Judicial Disqualification:

An Analysis of Federal Law 

Second Edition 

Federal Judicial Center 

2010 

Judicial Disqualification:

An Analysis of Federal Law

Second Edition

Charles Gardner Geyh

Associate Dean of Research

John F. Kimberling Professor of Law

Indiana University Maurer School of Law 

Legal Editor:

Kris Markarian

Federal Judicial Center

2010

This Federal Judicial Center publication was undertaken in furtherance of the Center’s 

statutory mission to develop educational materials for the judicial branch. While the 

Center regards the content as responsible and valuable, this publication does not reflect 

policy or recommendations of the Board of the Federal Judicial Center.

v 

Contents 

Preface, vii 

Acknowledgments, ix 

Introduction, 1 

I. History of Judicial Disqualification, 5 

II. Disqualification Under 28 U.S.C. § 455, 9 

A. Overview, 9 

1. The text of § 455, 9 

2. Interpretive ground rules, 11 

a. Interpreting § 455(a) in relation to § 455(b), 11 

b. Balancing the duty to decide and the duty to disqualify, 12 

c. The rule of necessity, 13 

d. Special concerns in bench trials, 15 

e. Standing, 16 

B. Grounds for disqualification, 17 

1. General standard: when impartiality might reasonably be 

questioned—§ 455(a), 17 

a. Framework for analysis, 17 

b. Recurring scenarios, 22 

i. Judge’s prior relationship with parties, witnesses, or 

lawyers, 22 

ii. Judge’s conduct in judicial proceedings, 30 

iii. Judge’s extrajudicial conduct, 40 

iv. Party’s conduct toward judge, 46 

2. Specific grounds: § 455(b), 49 

a. Personal bias, prejudice, or knowledge: § 455(b)(1), 49 

i. Bias and prejudice, 49 

ii. Extrajudicial source of bias, 51 

iii. Bias against nonparties, 53 

iv. Knowledge of disputed evidentiary facts, 54 

b. Prior association with matter as private practitioner or witness: 

§ 455(b)(2), 55 

c. Prior association with matter as governmental employee: 

§ 455(b)(3), 57 

d. Financial interest in matter: § 455(b)(4) and § 455(f), 60 

i. Disqualification for financial interest, 60 

ii. Divestiture as a cure for financial interest disqualification, 

63 
vi Judicial Disqualification: An Analysis of Federal Law

e. Other interests of judge and judge’s family: § 455(b)(5), 66

i. Where judge or relatives are parties or associated with 

parties, 66

ii. Where judge or relatives acting as lawyer, 67

iii.Where judge or relatives have an interest that could be 

substantially affected, 69

iv. Where judge or relatives likely to be material witnesses, 72

C. Disqualification procedure, 72

1. Investigating disqualification claims, 73

2. Waiver of disqualification: § 455(e), 74

3. Timeliness of disqualification motion, 76

4. Evaluation of motion by merits judge, 78

5. Judge’s postdisqualification authority, 79

III. Disqualification Under 28 U.S.C. § 144, 83

A. Overview, 83

B. Grounds for disqualification, 85

1. Bias or prejudice, 85

2. Extrajudicial source doctrine revisited, 85

3. Bias toward counsel, 87

C. Disqualification procedure, 89

1. Timeliness, 89

2. Facially sufficient affidavit, 90

3. Counsel’s certificate of good faith, 93

IV. Disqualification Under 28 U.S.C. § 47, 95

V. Disqualification on Appeal, 97

A. Routes of appellate review, 97

B. Standards of review, 99

C. Issues on appeal, 102

1. Harmless error, 102

2. Reviewability of lower court decisions to disqualify, 104

3. Mootness of underlying dispute, 106

4. Impact of guilty plea on reviewability of nondisqualification, 107

5. Jurisdiction, 108

D. Disqualification under 28 U.S.C. § 2106, 109

Appendix: Code of Conduct for United States Judges, Canons 3C and 3D, 115

For Further Reference, 119

Table of Cases, 121
vii

Preface

This monograph substantially revises and expands on the first edition, 

Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144 (Federal 

Judicial Center 2002). References to the United States Code are to the 

2006 version unless stated otherwise.

ix

Acknowledgments

The author would like to thank Margaret Flores, Evelyn Gentry, Kate 

Lee, Carrie Pytynia, and Andrew Williams for their research assistance, 

and Rita Eads for her administrative support.

The Federal Judicial Center acknowledges the contribution of the 

Committee on Codes of Conduct of the Judicial Conference of the 

United States and staff members of the Office of General Counsel of the 

Administrative Office of the U.S. Courts.

1

Introduction

For centuries, impartiality has been a defining feature of the AngloAmerican judge’s role in the administration of justice. The reason is 

clear: in a constitutional order grounded in the rule of law, it is imperative that judges make decisions according to law, unclouded by 

personal bias or conflicts of interest. Accordingly, upon ascending the 

bench, every federal judge takes an oath to “faithfully and impartially 

discharge and perform all the duties” of judicial office;1 and the Due 

Process Clause of the Fourteenth Amendment to the United States 

Constitution has been construed to guarantee litigants the right to a 

“neutral and detached,” or impartial, judge.2 Moreover, in a democratic republic in which the legitimacy of government depends on the 

consent and approval of the governed, public confidence in the administration of justice is indispensable. It is not enough that judges be 

impartial; the public must perceive them to be so. The Code of Conduct 

for United States Judges therefore admonishes judges to “act at all

times in a manner that promotes public confidence in the integrity and 

impartiality of the judiciary” and to “avoid impropriety and the appearance of impropriety in all activities.”3

When the impartiality of a judge is in doubt, the appropriate remedy is to disqualify that judge from hearing further proceedings in the 

matter. In Caperton v. A.T. Massey Coal Co.,

4 a case concerning disqualification of a state supreme court justice, the U.S. Supreme Court 

reaffirmed that litigants have a due process right to an impartial judge, 

and that under circumstances in which judicial bias was probable, due 

process required disqualification. The Court noted, however, that disqualification rules may be and often are more rigorous than the Due 

Process Clause requires. So it is with disqualification requirements for 

1. 28 U.S.C. § 453.

2. Ward v. Village of Monroeville, 409 U.S. 57 (1972).

3. Code of Conduct for United States Judges, Canon 2A.

4. 129 S. Ct. 2252 (2009). In the aftermath of Caperton, the House Judiciary 

Committee held a hearing on the state of judicial disqualification in the federal system. Hearing on Examining the State of Judicial Recusals after Caperton v. A.T. Massey: 

Hearing before the Subcomm. on Courts and Competition Policy of the H. Comm. on the 

Judiciary, 111th Cong. (2009).
2 Judicial Disqualification: An Analysis of Federal Law

federal judges, which require disqualification when a judge’s impartiality “might reasonably be questioned.”5

In common parlance, some use “disqualification” and “recusal” 

interchangeably, while others distinguish between the two, using

“recusal” to mean withdrawal on the judge’s own initiative, and “disqualification” to mean withdrawal on the motion of a party. Because 

applicable federal statutes use “disqualification” broadly to embrace 

withdrawal on motion and sua sponte and do not refer to “recusal,” 

this monograph will follow their lead and do the same, except to the 

extent that quoted material from the cases speaks of recusal.

Disqualification has ethical and procedural dimensions. The ethical dimension is governed by Canon 3C of the Code of Conduct for 

United States Judges, as construed by the Codes of Conduct Committee 

of the Judicial Conference of the United States.6 Readers are encouraged to consult the Code of Conduct, Published Advisory Opinions of 

the Committee, and a Compendium of Selected Opinions of the Committee, all of which are in Volume 2 of the Guide to Judiciary Policy (revised April 2010).7

The procedural dimension, in contrast, is governed by four sections in Title 28 of the United States Code: §§ 47, 144, 455, and 2106. 

While the text of Canon 3C on disqualification8 is substantially similar 

to 28 U.S.C. § 455, and both seek to promote public confidence in the 

judiciary, the focus of the two is different: Whereas the goal of the 

Code of Conduct, including Canon 3C, is to inform federal judges of 

their ethical obligations to the end of advising them on how judges 

should conduct themselves, § 455 is a procedural statute aimed at articulating disqualification standards to the end of preserving the rights 

of litigants to impartial justice. This monograph focuses on the procedural dimension of federal judicial disqualification through an analysis 

of the applicable statutory law.

5. 28 U.S.C. § 455(a).

6. The D.C. Circuit has stated that “[t]he Code of Conduct is the law with 

respect to the ethical obligations of federal judges.” United States v. Microsoft 

Corp., 253 F.3d 34, 113 (D.C. Cir. 2001).

7. Available at http://jnet.ao.dcn/ (select “Guide to Judiciary Policy”) or 

http://jnet.ao.dcn/Guide/Vol_2_Ethics_and_Judicial_Conduct/index.html.

8. See Appendix, infra, for text of Canon 3C.
Introduction 3

The two principal statutes governing judicial disqualification are 28 

U.S.C. § 455, “Disqualification of justice, judge or magistrate judge” 

(discussed in Part II, infra), and 28 U.S.C. § 144, “Bias or prejudice of 

judge” (discussed in Part III, infra). The relationship between the two 

has been a source of some confusion. While the two sections provide 

overlapping remedies for bias, there are some important differences. 

First, § 144 aims exclusively at actual bias or prejudice, whereas § 455 

deals not only with actual bias and other forms of partiality, but also 

with the appearance of partiality. Second, § 144 is triggered by a party’s 

affidavit, whereas § 455 may be invoked in a motion by a party or sua 

sponte by the judge. Third, § 144 applies only to district judges, while 

§ 455 covers “any justice, judge, or magistrate of the United States.”

A third disqualification statute, 28 U.S.C. § 47 (discussed in Part IV, 

infra), provides that “[n]o judge shall hear or determine an appeal 

from the decision of a case or issue tried by him.”9 The statute applies 

to judges sitting on courts of appeals who were recently appointed 

from the district court or who are district judges sitting by designation, 

and directs their disqualification from appeals of cases they decided as 

trial judges. Given its limited applicability, this statute has been utilized 

infrequently, and for the most part uneventfully.

A fourth statute, 28 U.S.C. § 2106 (discussed in Part V, infra), is not 

a disqualification statute as such, but has been employed to serve a 

comparable purpose. The statute authorizes the Supreme Court of the 

United States and circuit courts to “remand the cause and . . . require 

such further proceedings to be had as may be just under the circumstances.” This provision effectively enables an appellate court to disqualify a district judge by remanding a matter to a different judge for 

further proceedings if the appellate court doubts the original judge’s 

impartiality.

9. 28 U.S.C. § 47 (1948).

5

I. History of Judicial Disqualification

Disqualification standards in the United States have been a work in 

progress, gaining in complexity and strength over time. Under English 

common law, the only accepted basis for judicial disqualification was 

financial interest—disqualification for bias was not recognized. In 

1792, the U.S. Congress enacted legislation that was the precursor to 28 

U.S.C. § 455. This legislation codified the common law by calling for 

disqualification of a district judge who was “concerned in interest,” but 

added that a judge could also be disqualified if he “has been of counsel for either party.”10 The statute was expanded in 1821 to require disqualification when relatives of the judge appeared as parties.11

In 1891, Congress enacted legislation, later codified at 28 U.S.C. 

§ 47, forbidding a judge from hearing the appeal of a case that the 

judge tried.12 In 1911, the precursor to § 455 was further amended to 

require disqualification when the judge was a material witness in the 

case.13 That same year, Congress enacted new legislation (later codified 

as 28 U.S.C. § 144) entitling a party to secure the disqualification of a 

judge by submitting an affidavit that the judge has “a personal bias or 

prejudice” against the affiant or for the opposing party. A decade later, 

in Berger v. United States,

14 the Supreme Court interpreted this statute to 

prohibit a judge from ruling on the truth of matters asserted in such an

affidavit, and to require automatic disqualification if the affidavit was 

facially sufficient.

In 1927, the Supreme Court added a constitutional dimension to 

the law of disqualification. In Tumey v. Ohio,

15 the Court invalidated, 

on due process grounds, an Ohio statute that authorized a judge to 

preside over cases in which the judge would receive court costs assessed against convicted (but not acquitted) defendants.

By the mid-twentieth century, common-law aversion to judicial 

bias as grounds for disqualification continued to exert considerable 

10. Act of May 8, 1792, ch. 36, § 11, 1 Stat. 178–79 (1792).

11. Act of Mar. 3, 1821, ch. 51, 3 Stat. 643 (1821).

12. Act of Mar. 3, 1891, ch. 23, § 21, 36 Stat. 1090 (1891).

13. Act of Mar. 3, 1911, ch. 231, § 20, 36 Stat. 1090 (1911).

14. 255 U.S. 22 (1921).

15. 273 U.S. 510 (1927).
6 Judicial Disqualification: An Analysis of Federal Law

influence. Section 455 remained silent as to bias. Section 144, while 

ostensibly enabling a party to disqualify a district judge simply by 

submitting an affidavit alleging personal bias, had been construed exactingly by the courts of appeals, as Professor John Frank explained at 

the time:

Frequent escape from the statute has been effected through narrow construction of the phrase “bias and prejudice.” Affidavits are found not 

“legally sufficient” on the ground that the specific acts mentioned do 

not in fact indicate “bias and prejudice,” a reasoning which emasculates 

the Berger decision by transferring the point of conflict.16

Frank warned that “[u]nless and until the Supreme Court gives new 

force and effect to the Berger decision, the disqualification practice of 

the federal district courts will remain sharply limited.”17

In 1948, § 455 was further amended to disqualify judges who were 

related to a party’s lawyer (not just the party, as had been the case 

since 1821). As amended, the statute then provided:

Any justice or judge of the United States shall disqualify himself in any 

case in which he has a substantial interest, has been of counsel, is or has, 

been a material witness, or is so related to or connected with a party or 

his attorney as to render it improper, in his opinion, for him to sit on 

the trial, appeal, or other proceeding therein.18

In 1964, the Fifth Circuit articulated a so-called “duty to sit.”19 “It 

is a judge’s duty to refuse to sit when he is disqualified, but it is equally 

his duty to sit when there is no valid reason for recusation.”20 By 1972, 

Justice William Rehnquist reported, in Laird v. Tatum,

21 that the duty 

to sit had been accepted by all circuit courts.

In 1972, the American Bar Association published a Model Code of 

Judicial Conduct to replace the Canons of Judicial Ethics it had promulgated fifty years earlier. The Model Code sought to encapsulate the 

16. John Frank, Disqualification of Judges, 56 Yale L.J. 605, 629 (1927).

17. Id. at 630.

18. 28 U.S.C. § 455, ch. 646, § 1, 62 Stat. 908 (1948) (current version 2006).

19. United States v. Edwards, 334 F.2d 360 (5th Cir. 1964).

20. Id. at 362.

21. 409 U.S. 824, 837 (1972).
I. History of Judicial Disqualification 7

ethics of disqualification into a unified rule.22 Under the new rule, a 

judge was subject to disqualification “in a proceeding in which his impartiality might reasonably be questioned, including but not limited 

to” cases in which the judge had an actual bias concerning a party, had 

served as a lawyer in the matter (or was still with his former firm when 

the matter was being handled by another lawyer in that firm), had an 

interest in the case, or was related to the parties or their lawyers.

