§ 455. — Disqualification of justice, judge, or magistrate judge.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 28USC455]
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
PART I--ORGANIZATION OF COURTS
CHAPTER 21--GENERAL PROVISIONS APPLICABLE TO COURTS AND JUDGES
Sec. 455. Disqualification of justice, judge, or magistrate
judge
(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.
(June 25, 1948, ch. 646, 62 Stat. 908; Pub. L. 93-512, Sec. 1, Dec. 5,
1974, 88 Stat. 1609; Pub. L. 95-598, title II, Sec. 214(a), (b), Nov. 6,
1978, 92 Stat. 2661; Pub. L. 100-702, title X, Sec. 1007, Nov. 19, 1988,
102 Stat. 4667; Pub. L. 101-650, title III, Sec. 321, Dec. 1, 1990, 104
Stat. 5117.)
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., Sec. 24 (Mar. 3, 1911, ch. 231,
Sec. 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
sections 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 sections 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.
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.
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 Amendment
Amendment 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
Section 3 of Pub. L. 93-512 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.''
Section Referred to in Other Sections
This section is referred to in sections 460, 653, 655 of this title;
title 38 section 7264.
