A federal judge agreed last week that her colleague, a new appointee to Colorado’s U.S. District Court after a career representing the federal government, does not need to recuse from a recent civil case brought against the government.

U.S. Magistrate Judge Susan Prose joined the federal trial court earlier this year, appointed by the life-tenured district judges to assist with the court’s workload. Prior to taking the bench, she worked at the U.S. Attorney’s Office to defend the federal government against civil lawsuits.

Federal law requires judges to recuse themselves when their impartiality “might reasonably be questioned,” they have a personal bias or, as a former government lawyer, they expressed an opinion on “the particular case in controversy.”

In August, Cameron Nelson, a self-represented plaintiff suing his former employer, the U.S. Department of Homeland Security, requested that Prose recuse herself from his case. Nelson, who is alleging racial discrimination and whistleblower retaliation, pointed out that Prose represented the U.S. Department of Commerce in a similar, but unrelated lawsuit that concluded in 2016.

“This can and does create the appearance of judicial bias, partiality and impropriety to the Plaintiff,” Nelson wrote.

Prose declined to step aside. She argued her obligation to recuse under the proper circumstances was just as important as her responsibility to hear the cases assigned to her when there is no conflict. Prose also pointed out that Nelson, at the outset of the case, declined to have a magistrate judge be the sole decision-maker, and a district judge would ultimately review her decisions.

“I am not offended that Mr. Nelson declined magistrate judge jurisdiction; it happens every day in this court,” Prose wrote. “I have no personal bias or prejudice concerning either party to this litigation. I have no personal knowledge of disputed evidentiary facts concerning the proceeding. I have no relationship with either party in this dispute.”

Nelson appealed to U.S. District Court Judge Nina Y. Wang, who herself worked at the U.S. Attorney’s Office years before her appointment in the same department as Prose. Nelson claimed that upon taking the bench, Prose was “intentionally assigned” to his case in lieu of the previous magistrate judge, Michael E. Hegarty – who, again, worked at the U.S. Attorney’s Office before becoming a judge.

“It is no secret that a judge’s legal background including employment can and will formulate their legal reasoning,” Nelson wrote. He elaborated it was not just Prose’s former employment that was problematic, but the “closeness in proximity” to her judicial appointment that suggested a bias toward the defendant.

Wang, however, agreed that Prose need not remove herself from the case. She confirmed Prose was randomly assigned to Nelson’s lawsuit, and it was not reasonable to believe Prose would be biased in the current case solely based on her involvement in a similar set of claims from the past.

“Plaintiff has not explained, beyond ‘unsubstantiated speculation of impartiality,’ why Judge Prose’s work on a prior case, brought by a different plaintiff against a different federal agency, would cause ‘a reasonable person, knowing all the relevant facts, (to) harbor doubts'” about Prose, she wrote on Oct. 2.

Wang added that she will continue to review objections Nelson makes to Prose’s rulings, in accordance with the procedural rules.

Robert M. Howard, the former editor of the Justice System Journal, has observed that a judge’s employment or associations are not enough to force a recusal unless there is “overt evidence of bias.”

It is difficult, he wrote in 2007, “to use the judge’s past preferences or experiences as cause for removal. In those circumstances, the matter appears left to the discretion of each judge, and it appears that our system must trust that choice to each individual jurist.”

The case is Nelson v. Mayorkas.