USA v. Scher

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
UNITED STATES OF AMERICA,
Plaintiff,
vs.
GREGORY SCHER,
Defendant.
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CRIM. NO. 15-000614 SOM
ORDER DENYING MOTION TO
RECUSE
ORDER DENYING MOTION TO RECUSE
Defendant Gregory Scher moves for the recusal of the
district judge assigned to this case. The motion is denied. 1
As an initial matter, this motion appears to fall under
28 U.S.C. § 455, which states that a judge “shall disqualify
himself in any proceeding in which his impartiality might
reasonably be questioned.” 	Unlike 28 U.S.C. § 144, § 455 does
not preclude the judge who is the subject of a recusal motion
from ruling on the motion. 	Indeed, in the absence of a
Scher has also filed a notice of appeal. 	ECF No.1
262. 	This court nevertheless continues to exercise jurisdiction
over the case. 	The notice is facially defective because it
challenges an interlocutory order. 	Nascimento v. Dummer, 508
F.3d 905, 908 (9th Cir. 2007) (“Nascimento’s June 2004 Notice of
Appeal was defective in that it sought to appeal non-appealable
orders. 	Thus we never had jurisdiction over that appeal, and it
was proper for the Montana district court to begin exercising
jurisdiction over the case.”); United States v. Garner, 663 F.2d
834, 837 (9th Cir. 1981) (“Where the deficiency in a notice of
appeal, by reason of . . . reference to a nonappealable order, is
clear to the district court, it may disregard the purported
notice of appeal and proceed with the case, knowing that it has
not been deprived of jurisdiction.”).
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prohibition, the Ninth Circuit has “held repeatedly that the
challenged judge himself should rule on the legal sufficiency of
a recusal motion in the first instance.” 	United States v.
Studley, 783 F.2d 934, 940 (9th Cir. 1986). 	The district judge
assigned to the case therefore rules on Scher’s recusal motion.
The only ground for recusal cited by Scher is this
court’s ruling on his motion to find the government in default.
ECF Nos. 262, 263. 	In that motion, Scher asserted that the
government was in “default” because it had not filed a response
to his 28 U.S.C. § 2255 petition by March 11, 2020. 	ECF No. 258,
PageID # 1812. 	In an order filed on February 27, 2020, however,
this court “extend[ed] the Government’s response deadline to the
petition from March 11, 2020, to April 13, 2020.” 	ECF No. 254,
PageID # 1806. 	This court subsequently granted an additional
extension. 	ECF No. 261. 	Scher’s motions ignore these scheduling
orders.
In any event, the substantive standard on a recusal
motion is “whether a reasonable person with knowledge of all the
facts would conclude that the judge’s impartiality might
reasonably be questioned.” 	Pesnell v. Arsenault, 543 F.3d 1038,
1043 (9th Cir. 2008) (quotation marks and alterations omitted),
abrogated on other grounds by Simmons v. Himmelreich, 136 S. Ct.
1843 (2016). 	Usually, any alleged bias should stem from an
extrajudicial source. 	That is, as the Supreme Court said in
2
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Liteky v. United States, 510 U.S. 540, 555 (1994), “judicial
rulings alone almost never constitute a valid basis for a bias or
partiality motion.” 	Judicial decisions “only in the rarest
circumstances evidence . . . 	a deep-seated favoritism or
antagonism that would make fair judgment impossible.” 	Id. 	The
order challenged by Scher is not one of the rare exceptions to
that rule. 	Accordingly, Scher’s motion is denied.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 21, 2020
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
United States v. Scher, Crim. No. 15-00614 SOM; ORDER DENYING MOTION TO RECUSE
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