28 U.S.C. § 455 — Disqualification of justice, judge, or magistrate judge
submitted 78 years ago by ch. 646 to r/title-28-JUDICIARY-AND-JUDICIAL-PROCEDURE · 708 words · no verdicts yet
A federal judge must step aside from a case if their fairness could reasonably be questioned. This includes cases involving personal bias, past legal work, financial interests, or close relatives. Some conflicts can be waived by the parties; others cannot.
(a) Any justice, judge, or magistrate judge of the United States* must disqualify themself from any proceeding in which their impartiality might reasonably be questioned.
(b) A judge must also disqualify themself in these circumstances:
(1) The judge has a personal bias or prejudice about a party, or personal knowledge of disputed facts in the case.
(2) In private practice, the judge served as a lawyer on the matter in controversy, or a lawyer they used to practice with served on it during that association, or the judge or that lawyer has been a material witness about it.
(3) The judge worked in government employment and, in that role, took part as counsel, adviser, or material witness on the proceeding, or gave an opinion on the merits of the specific case.
(4) The judge knows that they, personally or as a fiduciary, or their spouse or minor child living in their household, has a financial interest in the matter in controversy or in a party, or any other interest that could be substantially affected by the outcome.
(5) The judge, their spouse, or a person within the third degree of relationship to either of them (or that person's spouse): (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; or (iv) is, to the judge's knowledge, likely to be a material witness in the proceeding.
(c) A judge should learn about their own personal and fiduciary financial interests, and make a reasonable effort to learn about the personal financial interests of their spouse and minor children living in their household.
(d) Definitions for this section: (1) "proceeding" includes pretrial, trial, appellate review, or any other stage of litigation; (2) the degree of relationship is calculated under the civil-law system; (3) "fiduciary" includes roles such as executor, administrator, trustee, and guardian; (4) "financial interest" means owning a legal or equitable interest, however small, or being a director, adviser, or other active participant in a party's affairs — except: (i) owning shares in a mutual or common investment fund holding securities is not a "financial interest" in those securities, unless the judge helps manage the fund; (ii) holding an office in an educational, religious, charitable, fraternal, or civic organization is not a "financial interest" in securities the organization holds; (iii) a policyholder's interest in a mutual insurance company, or a depositor's interest in a mutual savings association, or a similar proprietary interest, is a "financial interest" in the organization only if the case's outcome could substantially affect its value; (iv) owning government securities is a "financial interest" in the issuer only if the case's outcome could substantially affect the securities' value.
(e) No justice, judge, or magistrate judge may accept a waiver, from the parties, of any disqualification ground listed in (b). Where the only ground for disqualification arises under (a), the judge may accept a waiver — but only after fully disclosing, on the record, the basis for the possible disqualification.
(f) Despite the rest of this section: if a justice, judge, magistrate judge, or bankruptcy judge assigned to a matter would be disqualified — after substantial judicial time has already been spent on it — because it's discovered, after the assignment, that the judge, individually or as a fiduciary, or their spouse or minor child living in their 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 judge, spouse, or minor child divests themself of that interest.
Any justice, judge, or magistrate judge of the United States* shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
He shall also disqualify himself in the following circumstances:
Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
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;
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;
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;
He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
Is a party to the proceeding, or an officer, director, or trustee of a party;
Is acting as a lawyer in the proceeding;
Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
Is to the judge’s knowledge likely to be a material witness in the proceeding.
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.
For the purposes of this section the following words or phrases shall have the meaning indicated:
“proceeding” includes pretrial, trial, appellate review, or other stages of litigation;
the degree of relationship is calculated according to the civil law system;
“fiduciary” includes such relationships as executor, administrator, trustee, and guardian;
“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:
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;
An office in an educational, religious, charitable, fraternal, or civic organization is not a “financial interest” in securities held by the organization;
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;
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.
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.
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.
Source credit: (June 25, 1948, ch. 646, 62 Stat. 908; Pub. L. 93–512, § 1, Dec. 5, 1974, 88 Stat. 1609; Pub. L. 95–598, title II, § 214(a), (b), Nov. 6, 1978, 92 Stat. 2661; Pub. L. 100–702, title X, § 1007, Nov. 19, 1988, 102 Stat. 4667; Pub. L. 101–650, title III, § 321, Dec. 1, 1990, 104 Stat. 5117.)
- 1948Enacted · Act of June 25, 1948, ch. 646 · 62 Stat. 908
- 1974Amended · Pub. L. 93-512 · 88 Stat. 1609
- 1978Amended · Pub. L. 95-598 · 92 Stat. 2661
- 1988Amended · Pub. L. 100-702 · 102 Stat. 4667
- 1990Amended · Pub. L. 101-650 · 104 Stat. 5117
A history note hasn’t been published yet. The record shows enactment by ch. 646 on 1948-06-25.
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