ex parte communications with the
7 defendants. Id. at 75-76. The district court then directed the special master “to develop a
8 complete record” and “assess whether . . . thirty-nine individuals had violated the court’s
9 orders.” Id. at 77-79. Time records revealed that the special master had “seven private
10 meetings” with the judge totaling eight hours, and the monitor met “regularly” with the
11 court. Id. 88, 92. The district court ultimately found defendants in contempt. Id. at 74.
12 The Cobell court held that the ex parte communications between the judge and the
13 special master and monitor were not a basis for recusal. The judge’s “regular
14 consultations with the special masters were essential to ensure that these officials were
15 faithfully carrying out the duties assigned to them.” Id. at 99.. The court continued, “It is
16 not only appropriate but necessary for the Court, as principal, to consult with its agents
17 regarding the manner in which they are carrying out their assigned duties.” Id. at 89. See
18 also In re Brooks, 383 F.3d 1036, 1043 (D.C. Cir. 2004) (affirming the Cobell district
19 court’s decision because the judge “had to oversee and to coordinate” the efforts of the
20 master and monitor “during four years of complicated and contentious litigation”).
21 Similarly, the Court here communicated with the Monitor about compliance for the
22 purpose of supervision, and that is entirely appropriate.
23 Movants attempt to distinguish Cobell, arguing that recusal there “would have
24 been required ‘if the Master had conveyed information he had obtained in an
25 investigatory capacity to the Court during these consultations.’” Motion for Recusal at
26 12-13. This argument misstates the holding in Cobell. The Cobell court allowed that the
27 monitor may have conveyed “some piece of information that would arguably constitute a
28 ‘fact’ rather than a general description of his activities.” Cobell, 237 F. Supp. 2d at 92.

16
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1 If that happened, “judges are presumed to be able to compartmentalize the information
2 they receive and only rely on evidence relevant for a particular decision.” Id. at 93.
3 Likewise, in the instant case, if the Court learned some facts concerning compliance from
4 the Monitor, the Court’s 162-page findings of fact in the contempt proceedings show the
5 Court properly based his decision on the considerable evidence presented in court and not
6 on any incidental facts gleaned from its communications with the Monitor. See Bell, 79
7 F. Supp. 2d at 1173 (recusal denied where movant’s affidavit did not “demonstrate the
8 court's rulings on the merits are based on anything other than what facts and law the
9 judge was able to ascertain through the case”). As in Cobell, the communications
10 between this Court and its Monitor were proper.
11 Contrary to Movant’s claim, the Monitor has a duty to inform the Court about
12 MCSO’s non-compliance with the Court’s orders. Motion for Recusal at 20-21, 26. In
13 Cobell, the monitor (who was responsible for overseeing reform) “let the [c]ourt know
14 whether he was obtaining regular access to higher-level government officials, as he was
15 supposed to.” Cobell, 237 F. Supp. 2d at 92. Similarly, the Monitor here was tasked
16 with keeping the Court informed, including whether the Monitor was encountering
17 obstacles in his work. The Court has a responsibility to supervise the Monitor’s work,
18 and proper supervision requires that the Court and Monitor communicate about whether
19 the Monitor is receiving cooperation from MCSO. See Cordoza, 320 F.3d at 999.
20 Movants argue that Edgar v. K.L., 93 F.3d 256 (7th Cir. 1996) is “materially
21 indistinguishable from this case,” but Edgar is inapposite because it involved
22 communications with experts who were expected to testify at trial. Motion for Recusal at
23 9. There, plaintiffs challenged the state’s mental health care system, and the court
24 appointed a panel of three experts to “investigate the state’s institutions and programs.”
25 Id. at 257. The panel’s authority allowed it to meet with patients and state employees,
26 and the panel was “scheduled to testify at trial.” Id. Before the trial took place, the panel
27 began to meet in private with the judge, including a three and one-half hour session
28 “dedicated to giving the judge a preview of the panel’s conclusions, and to persuading the

