Judicial Disqualification Resource Center

28 U.S.C. § 455

law libraryThere are two circumstances in which a federal judge is ordinarily expected to recuse himself pursuant to 28 U.S.C. § 455. Under § 455(a), recusal is mandatory in “any proceeding in which his impartiality might reasonably be questioned.” Under § 455(b), a judge is expected to disqualify himself whenever any of the five statutorily prescribed criteria can be shown to exist in fact; even if no motion or affidavit seeking such relief has been filed, and regardless of whether a reasonable person would question the judge’s impartiality.

Section 455(b) (1) provides that a judge should disqualify himself in any proceeding in which he has “a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.” Section 455(b)(2) mandates that a judge must disqualify himself when “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.” As for §455(b)(3), disqualification is currently required whenever the judge “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.” Pursuant to 28 U.S.C. §455(b) (4), a judge must disqualify himself if 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 its outcome. Finally, § 455 (b)(5)(i) prescribes judicial disqualification whenever the judge, his spouse, a person within the third degree of relationship to either of them, or a spouse of such a person is a party to the proceeding or an officer, director, or trustee of one. see here.

The principal difference between sections 455(a) and 455(b) is readily apparent: whereas § 455(b) sets forth specific situations in which recusal is required, § 455(a) was designed to act as a sort of “catch-all provision” to supplement the specifically enumerated grounds for judicial disqualification that were set forth in § 455(b). There is considerable overlap between the two statutes. However, since what matters under § 455(a) is not the reality of bias but its “appearance” – and because an appearance of bias may arise when no bias exists in fact – the reach of § 455(a) is much broader than that of § 455(b). Disqualification motions are, therefore, more likely to be brought pursuant to § 455(a) than they are to be brought under § 455(b).

References:

1. For an example of recent (Jan. 2014) order denying a motion to recuse that was made pursuant to 28 U.S.C. § 455 click here. For a recent (Feb. 2014) order in which the Federal Court of Claims, citing 28 U.S.C. § 455, decided to vacate the decision of a recused judge click here

2. For a detailed overview of the case law on 28 U.S.C. § 455 that is updated annually see Flamm, R., Judicial Disqualification: Recusal and Disqualification of Judges (Second Edition 2007), Chapter 24 (“Disqualification Under 28 U.S.C. §455”). See also Due Process and Judicial Disqualification: The Need for Reform n.124 (“For a comprehensive treatment of deciding Section 455 motions, see FLAMM, § 24.8, at 721”), citing R. Flamm, Judicial Disqualification (Second Edition). To locate libraries near you that have the most recent edition of Judicial Disqualification in their collection click here

3. For an Eighth Circuit case discussing the merits of a § 455 motion click here , citing the first edition of R. Flamm, Judicial Disqualification.

4. For an appellate brief in which the applicability of was extensively discussed see here, citing the first edition of R. Flamm, Judicial Disqualification.