In 1973, the Judicial Conference of the United States adopted the 

Code of Conduct for United States Judges, based on the 1972 Model 

Code. The Code of Conduct applies to United States circuit judges, 

district judges, Court of International Trade judges, Court of Federal 

Claims judges, bankruptcy judges, and magistrate judges. The Judicial 

Conference Committee on Codes of Conduct is authorized to render 

advisory opinions about the Code when requested by a judge to whom 

the Code applies.

In 1974, Congress adopted, with some variations, the 1972 Model 

Code’s disqualification rule in an amendment to § 455, which, by virtue of its requirement that judges disqualify themselves whenever their 

impartiality might reasonably be questioned, was generally seen as 

qualifying, if not ending, the “duty to sit.”23

22. Model Code of Judicial Conduct, Canon 3C (1972) (current version at 

Model Code of Judicial Conduct, R. 2.11 (2007)). 

23. James J. Alfini, Steven Lubet, Jeffrey M. Shaman & Charles Gardner Geyh, 

Judicial Conduct and Ethics § 4.02 (4th ed. 2007).

9

II. Disqualification Under 

28 U.S.C. § 455

A. Overview

1. The text of § 455

The primary source of disqualification law in the federal judicial system is 28 U.S.C. § 455. It provides, in its entirety, as follows:

§ 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. 
10 Judicial Disqualification: An Analysis of Federal Law

(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. 

Sections (a) and (b) occupy the core of § 455 and should be read 

together. The two sections divide the universe of disqualification into 

two halves: the general, catch-all category of § 455(a), which requires 
II. Disqualification Under 28 U.S.C. § 455 11

disqualification from any proceeding in which a judge’s “impartiality 

might reasonably be questioned”; and a list of more specific grounds 

for disqualification in § (b).

The remainder of § 455 is directed at implementing §§ (a) and (b):

• Section (c) admonishes judges to keep abreast of their financial 

interests to ensure that they know when to disqualify themselves under § 455(b)(4).

• Section (d) defines terms employed in §§ (a) and (b).

• Section (e) provides parties with a limited opportunity to waive 

disqualification otherwise required by the catch-all § (a)—

typically where the judge is poised to disqualify himself or herself sua sponte—but does not permit the parties to waive disqualification required by the more specific provisions of § (b).

• Section (f) provides a limited opportunity for judges to avoid 

the need to disqualify themselves for financial interest under 

§ (b)(4) through divestiture.

2. Interpretive ground rules

a. Interpreting § 455(a) in relation to § 455(b)

As embodied in § 455, §§ (a) and (b) are conceptually separate. Section 

(a) compels disqualification for the appearance of partiality, while 

§ (b) “also” compels disqualification for bias, financial interest, and 

other specific grounds. In contrast, the Model Code of Judicial Conduct—after which § 455 was originally modeled—and the current Code 

of Conduct for United States Judges unify the two halves conceptually 

by characterizing the specific grounds for disqualification as a nonexclusive subset of circumstances in which a judge’s impartiality might 

reasonably be questioned.24 For the most part, this may be a distinction without a difference—disqualification is required if the specific or 

general provisions are triggered, regardless of whether the specific provisions are characterized as a subset of or separate from the general. 

On the other hand, by conceptualizing them separately, § 455 can require disqualification under specific circumstances enumerated in 

§ (b) that might not reasonably be characterized as calling a judge’s 

impartiality into question under § (a). For example, § (b)(4) requires 

24. Model Code of Judicial Conduct 2.11(a) (2007); Canon 3C, Code of Conduct for United States Judges (2009).
12 Judicial Disqualification: An Analysis of Federal Law

judges to disqualify themselves for financial interest “however small,”25

which necessarily includes an interest so small that it could not reasonably call the judge’s impartiality into question.26

Any circumstance in which a judge’s impartiality might reasonably 

be questioned under § (a) requires disqualification, even if the circumstance is not enumerated in § 455(b).27 At the same time, when § 455(b) 

identifies a particular situation requiring disqualification, it will tend to 

control any § 455(a) analysis with respect to that specific situation. For 

example, § 455(b)(5) requires disqualification when one of the parties

is within the third degree of relationship to the judge. Consequently, a 

fourth-degree relationship to a party does not by itself create an appearance of partiality requiring disqualification under § 455(a)—

although disqualification under § 455(a) might still be appropriate if, 

for example, the judge’s personal relationship with the fourth-degree 

relative was so close as to call the judge’s impartiality into question. As 

the Supreme Court explained, “[s]ection 455(b)(5), which addresses 

the matter of relationship specifically, ends the disability at the third

degree of relationship, and that should obviously govern for purposes 

of § 455(a) as well.”28

b. Balancing the duty to decide and the duty to disqualify

Prior to 1974, the courts of appeals applied a judicial “gloss” to § 455 

that created a “duty to sit,” whereby judges resolved close questions 

against disqualification.29 The 1974 amendments to § 455, however, 

shifted the balance by requiring disqualification whenever a judge’s 

impartiality “might” reasonably be questioned, and the legislative history made clear that in revising the statute, Congress sought to end the 

“duty to sit.”30 The First, Fifth, Sixth, Tenth, and Eleventh Circuits have 

since said that close questions should be decided in favor of disqualification,

31 while the Seventh Circuit has remarked that “[a] judge may

25. Section 455(b)(4) requires disqualification for financial interest, while 

§ 455(d) defines “financial interest” as “however small.”

26. Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 860 n.8 (1988).

27. Id.

28. Liteky v. United States, 510 U.S. 540, 553 (1994).

29. Laird v. Tatum, 409 U.S. 824, 837 (1972). 

30. H.R. Rep. No. 93-1453, at 5 (1974), reprinted in 1974 U.S.C.C.A.N. 6351, 6355.

31. See Republic of Pan. v. Am. Tobacco Co., 217 F.3d 343, 347 (5th Cir. 2000) 

(citing In re Chevron, 121 F.3d 163, 165 (5th Cir. 1997)); In re United States, 158 F.3d 
II. Disqualification Under 28 U.S.C. § 455 13

decide close calls in favor of recusal.”32 Justice Scalia, in turn, in declining a request for his own disqualification, cited the proposition that 

judges should err on the side of disqualification with apparent approval as applied to the lower courts, but opined that the absence of a 

mechanism to replace a disqualified justice on the Supreme Court renders it inapplicable there.33

Even though the “duty to sit” ended with the adoption of § 455, 

Canon 3A(2) of the Code of Conduct for United States Judges nonetheless declares that “a judge should hear and decide matters assigned, 

unless disqualified.” The point is simply to underscore that judges 

have a duty to decide the cases that come before them, and that disqualification should not be used as an excuse to shirk that duty by 

dodging difficult or unpleasant cases. As a result, most circuits have 

said “there is as much obligation for a judge not to recuse when there 

is no occasion for him to do so as there is for him to do so when there 

is.”34

c. The rule of necessity

In United States v. Will,

35 the Supreme Court held that the adoption of 

§ 455 was not intended to abridge the rule of necessity.36 This rule, 

which has roots in the common law dating back to the fifteenth century, states that “where all are disqualified, none are disqualified.”37

26, 30 (1st Cir. 1998); Nichols v. Alley, 71 F.3d 347, 352 (10th Cir. 1995); United States 

v. Dandy, 998 F.2d 1344, 1349 (6th Cir. 1993); United States v. Kelly, 888 F.2d 732, 744 

(11th Cir. 1989).

32. New York City Hous. Dev. Corp. v. Hart, 796 F.2d 976, 980 (7th Cir. 1986) 

(emphasis added).

33. Cheney v. U.S. Dist. Court for the Dist. of Columbia, 541 U.S. 913, 915–16 

(2004) (mem.) (Scalia, J.) (discussed infra notes 56–57, 70–71, 94–95 and accompanying text).

34. Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir. 1987). Accord Nakell v. AG of 

N.C., 15 F.3d 319, 325 (4th Cir. 1994); In re Drexel Burnham Lambert Inc., 861 F.2d 

1307, 1312 (2d Cir. 1988); Easley v. Univ. of Mich. Bd. of Regents, 853 F.2d 1351, 1356 

(6th Cir. 1988); Suson v. Zenith Radio Corp., 763 F.2d 304, 308–09 n.2 (7th Cir. 1985); 

Brody v. President & Fellows of Harvard Coll., 664 F.2d 10, 12 (1st Cir. 1981).

35. 449 U.S. 200 (1980).

36. Id. at 217.

37. Pilla v. Am. Bar Ass’n, 542 F.2d 56, 59 (8th Cir. 1976).
14 Judicial Disqualification: An Analysis of Federal Law

Will involved a class action brought by thirteen federal district 

judges challenging an act of Congress that stopped or reduced previously authorized cost-of-living increases for certain federal employees, 

including judges. The district court granted summary judgment for 

plaintiffs, and, on appeal, the Supreme Court addressed whether the 

Court itself was disqualified from hearing the case since all of its members had a direct financial interest in the outcome. Invoking the rule of 

necessity, the Court held that disqualification could not be required 

because then no federal judge would be able to entertain this federal 

constitutional challenge.

Courts have used the rule of necessity to reject disqualification in a 

variety of situations.

38 In In re Wireless Telephone Radio Frequency 

Emissions Products Liability Litigation,

39 for example, four of seven 

members of the Judicial Panel on Multidistrict Litigation assigned to 

hear the matter held stock interests in one or more of the parties. The 

panel determined that the rule of necessity precluded disqualification 

under § 455(a) because there was no statutory provision for substituting 

panel members, and disqualification would result in fewer than the 

statutorily required four judges being available to render a decision. In 

Ignacio v. Judges of the United States Court of Appeals for the Ninth Circuit,

40 the plaintiff sought to disqualify the entire circuit from hearing 

his case, on the grounds that all the Ninth Circuit judges had conspired 

to dismiss his previous suits. In denying the motion, the court explained that “a judge is not disqualified to try a case because of a personal interest in the matter at issue if ‘the case cannot be heard otherwise.’”41 Quoting the axiom that “where all are disqualified, none are 

disqualified,”42 the Ninth Circuit explained that the rule of necessity 

was designed to prevent a party from obstructing justice, forcing the 

38. See, e.g., Williams v. United States, 240 F.3d 1019, 1025–26 (Fed. Cir. 2001); 

Tapia-Ortiz v. Winter, 185 F.3d 8, 10 (2d Cir. 1999); Bartley v. United States, 123 F.3d 

466, 467 n.1 (7th Cir. 1997), cert. denied, 118 S. Ct. 723 (1998); Jefferson County v. 

Acker, 92 F.3d 1561, 1583 (11th Cir. 1996) (en banc), vacated and remanded on other 

grounds, 520 U.S. 1262 (1997), aff’d, 137 F.3d 1314 (11th Cir. 1998) (en banc), rev’d on 

other grounds, 119 S. Ct. 2069 (1999); Duplantier v. United States, 606 F.2d 654, 662 

(5th Cir. 1979).

39. 170 F. Supp. 2d 1356 (J.P.M.L. 2001).

40. 453 F.3d 1160 (9th Cir. 2006).

41. Id. at 1163 (quoting United States v. Will, 449 U.S. 200, 213 (1980)).

42. Pilla, 542 F.2d at 59.
II. Disqualification Under 28 U.S.C. § 455 15

removal of his or her case, and preventing the relevant court from deciding the matter.

d. Special concerns in bench trials

The question has sometimes arisen as to whether the standard for disqualification differs in a bench trial where the judge’s role is even more 

pivotal than in a jury trial. In Alexander v. Primerica Holdings, Inc.,

43

the court of appeals said: “We cannot overlook the fact that this is a 

non-jury case, and that [the judge] will be deciding each and every 

substantive issue at trial . . . . When the judge is the actual trier of fact, 

the need to preserve the appearance of impartiality is especially pronounced.”44

Price Brothers v. Philadelphia Gear Corp.45 involved an alleged ex 

parte communication. The Sixth Circuit held that “where a suit is to be 

tried without a jury, sending a law clerk to gather evidence is so destructive of the appearance of impartiality required of a presiding

judge” that a remand was necessary to determine the truth of the allegation.46 In a like vein, the D.C. Circuit has stated that “recusal might 

well be prudent when a perjury bench trial involves testimony from a 

proceeding over which the same judge presided,” but added that “section 455(a) does not require it.”47

While disqualification issues may be of special concern in bench 

trials, it does not follow that disqualification is unnecessary in jury trials. As the Third Circuit has stated: “[S]ection 455 properly makes no 

distinction between jury and nonjury trials. The district judge in a jury 

trial must still make numerous pretrial rulings, including crucial summary judgment rulings, and will doubtless be called on to make numerous rulings on the qualification of witnesses and on evidentiary 

matters, not to mention post-trial motions.”48

43. 10 F.3d 155 (3d Cir. 1993).

44. Id. at 163, 166.

45. 629 F.2d 444 (6th Cir. 1980).

46. Id. at 446 (emphasis added). On remand, the Sixth Circuit found harmless 

error. Price Bros. v. Philadelphia Gear Corp., 649 F.2d 416 (6th Cir. 1981).

47. United States v. Barrett, 111 F.3d 947, 951 (D.C. Cir. 1997). See also United 

States v. Parker, 742 F.2d 127, 128–29 (4th Cir. 1984) (disqualification not required in 

same circumstance).

48. In re Sch. Asbestos Litig., 977 F.2d 764, 782 (3d Cir. 1992).
16 Judicial Disqualification: An Analysis of Federal Law

e. Standing

Parties who file disqualification motions claim, in effect, that they will 

be aggrieved if their cases are decided by judges who are partial or appear to be so. In the usual case, a movant alleges that the judge has a 

real or perceived bias or interest against the movant or in favor of the 

movant’s opponent. Thus, for example, a plaintiff may seek to disqualify a judge on the grounds that the defendant is the judge’s close 

friend. In that scenario, however, may the judge’s friend likewise move 

for disqualification? Although it might seem that the friend lacks standing, insofar as the friend stands to be aided rather than injured by the 

allegedly disqualifying bias, the friend may harbor an understandable 

concern that the judge might err in favor of his friend’s opponent to 

appear fair.

The issue of whether a party has standing to challenge a refusal to 

disqualify when the judge’s alleged partiality would be in that party’s 

favor arose in Pashaian v. Eccelston Properties.

49 In that case, even 

though any alleged bias would have been in their favor, certain defendants moved for disqualification because their attorney’s law partner 

was married to the judge’s sister-in-law. The judge ordered a preliminary injunction in favor of the plaintiff before disqualifying himself, 

and the defendant challenged the judge’s failure to disqualify earlier.

The Second Circuit raised the standing issue sua sponte:

[A party] has standing to challenge the judge’s refusal to recuse even if 

the alleged bias would be in the moving party’s favor. Such a party 

might legitimately be concerned that the judge will “bend over backwards” to avoid any appearance of partiality, thereby inadvertently favoring the opposing party. The possibility of this compensatory bias by 

an interested judge is sufficiently immediate to constitute the “personal 

injury” necessary to confer standing under Article III.50

A different standing issue has arisen in the context of deposing 

nonparty witnesses during governmental investigations. In United States 

v. Sciarra,

51 the United States government filed a civil complaint against 

Local 560 union and twelve individuals, including the two petitioners 

who were members of Local 560’s executive board. After a bench trial, 

49. 88 F.3d 77 (2d Cir. 1996).