17
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1 judge that the panel’s methodology was sound.” Id. The communications with the panel
2 were “calculated, material, and wholly unnecessary.” Id. The Seventh Circuit held that
3 the district court should have recused itself. See Cobell, 237 F. Supp. 2d at 98
4 (distinguishing Edgar because the trial judge there had “appointed agents to conduct
5 investigations of disputed facts in the litigation, and then disclosed the naked evidence
6 they had learned in private sessions with him”).
7 Edgar is readily distinguishable. The experts in Edgar were retained to develop
8 expert opinions specifically for use in an adversarial proceeding – at trial – and “were
9 likely to become witnesses.” Edgar, 93 F.3d at 259. The experts were not retained post-
10 trial to oversee compliance with an order of the court. Where an expert is retained to
11 present contested testimony in court, ex parte communications with that expert about the
12 legitimacy of those opinions are improper. That is not what happened here. The Monitor
13 here was retained after trial to assess MCSO’s compliance with the Court’s orders, he has
14 never testified in any adversarial proceeding, and the Court has declined MCSO’s request
15 to make the Monitor a fact witness. 5
16 Unlike the Court in Edgar, the Court here has been transparent with the parties
17 about its communications with the Monitor, and the Court has never relied on its
18 communications with the Monitor in any factual finding made in the case. The Court has
19 frequently summoned the parties to the courtroom to discuss the Court’s concerns about
20 MCSO’s compliance. Members of the monitoring team sometimes participated in these
21 status conferences, and the parties had the opportunity to know the issues that were of
22 concern, correct any misimpressions, and offer solutions. For instance, the Court once
23 told the parties during a status conference that the Monitor had provided documents and
24 offered them to the parties. Transcript of Status Conference Aug. 21, 2015 at 60-61. On
25
5
26 Counsel for MCSO asked to depose the Monitor as an expert witness. The Court
correctly rejected the suggestion. See Reilly, 863 F.2d at 159 (if a court’s appointed
27 technical advisor “was not an evidentiary source, there was neither a right to cross-
28 question him . . . nor a purpose in doing so.”).

18
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1 another occasion, the Court learned that the Monitor did not have a document MCSO
2 should have produced and directed that counsel produce it. Evidentiary Hearing Day 6 at
3 1484. In some instances, MCSO assented to the Court’s communicating with the
4 Monitor after these status conferences. See Evidentiary Hearing Day 12 at 2835;
5 Evidentiary Hearing Day 12 at 2910-11 (MCSO counsel agreed that the Court should
6 contact the Monitor to ask whether he was the source of highlighting on an exhibit). The
7 Court’s transparency in advising the parties about its communications with the Monitor
8 undermines any allegation of real or apparent bias. Cf. United States v. Sanchez-Carrillo,
9 649 F. App'x 564, 566 (9th Cir. 2016) (case remanded to a different district court judge
10 after original judge “unbeknownst to the parties” contacted the government’s expert
11 witness, called the expert to testify, questioned the expert, and did not disclose the
12 contact).
13 Movants also rely on the Third Circuit’s ruling in In re Kensington, 368 F.3d 289
14 (3d Cir. 2004), but Kensington cuts against Movants. There, the judge presiding over a
15 complex asbestos bankruptcy proceeding appointed five advisors, two of whom had
16 conflicts of interest. The judge met with the advisors numerous times outside of the
17 presence of the parties. Id. at 295. The appellate court held that the advisors’ conflict of
18 interest tainted the judge such that his impartiality was in question, requiring his recusal.
19 Id. at 309. The court was clear, however, that it was not deciding that “ex parte
20 communications alone – in the absence of any conflict of interest – require recusal.” Id.
21 at 305. Instead, the court held “that conflicted advisors who participate or influence a
22 judge requires the judge’s disqualification.” Id. at 310. The Kensington court
23 emphasized that “any decision by us that would preclude a judge from obtaining
24 assistance from a non-conflicted advisor would unnecessarily restrict a judge's ability to
25 communicate with neutral experts.” Id. at 305. There is no allegation here that the
26
27
28

