Lopez-Lukis, In re, LOPEZ-LUKI
Decision Date | 19 March 1997 |
Docket Number | No. 97-2286,LOPEZ-LUKI,S,97-2286 |
Citation | 113 F.3d 1187 |
Parties | 10 Fla. L. Weekly Fed. C 972 In re Vickiylvester Lukis, Petitioners. |
Court | U.S. Court of Appeals — Eleventh Circuit |
Thomas C. Green, Sidley and Austin, Bradford A. Berenson, Griffith L. Green, Washington, DC, E.J. Salcines, Tampa, FL, for appellant.
Doug Molloy, Tamra Phipps, Asst. U.S. Attys., Fort Myers, FL, for appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before BIRCH, DUBINA and CARNES, Circuit Judges.
This matter is before us on a petition for writ of mandamus in which petitioners are seeking an order requiring the district court judge to grant their previously denied motion seeking his recusal pursuant to 28 U.S.C. § 455.
It is well established that mandamus is an extraordinary remedy, which is available only to correct a clear abuse of discretion or usurpation of judicial power. E.g., In Re: Fink, 876 F.2d 84 (11th Cir.1989); United States v. Fernandez-Toledo 737 F.2d 912, 919 (11th Cir.1984). The petitioners have the burden of showing that their right to issuance of the writ is "clear and indisputable." Kerr v. United States District Court for the Northern District of California, 426 U.S. 394, 403, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725 (1976).
Petitioners' motion to recuse rests primarily upon the premise that the district court judge is, along with other persons, subject to a criminal investigation now being conducted by the public integrity section of the Department of Justice. Assuming for present purposes that that is true, the petitioners have not carried their burden of demonstrating that denial of their motion to recuse constitutes a clear abuse of discretion or usurpation of judicial power. No decision binding on this Court requires the recusal of a judge in these assumed circumstances.
Moreover, on September 5, 1996, the Eleventh Circuit Judicial Council adopted a protocol concerning recusal of judicial officers in the event of arrest, indictment, or possible criminal investigation. That protocol contains standards, the most relevant of which is Standard 3, which provides as follows:
Judicial officers who are implicated in a federal criminal process by way of arrest, or who are informed that they are the subject or target of a federal criminal investigation for a crime that is punishable by imprisonment of one year or more may continue with their criminal and civil dockets and administrative...
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..."clear abuse of discretion or [conduct amounting to an] usurpation of power" in order to establish a right to relief. In re Lopez-Lukis, 113 F.3d 1187, 1187 (11th Cir.1997); In re Amoco Petroleum Additives Co., 964 F.2d 706, 713 (7th Cir.1992). As we recently observed in In re Lopez-Lukis, ......
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