50. Id. at 83.

51. 851 F.2d 621 (3d Cir. 1988).
II. Disqualification Under 28 U.S.C. § 455 17

the district judge found the executive board of Local 560 culpable of 

aiding and abetting corruption. After the trial court’s judgment was 

affirmed on appeal, the government moved to depose the petitioners 

concerning Local 560’s operations during the intervening period.52 The 

petitioners, who had been removed from their executive board positions as part of the trial court’s final judgment, filed a cross-motion 

seeking to disqualify the presiding judge. The judge declined to disqualify himself, and in reviewing that decision, the Third Circuit construed § 455(a)’s “proceeding” requirement to mean any stage of litigation in which a judge’s decision affects the “substantive rights of litigants to an actual case or controversy.”53 Because there was no pending 

action in which the rights of the litigants were at issue, the petitioners 

had no standing, as nonparty witnesses, to invoke § 455 to disqualify 

the judge. The court in Sciarra reserved judgment on the question 

whether, in the context of a case or controversy, a nonparty witness can 

move for the disqualification of a judge.54

B. Grounds for disqualification

1. General standard: when impartiality might reasonably be 

questioned—§ 455(a)

a. Framework for analysis

Section 455(a) requires disqualification for the appearance of partiality 

(i.e., when a judge’s “impartiality might reasonably be questioned”) as 

compared to § 455(b)(1), which requires disqualification for actual partiality (i.e., when a judge “has a personal bias or prejudice toward a 

party”). Whether the judge is, in fact, impartial is determinative of disqualification under § (b)(1); but it is not dispositive of disqualification 

under § (a). The justification for making perceived partiality a grounds 

for disqualification is at least twofold. First, regardless of whether 

judges are partial in fact, public perceptions of partiality can undermine confidence in the courts. Second, disqualifying judges for outward manifestations of what could reasonably be construed as bias ob52. Id. at 624.

53. Id. at 635.

54. Id. at 636.
18 Judicial Disqualification: An Analysis of Federal Law

viates making subjective judgment calls about what is actually going on 

inside a judge’s heart and mind.

When Congress amended § 455(a), it made clear that judges should 

apply an objective standard in determining whether to disqualify. A 

judge contemplating disqualification under § 455(a), then, should not 

ask whether he or she believes he or she is capable of impartially presiding over the case. Rather, the question is whether a judge’s impartiality might be questioned from the perspective of a reasonable person, 

and every circuit has adopted some version of the “reasonable person” 

standard to answer this question.

55 In the context of denying a motion 

for his disqualification from Cheney v. United States District Court for 

the District of Columbia,

56 Justice Scalia noted that this reasonable person is aware “of all the surrounding facts and circumstances.”57 The Second Circuit has characterized the reasonable person as an “objective, 

disinterested observer” who is privy to full knowledge of the surrounding circumstances.58

The Fourth Circuit has clarified that the hypothetical reasonable 

observer is not a judge because judges, keenly aware of the obligation 

to decide matters impartially, “may regard asserted conflicts to be 

more innocuous than an outsider would.”59 The Seventh Circuit has

likewise noted that an outside observer is “less inclined to credit 

judges’ impartiality and mental discipline than the judiciary . . . .”60

55. See, e.g., United States v. DeTemple, 162 F.3d 279, 286 (4th Cir. 1998), cert. denied, 

119 S. Ct. 1793 (1999); In re Hatcher, 150 F.3d 631, 637 (7th Cir. 1998); Baldwin Hardware 

Corp. v. Franksu Enter. Corp., 78 F.3d 550, 557 (Fed. Cir. 1996); Blanche Rd. Corp. v. Bensalem Twp., 57 F.3d 253, 266 (3d Cir. 1995); United States v. Lovaglia, 954 F.2d 811, 815 (2d 

Cir. 1992); Vieux Carre Prop. Owners v. Brown, 948 F.2d 1436, 1448 (5th Cir. 1991); In re

Barry, 946 F.2d 913, 914 (D.C. Cir. 1991); United States v. Nelson, 922 F.2d 311, 319 (6th 

Cir. 1990); Little Rock Sch. Dist. v. Arkansas, 902 F.2d 1289, 1290 (8th Cir. 1990); Parker v. 

Connors Steel Co., 855 F.2d 1510, 1524 (11th Cir. 1988); Hinman v. Rogers, 831 F.2d 937, 

939 (10th Cir. 1987); United States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986); In re United 

States, 666 F.2d 690, 695 (1st Cir. 1981).

56. 541 U.S. 913 (2004) (mem.) (Scalia, J.).

57. Id. at 924 (citing Microsoft Corp. v. United States, 530 U.S. 1301, 1302 

(2000)).

58. United States v. Bayless, 201 F.3d 116, 126 (2d Cir. 2000).

59. DeTemple, 162 F.3d at 287.

60. In re Mason, 916 F.2d 384, 386 (7th Cir. 1990). See also O’Regan v. Arbitration 

Forums, Inc., 246 F.3d 975, 988 (7th Cir. 2001). 
II. Disqualification Under 28 U.S.C. § 455 19

And relying on the Supreme Court’s observation in Liljeberg v. Health 

Services Acquisition Corp.,

61 the Fifth Circuit commented that “[p]eople 

who have not served on the bench are often all too willing to indulge 

suspicions and doubts concerning the integrity of judges.”62

At the same time, the hypothetical observer “is not a person unduly suspicious or concerned about a trivial risk that a judge may be 

biased.”63 This reasonable observer must be “thoughtful” and “wellinformed.”64 The First Circuit has emphasized that a reasonable person 

does not draw conclusions on the basis of groundless suspicion:

[W]hen considering disqualification, the district court is not to use the 

standard of “Caesar’s wife,” the standard of mere suspicion. That is because the disqualification decision must reflect not only the need to secure public confidence through proceedings that appear impartial, but 

also the need to prevent parties from too easily obtaining the disqualification of a judge, thereby potentially manipulating the system for strategic reasons, perhaps to obtain a judge more to their liking.65

Numerous cases have rejected disqualification under circumstances in which calling a judge’s impartiality into question would require suspicion or speculation beyond what a reasonable person would 

indulge. The Second Circuit upheld a refusal to disqualify where the 

defendant alleged that the judge, a personal acquaintance, had grown 

unfriendly to him because of the defendant’s public opposition to the 

Gulf War. The court reasoned that “a disinterested observer could not 

reasonably question [the judge’s] impartiality based upon his alleged 

failure to return the plaintiff’s greetings.”66

Likewise, where a defendant moved for an Asian judge to disqualify 

himself because the defendant had been publicly critical of a prominent Asian, the Second Circuit opined that “it is intolerable for a liti61. 486 U.S. 847 (1988).

62. In re Faulkner, 856 F.2d 716, 721 (5th Cir. 1998) (quoting Liljeberg, 486 U.S. at 

864–65). See also United States v. Jordan, 49 F.3d 152, 156 (5th Cir. 1995).

63. DeTemple, 162 F.3d at 287.

64. Mason, 916 F.2d at 386. See also Jordan, 49 F.3d at 156; O’Regan, 246 F.3d at 

988.

65. In re Allied-Signal Inc., 891 F.2d 967, 970 (1st Cir. 1989) (Breyer, J.) (citation 

omitted).

66. Diamondstone v. Macaluso, 148 F.3d 113, 121 (2d Cir. 1998).
20 Judicial Disqualification: An Analysis of Federal Law

gant, without any factual basis, to suggest that a judge cannot be impartial because of his or her race and political background.”67

Uninformed speculation and criticism—even if widely reported in 

the media—do not trigger disqualification under § 455(a). In United 

States v. Bayless,

68 a district judge was criticized in the media for granting a motion to suppress in a drug case, culminating in members of 

Congress calling for the judge’s impeachment. The judge subsequently 

reversed his earlier ruling, and the defendant argued that the judge 

should have disqualified himself. Although it was widely speculated 

that the judge had reversed his earlier ruling in response to the threats 

and criticism, the Second Circuit concluded that disqualification was 

unnecessary. The need for disqualification “is to be determined ‘not by 

considering what a straw poll of the only partly informed man-in-thestreet would show[,] but by examining the record facts and the law, 

and then deciding whether a reasonable person knowing and understanding all the relevant facts would recuse the judge.’”69

Similarly, in Cheney v. United States District Court for the District of 

Columbia,

70 Justice Scalia, in explaining his decision not to disqualify 

himself, rejected the assertion that newspaper editorials calling his impartiality into question were dispositive. The reasonable observer must 

be “informed of all the surrounding facts and circumstances,” and, in 

Scalia’s view, the editorials in question were not only factually inaccurate, they lacked recognition and understanding of relevant precedent.71

Section 455 also requires disqualification if a reasonable person 

might believe that the judge was aware of circumstances creating an 

appearance of partiality, even if the judge was in fact unaware. In Liljeberg v. Health Services Acquisition Corp.,

72 the trial judge was a member 

of the board of trustees of a university that had a financial interest in 

67. Macdraw, Inc. v. CIT Group Equip. Fin., Inc., 157 F.3d 956, 963 (2d Cir. 

1998).

68. 201 F.3d 116 (2d Cir. 2000).

69. Id. at 127 (citing In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1313 (2d 

Cir. 1988)).

70. 541 U.S. 913 (2004) (mem.) (Scalia, J.).

71. Id. at 924 (citing Microsoft Corp. v. United States, 530 U.S. 1301, 1302 

(2000)).

72. 486 U.S. 847 (1988).
II. Disqualification Under 28 U.S.C. § 455 21

litigation before the judge, but he stated that he was unaware of the 

financial interest when he conducted a bench trial and ruled in the 

case. The court of appeals, nevertheless, vacated the judgment under 

Fed. R. Civ. P. 60(b) because the judge failed to disqualify himself pursuant to § 455(a), and the Supreme Court agreed. Noting that the purpose of § 455(a) is to promote public confidence in the integrity of the 

judicial process, the Court observed that such confidence “does not 

depend upon whether or not the judge actually knew of facts creating 

an appearance of impropriety, so long as the public might reasonably 

believe that he or she knew.”73

The Supreme Court addressed a related issue in Sao Paulo State of 

Federative Republic of Brazil v. American Tobacco Co., Inc.

74 There, the 

respondents sought the disqualification of the judge because his name 

had been associated with an earlier, similar suit prior to his appointment to the bench. In the earlier case, the judge was erroneously 

named in an amicus curiae brief as the president of the association that 

submitted the brief, although he had retired from that position six 

months prior to filing. The respondents argued that the inclusion of 

the judge’s name created an appearance of partiality on the part of the 

judge in the later case, even though the judge was unaware that his 

name was on the earlier brief; he played no part in preparing the brief;

and he was only “vaguely aware” of the case.75 The district judge declined to disqualify himself, but the court of appeals reversed. The Supreme Court, in turn, reversed, concluding that the circuit court had 

misapplied the “reasonable person” standard and overlooked the requirement that the reasonable person be aware of all relevant facts 

when determining the need for disqualification. In the Court’s view, 

the fully informed, reasonable person would not believe that the erroneous use of the judge’s name could call the judge’s impartiality into 

question.

Courts of appeals have likewise required disqualification when a 

reasonable observer might think that judges were aware of events or 

information that could impair their impartiality—even if they were not 

so-aware. The Seventh Circuit, for example, remanded a habeas case 

directing the judge to whom the case had been reassigned to provide 

73. Id. at 860.

74. 535 U.S. 229 (2002).

75. Id. at 233.
22 Judicial Disqualification: An Analysis of Federal Law

the petitioner the opportunity to challenge the dismissal of four claims 

by the previously assigned district judge.76 That judge had ruled on the 

habeas petition without realizing that he, as a state court judge years 

earlier, had been on the panel whose decision was now challenged.

In In re Continental Airlines Corp.,

77 the Fifth Circuit found a violation of § 455(a) where a law firm for one of the parties appearing before the judge was considering the judge for employment, even though 

the judge was unaware of it. Quoting from Liljeberg, the Fifth Circuit 

explained that § 455(a) “does not call upon judges to perform the impossible.”78

[T]o hold that § 455(a) was violated . . . does not mean that [the 

judge] was required to stand recused before discovering that he was being considered for employment. Rather, when an offer of employment 

was received the day after his approval of $700,000 in legal fees to the 

firm making the offer, [the judge] was “required to take the steps necessary to maintain public confidence in the judiciary.”79

In this case that meant “either . . . reject[ing] the offer outright, or, if 

he seriously desired to consider accepting the offer, st[anding] recused 

and vac[ating] the rulings made shortly before the offer was made.”80

b. Recurring scenarios

i. Judge’s prior relationship with parties, witnesses, or lawyers

(A) Prior relationship with a party. The First Circuit has observed that 

former affiliations with a party may persuade a judge not to sit; but 

former affiliations are rarely a basis for compelled disqualification.81

Judges often cannot avoid some acquaintance with the underlying parties or events that give rise to litigation, particularly in smaller communities. Such acquaintance, by itself, will not require disqualification. 

76. Russell v. Lane, 890 F.2d 947 (7th Cir. 1989). See also E. & J. Gallo Winery v. 

Gallo Cattle Co., 967 F.2d 1280, 1295 n.7 (9th Cir. 1992) (stating district judge’s lack of 

actual knowledge of his former firm’s involvement in the litigation is irrelevant).

77. 901 F.2d 1259 (5th Cir. 1990).

78. Id. at 1262 (quoting Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 

847, 861 (1988)).

79. Id.

80. Id. at 1262–63. The Fifth Circuit held, however, that the violation of § 455(a) 

constituted harmless error. 

81. In re Martinez-Catala, 129 F.3d 213, 221 (1st Cir. 1997).
II. Disqualification Under 28 U.S.C. § 455 23

The Second Circuit upheld a refusal to disqualify where the judge had 

a social relationship with a shareholder in a company victimized by the 

defendants. The judge’s relationship with the shareholder “ended 

seven or eight years prior to sentencing[;] . . . he had no specific 

knowledge of the contested facts[;] and . . . the . . . allegations [regarding the judge’s friend’s restaurant] were not outcome-determinative in 

these proceedings.”82 The Second Circuit also upheld a refusal to disqualify where the defendant had a remote (but adversarial) business 

relationship with the judge’s husband. “[I]t requires too much speculation to convert [the husband’s] alleged past frustrated dealings with 

[defendant] into any interest, financial or otherwise, in the outcome of 

[defendant’s] unrelated criminal trial.”83

Some personal relationships, however, are so friendly or antagonistic as to require disqualification. The Sixth Circuit reversed a failure to 

disqualify in a sex discrimination suit where, in pretrial proceedings,

the judge stated that he personally knew one of the people accused of 

discrimination and that “he is an honorable man and I know he would 

never intentionally discriminate against anybody.”84 “Once the district 

court expressed his ardent sentiments . . . the objective appearance of 

impartiality vanished.”85 Similarly, the Second Circuit found disqualification necessary when the judge admitted to a prior relationship with 

the defendant that influenced his decision making.86

In In re Faulkner,

87 the Fifth Circuit concluded that although there 

was no actual bias, the judge’s close, familial relationship with his 

cousin, who was integral to a number of transactions giving rise to the 

indictment, was sufficient to establish an appearance of bias. Both the

judge and his cousin “describe[d] their relationship as more like that 

of ‘brother and sister’; she is the godmother to one of his children.”88

In another Fifth Circuit case, the court reversed a failure to disqualify where there was a publicized history of “bad blood” between 

82. United States v. Lovaglia, 954 F.2d 811, 817 (2d Cir. 1992).

83. United States v. Morrison, 153 F.3d 34, 47–49 (2d Cir. 1998).

84. Roberts v. Bailar, 625 F.2d 125, 127 (6th Cir. 1980).

85. Id. at 129.

86. United States v. Toohey, 448 F.3d 542 (2d Cir. 2006).

87. 856 F.2d 716 (5th Cir. 1998).

