Mikhak v. University of Phoenix Inc.

Background

Pro se plaintiff Bahar Mikhak moved to recuse, meaning to require Judge Charles R. Breyer to step aside, under 28 U.S.C. §§ 144 and 455. The defendants opposed the motion, and Mikhak filed a reply. The court decided the motion without oral argument, vacated the hearing set for March 10, 2022, and denied the motion.

Reasons for the ruling

The court first denied the motion because it was excessively long. The court’s standing order limited most motion briefs to 15 pages, while Mikhak’s filing also included a 58-page declaration and 41 pages of exhibits containing legal arguments. The court stated that it could not reasonably review more than 120 pages of argument and limited its discussion to points made in the motion itself.

The court also denied the motion on the merits. Sections 144 and 455 require recusal when a judge has actual bias or when a reasonable, well-informed person would question the judge’s impartiality. Section 144 generally requires a timely and sufficient affidavit alleging facts supporting bias from an outside source; section 455 does not require an affidavit. The court assumed, for purposes of its analysis, that Mikhak had satisfied section 144’s procedural requirements but found her allegations legally insufficient.

Mikhak primarily pointed to rulings she disagreed with and asserted that those rulings showed a connection between Judge Breyer and defense attorney Dal Cielo. The court clarified that it had not granted summary judgment. Instead, in an earlier case, it had conditionally dismissed the action in December 2017 after Mikhak failed to begin arbitration that the court had ordered. The Ninth Circuit affirmed, stating that the dismissal for failure to prosecute was not an abuse of discretion because Mikhak had not followed orders directing her to initiate arbitration after being warned that noncompliance could lead to dismissal. The court held that adverse rulings alone generally do not establish judicial bias.

Mikhak also argued that Judge Breyer’s service on the Ninth Circuit Workplace Environment Committee gave the court an opportunity to develop a closer relationship with one of the judges involved in affirming the earlier dismissal. The court treated this as the only allegation based on an outside source, but found that speculation about relationships or motives was not enough. It also said that even an alleged friendship with one of the judges would not by itself require recusal.

Finally, Mikhak referred generally to possible financial conflicts and sought financial disclosures so she could investigate. She did not identify any actual financial conflict, and the court stated that it was unaware of one. The court rejected speculation about a possible conflict and noted that Mikhak could file another motion if she later obtained information demonstrating a conflict.

Disposition

Judge Breyer concluded that Mikhak had not alleged specific facts showing bias or prejudice from an outside source and had not shown that a reasonable person with knowledge of all the facts would question the court’s impartiality. The court denied the motion and vacated the scheduled hearing.