§455 — Title 28 Judiciary and Judicial Procedure | U.S. Code

Summary

A judge must step aside from any case when a reasonable person could question the judge’s fairness. A judge must also step aside if the judge is biased or has personal knowledge of disputed facts; if the judge or a former law partner worked on the case or was a key witness; if the judge, while working for the government, helped on the case or expressed an opinion about its merits; if the judge, the judge acting as a fiduciary, the judge’s spouse, or a minor child living in the judge’s home has a financial interest or other interest that could be strongly affected by the case; or if the judge, a spouse, or a close relative (up to the third degree under civil law) is a party, an officer of a party, a lawyer in the case, has an interest that could be affected, or is likely to be a material witness. Judges must learn about their own personal and fiduciary financial interests and make a reasonable effort to learn about those of a spouse and minor children living with them. “Proceeding” covers all stages of a case. “Fiduciary” means roles like executor, trustee, guardian. “Financial interest” means any ownership or active role in a party, with a few limits: mutual fund ownership isn’t counted unless the judge helps manage it; holding an office in a nonprofit isn’t treated as a financial interest in the nonprofit’s securities; small proprietary interests in mutual insurance or similar entities count only if the case could change their value; government securities count only if the case could change their value. A judge cannot accept a waiver for the specific disqualification reasons listed above, but may accept a waiver for doubts about impartiality if the judge fully explains the reason on the record first. If a judge has spent substantial time on a case and later discovers a financial interest in a party that would not be substantially affected by the outcome, the judge (or spouse or minor child) may avoid disqualification by divesting that interest.

Title 28, §455

Judiciary and Judicial Procedure — Source: USLM XML via OLRC

(a)Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b)He shall also disqualify himself in the following circumstances:

(1)Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(2)Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

(3)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;

(4)He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

(5)He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(i)Is a party to the proceeding, or an officer, director, or trustee of a party;

(ii)Is acting as a lawyer in the proceeding;

(iii)Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;

(iv)Is to the judge’s knowledge likely to be a material witness in the proceeding.

(c)A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.

(d)For the purposes of this section the following words or phrases shall have the meaning indicated:

(1)“proceeding” includes pretrial, trial, appellate review, or other stages of litigation;

(2)the degree of relationship is calculated according to the civil law system;

(3)“fiduciary” includes such relationships as executor, administrator, trustee, and guardian;

(4)“financial interest” means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that:

(i)Ownership in a mutual or common investment fund that holds securities is not a “financial interest” in such securities unless the judge participates in the management of the fund;

(ii)An office in an educational, religious, charitable, fraternal, or civic organization is not a “financial interest” in securities held by the organization;

(iii)The proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, is a “financial interest” in the organization only if the outcome of the proceeding could substantially affect the value of the interest;

(iv)Ownership of government securities is a “financial interest” in the issuer only if the outcome of the proceeding could substantially affect the value of the securities.

(e)No justice, judge, or magistrate judge shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b). Where the ground for disqualification arises only under subsection (a), waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification.

(f)Notwithstanding the preceding provisions of this section, if any justice, judge, magistrate judge, or bankruptcy judge to whom a matter has been assigned would be disqualified, after substantial judicial time has been devoted to the matter, because of the appearance or discovery, after the matter was assigned to him or her, that he or she individually or as a fiduciary, or his or her spouse or minor child residing in his or her household, has a financial interest in a party (other than an interest that could be substantially affected by the outcome), disqualification is not required if the justice, judge, magistrate judge, bankruptcy judge, spouse or minor child, as the case may be, divests himself or herself of the interest that provides the grounds for the disqualification.

Notes & Related Subsidiaries

Historical and Revision Notes

Based on title 28, U.S.C., 1940 ed., § 24 (Mar. 3, 1911, ch. 231, § 20, 36 Stat. 1090). Section 24 of title 28, U.S.C., 1940 ed., applied only to district judges. The revised section is made applicable to all justices and judges of the United States. The phrase “in which he has a substantial interest” was substituted for “concerned in interest in any suit.” The provision of section 24 of title 28, U.S.C., 1940 ed., as to giving notice of disqualification to the “senior circuit judge,” and words “and thereupon such proceedings shall be had as are provided in section 17 and 18 of this title,” were omitted as unnecessary and covered by section 291 et seq. of this title relating to designation and assignment of judges. Such provision is not made by statute in case of disqualification or incapacity, for other cause. See section 140, 143, and 144 of this title. If a judge or clerk of court is remiss in failing to notify the chief judge of the district or circuit, the judicial council of the circuit has ample power under section 332 of this title to apply a remedy. Relationship to a party’s attorney is included in the revised section as a basis of disqualification in conformity with the views of judges cognizant of the grave possibility of undesirable consequences resulting from a less inclusive rule. Changes were made in phraseology.

Editorial Notes

Amendments

1988—Subsec. (f). Pub. L. 100–702 added subsec. (f). 1978—Pub. L. 95–598 struck out references to referees in bankruptcy in section catchline and in subsecs. (a) and (e). 1974—Pub. L. 93–512 substituted “Disqualification of justice, judge, magistrate, or referee in bankruptcy” for “Interest of justice or judge” in section catchline, reorganized structure of provisions, and expanded applicability to include magistrates and referees in bankruptcy and grounds for which disqualification may be based, and inserted provisions relating to waiver of disqualification.

Statutory Notes and Related Subsidiaries

Change of Name

Words “magistrate judge” substituted for “magistrate” in section catchline and wherever appearing in subsecs. (a), (e), and (f) pursuant to section 321 of Pub. L. 101–650, set out as a note under section 631 of this title.

Effective Date

of 1978 AmendmentAmendment by Pub. L. 95–598 effective Oct. 1, 1979, see section 402(c) of Pub. L. 95–598, set out as an

Effective Date

note preceding section 101 of Title 11, Bankruptcy. For procedures relating to Bankruptcy matters during transition period see note preceding section 151 of this title.

Effective Date

of 1974 Amendment Pub. L. 93–512, § 3, Dec. 5, 1974, 88 Stat. 1610, provided that: “This Act [amending this section] shall not apply to the trial of any proceeding commenced prior to the date of this Act [Dec. 5, 1974], nor to appellate review of any proceeding which was fully submitted to the reviewing court prior to the date of this Act.”

§455 Disqualification of Justice, Judge, or Magistrate Judge

Summary

Title 28, §455

Notes & Related Subsidiaries

Historical and Revision Notes

Editorial Notes

Amendments

Statutory Notes and Related Subsidiaries

Change of Name

Effective Date

Effective Date

Effective Date

Citations & Metadata