19
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1 Monitor has a conflict of interest, so Kensington supports the propriety of the Court’s
2 communications with its Monitor. 6
3 In addition, the procedural posture of Kensington stands in sharp contrast with the
4 case before this Court and illustrates why the Court’s communications with the Monitor
5 were appropriate. The Kensington case was in the pre-judgment phase of a contested
6 bankruptcy proceeding, not the post-trial compliance phase as in this case. The
7 distinction is important: The advisors to the Kensington judge had a direct role in
8 influencing the judge’s decisions in a contested matter, including drafting an opinion on
9 disputed issues such as manufacturer defenses and bar dates for claims submissions in
10 bankruptcy. Id. 299. Here, on the other hand, the Monitor is charged with overseeing
11 post-trial compliance with Court orders, an entirely appropriate role in an institutional
12 reform case, and the Court has decided any contested matter that arose due to MCSO’s
13 noncompliance by relying on the evidence produced during those hearings, not earlier
14 communications with the Monitor about the status of compliance.
15 No reasonable person would question this Court’s impartiality and fairness
16 throughout the compliance phase and contempt proceedings. Despite the fact that Sheriff
17 Arpaio and Chief Deputy Sheridan admitted civil contempt, the Court held a 21-day
18 hearing in which Movants were allowed to examine witnesses and put on evidence. The
19 Court cited to the voluminous record from the evidentiary hearing in its 162-page
20 Findings of Fact, and the Court did not reference the Monitor’s reports or
21 communications with the Monitor or rely on them in any way. Findings of Facts and
22 6
Movants’ reliance on Brooks, 383 F.3d at 1041 is also unavailing. The district court
23 there had met privately with the special master and monitor. The D.C. circuit was
24 satisfied that the district court “discussed with the Master the general nature of the
ongoing tasks the Master was involved in, in order to ensure that the Master was
25 responsibly carrying out the duties to which he was assigned.” Id. Recusal was not
26 warranted even though the appellants pointed to language similar to what Movants here
cite in support of this motion. See id. at 1042 (the Brooks monitor “has always informed
27 this Court about the nature, extent, and substance of such meetings and discussions upon
28 request”).

20
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1 Order Setting a Hearing for May 31, 2016 (“Findings”), Doc. 1677 (May 13, 2016). The
2 Court then held proceedings to determine the necessary remedies. Movants have
3 identified no instance in which the Court inappropriately relied on any facts that they
4 were not able to contest in the evidentiary proceedings, so there is no basis for recusal
5 under Section 455(a).
6 2. Recusal Is Not Warranted Under 28 U.S.C. 455(b)(1) Based
on Knowledge of Disputed Evidentiary Facts.
7
8 Movants reference 28 U.S.C. 455(b)(1), which requires recusal when the judge has
9 “personal knowledge of disputed evidentiary facts concerning the proceeding.” Motion
10 for Recusal at 8. Movants then speculate that the Court’s communications with the
11 Monitor “appear to have influenced the Court’s views” on issues related to compliance.
12 Motion for Recusal at 19. There is nothing inappropriate, however, in the Court using its
13 communications with its Monitor to ensure compliance with its own orders, and the
14 record is clear that the Court has relied on the evidentiary record in reaching findings.
15 Movants have not established that the Court learned of disputed facts in violation
16 of 28 U.S.C. § 455(b)(1). “Facts learned by a judge in his or her judicial capacity
17 regarding the parties before the court, whether learned in the same or a related
18 proceeding, cannot be the basis for disqualification.” Lac Du Flambeau Band of Lake
19 Superior Chippewa Indians v. Stop Treaty Abuse-Wisconsin, Inc., 991 F.2d 1249, 1255–
20 56 (7th Cir. 1993) (denying recusal motion premised on judge’s prior involvement in
21 similar cases) (emphasis added). See also United States v. Patrick, 542 F.2d 381, 390
22 (7th Cir. 1976) (recusal not warranted where sentencing judge read and remarked upon
23 defendant’s grand jury testimony from a related proceeding). Here, the Court supervised
24 the implementation of reforms under the Permanent Injunction and presided over
25 contempt hearings, which are part of the same or related proceedings. As a result, the
26 Court’s knowledge of facts from the compliance and contempt phases would not warrant
27 recusal. See In re Owens Corning, 305 B.R. 175, 199 (D. Del. 2004) (court declined
28 recusal despite numerous ex parte meetings with a team of expert advisors, noting that