88. Id. at 718. 
24 Judicial Disqualification: An Analysis of Federal Law

the defendant and a close personal friend of the judge.89 While noting 

that friendship between the judge and a person with an interest in the 

case need not be disqualifying, here the judge’s friend and the defendant “were embroiled in a series of vindictive legal actions resulting in 

a great deal of publicity,” some of which involved the judge’s spouse.90

Courts distinguish, however, between personal relationships with 

parties, which sometimes give rise to a need for disqualification, and 

shared political, religious, or other affiliations with parties, which, by 

themselves, are insufficient to warrant disqualification. In Bryce v. Episcopal Church in the Diocese of Colorado,91 the Tenth Circuit rejected the 

assertion that disqualification was necessary simply because the judge 

was a member of the same religion as the defendants. The court found 

that the plaintiff’s argument that the judge’s subscription to the same 

belief system as the defendant was tenuous and mere “associational 

bias,” rendering it insufficient to necessitate disqualification.

Similarly, in Higganbotham v. Oklahoma,

92 the Tenth Circuit rejected the plaintiff’s argument that disqualification was necessary because the judge and a litigant shared a partisan affiliation in a politically charged case. The court explained, “an inescapable part of our 

system of government [is] that judges are drawn primarily from lawyers 

who have participated in public and political affairs.”93

There is authority for declining to disqualify when the judge’s 

friend is a public official who is sued in an official (as opposed to a 

personal) capacity. In Cheney v. United States District Court for the District of Columbia,

94 Justice Scalia declined to disqualify himself from 

hearing a case in which Vice President Dick Cheney was a named party 

after Justice Scalia went on a hunting trip with the Vice President while 

the case was pending before the Supreme Court. Justice Scalia emphasized that the suit in question was filed against the Vice President in his 

official, as distinguished from his personal, capacity, and explained the 

importance of that distinction:

89. United States v. Jordan, 49 F.3d 152 (5th Cir. 1995).

90. Id. at 157.

91. 289 F.3d 648 (10th Cir. 2002).

92. 328 F.3d 638 (10th Cir. 2003).

93. Id. at 645.

94. 541 U.S. 913 (2004)(mem.) (Scalia, J.).
II. Disqualification Under 28 U.S.C. § 455 25

[W]hile friendship is a ground for recusal of a Justice where the personal fortune or the personal freedom of the friend is at issue, it has 

traditionally not been a ground for recusal where official action is at issue, no matter how important the official action was to the ambitions or 

the reputation of the Government officer.95

On the other hand, there may be circumstances in which the ties between the judge and the public official are so close, and the consequences of a ruling adverse to the official are so dire, that disqualification is appropriate regardless of the capacity (if any) in which the official is sued. In United States v. Bobo,

96 an Alabama district judge disqualified himself from hearing a case of interest to the governor because the judge had previously attended private functions endorsing 

the governor’s candidacy. Although the governor was not a party in the 

case, the outcome of the case could have affected the governor’s reelection. To avoid an appearance of bias, the district court concluded 

that disqualification was appropriate.

(B) Prior relationship with a witness. As with parties, a judge’s mere acquaintance or familiarity with a witness does not require disqualification. In Fletcher v. Conoco Pipe Line Co.,

97 the Eighth Circuit found disqualification unnecessary even though the judge maintained a friendship of thirty-six years with a fact witness for the plaintiff and remained 

a client of the witness’s law firm in an unrelated, ongoing matter. The 

court found this relationship insufficient to overcome a presumption of 

impartiality because the judge had previously ruled against the plaintiff.

On the other hand, in some cases disqualification may be necessary. In United States v. Kelly,

98 the Eleventh Circuit held that a trial 

judge improperly failed to disqualify himself when, among other 

things, a close personal friend was a key defense witness. The judge 

had expressed concern on the record that he might “bend over backwards to prove he lacked favoritism” toward the witness, and that a 

guilty verdict might “jeopardize his wife’s friendship” with the witness’s

95. Id. at 916.

96. 323 F. Supp. 2d 1238 (N.D. Ala. 2004).

97. 323 F.3d 661 (8th Cir. 2003).

98. 888 F.2d 732 (11th Cir. 1989).
26 Judicial Disqualification: An Analysis of Federal Law

wife.99 “The judge expressed profound doubts about the propriety of 

continuing . . . on the case; . . . Such doubts should have been resolved in favor of disqualification.”100

(C) Prior relationship with an attorney. While a judge’s acquaintance 

with one of the attorneys does not ordinarily require disqualification, 

there are cases where the extent of intimacy, or other circumstances, 

renders disqualification necessary. In United States v. Murphy,

101 the 

Seventh Circuit concluded that a judge should have disqualified himself where he and the prosecuting attorney were close friends and 

planned to vacation together immediately after the trial. The court 

noted that “friendships among judges and lawyers are common” and 

“a judge need not disqualify himself just because a friend—even a 

close friend—appears as a lawyer.”102 However, here the extent of intimacy was “unusual” and an objective observer might reasonably doubt 

the judge’s impartiality when “he was such a close friend of the prosecutor that the families of both were just about to take a joint vacation.”103

The Eleventh Circuit held that a trial judge should have disqualified himself where his law clerk’s father—who himself had been the 

judge’s law clerk—was a partner in the law firm representing one of the 

parties.104 The court nevertheless found the failure to disqualify harmless error in this case.105

Similarly, the First Circuit held that refusal to disqualify was 

“probably” improper where, during pendency of the action, the judge 

was represented in an unrelated matter by a partner in a firm that was 

involved in the case before the judge.106 Because of the procedural pos99. Id. at 738.

100. Id. at 745.

101. 768 F.2d 1518 (7th Cir. 1985).

102. Id. at 1537.

103. Id. at 1538. Nevertheless, the Seventh Circuit chose not to reverse because 

the defendant’s disqualification motion was inexcusably untimely.

104. Parker v. Connors Steel Co., 855 F.2d 1510 (11th Cir. 1988). See also First 

Interstate Bank of Ariz. v. Murphy, Weir & Butler, 210 F.3d 983, 988 (9th Cir. 2000) 

(holding that when firm representing a party hires law clerk of presiding judge, judge 

must make sure law clerk ceases further involvement in case).

105. Parker, 855 F.2d at 1527.

106. In re Cargill, 66 F.3d 1256 (1st Cir. 1995).
II. Disqualification Under 28 U.S.C. § 455 27

ture of the case, the court did not resolve the question on the merits, 

but remarked:

Most observers would agree that a judge should not hear a case argued 

by an attorney who, at the same time, is representing the judge in a personal matter. Although the appearance of partiality is attenuated when 

the lawyer appearing before the judge is a member of the same law firm 

as the judge’s personal counsel, but not the same individual, many of 

the same cautionary factors are still in play. . . . This principle would 

seem to have particular force where, as here, the law firm is small and 

the judge’s lawyer is a name partner.107

Problems concerning a judge’s relationship with counsel become 

acute when personal and financial relationships are entangled. As a 

state judge, G. Thomas Porteous, Jr., often solicited friends and former 

colleagues in the Louisiana Bar for money to pay personal gambling 

and other debts, and received monies from two of those same lawyers 

in exchange for court-appointed “curatorships.”108 After becoming a 

federal judge, Porteous declined to disqualify himself from a case in 

which a party was represented by one of those same two lawyers from 

whom he had received thousands of dollars over the years. While that 

case was under advisement, Porteous solicited that lawyer for additional money. While there is no indication that Judge Porteous was 

soliciting a bribe, his refusal to disqualify himself from hearing the case 

under these circumstances gave rise to the first of four articles of impeachment voted against him by a unanimous House of Representatives, and the Senate convicted him on this same article.

109

Likewise, problems arise when judges explore postjudicial employment with lawyers or law firms that enter an appearance before the 

judge. In Pepsico, Inc. v. McMillan,

110 a federal judge who was contemplating resigning from the bench and returning to private practice 

spoke to a recruiter who agreed to contact law firms on the judge’s behalf. Although the recruiter did not use the judge’s name, it was gener107. Id. at 1261 n.4 (citation omitted).

108. See H. Rep. 111-427 (Mar. 4, 2010), Impeachment of G. Thomas Porteous, 

Jr., Judge of the United States District Court for the Eastern District of Louisiana; 

and H. Res. 1031, 111th Cong. 2d Sess. (Mar. 11, 2010).

109. Article I—engaging in a pattern of conduct that is incompatible with the 

trust and confidence placed in him as a federal judge.

110. 764 F.2d 458 (7th Cir. 1985).
28 Judicial Disqualification: An Analysis of Federal Law

ally known in the legal community that this was the only judge who was 

contemplating resignation. Two of the firms contacted represented opposing parties in an action pending before the judge, but the district 

judge denied a motion to disqualify. On appeal, the Seventh Circuit 

ruled that the judge had acted improperly in denying the motion for 

disqualification. According to the court, although there was no indication of actual bias or favoritism toward either of the law firms, there

was, to an objective observer, an appearance of partiality that was disqualifying.111 The court explained that disqualification is necessary 

whenever a judge is in negotiations, even preliminary and tentative negotiations, for employment with a lawyer or law firm appearing before 

the judge.112 The Judicial Conference subsequently issued an advisory 

opinion admonishing judges to refrain from negotiations if the firm’s 

cases before the court are “so frequent and so numerous that the 

judge’s recusal in those cases (which would be required) would adversely affect the litigants or would have an impact on the court’s ability to handle its dockets.”113

Disqualification questions sometimes arise when a party is represented by a lawyer from the judge’s former firm. Disqualification is 

automatic under § 455(b)(2) only if the judge was affiliated with the 

firm at the time the firm was handling the matter now before the court. 

But relationships between judges and lawyers at judges’ former firms 

can remain close long after matters pending during the judge’s tenure 

at the firm have been resolved. For that reason, some judges choose to 

disqualify themselves from hearing matters argued by lawyers at their 

former firms for a period of years.114 With the exception of isolated, 

unusually close friendships discussed above, however, relationships 

111. Id. at 461.

112. Id. Compare Anderson v. United States, 754 A.2d 920 (D.C. Ct. App. 2000) 

(disqualification unnecessary when news article mentioned that judge was potential 

candidate for federal prosecutor’s position; no showing that judge had sought position).

113. Judicial Conference Committee on Codes of Conduct, Advisory Opinion 

No. 84 (June 2009).

114. See Financial Settlement and Disqualification on Resignation from Law 

Firm, Advisory Op. No. 24 (Judicial Conference Committee on Codes of Conduct 

June 2009) (recommending that judges consider a recusal period of at least two 

years, recognizing that there will be circumstances where a longer period is more 

appropriate).
II. Disqualification Under 28 U.S.C. § 455 29

between judges and lawyers at their former firms naturally dissipate 

over time. In Patterson v. Mobile Oil Corp.,

115 the plaintiffs moved for 

disqualification because the judge had previously been employed by 

the law firm that represented the defendants. The Fifth Circuit concluded that disqualification was unnecessary because the judge had 

terminated his relationship with the firm thirty years earlier. 

When relatives rather than friends appear as counsel, the issue is 

ordinarily resolved by § 455(b)(5). However, § 455(a) is sometimes 

used to fill gaps. In In re Hatcher,

116 the Seventh Circuit reversed a refusal to disqualify where the judge’s son, a third-year law student, had 

assisted the government in the prosecution of a defendant in a case 

arising from the same circumstances as that of the present defendant. 

Although the cases were formally separate proceedings, “they are both 

component parts of one large prosecution of the continuing criminal 

enterprise. . . . Outside observers have no way of knowing how much 

information the judge’s son acquired about that broader prosecution 

while working on the . . . case.”117 The court emphasized that a judge 

whose son is an assistant U.S. attorney need not disqualify himself from 

all cases in which the United States is a party, or even those cases 

where the son prosecuted a case bearing some relationship to the case 

before the judge. “This is instead the rare case where the earlier proceedings were so close to the case now before the judge that disqualification under § 455(a) was the only permissible option.”118

Former clerks appearing as counsel before judges for whom they 

worked presents a recurring issue. The First Circuit has noted that this 

issue is often addressed by the imposition of moratoriums:

It is common knowledge in the profession that former law clerks practice regularly before judges for whom they once clerked. Courts often 

have prophylactic rules that forbid a former law clerk from appearing 

in that court for a year or more after the clerkship . . . .119

When the judge’s current law clerk has a possible conflict of interest, 

the Eleventh Circuit notes that “it is the clerk, not the judge who must 

115. 335 F.3d 476 (5th Cir. 2003).

116. 150 F.3d 631 (7th Cir. 1998).

117. Id. at 638.

118. Id.

119. In re Martinez-Catala, 129 F.3d 213, 221 (1st Cir. 1997).
30 Judicial Disqualification: An Analysis of Federal Law

be disqualified.”120 In a case involving medical malpractice, the plaintiff had moved to disqualify the judge because the judge’s law clerk 

used to work for the law firm representing some of the defendants. The 

Eleventh Circuit held that disqualification was not required under 

§ 455(a) since the judge had screened the law clerk from the case and 

assigned the matter to another law clerk.121 The court reasoned that 

since “precedent approves the isolation of a law clerk who has accepted future employment with counsel appearing before the court, it 

follows that isolating a law clerk should also be acceptable when the 

clerk’s former employer appears before the court.”122

ii. Judge’s conduct in judicial proceedings

(A) “Extrajudicial source” doctrine and its limits. In United States v. 

Grinnell Corp.,

123 a case predating the 1974 amendments to § 455, the 

Supreme Court opined, “[t]he alleged bias and prejudice to be disqualifying must stem from an extrajudicial source . . . other than what 

the judge learned from his participation in the case.”124 In Grinnell, the 

Court ruled that disqualification was unnecessary because “[a]ny adverse attitudes that [the judge] evinced toward the defendants were 

based on his study of the depositions and briefs which the parties had 

requested him to make.”125 This so-called “extrajudicial source” doctrine is born of the common-sense view that ordinarily the circumstances suggesting or creating the appearance of partiality cannot reasonably be derived from information revealed in the normal course of 

litigation because it is natural for judges to form attitudes about litigants and issues before the court as the facts unfold, and no reasonable 

person would question the impartiality of judges who do. As the Supreme Court explained in Liteky v. United States:

The judge who presides at a trial may, upon completion of the evidence, 

be exceedingly ill disposed towards the defendant, who has been shown 

to be a thoroughly reprehensible person. But the judge is not thereby 

120. Byrne v. Nezhat, 261 F.3d 1075, 1101–02 (11th Cir. 2001) (quoting Hunt v. 

Am. Bank & Trust Co., 783 F.2d 1011, 1016 (11th Cir. 1986)).

121. Id. at 1100.

122. Id. at 1102 (internal citation omitted).

123. 384 U.S. 563 (1966).

