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Herlein v. United States

March 1, 2006

CARL HERLEIN, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Michael E. Hegarty, United States Magistrate Judge.

ORDER OF RECUSAL

Upon consent of the parties, filed on February 27, 2006, and the Order of Reference Pursuant to 28 U.S.C. § 636(c) issued by District Judge Walker D. Miller on February 28, 2006, this case was referred and randomly assigned to me for disposition (Docket #15). Previous to my appointment to the federal bench, I was employed as the Chief of the Civil Division in the United States Attorney's Office, which is counsel for one or more of the parties in this case. In that capacity (through the end of 2005), I was the supervisor for every civil Assistant U.S. Attorney.

Pursuant to 28 U.S.C. §455(b)(3), a Magistrate Judge shall disqualify himself under the following circumstances:

Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.

Some case law has construed Section 455(b)(3) as requiring recusal of former supervisory Assistant U.S. Attorneys for cases that were handled by such supervisors' subordinates while such supervisors held that office. Consistent with this case law, I hereby recuse myself from service in this matter. I direct the Clerk of the Court to cause this matter to be reassigned by random draw to another Magistrate Judge.

DATED at Denver, Colorado, this 1st day of March, 2006.

Michael E. Hegarty United States Magistrate Judge

20060301

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