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Appalachian Power Co. v. Nissen

United States District Court, W.D. Virginia, Roanoke Division

November 24, 2014



MICHAEL F. URBANSKI, District Judge.

This case was filed on October 3, 2014 by plaintiff Appalachian Power Company ("APCO"), which has a federal license to operate a hydroelectric dam project on Smith Mountain Lake. APCO's complaint in this case alleges that the Nissens, who are property owners of a shorefont parcel of land in Franklin County, Virginia, have begun building a dock that violates APCO's claimed property rights. Prior to filing a responsive pleading, the Nissens filed a motion seeking my recusal. As recusal is not required in this case, I will DENY the motion. Nonetheless, in the interest of judicial economy and to serve the policy of promoting public confidence in the judiciary, I will exercise my discretion and ask the Chief Judge to transfer the case to another judge of this court.


The Nissens' motion seeks recusal pursuant to both 28 U.S.C. § 455(b)(2) and § 455(a). The former mandates recusal "[w]here in private practice [the judge] served as lawyer in the matter in controversy, or a lawyer with whom [the judge] previously practiced law served during such association as a lawyer concerning the matter." 28 U.S.C. § 455(b)(2). The Nissens' recusal request under § 455(b)(2) is premised primarily on the grounds that, in 2000 and 2001, while I was still in private practice, attorneys at my firm represented APCO in a lawsuit filed against different landowners of different property concerning a different alleged encroachment at Smith Mountain Lake, Appalachian Power Co. v. Longenecker, No. 7:00-cv-731 (W.D. Va.). The complaint in Longenecker was filed on September 14, 2000.[1] United States District Judge James C. Turk, who presided, granted summary judgment in favor of plaintiff APCO, and the case was closed on July 11, 2001.

During the pendency of that lawsuit, I was employed at the law firm of Woods, Rogers & Hazlegrove, PLC ("Woods Rogers").[2] Several of my former colleagues from that firm-William B. Poff, Michael K. Smeltzer, and Matthew P. Pritts-appeared as counsel of record for APCO in the Longenecker case. I had no involvement in that case, nor do I recall having any involvement in any matter relating to APCO's property rights at Smith Mountain Lake. I became a United States Magistrate Judge on January 23, 2004 and a United States District Judge on May 13, 2011.

Under the terms of § 455(b)(2), my recusal is required only if Longenecker and the instant case are the same "matter in controversy." Review of the court file in Longenecker indicates APCO sought removal of travel trailers and decking from a campground at Mitchell's Point Marina in Bedford County. In contrast, the suit against the Nissens involves a boat dock they started building in 2014 on their property in Franklin County. Quite obviously, the two cases do not remotely concern the same matter in controversy. Thus, no recusal under § 455(b)(2) is required.

The Nissens also seek recusal under § 455(a). Section 455(a) requires a judge to disqualify himself "in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). I left the practice of law in January, 2004, more than ten years before APCO sued the Nissens. Nevertheless, the Nissens contend that my decade old association with Woods Rogers compels recusal under § 455(a) and 28 U.S.C. § 144. As there is no reasonable basis to question my partiality, these provisions do not require recusal.


A. Recusal Is Not Required Under Section § 455(b)(2).

There is no basis for recusal under § 455(b)(2). In United States v. DeTemple, 162 F.3d 279 (4th Cir. 1998), the Fourth Circuit rejected an attempt to paint the "matter in controversy" language of § 455(b)(2) with the broad brush advanced by the Nissens. In DeTemple, the defendant who sought recusal was charged in a criminal case with arson, wire fraud, and bankruptcy fraud. 162 F.3d at 282. The judge, while an attorney in private practice, had written four letters to the defendant on behalf of the judge's then-client, Contractors Supply, seeking to collect a debt owed by the defendant. Id . The letters were written in 1987 and 1988. In 1989, the defendant filed for personal bankruptcy and identified Contractors Supply as one of his creditors. Id . In 1993, he was charged in the indictment at issue. Id.

In discussing whether the judge's former representation of Contractors Supply against the defendant required recusal under § 455(b)(2), the DeTemple court acknowledged that the bankruptcy fraud prosecution "clearly implicated the interests of the bankruptcy creditors, including the judge's former client, Contractors Supply. Had [the] bankruptcy fraud gone undiscovered, Contractors Supply would have been one of its victims [and] arguably... would [have] receive[d] a smaller payment, or no payment at all, upon distribution." Id. at 284. Despite this connection, the Fourth Circuit held that the debt owed by the defendant to Contractors Supply did not play any role in either the prosecution of defense of his charges and could not be a sufficient "matter in controversy" to require recusal under § 455(b)(2). Id. at 285.

The DeTemple court also rejected the defendant's assertion that recusal was required because of work performed by the judge's former law partners during the time he was at his firm. Specifically, one former law partner had represented the defendant's ex-wife in her divorce proceedings from defendant, and the ex-wife then testified at the defendant's criminal trial. Id. at 285. Another former law partner had represented the selling bank in a transaction where the defendant's parents purchased land, and the attempted arson of that real property "provided the basis for Count One of the indictment." Id . The DeTemple court noted that, if the arson had been successful, the bank would have received the insurance proceeds and concluded that the particulars of the sale "did play a part in the criminal case against DeTemple." Id . Nonetheless, that work was "too attenuated to be considered the same matter in controversy." Id. at 286.

In support of this last conclusion, the opinion in DeTemple cited to two other cases approvingly:

Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. No. 1, 839 F.2d 1296, 1302 (8th Cir. 1988) (issues in dispute must be "sufficiently related" to constitute parts of the same matter in controversy); Dixie Carriers, Inc. v. Channel Fueling Serv., Inc., 669 F.Supp. 150, 152 (E.D. Tex. 1987 (that two suits might have some ...

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