124. Id. at 583.

125. Id.
II. Disqualification Under 28 U.S.C. § 455 31

recusable for bias or prejudice, since his knowledge and the opinion it 

produced were properly and necessarily acquired in the course of the 

proceedings, and are indeed sometimes (as in a bench trial) necessary to 

completion of the judge’s task.126

The Liteky Court added, however, that “[i]t is wrong in theory, 

though it may not be too far off the mark as a practical matter,” to say 

that disqualification for bias requires an extrajudicial source. Rather, 

an extrajudicial source “is the only common basis [for disqualification] 

but not the exclusive one.”127 The Court referred to two different scenarios when disqualification follows from remarks made during judicial proceedings: when the remarks reveal an extrajudicial bias, and 

when the remarks reveal an excessive bias arising from information 

acquired during judicial proceedings. As the Court explained:

Judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if 

they reveal an opinion that derives from an extrajudicial source; and 

they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.

128

The Court took pains to emphasize that the latter form of bias—one 

that arises from what the judge learns in the courtroom—must be truly 

excessive to warrant disqualification:

A favorable or unfavorable predisposition can also deserve to be characterized as “bias” or “prejudice” because, even though it springs from 

the facts adduced or the events occurring at trial, it is so extreme as to 

display clear inability to render fair judgment.

129

(B) Comments on parties or issues in the pending case. Consistent with 

Liteky and its construction of the extrajudicial source doctrine, the 

general rule is that remarks a judge makes in the course of ongoing 

judicial proceedings, remarks that are in the nature of reactions to what 

the judge has observed, do not warrant disqualification.

126. Liteky v. United States, 510 U.S. 540, 550–51 (1994).

127. Id. at 551.

128. Id. at 555.

129. Id.
32 Judicial Disqualification: An Analysis of Federal Law

In In re Huntington Commons Associates,

130 the district court had 

referred to its “predisposition” in the context of stating that “any predisposition this court has in this matter is a result of things that have 

taken place in this very courtroom.”131 The Seventh Circuit ruled that 

this acknowledgment of a “predisposition” was not “remotely sufficient 

evidence of the required ‘deep-seated and unequivocal antagonism 

that would render fair judgment impossible.’”132

Similarly in In re Marshall,

133 a California bankruptcy court ruled 

that the media’s characterization of the court’s remarks from the bench 

as hostile to the creditor’s claims was insufficient to require disqualification. The court noted that in litigation, courts are likely to form 

opinions about parties and that an adverse ruling in a prior, related 

case is insufficient to require disqualification. While the court made 

some negative comments about the creditor, the comments “do not 

approach the high degree of antagonism that would make fair judgment impossible.”134

In In re Mann,

135 disqualification was again unwarranted where,

during a status hearing with the petitioner, the judge “expressed skepticism about the likelihood that a Rule 60(b) motion, filed fourteen years 

after entry of an order, would be granted.”136 The Seventh Circuit held, 

“[t]hat comment, standing alone, is not enough to prove an improper 

motive.”137 The judge had also told the petitioner “he harbored no 

animosity towards her and would therefore consider the merits of her 

claim.”138

In re Chevron U.S.A., Inc.

139 was a more difficult case, in which the 

district judge made race-related remarks in the courtroom, including a 

statement rejecting a study as illegitimate because it was conducted by 

Caucasians. The Fifth Circuit characterized the remarks as “unfortu130. 21 F.3d 157 (7th Cir. 1994).

131. Id. at 158.

132. Id. at 159 (quoting Liteky).

133. 291 B.R. 855 (Bankr. C.D. Cal. 2003).

134. Id. at 860.

135. 229 F.3d 657 (7th Cir. 2000).

136. Id. at 658.

137. Id. at 659.

138. Id. at 658.

139. 121 F.3d 163 (5th Cir. 1997).
II. Disqualification Under 28 U.S.C. § 455 33

nate, grossly inappropriate, and deserving of close and careful scrutiny.”140 While the court found that the district judge’s comments created “a reasonable perception of bias or prejudice,” it also found that 

they did not “reveal such a high degree of favoritism or antagonism as 

to make fair judgment impossible,”141 which, in its view, was required 

by the Supreme Court’s decision in Liteky before in-court statements 

would require disqualification. Observing that the litigation was near 

completion, the court declined to issue a writ of mandamus. In so ruling, the Fifth Circuit did not appear to distinguish between in-court 

statements in which a judge arguably acquired an excessive bias from 

information received during judicial proceedings (to which the quoted 

passage from Liteky pertained) and in-court statements that revealed

extrajudicial bias, arguably at issue here.

It is not uncommon for a judge, at sentencing, to express outrage 

at the defendant’s conduct or at the defendant himself, and/or an urge 

to see the defendant severely punished. Ordinarily, none of this is 

ground for disqualification.

142 Although decided before Liteky, United 

States v. Barry143 illustrates the relevant principle. At sentencing, the 

trial judge claimed that jurors who voted to acquit the defendant on 

several charges “will have to answer to themselves and to their fellow

citizens.”144 The D.C. Circuit acknowledged that “this statement may 

indicate that the court thought appellant was guilty of more counts 

than he was convicted of” but “there is no indication that the court 

reached this conclusion based on anything other than its participation 

in the case.”145

The Tenth Circuit upheld a refusal to disqualify even though the 

trial judge opined pretrial that “the obvious thing that’s going to happen . . . is that [the defendant is] going to get convicted . . . .”146 The 

140. Id. at 166.

141. Id. at 165 (quoting Liteky, 510 U.S. at 555).

142. See, e.g., United States v. Pearson, 203 F.3d 1243, 1277–78 (10th Cir. 2000) 

(disqualification not required where district judge made remarks about defendant’s

character during sentencing); United States v. Kimball, 73 F.3d 269, 273 (10th Cir. 

1995) (disqualification not necessary despite judge’s “unfortunate comment” that he 

wanted defendant to “die in prison”).

143. 938 F.2d 1327 (D.C. Cir. 1991).

144. Id. at 1341.

145. Id.

146. United States v. Young, 45 F.3d 1405, 1414 (10th Cir. 1995).
34 Judicial Disqualification: An Analysis of Federal Law

court believed the judge merely expressed a view of what was likely to 

happen from what he had observed in the case: “Nothing in the remark

indicates that the judge was unable or unwilling to carry out his responsibilities impartially.”147

In a Ninth Circuit case, the district judge did not abuse his discretion in denying a motion to disqualify based on his criticism of the 

government’s initial failure to charge the defendant with carrying a 

weapon during the commission of a robbery. At a status conference, 

the judge had commented that the government’s omission of the gun 

count was “absurd” and “asinine,” and told counsel to “[s]hare that 

with your head of [the] criminal [division].”148 The Ninth Circuit 

found that the judge’s comments did not rise to the level required for 

disqualification under § 455(a), stating that “[a] judge’s views on legal 

issues may not serve as the basis for motions to disqualify.”149

There are exceptions to the rule that the comments a judge makes 

in court do not trigger disqualification. In Unites States v. Whitman,

150

the Sixth Circuit remanded the sentencing of a criminal defendant to a 

different trial judge after the original judge engaged in a “lengthy harangue” of the defense attorney that “had the unfortunate effect of creating the impression that the impartial administration of the law was 

not his primary concern.”151 The court added, however, that there was 

no evidence that the judge was actually biased in this case.

In United States v. Antar,

152 the trial judge commented during a 

sentencing hearing on the amount of restitution he might award: “My 

object in this case from day one has always been to get back to the 

public that which was taken from it as a result of the fraudulent activities of this defendant and others.”153 The Third Circuit held that the 

remark reflected a mindset requiring disqualification:

147. Id. at 1416. See also United States v. Martin, 278 F.3d 988, 1005 (9th Cir. 

2002) (holding district court didn’t abuse discretion in denying motion to disqualify 

where, during sentencing hearing, judge became frustrated with defendant and 

counsel, and made remarks concerning defendant’s credibility; “The . . . comments 

. . . may have been testy, but they do not justify a recusal . . . .”).

148. United States v. Wilkerson, 208 F.3d 794, 797 (9th Cir. 2000).

149. Id. (quoting United States v. Conforte, 624 F.2d 869, 882 (9th Cir. 1980)).

150. 209 F.3d 619 (6th Cir. 2000).

151. Id. at 626–27.

152. 53 F.3d 568 (3d Cir. 1995).

153. Id. at 573.
II. Disqualification Under 28 U.S.C. § 455 35

[T]his is a case where the district judge, in stark, plain and unambiguous language, told the parties that his goal in the criminal case, from 

the beginning, was something other than what it should have been and, 

indeed, was improper. . . . It is difficult to imagine a starker example of 

when opinions formed during the course of judicial proceedings display a high degree of antagonism against a criminal defendant. After all, 

the best way to effectuate the district judge’s goal would have been to 

ensure that the government got as free a road as possible towards a 

conviction, which then would give the judge the requisite leverage to 

order a large amount of restitution.

154

The court noted the trial judge’s reputation for fairness, and acknowledged the perils of focusing on one sentence out of volumes of transcripts. However, “in determining whether a judge had the duty to disqualify him or herself, our focus must be on the reaction of the reasonable observer. If there is an appearance of partiality, that ends the

matter.”155

In United States v. Franco-Guillen,

156 the district judge withdrew the 

defendant’s guilty plea and set the matter over for trial after the defendant objected to certain information in the presentence report. In the 

course of the hearing, the judge said, “I will not put up with this from 

these Hispanics or anybody else, any other defendants”;

157 and again,

“I’m not putting up with this. I’ve got another case involving a Hispanic defendant who came in here and told me that he understood 

what was going on and that everything was fine and now I’ve got a 2255 

from him saying he can’t speak English. And he is lying because he 

told me he could.”158 The Tenth Circuit reversed the conviction and 

remanded the case for reassignment to a different judge, with the explanation, “The judge’s statements on the record would cause a reasonable person to harbor doubts about his impartiality, without regard 

to whether the judge actually harbored bias against Franco-Guillen on 

account of his Hispanic heritage.”159

154. Id. at 576.

155. Id.

156. 196 F. App’x 716 (10th Cir. 2006) (unpublished decision).

157. Id. at 717.

158. Id. at 718.

159. Id. at 719.
36 Judicial Disqualification: An Analysis of Federal Law

The general rule against disqualification for in-court comments on 

pending cases does not apply to out-of-court comments on pending 

cases. In United States v. Microsoft Corp.,

160 an antitrust case, the D.C. 

Circuit required disqualification of the trial judge on remand because 

of the cumulative effect of his comments on the merits of the case in a 

series of secret interviews with reporters throughout the course of the 

trial. The court emphasized the distinction between comments from 

the bench—which generally do not require disqualification—and those 

same comments made off the bench, while the matter is pending.

[A]ll of these remarks and others might not have given rise to a violation of the Canons or of § 455(a) had he uttered them from the bench 

. . . . It is an altogether different matter when the statements are made 

outside the courtroom, in private meetings unknown to the parties, in 

anticipation that ultimately the Judge’s remarks would be reported.

161

(C) Comments on parties or issues in prior judicial proceedings. The general rule that bias or prejudice must be derived from an extrajudicial 

source and that comments based on a judge’s observations in pending 

proceedings will not ordinarily form the basis for disqualification applies equally to comments a judge makes in earlier proceedings. In 

Liteky v. United States,

162 the Supreme Court made two relevant observations. First, it stated that in United States v. Grinnell Corp.

163 the Court 

“clearly meant by ‘extrajudicial source’ a source outside the judicial 

proceeding at hand—which would include as extrajudicial sources earlier judicial proceedings conducted by the same judge.”164 This observation, however, must be understood in the larger context of the opinion as a whole, in which the Court rejected rigid adherence to an extrajudicial source doctrine (which it characterized not as a “doctrine” but 

as a “factor”165). Regardless of whether prior proceedings are characterized as an “extrajudicial source,” the Court’s second, and ultimately 

more important, observation is that for purposes of disqualification 

160. 253 F.3d 34 (D.C. Cir. 2001).

161. Id. at 115.

162. 510 U.S. 540 (1994).

163. 384 U.S. 563 (1966).

164. Liteky, 510 U.S. at 545.

165. Id. at 555.
II. Disqualification Under 28 U.S.C. § 455 37

analysis, a judge’s comments in pending and past proceedings are on 

equal footing:

[O]pinions formed by the judge on the basis of facts introduced or 

events occurring in the course of the current proceedings, or of prior 

proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would 

make fair judgment impossible.

166

In Liteky, the defendant moved to disqualify the judge on the 

ground that, during an earlier criminal trial, the judge displayed “impatience, disregard for the defense and animosity”167 toward the defendant. He cited various comments by the judge, including admonitions 

of defense witnesses and counsel as well as certain trial rulings. The 

Court rejected the contention that disqualification was in order: “All 

occurred in the course of judicial proceedings, and neither (1) relied 

upon knowledge acquired outside such proceedings nor (2) displayed 

deep-seated and unequivocal antagonism that would render fair judgment impossible.”168

In Town of Norfolk v. United States Army Corps of Engineers,

169 a

district judge had overseen compliance with a city plan to clean up the 

Boston Harbor. In a subsequent case about locating a landfill pursuant 

to the Clean Water Act, a party moved for the judge’s disqualification, 

and the judge refused. The First Circuit upheld the refusal, noting that 

“a judge is sometimes required to act against the backdrop of official 

positions he took in other related cases. A judge cannot be replaced 

every time a case presents an issue with which the judge’s prior official 

decisions and positions may have a connection.”170

(D) Ex parte communications. Trial courts should be wary of ex parte 

contacts, which can result in reversals. Ex parte contacts contributed to 

the D.C. Circuit’s decision to remand a case to a different trial judge in 

United States v. Microsoft.

171 The court was “concerned by the district 

166. Id. (citation omitted).

167. Id. at 542.

168. Id. at 556.

169. 968 F.2d 1438 (1st Cir. 1992).

170. Id. at 1462.

171. 56 F.3d 1448 (D.C. Cir. 1995) (Microsoft I) (contacts included argumentative letters and a redacted exhibit). See also United States v. Microsoft Corp., 253 F.3d 
38 Judicial Disqualification: An Analysis of Federal Law

judge’s acceptance of ex parte submissions,” and indicated that “the 

appropriate course would have been simply to refuse to accept any ex 

parte communications.”172

In a Sixth Circuit case, the appellant alleged that the trial judge had 

sent his law clerk to gather evidence and therefore the judge should 

have disqualified himself. The court observed that while “not every ex 

parte communication to the trial court requires reversal,”173 the allegation here was sufficiently serious as to require a remand to determine 

its truth.

Where the trial judge met ex parte with a panel of experts and prohibited counsel from discovering the contents of the meeting, the Seventh Circuit reversed a refusal to disqualify.