21
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1 “[l]ogic suggests that acquiring knowledge that would have come to the Court in any
2 event cannot justify recusal.”). 7
3 Movants then turn to Guenther v. Commissioner of Internal Revenue, 939 F.2d
4 758 (9th Cir. 1991), to argue that recusal is warranted when the trial court “has been
5 exposed to an ex parte communication touching on the merits of the case or the character
6 of those before the court.” Motion for Recusal at 8. Movants’ reliance on Guenther is
7 misplaced, however. In Guenther, the judge in a tax deficiency dispute received directly
8 from the opposing party (the IRS) a 32-page document setting forth its view of the case
9 before the trial on the merits. Id. at 760. The Guenther memorandum was from an extra-
10 judicial source – one party was by-passing the contested proceedings and presenting its
11 advocacy to the judge. Here, the Monitor did not provide the advocacy of any party to
12 the Court. Instead, the Monitor only provided information to the Court that the Monitor
13 itself obtained overseeing compliance with the Court’s orders, and when disputed issues
14 arose, the Court convened separate adversarial proceedings at which the Monitor did not
15 testify.
16 Finally, Movants argue that the Monitor’s communications with the Court
17 concerned ex parte contacts with MCSO personnel, so the Monitor’s communications
18 with the Court “were effectively between the Court and parties to the case.” Motion to
19 Recusal at 1 (emphasis in original). Movants’ grievance is that their own statements and
20
21 7
See also Liikane v. City of Seattle, No. C05-1829RSL, 2006 WL 2711766 (W.D. Wash.
22 2006) (plaintiff does not meet his burden of showing an appearance of bias if a judge’s
conduct “is prompted solely by information that the judge received in the context of the
23 performance of his duties as the presiding judicial officer”); Hernandez v. Wheeler, No.
24 2:10-CV-00084-CWD, 2013 WL 139259, at *4 (D. Id. Jan. 10, 2013) (facts that district
court learned from presiding over plaintiff’s preliminary hearings were “in the same or a
25 related proceeding” and could not be a basis for disqualification); United States v.
26 Sampson, No. 4:11-CR-00155, 2011 WL 3651023, at *1 (M.D. Pa. Aug. 18, 2011)
(recusal cannot be based on information obtained in the court’s official capacity during
27 judicial proceedings, where the court had dismissed the indictment in defendant’s prior
28 appearance).

