UNITED STATES OF AMERICA
COMMODITY FUTURES TRADING COMMISSION
_____________________________________ : In the Matter of : : CFTC DOCKET NO. 93-2 MARK B. FISHER, et al. : : ORDER _____________________________________:
Respondent Mark B. Fisher seeks interlocutory review of an Administrative Law Judge's ("ALJ") denial of his motion to disqualify the ALJ for bias. Fisher argues that the ALJ's statements in another case and in remarks attributed to the judge in a newspaper article demonstrate that the ALJ is predisposed to finding that he engaged in unlawful acts. Fisher contends the judge's continued participation in this matter will deny him his right to a fair hearing. The Division of Enforcement ("Division") opposes the application, emphasizing Fisher's failure to establish the existence of extraordinary circumstances justifying immediate review by the Commission. This is the second time in this proceeding that respondent has sought to disqualify the ALJ. For the reasons that follow, we again deny interlocutory review.
In November 1995, the ALJ assigned to this matter issued an initial decision in an unrelated case, In re Reddy, [Current Transfer Binder] Comm. Fut. L. Rep. (CCH) 26,544 (ALJ Nov. 2, 1995). Toward the end of his decision, the judge devoted several paragraphs to his belief that the trading and auditing systems maintained by futures exchanges did not take sufficient advantage of available technological innovations to forestall opportunities for violative floor trading. In light of the Reddy initial decision, on February 15, 1996, Fisher asked the ALJ to recuse himself from the instant case. Upon the ALJ's denial of Fisher's motion on March 4, 1996, Fisher sought interlocutory review which we denied. In re Fisher, [Current Transfer Binder] Comm. Fut. L. Rep. (CCH) 26,752 (CFTC July 22, 1996).
In February, 1997, Fisher again moved the ALJ to recuse himself for bias based on statements he made subsequent to the Reddy decision. The ALJ denied the motion. Fisher seeks interlocutory review of the ALJ's second denial.
Fisher asserts that the ALJ has expressed a prejudicial belief that ordinary traders generally are inclined to break the law, and that consequently, the ALJ is biased in favor of finding that Fisher committed trading violations. Fisher has submitted a copy of a news article published in Crain's Chicago Business, dated January 6, 1997, which attributes the following remark to the ALJ: "Why wouldn't you take a tick or two if the opportunity is there? You'd have to be a potatohead not to do it." Fisher also points to a statement in In re Mayer, et al., [Current Transfer Binder] Comm. Fut. L. Rep. (CCH) 26,736 at 44,058 (ALJ May 15, 1996), wherein the same ALJ stated, "It is no surprise that floor brokers of ordinary rectitude might fail to observe the letter and the spirit of the law in connection with the handling of customer orders, and that traders with equal rectitude might accommodate a broker in such an endeavor." Fisher claims that these two statements, when viewed in conjunction with the ALJ's remarks in Reddy, demonstrate that the ALJ is predisposed to find traders liable for trading violations, raise an inference that the ALJ is improperly predisposed against his case, and reveal that the ALJ cannot assess the issues raised in this proceeding in an impartial manner.
The Division challenges Fisher's interpretation of the remarks as exaggerated. It argues that the judge's comments, in the context in which they were made, address specific trading issues.
As we stated in our earlier order denying review, we will not resolve a dispute over disqualification of an ALJ on an interlocutory basis, absent a showing that extraordinary circumstances warrant immediate intervention. Fisher 26,752 at 44,114. In this instance, the alleged bias does not rise to the level justifying our immediate intervention. On their face, the remarks of the ALJ quoted in the news article do not appear to establish that the judge is biased against Fisher or his case. Within the context of the article, the remarks suggest that the ALJ believes that intragroup trading tempts traders to trade exclusively within the group rather than with the broad spectrum of traders in the pit. The article also reports the ALJ as favoring a better audit trail system. Similar comments by the ALJ regarding the audit trail system were addressed in our earlier order.
The challenged observations by the ALJ in Mayer, in context, are a call for a ban on dual trading and better enforcement of exchange recordkeeping rules. As we stated in our earlier order, the views reflected in the ALJ's remarks do not establish that he is either unable or unwilling to act impartially in assessing whether the weight of the evidence demonstrates that Fisher actually committed the specific wrongdoing alleged in the complaint.
In light of his limited showing, Fisher has failed to establish the type of extraordinary circumstances that would justify immediate review of the ALJ's ruling. Accordingly, respondent's application for interlocutory review is denied.
IT IS SO ORDERED.
By the Commission (Chairperson BORN and Commissioners DIAL, TULL, HOLUM, and SPEARS).
Catherine D. Dixon
Assistant Secretary of the Commission
Commodity Futures Trading Commission
Dated: April 24, 1997