174 However, the Sixth Circuit upheld a refusal to disqualify in a similar situation involving various ex parte communications because the judge “explained to Plaintiffs’ counsel the ministerial nature of these ex parte discussions before 

they took place” and “personally extended to Plaintiffs’ counsel an invitation to attend all of these meetings.”175 Counsel chose not to attend

and “failed to register any objection to the meetings at that time.”176

(E) Conduct in relation to guilty pleas. In Halliday v. United States,

177 the 

First Circuit implied that disqualification is sometimes appropriate 

when a judge faces a motion under 28 U.S.C. § 2255 to vacate a conviction with respect to which he or she imposed the sentence. In a postconviction motion, the defendant argued that a different judge should 

have conducted the Federal Rule of Criminal Procedure 11 pleaagreement hearing. Since the § 2255 challenge would have forced the 

same judge to evaluate his own actions, the First Circuit found it pref34, 113 (D.C. Cir. 2001) (holding judge’s secret interviews with reporters during 

course of trial violated Code of Conduct Canon 3A(4), which prohibits “ex parte

communications on the merits, or procedures affecting the merits, of a pending . . . 

proceeding”).

172. Microsoft I, 56 F.3d at 1464.

173. Price Bros. v. Philadelphia Gear Corp., 629 F.2d 444, 446 (6th Cir. 1980). 

When the case returned to the Sixth Circuit, the court found harmless error. Price 

Bros. v. Philadelphia Gear Corp., 649 F.2d 416 (6th Cir. 1981).

174. Edgar v. K.L., 93 F.3d 256 (7th Cir. 1996).

175. Reed v. Rhodes, 179 F.3d 453, 468 (6th Cir. 1999).

176. Id.

177. 380 F.2d 270 (1st Cir. 1967).
II. Disqualification Under 28 U.S.C. § 455 39

erable (but not required) for a different judge to conduct the § 2255 

evidentiary hearing. In subsequent cases, the First Circuit clarified that 

Halliday is limited to cases in which the § 2255 motion accuses the sentencing judge of violating Rule 11.

178

Where a judge’s conduct during plea negotiations violated Rule 11, 

and a defendant subsequently pled not guilty and was convicted, the 

Fifth Circuit held that the defendant was not entitled to a new trial, but 

was entitled to resentencing before a new judge.

179 The Eighth Circuit 

concurred that when a case is remanded after a court of appeals finds a 

Rule 11 violation, the judge need not disqualify himself or herself from 

the subsequent trial, though disqualification might be in order for sentencing if the defendant is convicted.

180

Similarly, the Third Circuit required resentencing before a new 

judge where the trial judge had communicated his preference to defense counsel that the defendant plead guilty and indicated that the 

defendant would receive a lighter sentence if he did.

181 After the defendant went to trial and was convicted, the Third Circuit vacated the sentence because a reasonable person might conclude that “the judge’s 

attitude as to sentence was based at least to some degree on the fact 

that the case had to be tried, an exercise which the judge seemed anxious to avoid.”182

(F) Conduct reflecting that the judge took personal offense. In assorted 

cases, disqualification has been deemed necessary where trial judges 

took unusual actions, or made comments, that indicated they took personal offense. In In re Johnson,

183 a bankruptcy trustee had been held 

in contempt because the trial judge thought the trustee had misrepresented the judge’s conduct to another judge in order to obtain a favorable court order. At the contempt proceedings, the judge declared that 

he was “prejudiced in this matter,” had “all but made up his mind,” 

was “not in the least inclined to be neutral,” and would serve as “complaining witness, prosecutor, judge, jury, and executioner.”184 The Fifth 

178. See, e.g., Panzardi-Alvarez v. United States, 879 F.2d 975, 985 (1st Cir. 1989).

179. United States v. Adams, 634 F.2d 830, 835–43 (5th Cir. 1981).

180. In re Larson, 43 F.2d 410, 416 (8th Cir. 1994).

181. United States v. Furst, 886 F.2d 558 (3d Cir. 1989).

182. Id. at 583.

183. 921 F.2d 585 (5th Cir. 1991).

184. Id. at 587.
40 Judicial Disqualification: An Analysis of Federal Law

Circuit held that the judge clearly “considered [the party’s] actions to 

be a personal affront to his authority” such that a reasonable person 

would doubt his impartiality.

185

Trial judges occasionally appear insulted when their rulings are 

challenged by a litigant. The Third Circuit reversed a refusal to disqualify where the judge had responded to the petitioners’ mandamus 

motion for disqualification by writing a lengthy letter. The judge, “in 

responding to the mandamus petition . . . has exhibited a personal interest in the litigation.”186 Similarly, the Fifth Circuit reversed a conviction where the judge remarked in court that the defendant had “broken 

faith” with him by raising a certain issue on appeal following his earlier

trial.

187

On the other hand, in Hook v. McDade,

188 the Seventh Circuit 

found disqualification unnecessary where the judge called the motion 

for his disqualification by a lawyer–litigant “offensive,” claimed it “impugned” his integrity, and directed the party to testify under oath about 

the judge’s alleged bias because, the judge claimed, the motion reflected unethical behavior. The judge was reacting, “albeit strongly,” to 

a motion brought on the eve of trial, and the Seventh Circuit believed

that his comments did not “reflect a bias or prejudice gained from outside the courtroom.”189

iii. Judge’s extrajudicial conduct

As explained in the preceding section about the extrajudicial source 

doctrine, a judge is subject to disqualification for apparent partiality 

evidenced by extrajudicial conduct. The focus here, however, is on 

extrajudicial conduct that impugns impartiality or perceived impartiality. “Impartiality” subsumes a lack of bias toward a party, and perhaps 

open-mindedness toward the issues before the court, but does not require the absence of preexisting views on the legal questions that the 

judge must decide.

190 Thus, the fact that a judge comes to a case with 

preexisting views on the legal questions presented, based on prior, ex185. Id.

186. Alexander v. Primerica Holdings, Inc., 10 F.3d 155, 165 (3d Cir. 1993).

187. United States v. Holland, 655 F.2d 44 (5th Cir. 1981).

188. 89 F.3d 350 (7th Cir. 1996).

189. Id. at 356.

190. Republican Party of Minn. v. White, 536 U.S. 765 (2002).
II. Disqualification Under 28 U.S.C. § 455 41

trajudicial learning, is no grounds for disqualification. As the Court 

observed in Liteky v. United States,

191 “Some opinions acquired outside 

the context of judicial proceedings (for example, the judge’s view of 

the law acquired in scholarly reading) will not suffice” to warrant disqualification.

192

What will require disqualification is conduct manifesting bias or 

prejudgment. Such conduct can arise in a variety of settings.

(A) Extrajudicial comments on pending or impending cases. In United 

States v. Cooley,

193 the Tenth Circuit reversed a refusal to disqualify 

where the defendants were abortion protesters and the trial judge had 

appeared on national television and stated that “these people are 

breaking the law.”194 The court of appeals stated:

Two messages were conveyed by the judge’s appearance on national 

television in the midst of these events. One message consisted of the 

words actually spoken. . . . The other was the judge’s expressive conduct 

in deliberately making the choice to appear in such a forum at a sensitive time to deliver strong views on matters which were likely to be 

ongoing before him. Together, these messages unmistakably conveyed 

an uncommon interest and degree of personal involvement in the subject matter. It was an unusual thing for a judge to do, and it unavoidably 

created the appearance that the judge had become an active participant 

in bringing law and order to bear on the protesters, rather than remaining as a detached adjudicator.

195

In In re Boston’s Children First,

196 the First Circuit held that a 

judge’s comments to the media about a pending case challenging an 

elementary school student-assignment process on grounds of racial 

discrimination required disqualification. Seeking to correct misinterpretations in press accounts unfavorably comparing her action in the 

pending matter with a previous case, the judge had told a newspaper 

reporter in a phone interview, the content of which was later published, that the pending case was “more complex.”197 The plaintiffs 

191. 510 U.S. 540 (1994).

192. Id. at 554.

193. 1 F.3d 985 (10th Cir. 1993).

194. Id. at 990.

195. Id. at 995.

196. 244 F.3d 164 (1st Cir. 2001).

197. Id. at 166.
42 Judicial Disqualification: An Analysis of Federal Law

subsequently moved for disqualification, and the judge denied the motion. The First Circuit held that disqualification was necessary and 

granted the petitioners’ writ of mandamus pursuant to § 455(a). Although it found the media contact “less inflammatory than that in Cooley,” it saw “the same factors at work.”198 First, because the schoolassignment program was a matter of significant local concern, the public attention and rarity of such public statements by a judge made it 

“more likely that a reasonable person [would] interpret such statements as evidence of bias.”199 Second, like Cooley, the “‘appearance of 

partiality’ at issue here . . . stems from the real possibility that a judge’s 

statements may be misinterpreted because of the ambiguity of those

statements.”200 Finally, a judge’s defense of her own orders, before the 

resolution of appeal, could also create the appearance of partiality.

201

The court noted that its holding was “based on the particular events” 

of a “highly idiosyncratic case.”202

Similarly, in Hathcock v. Navistar International Transportation 

Corp., the Fourth Circuit reversed a refusal to disqualify where, while a 

jury trial was pending against an automobile company, the judge, while 

at an auto torts seminar, gave a speech that expressed hostility toward 

defendants and defense counsel in such cases.

203

In contrast to Hathcock, disqualification has been deemed unnecessary if the judge’s extrajudicial comments are sufficiently balanced to 

belie claims that they manifest bias. In United States v. Pitera,

204 the 

198. Id. at 169.

199. Id. at 170.

200. Id.

201. Id. “Canon 3A(6) does not bar comment in final, completed cases, so long 

as judges refrain from revealing the deliberative processes and do not place in question their impartiality in similar future cases.” Compendium of Selected Opinions 

§ 3.9-1(d) (2009).

202. Boston’s Children First, 244 F.3d at 171. After receiving a petition for rehearing en banc from the district judge, the appeals panel sought the opinions of 

the other three nonpanelist active judges, who disagreed that the judge’s comment 

required mandatory disqualification under § 455(a). They agreed with the panel, 

though, that her comment on a pending case was “at the very least particularly unwise.” Id. This difference of view among the active judges indicated “the continuing 

need for a case-by-case determination of such issues,” the panel acknowledged. Id.

203. 53 F.3d 36, 41 (4th Cir. 1995).

204. 5 F.3d 624 (2d Cir. 1993).
II. Disqualification Under 28 U.S.C. § 455 43

judge gave a videotaped lecture to a government drug enforcement task 

force seven months before a narcotics case was tried, but after the case 

had already been assigned to her. In the lecture, the judge urged the 

assembled agents and prosecutors to take certain steps to increase 

prospects for conviction in narcotics cases. The Second Circuit nevertheless upheld the refusal to disqualify because the judge’s lecture “included several emphatic criticisms of prosecutors that would lead a 

reasonable person not to question, but to have confidence in the 

[j]udge’s impartiality.”205 In addition, the judge participated in various 

programs for criminal defense lawyers, and she “commendably lectures to a variety of trial practice seminars.”206

In United States v. Microsoft Corp.,

207 the D.C. Circuit noted that 

other courts of appeals had found violations of § 455(a) “for judicial 

commentary on pending cases that seems mild in comparison to what 

we are confronting in this case.”208 The district judge had given “secret 

interviews to select reporters” throughout the course of the Microsoft

trial, requiring “that the fact and content of the interviews remain secret until he issued the Final Judgment.”209 The interviews began to 

appear in press accounts immediately after the final judgment was entered. Some interviews were conducted after the final judgment was 

entered. Because the full extent of the judge’s actions did not become 

apparent until the case was on appeal, the D.C. Circuit decided to adjudicate Microsoft’s disqualification request even though the published 

interviews had not been admitted into evidence and no evidentiary 

hearing had been held on them. The D.C. Circuit held that the judge 

“breached his ethical duty under Canon 3A(6) each time he spoke to a 

reporter about the merits of the case.”210 The judge’s comments did 

not fall into one of “three narrowly drawn exceptions” under the canon 

because the judge did not discuss “purely procedural matters” but ac205. Id. at 626.

206. Id. at 627.

207. 253 F.3d 34 (D.C. Cir. 2001).

208. Id. at 114 (citing In re Boston’s Children First, 244 F.3d 164 (1st Cir. 2001) 

and United States v. Cooley, 1 F.3d 985 (10th Cir. 1993)).

209. Id. at 108.

210. Id. at 112. Canon 3A(6), which forbids federal judges from commenting 

publicly “on the merits of a matter pending or impending in any court,” applies to 

cases pending before any court—state or federal, trial or appellate.
44 Judicial Disqualification: An Analysis of Federal Law

tually “disclosed his views on the factual and legal matters at the heart 

of the case.”211 The fact that the judge “may have intended to ‘educate’ 

the public about the case or to rebut ‘public misperceptions’” was not 

an excuse for his actions, and his “insistence on secrecy . . . made matters worse” because it prevented the parties from raising objections or 

seeking disqualification before the judge issued a final judgment.

212

The D.C. Circuit has not “gone so far as to hold that every violation of Canon 3A(6) . . . inevitably destroys the appearance of impartiality and thus violates § 455(a).”213 “In this case, however, . . . the line 

has been crossed,” and the judge’s comments “would lead a reasonable, informed observer to question the District Judge’s impartiality.”214 Because Microsoft “neither alleged nor demonstrated that [the 

judge’s conduct] rose to the level of actual bias or prejudice,” the 

court found “no reason to presume that everything the District Judge 

did [was] suspect.”215 The court concluded that there was no reason to 

set aside the findings of fact and conclusions of law, and that the appropriate remedy was disqualification of the judge “retroactive only to 

the date he entered the order breaking up Microsoft.”216

United States v. Barry 217 presents a counterpoint to Microsoft, in 

which an extrajudicial comment on a pending case did not give rise to 

a perception of partiality sufficient to warrant disqualification. In Barry, 

the judge, after sentencing the defendant, addressed a forum at Harvard Law School in which he spoke of the overwhelming evidence of 

the defendant’s guilt. When the sentence was vacated on unrelated 

grounds and the case remanded for resentencing, the defendant moved 

for disqualification, claiming the judge’s remarks at Harvard created an 

appearance of partiality. The D.C. Circuit ruled, however, that because 

the judge’s remarks were “based on his own observations during the 

performance of his judicial duties,” disqualification was not required.

218

211. Id.

212. Id.

213. Id. at 114.

214. Id. at 115.

215. Id. at 116.

216. Id.

217. 961 F.2d 260 (D.C. Cir. 1992).

218. Id. at 263.
II. Disqualification Under 28 U.S.C. § 455 45

(B) Attendance at party-sponsored educational seminars on issues in litigation. For years, educational institutions and other organizations have 

hosted expense-paid educational seminars for judges on a range of issues coming before the courts. When seminar sponsors later appear as 

parties before those judges in cases raising issues covered in the seminars, it brings up questions of ethics and disqualification. As to the ethics of participating in expense-paid seminars, the Judicial Conference 

Committee on Codes of Conduct has opined at length and in considerable detail.

219 As to the need to disqualify, the answer is: it depends.

The Third Circuit reversed a refusal to disqualify where the trial 

judge in a mass tort asbestos case attended a scientific conference on 

the dangers of asbestos.

220 The conference was funded in part by 

$50,000 from the plaintiffs’ settlement fund. The request to use these 

funds for this purpose was approved by the judge.

221 The Third Circuit, 

in reversing, offered the following explanation:

We are convinced that a reasonable person might question [the judge’s] 

ability to remain impartial. To put it succinctly, he attended a predominantly pro-plaintiff conference on a key merits issue; the conference 

was indirectly sponsored by the plaintiffs . . . and his expenses were 

largely defrayed by the conference sponsors . . . . Moreover, he was, in 

his own words, exposed to a Hollywood-style “pre-screening” of the 

plaintiffs’ case.