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1 actions revealed their non-compliance with Court orders, not that plaintiffs or the United
2 States had an opportunity to advocate to the Court out of earshot of the Movants. The
3 Permanent Injunction expressly authorizes the Monitor to have ex parte contact with
4 MCSO personnel precisely because it is necessary to determine whether MCSO is
5 complying with the Court’s orders, and it is appropriate for the Court to discuss with the
6 Monitor whether MCSO is complying. Both activities are an appropriate exercise of the
7 Court’s authority to ensure compliance with its orders, and there is nothing underhanded
8 about them. 8
9 3. A Court’s Communications With Its Compliance Monitor
Do Not Undermine the Adversarial Process.
10
11 Contrary to Movants’ assertions, the Court’s communications with the Monitor
12 about MCSO’s compliance with the Court’s orders do not undermine the adversarial
13 process. Movants invoke the Due Process Clause to argue that if judges “engage in ex
14 parte conversations with the parties or outside experts, the adversary process is not
15 allowed to function properly and there is an increased risk of an incorrect result.” Motion
16 for Recusal at 13. This reflects a fundamental misunderstanding of the process of
17 institutional reform under an injunction or consent decree. This matter is in the
18 compliance phase. By its nature, the compliance phase is not intrinsically adversarial;
19 rather, the dispute has been decided, and now the parties must implement the court’s
20 orders. The monitor’s role is to assess whether the court’s order is being complied with,
21 to facilitate implementation when there is a barrier to complying with the order, and to
22 report to the court about the status of compliance. Unless contempt proceedings arise, the
23 compliance phase does not have the trappings of the adversarial phase – there is no
24
25 8
Movants analogize the Monitor’s role to that of a law clerk who may discuss the merits
26 of a case with the Court but not the parties. Motion for Recusal at 19. The difference
between a Monitor and a law clerk, of course, is that the Monitor has been tasked with
27 assessing compliance and is specifically permitted to have substantive ex parte
28 communications with the parties. Permanent Injunction at ¶ 129.

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1 pleading, no discovery, no testimony, no trier of fact. Ideally, the parties, monitor, and
2 court work collaboratively to achieve reform. As a result, the “bedrock principles of Due
3 Process” that Movants cite (Motion for Recusal at 2) to preserve the integrity of the
4 adversarial process do not generally apply in the compliance phase because, in fact, there
5 is no adversarial process taking place.
6 By MCSO’s own account, the Monitor and Court discussed MCSO’s compliance
7 with the Permanent Injunction. Ideally, a monitor will be able to tell the judge that the
8 agency is cooperating and making progress. Here, the Monitor had to tell the judge
9 something different: that MCSO was impeding the Monitor’s work. That MCSO was
10 non-compliant does not remove from the Monitor and Court the ability to communicate
11 about the Monitor’s work. The Court then instituted adversarial contempt proceedings
12 with all due process protections in place and relied on the evidence produced in those
13 proceedings to make its decision. This is consistent with the requirements of due process.
14 C. The Permanent Injunction Does Not Prohibit the Court’s
Communications With Its Monitor.
15
16 Finally, Movants argue that the Permanent Injunction “does not permit ex parte
17 communications between the Court and the Monitor” because it does not state “the
18 circumstances, if any, in which the master may communicate ex parte with the court or a
19 party” pursuant to Fed. R. Civ. P. 53(b)(2)(B). This, Movants claim, means that
20 communications between the Court and Monitor are “strictly prohibited.” Motion for
21 Recusal at 14-15. 9
22 Movants’ assumption that Fed. R. Civ. P. 53 governs the Permanent Injunction is
23 incorrect. The Court has the power to appoint a compliance monitor pursuant to its
24 inherent equitable powers, apart from Rule 53:
25
9
26 Movants refer to the Permanent Injunction as a “Monitor Authority Order,” presumably
to bolster their position that Rule 53 applies. Motion for Recusal at 7. The correct name
27 for the document is “Supplemental Permanent Injunction/Judgment Order,” and it makes
28 no reference to Rule 53. See Doc. 606.

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Case 2:07-cv-02513-GMS Document 1908 Filed 12/16/16 Page 31 of 34

