Botts v. United States

• Citation: 413 F.2d 41
• Decision Date: 03 June 1969
• Docket Number: No. 23246.,23246.
• Parties: Robert M. BOTTS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

413 F.2d 41 (1969)

Robert M. BOTTS, Appellant, v. UNITED STATES of America, Appellee.

No. 23246.

United States Court of Appeals Ninth Circuit.

June 3, 1969.

Joseph A. Ryan, (argued) Honolulu, Hawaii, for appellant.

Robert V. Zener, Washington, D. C., (argued), William D. Ruckelshaus, Asst. Atty. Gen., Robert M. Heier, Atty., Dept. of Justice, Washington, D. C., Yoshimi Hayashi, U. S. Atty., Michael David Hong, Asst. U. S. Atty., Honolulu, Hawaii, for appellee.

Before HAMLEY, MERRILL and ELY, Circuit Judges.

HAMLEY, Circuit Judge:

Robert M. Botts, an attorney at law, brought this action against the United States under a provision of the Tucker Act, 28 U.S.C. § 1346(a) (2) (1964). He sought reimbursement for legal services rendered, as court-appointed counsel, to two indigent defendants in two federal criminal proceedings. He also sought punitive damages.

The facts concerning Botts' appointments as counsel and his performance of legal services are not in dispute. On November 29, 1966, he was appointed to represent Russell Gillespie, accused of stowing aboard ship in violation of 18 U.S.C. § 2199 (1964). On February 15, 1967, he was appointed to represent Arthur Grindstaff, charged with embezzling on a military reservation a thing of value not exceeding twenty dollars, in violation of section 281-5, Revised Laws of Hawaii, 1955, as amended, the same being a violation of 18 U.S.C. § 13 (1964). Botts served as counsel for both defendants and succeeded in having the charges against Gillespie and Grindstaff dismissed.

Botts alleged that, to the best of his knowledge, information, memory, and belief, he submitted signed vouchers with regard to these legal services to the clerk of the United States District Court. He further alleged that although he has continually and repeatedly requested payment for these services, the United States, by and through its judicial and administrative officers and agents, has refused to make payment.

The United States moved to dismiss the complaint for failure to state a claim upon which relief can be granted. In the alternative, the Government moved for summary judgment dismissing the action on the ground that Botts had not exhausted his administrative remedies. In particular it was urged that in order for a court-appointed attorney in a federal criminal case to receive his legal fee from the Government, he must submit and file a voucher with the clerk of the United States District Court, and that no vouchers covering the services in question could be found in the files and records of the clerk.

The motion for summary judgment was supported by the affidavit of the clerk of the United States District Court for the District of Hawaii. The clerk alleged that he had checked the files and records in his custody and control and had not found the vouchers referred to by Botts. He further alleged that he had no knowledge of the existence of any vouchers submitted in connection with the Gillespie and Grindstaff cases. The affidavit concludes:

"8. Affiant cannot state whether any such vouchers were filed with the office of the Clerk of the United States District Court for the District of Hawaii, but affiant does now aver and affirm that no such vouchers are presently on file in the records of that office, nor, after diligent search of those records, can any vouchers submitted in connection with the criminal cases aforementioned be found."

On March 29, 1968, one week after the United States filed the alternative motions referred to above, Botts filed a combined affidavit of bias and prejudice and counsel's certificate of good faith. This was done pursuant to 28 U.S.C. § 144 (1964), for the purpose of disqualifying The Honorable Martin Pence, District Judge, United States District Court for the District of Hawaii, from further participation in the proceedings.¹

A few days later Botts filed an affidavit in opposition to the motion for summary judgment, again alleging that to the best of his knowledge, information, memory, and belief, he prepared and submitted the required vouchers to the federal court. Botts further alleged that he had exhausted his administrative remedies.

Judge Pence declined to recuse himself in response to the affidavit of bias and prejudice, and granted summary judgment for the United States dismissing the action. This appeal followed.

The judge's refusal to disqualify himself was based on his determination that the affidavit of bias and prejudice is legally insufficient. Botts contends here that the affidavit is legally sufficient.

The affidavit contains two general allegations. One of these is to the effect that the judge was biased and prejudiced because he "directly or indirectly through his secretary or clerk has or may have made statements to or discussed matters" relating to the issues involved in the case with federal officials and a Honolulu newspaper, without the knowledge, consent, or presence of the plaintiff. (Emphasis supplied.) In our opinion this allegation is insufficient since the words "or may have" converted the allegation into no more than a charge that the judge possibly made the asserted statements.

In addition, even if such remarks were made, there is no reason to believe, on the basis of the affidavit, that they were prejudicial to plaintiff. As the Supreme Court said in Berger v. United States, 255 U.S. 22, 33-34, 41 S.Ct. 230, 65 L.Ed. 481:

"Of course the reasons and facts for the belief the litigant entertains are an essential part of the affidavit, and must give fair support to the charge of a bent mind that may prevent or impede impartiality of judgment."

The other general allegation contained in the affidavit was to the effect that the judge's bias and prejudice against Botts was evidenced by: (1) the judge's demeanor during the hearing held on March 7, 1968, in connection with the taking of Botts' deposition, and (2) the judge's refusal to allow plaintiff to take by deposition, the testimony of certain Government employees pertaining to the facts in issue.²

In our opinion, this allegation is insufficient to require disqualification. The judge's demeanor and rulings in earlier phases of this litigation may provide the basis for a claim of error on appeal. They do not, however, provide a basis for disqualification. Unfavorable rulings in the same case do not constitute nor demonstrate the judge's bias and prejudice. Morgan v. United States, 9 Cir., 380 F.2d 686, 699. We think this is likewise true of a judge's demeanor in the earlier stages of the same case. To be disqualifying, the alleged bias and prejudice

"* * * 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. Berger v. United States, 255 U.S. 22, 31, 41 S. Ct. 230, 65 L.Ed. 481." United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 16 L.Ed.2d 778.

Since the affidavit of bias and prejudice is legally insufficient under section 144, Judge Pence did not err in declining to recuse himself from participation in this case.³

Turning to the merits, we start with the proposition that the only possible legal...