222

The court declined to address whether any of these facts alone compelled disqualification, because “together they create an appearance of 

partiality that mandates disqualification.”223

The Second Circuit, in contrast, upheld a refusal to disqualify in a 

case involving a trial judge’s attendance at an expense-paid environmental seminar funded indirectly by Texaco.

224 After the judge attended the seminar, a lawsuit against Texaco that he had previously 

219. See Participation in a Seminar of General Character, Advisory Op. No. 3 

(Judicial Conference Committee on Codes of Conduct June 2009); Attendance at 

Independent Educational Seminars, Advisory Op. No. 67 (Judicial Conference 

Committee on Codes of Conduct June 2009).

220. In re Sch. Asbestos Litig., 977 F.2d 764 (3d Cir. 1992).

221. Id. at 779.

222. Id. at 781–82.

223. Id. at 782.

224. In re Aguinda, 241 F.3d 194 (2d Cir. 2001).
46 Judicial Disqualification: An Analysis of Federal Law

dismissed was remanded to him. The Second Circuit agreed with the 

district judge that his presence at the seminar did not warrant disqualification under § 455(a) because Texaco provided only a minor part of 

the funding to one of two nonprofit organizations that conducted the 

seminar, and because the organizations had no connection to the case. 

Also, there was no showing that any aspect of the seminar touched on 

issues material to any claims or defense in the litigation.

iv. Party’s conduct toward judge

Parties and their lawyers sometimes behave in ways that predictably 

engender a judge’s animus, but such behavior does not trigger the 

need for disqualification. To hold otherwise would be to create an opportunity for parties to exhibit hostile behavior strategically, as a means 

to force disqualification. Upholding a refusal to disqualify where the 

litigant had verbally attacked the judge in public, the First Circuit said,

“[a] party cannot force disqualification by attacking the judge and then 

claiming that these attacks must have caused the judge to be biased 

against [her].”225 Indeed, where a party argued that the judge’s ongoing 

hostility toward him required disqualification, the Third Circuit held 

that the party’s own public hostility toward the judge (including writing

a letter to a Supreme Court justice urging punishment of the judge) 

counseled against disqualification, “lest we encourage tactics designed 

to force recusal.”226 For the same reason, the filing of a collateral lawsuit or other adversarial legal action against the judge will generally not 

require disqualification.

227

225. FDIC v. Sweeney, 136 F.3d 216, 219 (1st Cir. 1998) (quoting 13A Charles 

Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure 

§ 3542 at 577–78).

226. United States v. Bertoli, 40 F.3d 1384, 1414 (3d Cir. 1994). See also United 

States v. Bayless, 201 F.3d 116 (2d Cir. 2000). The Second Circuit held that the judge 

did not commit clear error in denying disqualification because of media and political 

attacks on him. To read § 455 to allow such disqualification “would create a moral 

hazard by encouraging litigants or other interested parties to maneuver to obtain a 

judge’s disqualification.” Bayless, 201 F.3d at 129.

227. See Jones v. Pittsburgh Nat’l Corp., 899 F.2d 1350, 1355–56 (3d Cir. 1990); 

United States v. Studley, 783 F.2d 934, 940 (9th Cir. 1986); United States v. Grismore, 

564 F.2d 929, 933 (10th Cir. 1977); United States v. Whitesel, 543 F.2d 1176, 1181 (6th 

Cir. 1976).
II. Disqualification Under 28 U.S.C. § 455 47

In upholding a refusal to disqualify where the plaintiff had sent a 

letter to the Senate Judiciary Committee opposing the judge’s nomination to the bench, the Ninth Circuit rejected the argument that disqualification was necessary: “Such a letter is probative of [the plaintiff’s] dislike for [the judge], not the other way around.”228

The courts have taken a similar approach to threats against the 

judge. In United States v. Mosby,

229 the respondent moved for disqualification on the grounds that he had previously threatened the judge, 

that the judge was made aware of these threats through a motion filed 

with the court, and that the judge was thus incapable of approaching 

the case impartially. The Eighth Circuit found that the judge was previously unaware of these threats, and therefore that disqualification was 

unnecessary. In another Eighth Circuit case,

230 a district judge did not 

disqualify himself after a letter threatening his life was sent to a local 

newspaper. Because the judge believed the threat was an attempt to 

have the case removed to a different court with a more favorable judge 

and the defendant was incapable of carrying out the threat, the Eighth 

Circuit concluded that the judge properly denied the motion for disqualification. And in LoCascio v. United States, the Second Circuit concluded that disqualification was unnecessary when the judge told the 

press that he was not intimidated by a party’s threats, observing that the 

judge’s statement evinced his capacity to separate his personal interests 

from the facts of the case.

231

It bears emphasis, however, that this line of cases seeks to thwart 

parties or their counsel from engaging in strategic behavior aimed at 

forcing disqualification. Cases in which a judge becomes aware of a 

party’s conduct through other means may stand on different footing. 

One exceptional case in which the court of appeals reversed a refusal 

to disqualify in the face of a threat to the judge is instructive. The 

Tenth Circuit held that a trial judge should have disqualified himself 

because he “learned of the alleged threat from the FBI, and there is 

nothing in the record to suggest the threat was a ruse by the defendant 

228. DeNardo v. Municipality of Anchorage, 974 F.2d 1200, 1201 (9th Cir. 

1992).

229. 177 F.3d 1067 (8th Cir. 1999).

230. United States v. Dehghani, 550 F.3d 716 (8th Cir. 2008).

231. 473 F.3d 493, 496 (2d Cir. 2007).
48 Judicial Disqualification: An Analysis of Federal Law

in an effort to obtain a different judge.”232 Moreover, the trial court 

had expedited sentencing in order to “‘get [the defendant] into the federal penitentiary system immediately, where he [could] be monitored 

more closely.’”233 Under the circumstances, the court’s impartiality 

could reasonably be questioned. However, in dicta, the Tenth Circuit 

clarified that threats against a judge will rarely be ground for disqualification:

[I]f a death threat is communicated directly to the judge by a defendant, 

it may normally be presumed that one of the defendant’s motivations is 

to obtain a recusal, particularly if he thereafter affirmatively seeks a 

recusal. . . . [I]f a judge concludes that recusal is at least one of the defendant’s objectives (whether or not the threat is taken seriously), then 

§ 455 will not mandate recusal because that statute is not intended to be 

used as a forum shopping statute. . . . Similarly, if a defendant were to 

make multiple threats to successive judges or even to multiple judges 

on the same court, there might be some reason to suspect that the 

threats were intended as a recusal device.

234

On the other hand, in United States v. Honken,

235 security measures 

were put in place at the request of authorities to protect the judge from 

the defendant. The defendant argued that he was unaware of the security measures prior to trial, and that his ignorance prevented him from 

filing the necessary motion for disqualification. The district court rejected that argument, reasoning that disclosure of the security measures 

to the defendant would mitigate their effectiveness, and that any judge 

confronted with a case with a high security risk would have been afforded the same security measures.

Judges have likewise been loath to disqualify themselves in cases 

where a party or that party’s lawyer has been complimentary of the 

judge. In Sullivan v. Conway,

236 the defendant (a lawyer) wrote a letter 

to his client praising the judge. Sullivan, a lawyer representing himself 

as plaintiff, inadvertently received a copy of the letter, submitted it to 

the court, then moved for disqualification on the ground that the 

praise could influence the judge. “[T]he praise would not have come 

232. United States v. Greenspan, 26 F.3d 1001, 1006 (10th Cir. 1994).

233. Id. at 1005 (Appellant’s Appendix 358–59).

234. Id. at 1006.

235. 381 F. Supp. 2d 936 (N.D. Iowa 2005).

236. 157 F.3d 1092 (7th Cir. 1998).
II. Disqualification Under 28 U.S.C. § 455 49

to [the judge’s] attention . . . had not the lawyer wishing to disqualify 

him brought it to his attention.”237 Rejecting the argument that the 

judge should have disqualified himself, the Seventh Circuit observed: 

“[I]t is improper for a lawyer or litigant (Sullivan being both in this 

case) to create the ground on which he seeks the recusal of the judge 

assigned to his case. That is arrant judge-shopping.”238

2. Specific grounds: § 455(b)

a. Personal bias, prejudice, or knowledge: § 455(b)(1)

Disqualification under § 455(b)(1) requires a judge to disqualify himself or herself where he or she “has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts 

concerning the proceeding.”239

i. Bias and prejudice

As a practical matter, parties rarely seek disqualification under 

§ 455(b)(1) alone for two reasons. First, relief for actual bias may be 

easier to obtain under § 144 than § 455(b)(1). Section 144 requires disqualification whenever a timely and facially sufficient affidavit alleging 

bias is filed, whereas § 455(b)(1) requires disqualification only if “actual bias or prejudice is ‘proved by compelling evidence.’”240 If courts 

analyze a claim under § 144 and it fails, there will not be sufficient evidence to meet the higher burden of proof under § 455(b)(1); if the 

claim is valid, disqualification is required under § 144, and an analysis 

of § 455(b)(1) becomes unnecessary. As a consequence, litigants often 

237. Id. at 1096.

238. Id. Accord United States v. Owens, 902 F.2d 1154, 1156 (4th Cir. 1990) (“Parties cannot be allowed to create the basis for disqualification by their own deliberate 

actions. To hold otherwise would encourage inappropriate ‘judge shopping.’”). See 

also In re Mann, 229 F.3d 657, 658 (7th Cir. 2000) (“‘Judge-shopping’ is not a practice 

that should be encouraged.”).

239. The corollary to § 455(b)(1) in the Code of Conduct for United States 

Judges is Canon 3C(1)(c). See Appendix, infra.

240. Hook v. McDade, 89 F.3d 350, 355 (7th Cir. 1996) (quoting United States v. 

Balistrieri, 779 F.2d 1191, 1202 (7th Cir. 1985) (concluding that a judge’s statement 

that a motion for disqualification was “offensive” and “‘impugned’ his integrity” was 

not sufficiently compelling evidence of an extrajudicial source for actual bias against 

defendant)).
50 Judicial Disqualification: An Analysis of Federal Law

argue for disqualification under both statutes when alleging actual bias. 

Courts often conflate the analysis of bias under the two statutes, deciding to “view judicial interpretations of ‘personal bias or prejudice’ under § 144 as equally applicable to § 455(b)(1).”241

Second, most litigants who file motions for disqualification for actual bias or partiality under § 455(b)(1) also argue that the judge’s impartiality might reasonably be questioned under § 455(a). Because 

demonstrating an appearance of partiality under § 455(a) is easier (and 

implicitly less critical of the subject judge) than demonstrating actual 

bias or prejudice, courts again often decide the issue on § 455(a) 

grounds without ever reaching § 455(b)(1).

The issue of disqualification for bias, while not a common occurrence, still arises occasionally. Disqualification under § 455(b)(1) requires that a litigant present evidence of a “negative bias or prejudice 

[which] must be grounded in some personal animus or malice that the 

judge harbors against him.”242 The standard for determining if such 

bias exists is “whether a reasonable person would be convinced the 

judge was biased.”243 The Fifth Circuit noted that the standard for finding actual bias is objective, and that “it is with reference to the ‘wellinformed, thoughtful and objective observer, rather than the hypersensitive, cynical and suspicious person’ that the objective standard is currently established.”244

In Mann v. Thalacker,

245 the Eighth Circuit was unwilling to imply 

actual bias or prejudice from the judge’s own personal history. After 

his conviction for sexual abuse of a child, the defendant argued, in the 

context of his habeas petition, that the trial judge’s own history of sexual abuse at the hands of his father should have caused him to disqualify himself on the grounds of personal bias. Although § 455(b)(1) does 

not apply to the actions of a state trial judge, the court used it as a 

standard in this case. The court held that reference to the judge’s personal history was insufficient to establish actual bias, although it stated 

241. United States v. Balistrieri, 779 F.2d 1191, 1202 (7th Cir. 1985).

242. Id. at 1201.

243. Hook, 89 F.3d at 355. See also Collins v. Illinois, 554 F.3d 693, 697 (7th Cir. 

2009); Brokaw v. Mercer County, 235 F.3d 1000, 1025 (7th Cir. 2000).

244. Andrade v. Chojnacki, 338 F.3d 448, 462 (5th Cir. 2003) (quoting United 

States v. Jordan, 49 F.3d 152, 156 (5th Cir. 1995)).

245. 246 F.3d 1092 (8th Cir. 2001).
II. Disqualification Under 28 U.S.C. § 455 51

that the defendant’s argument would have been stronger “if the abuse 

the judge suffered as a child bore a closer resemblance to the conduct 

with which [the defendant] was charged.”246

ii. Extrajudicial source of bias

Most circuits have adopted the requirement, based on the Supreme 

Court’s use of the extrajudicial source doctrine for § 455(a),

247 that 

“[b]ias against a litigant must . . . arise from an extrajudicial source” 

for disqualification under § 455(b)(1).

248 Adverse contempt orders and 

other judicial rulings in the same case, for example, are thus not, by 

themselves, sufficient for establishing bias for disqualification under 

§ 455(b)(1).

249 Explaining the application of the extrajudicial source 

doctrine to § 455(b)(1), one district court noted: “In every lawsuit, 

judges make rulings adverse to one or the other party. That these rulings may be unwelcome is simply too commonplace a circumstance to 

support an allegation of bias.”250

The Fifth Circuit held, in Andrade v. Chojnacki,

251 that opinions 

formed in the course of the current proceedings, as well as those based 

on prior judicial proceedings, are “nearly exempt from causing 

recusal,” and can only do so if they “reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.”252 The 

judge’s off-the-record insults and expressions of distaste for several of 

the parties were not enough to meet this high standard because “expressions of impatience, dissatisfaction, and even anger” will not establish the bias or prejudice required by § 455(b)(1).

253

246. Id. at 1097.

247. Liteky v. United States, 510 U.S. 540, 554–55 (1994). For a discussion of this 

case and the extrajudicial source doctrine as it applies to § 455(a), see supra section 

II.B.1.b.ii.

248. Hook, 89 F.3d at 355. See also United States v. Griffin, 84 F.3d 820, 831 (7th 

Cir. 1996).

249. See, e.g., Brokaw v. Mercer County, 235 F.3d 1000, 1025 (7th Cir. 2000).

250. Marion v. Radtke, No. 07-cv-243-bbc, 2009 U.S. Dist. LEXIS 41031 at *14–

15 (W.D. Wis. May 14, 2009) (holding defendant’s motion to disqualify, which was 

based wholly on motions the judge made that were not in defendant’s favor, lacked 

sufficient evidence of actual bias for disqualification under § 455(b)(1)).

251. 338 F.3d 448 (5th Cir. 2003).