1 A court’s inherent equitable power to appoint a monitor under the terms
set forth in Section VI of the Injunction is, of course, well established.
2 And Rule 53 of the Federal Rules of Civil Procedure provides an
3 additional source of authority—supplementing a court's inherent power
to craft its equitable remedies—to appoint a monitor with powers set
4 forth in the Injunction
5 United States v. Apple Inc., 992 F. Supp. 2d 263, 280 (S.D.N.Y. 2014), aff'd, 787 F.3d
6 131 (2d Cir. 2015) (holding that the appointment of a compliance monitor was a
7 permissible exercise of judicial power) (emphasis added); Nat’l Org. for the Reform of
8 Marijuana Laws v. Mullen, 828 F.2d 536, 544 (9th Cir. 1987) (court’s reference of a
9 compliance matter to a master was proper under court’s inherent powers as well as Rule
10 53); Ruiz v. Estelle, 679 F.2d 1115, 1161 (5th Cir.) (“[R]ule 53 does not terminate or
11 modify the district court's inherent equitable power to appoint a person, whatever be his
12 title, to assist it in administering a remedy”), amended in part, vacated in part, 688 F.2d
13 266 (5th Cir. 1982). The Permanent Injunction does not reference Fed. R. Civ. P. 53,
14 which indicates that the Permanent Injunction is grounded instead in the Court’s broad
15 equitable powers.
16 Indeed, it is clear that the Court did not intend the Permanent Injunction to be a
17 special master order under Rule 53 because it is silent about several matters that Rule 53
18 requires to be addressed. For instance, the Permanent Injunction lacks Rule 53’s
19 directive to the Monitor to “proceed with all reasonable diligence;” does not specify the
20 “nature of the materials to be preserved and filed as the record of the master’s activities;”
21 and does not require the Monitor to file “an affidavit disclosing whether there is any
22 ground for disqualification under 28 U.S.C. Section 455.” Fed. R. Civ. P. 53(b)(2).
23 Similarly, the Permanent Injunction’s omission of a provision concerning
24 communications between the Court and Monitor indicates that the Permanent Injunction
25 was issued pursuant to the Court’s inherent equitable powers and not pursuant to Rule 53.
26 Thus, the requirements of Rule 53 are not applicable here, and contrary to Movants’
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28

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1 claims, communications between the Monitor and the Court are not “strictly
2 prohibited.” 10
3 CONCLUSION
4
For the foregoing reasons, the United States respectfully requests that the Court
5
deny the motion of Sheriff Arpaio, Chief Deputy Sheridan, and Lieutenant Sousa for
6
recusal of the Court and its Monitor.
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24 Movants argue that the Code of Conduct for United States Judges prohibits the Court
from communicating ex parte with its Monitor. Motion for Recusal at 16-17. In fact, the
25 Code of Conduct states that a judge may “initiate, permit, or consider ex parte
26 communications as authorized by law,” (See Canon 3(A)(4)(a), Code of Conduct for
United States Judges), and the law allows a court to supervise its monitor. See Brooks,
27 383 F.3d at 1043 (recognizing a court’s need to “oversee and to coordinate” the efforts of
28 the master and monitor).

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11 Respectfully submitted this 16th day of December, 2016.
22
Robert J. Moossy, Jr.
33 Deputy Assistant Attorney General
Civil Rights Division
44
55 Steven H. Rosenbaum
Chief, Special Litigation Section
66
77 Timothy D. Mygatt
Deputy Chief
88
99 /s/ Cynthia Coe
Jennifer L. Mondino (NY Bar No. 4141636)
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10 Paul Killebrew (LA Bar No. 32176)
11
11 Matthew J. Donnelly (IL Bar No. 6281308)
Cynthia Coe (DC Bar No. 438792)
12
12 Maureen Johnston (WA Bar No. 50037)
13
13 Trial Attorneys
U.S. Department of Justice
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14 Civil Rights Division
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15 Special Litigation Section
601 D St. NW
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16 Washington, D.C. 20004
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17 Tel. (202) 353-1121
cynthia.coe@usdoj.gov
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ATTORNEYS FOR THE UNITED STATES
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2 CERTIFICATE OF SERVICE
3 I certify that on or about December 16, 2016, I filed the foregoing through the
4 Court’s CM/ECF system which will serve a true and correct copy of the filing on
5 counsel of record.
6 /s/ Cynthia Coe

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