252. Id. at 462 (citing Liteky, 510 U.S. at 555–56).

253. Id.
52 Judicial Disqualification: An Analysis of Federal Law

In Grove Fresh Distributors, Inc. v. John Labatt, Ltd.,

254 the Seventh 

Circuit rejected the disqualification arguments of an attorney whom the 

trial judge had found in contempt several times. The attorney had repeatedly violated court orders, including a confidentiality agreement, 

and had misrepresented himself as a party’s counsel after that party 

had dismissed him. The Seventh Circuit found his argument for disqualification without merit because the attorney made “no attempt to 

establish any bias stemming from a personal relationship or prior litigation,” instead relying exclusively on “rulings during the litigation, 

which absent extraordinary circumstances, are not grounds for

recusal.”255 No such extraordinary circumstances were enumerated, 

and the court made clear that “efforts at courtroom administration and 

enforcing compliance with a court order do not amount to an inability 

to render fair judgments.”256

In Williams v. Anderson,

257 a habeas case, the Sixth Circuit held that 

information about the petitioner received by the trial judge during private FBI briefings in his previous role as U.S. attorney was not enough 

to establish bias or prejudice under § 455(b)(1). In the 1970s, the judge 

was part of an investigation into a group of which the petitioner had 

been a member. The court rejected the argument that the judge’s potential knowledge of the petitioner would cause him to rule improperly. As the court explained, “opinions held by judges as a result of 

what they learned in earlier proceedings do not qualify as bias or 

prejudice,” and that information gained in the course of the FBI briefings was “akin to information learned in earlier proceedings.”258 The 

petitioner tried to distinguish the briefings from other “earlier proceedings” on the grounds that the briefings were classified whereas court 

proceedings are matters of public record, but the court again rejected 

this distinction, explaining that “[j]udges often obtain confidential information about defendants at trials that is never shared with the public,” and that the mere private nature of this information does not establish bias or prejudice.

259

254. 299 F.3d 635 (7th Cir. 2002).

255. Id. at 640.

256. Id.

257. 460 F.3d 789 (6th Cir. 2006).

258. Id. at 815.

259. Id.
II. Disqualification Under 28 U.S.C. § 455 53

iii. Bias against nonparties

Actual bias for or against an attorney, witness, or other participant is 

not ordinarily enough to warrant disqualification under § 455(b)(1), 

unless so extreme as to engender bias for or against a party. In Dembowski v. New Jersey Transit Rail Operations, Inc.,

260 a part-time magistrate judge was allowed to continue his representation of a party involved in a suit in the same district in which the magistrate judge 

served his judicial function. The party seeking disqualification of the 

magistrate judge from his role as advocate alleged that the judge and 

jury would be inclined to favor the arguments of the magistrate judge 

because of his status as a member of the judiciary. In reaching its decision denying the motion to disqualify, the district court held that, in 

the context of § 455(b)(1), “potential ‘bias for or against an attorney, 

who is not a party, is not enough to require disqualification unless it 

can also be shown that such a controversy would demonstrate bias for 

or against the party itself.’”261 The court further held that “a judge’s 

acquaintance with a party, an attorney, or a witness without some factual allegation of bias or prejudice, is not sufficient to warrant 

recusal.”262

The Second Circuit held that a judge’s comment on the possibility 

of disbarment proceedings against a party’s attorney does not establish 

the personal bias required by § 455(b)(1). In LoCascio v. United

States,

263 the trial judge, in a hearing not attended by the attorney 

threatened with disbarment, mentioned the possibility of disbarment 

proceedings should the attorney testify as planned. The Second Circuit 

found that, when read in context, the judge’s comment could not “reasonably be construed as exhibiting personal animosity towards [the 

attorney or the defendant],” nor could it be seen as “displaying hostility towards [the defendant’s] claim.”264 The court went on to hold that 

personal bias was not established because the judge’s comment did not 

260. 221 F. Supp. 2d 504 (D.N.J. 2002).

261. Id. at 511 (quoting United States v. Edwards, 39 F. Supp. 2d 692, 699 (M.D. 

La. 1999)).

262. Id. (quoting Bailey v. Broder, No. 94, 1997 WL 73717, at *3 (S.D.N.Y. Feb. 

20, 1997)).

263. 473 F.3d 493 (2d Cir. 2007).

264. Id. at 496–97.
54 Judicial Disqualification: An Analysis of Federal Law

derive from an extrajudicial source or reveal the requisite favoritism or 

antagonism, making disqualification unnecessary.

iv. Knowledge of disputed evidentiary facts

Section 455(b)(1) requires disqualification where judges have prior 

knowledge of disputed facts. The Fifth Circuit reversed a refusal to disqualify where a relative of the judge was a major participant in transactions relating to the defendant’s indictment and “that relative had 

communicated to the judge . . . material facts and her opinions and 

attitudes regarding those facts.”265

In United States v. Alabama,

266 the Eleventh Circuit held that the 

trial judge should have disqualified himself from a lawsuit against Alabama and its state universities where the judge had been a state legislator involved in legislative battles germane to the litigation. The judge 

was “forced to make factual findings about events in which he was an 

active participant.”267

Alabama can be reconciled with Easley v. University of Michigan 

Board of Regents,

268 where the Sixth Circuit rejected the contention that 

knowledge gained by the judge while serving on a law school’s “committee of visitors” required him to disqualify himself from a discrimination suit against the law school. In Easley, the judge’s position did 

not give him knowledge of the events at issue in the litigation.

In United States v. Microsoft Corp.,

269 the D.C. Circuit remanded a 

case to a different trial judge where, among other things, the original 

judge appeared to be influenced in his handling of a case by his private 

reading of a book related to the case. While the court did not explicitly 

cite § 455(b)(1), the facts and holding of the case suggest the relevance 

of this subsection. The court noted that “[t]he book’s allegations are, 

of course, not evidence on which a judge is entitled to rely.”270

The Ninth Circuit held that the trial judge’s decision to revoke the 

bail bonds of bank robbery defendants after the U.S. attorney informed 

the judge about threats to the witnesses’ safety could not constitute a 

265. In re Faulkner, 856 F.2d 716, 721 (5th Cir. 1988).

266. 828 F.2d 1532 (11th Cir. 1987).

267. Id. at 1545.

268. 906 F.2d 1143 (6th Cir. 1990).

269. 56 F.3d 1448 (D.C. Cir. 1995) (Microsoft I).

270. Id. at 1463.
II. Disqualification Under 28 U.S.C. § 455 55

disqualifying fact with regard to the subsequent trial.

271 The fact that 

the judge was made aware of the information in private rather than in 

open court is irrelevant, considering the defense counsel’s refusal of an 

offer to review the information in camera.

In Edgar v. K.L.,

272 the Seventh Circuit extended § 455(b)(1) to information acquired in off-the-record briefings and held that 

§ 455(b)(1) required disqualification where a judge who was briefed 

privately by a panel of experts declined to inform the parties about the 

briefing’s contents. The court acknowledged that § 455 is primarily 

concerned with knowledge gained “outside a courthouse”; however, 

knowledge acquired in a judicial capacity typically “enters the record 

and may be controverted or tested by the tools of the adversary process 

. . . . Off-the-record briefings in chambers, by contrast, leave no trace 

in the record—and in this case the judge has forbidden any attempt at 

reconstruction . . . . This is ‘personal’ knowledge . . . .”273

When the judge simply possesses information generally available to 

the public, however, disqualification is unnecessary. In In re Hatcher,

274

the judge’s son had assisted in the prosecution of a defendant in a case 

related to the case before the judge, and the judge had sat in on the 

trial to observe his son’s performance. The judge “was present only as 

a spectator in the courtroom. He therefore learned nothing . . . that 

any member of the public could not also have learned by attending the 

trial or reading a good newspaper account of its progress. This limited 

exposure is simply not the kind of personal knowledge of disputed evidentiary facts with which § 455(b)(1) is concerned.”275 The Seventh 

Circuit held that disqualification was required under § 455(a), however, 

because the cases were so closely related.

b. Prior association with matter as private practitioner or witness: 

§ 455(b)(2)

Subsection 455(b)(2) requires disqualification “[w]here in private practice [the judge] served as a lawyer in the matter in controversy, or a 

lawyer with whom he previously practiced law served during such as271. United States v. Jackson, 430 F.2d 1113, 1115 (9th Cir. 1970).

272. 93 F.3d 256 (7th Cir. 1996).

273. Id. at 259.

274. 150 F.3d 631 (7th Cir. 1998).

275. Id. at 635.
56 Judicial Disqualification: An Analysis of Federal Law

sociation as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it.”276

In In re Rogers,

277 the Fourth Circuit defined the “matter in controversy” quite broadly. There, defendants were charged with using unlawful means to secure passage of a bill in the state legislature. A former law partner of the trial judge had represented a company in its 

own efforts to get the bill passed. The defendants planned to argue that 

their conduct was no more culpable than that of the company represented by the judge’s former partner, whom they planned to call as a 

witness. Holding that disqualification was required under § 455(b)(2), 

the Fourth Circuit observed that “the actual case before the court consists of more than the charges brought by the government. It also includes the defense asserted by the accused. Here, this defense, in part 

at least, will consist of matters in which the judge’s former partner 

served as lawyer.”278

In United States v. DeTemple,

279 the Fourth Circuit distinguished 

Rogers and held disqualification unnecessary where the judge had represented a creditor of the defendant several years before the current 

charges of bankruptcy fraud. The creditor “played no role in either the 

defense or the prosecution of the case. . . . The connection between 

the judge’s prior professional associations and the case before him is 

far more tenuous here than in Rogers.”280

In Blue Cross & Blue Shield of Rhode Island v. Delta Dental of Rhode

Island,

281 the Rhode Island district court employed a more restrictive 

reading of “matter in controversy.” Although lawyers previously associated with the trial judge had been marginally involved with the current litigation and might conceivably be called to testify, the district 

court ruled that disqualification was not required under § 455(b)(2). In 

so ruling, the court reasoned that “the matter in controversy” referred 

only to “the case that is before the Court as defined by the docket 

276. The corollary to § 455(b)(2) in the Code of Conduct for United States 

Judges is Canon 3C(1)(b). See Appendix, infra.

277. 537 F.2d 1196 (4th Cir. 1976).

278. Id. at 1198.

279. 162 F.3d 279 (4th Cir. 1998).

280. Id. at 284.

281. 248 F. Supp. 2d 39 (D.R.I. 2003).
II. Disqualification Under 28 U.S.C. § 455 57

number attached to that case and the pleadings contained therein.”282

In addition, the court found that the limited context of the testimony 

potentially required of the lawyers in question was such that it precluded them from being considered material witnesses under the 

meaning of the statute, and that the lawyers’ “limited activities do not 

constitute ‘serving as a lawyer’ in the ‘matter in controversy’” under 

§ 455(b)(2).

283

The Ninth Circuit held that disqualification was required where the 

judge’s former law firm represented a nonparty company that faced a 

potential claim for indemnification if the government were found liable. The firm also represented that client in a state court action 

brought by the same plaintiff concerning the same events as before the 

trial court.

284

c. Prior association with matter as governmental employee: 

§ 455(b)(3)

Subsection 455(b)(3) requires disqualification where 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.”285

The Eighth Circuit held that “[i]f an indictment or investigation 

leading directly to the indictment began after a former prosecutor took 

office as a judge, he or she is not considered to have been ‘of counsel’ 

and is not required by § 455 to disqualify himself or herself.”286

In United States v. Arnpriester,

287 the Ninth Circuit held that a judge 

who was formerly a U.S. attorney when the case at hand was under investigation should have disqualified himself from ruling on the appellant’s motion for a new trial. The court noted that its analysis “imputes 

282. Id. at 46.

283. Id. at 47.

284. Preston v. United States, 923 F.2d 731, 734–35 (9th Cir. 1991). Cf. In re

FCC, 208 F.3d 137 (2d Cir. 2000) (per curiam) (holding sua sponte that law firm hired 

to represent debtor on appeal must withdraw from case because it would compromise appellate judge, a member of the panel, who used to be partner at firm).

285. The corollary to § 455(b)(3) in the Code of Conduct for United States 

Judges is Canon 3C(1)(e). See Appendix, infra.

286. United States v. DeLuna, 763 F.2d 897, 908 (8th Cir. 1985).

287. 37 F.3d 466 (9th Cir. 1994).
58 Judicial Disqualification: An Analysis of Federal Law

to the United States Attorney the knowledge and acts of his assistants.”288

In United States v. Silver,

289 the Ninth Circuit held that a trial judge 

who had served as U.S. attorney for the preliminary investigation of the 

defendant’s prior offense need not disqualify himself under 

§ 455(b)(3). The judge had served as U.S. attorney during the first two 

years of a five-year mail fraud investigation of the defendant, conducted more than ten years before the indictment that lead to the current case. In reaching its decision, the Ninth Circuit said “[t]here is no 

factual connection or relationship between the current case and the 

1982 mail fraud case.”290 It further noted that the previous case was referenced only “for purposes of sentencing,” and that the judge “was not 

asked to make any determinations or to render an opinion on the mail 

fraud conviction.”291

The Ninth Circuit distinguished the facts in Arnpriester, explaining 

that in Silver the trial judge had not initiated the current case, but had 

merely been U.S. attorney at the beginning of an investigation of a factually unrelated case involving the same defendant.

The Eleventh Circuit held that a trial judge who served as the attorney of record for one of the parties in prior litigation should have 

disqualified himself under §§ 455(b)(1) and (b)(3).

292 While serving as 

U.S. attorney, the trial judge acted as the attorney of record for the defendant association, the status of which was the subject of the current 

litigation. During his prior representation, the judge filed a brief that 

the party seeking disqualification claimed would likely be used as evidence in the current proceeding. On appeal, the Eleventh Circuit 

found that, “[b]ecause of [the judge’s] involvement in the earlier . . .

litigation, Plaintiff has shown that [the judge] may have knowledge of 

facts in dispute in the present case.”293 Disqualification was therefore 

required because “the record is strong enough to presume personal 

knowledge of facts by virtue of [the judge] having participated as coun288. Id. at 467. The court held that both § 455(a) and § (b) required disqualification in this case.

289. 245 F.3d 1075 (9th Cir. 2001).

290. Id. at 1079.

291. Id. at 1080.

292. Murray v. Scott, 253 F.3d 1308 (11th Cir. 2001).

293. Id. at 1313.
II. Disqualification Under 28 U.S.C. § 455 59

sel of record in [prior] litigation that . . . concerns (that is, might affect) this proceeding.”294

The Seventh Circuit held disqualification was not required where 

the judge presiding over a tax evasion case had previously served as an 

assistant U.S. attorney (AUSA) at the same time, and in the same district, where the defendant had been indicted.

295 The court stated: “As 

applied to judges who were formerly AUSAs, § 455(b)(3) requires some 

level of actual participation in a case to trigger disqualification.”296 Because no evidence of actual participation was presented, the court 

found the judge did not commit plain error in not disqualifying himself.

297

In Clemmons v. Wolfe,

298 the district judge denied a habeas petition 

filed by a petitioner over whose trial that same judge had presided in 

state court, prior to his appointment to the federal bench. The Third 

Circuit concluded that the district judge erred in declining to disqualify 

himself, on the grounds that his impartiality might reasonably be questioned under § 455(a). The court went further, however, and took the 

unusual step of exercising its broad supervisory authority over federal 

proceedings to require that all federal district judges disqualify themselves from habeas corpus proceedings raising issues concerning trials 

or convictions over which the judges presided in their former capacities as state judges. Clemmons was decided under § 455(a), not 

§ 455(b)(3). The corollary to § 455(b)(3) in the Code of Conduct for 

United States Judges—Canon 3C(1)(e)—was amended in 2009 to make 

its applicability to former judicial service explicit, by requiring disqualification when “the judge has served in governmental employment 

and in that capacity participated as a judge (in a previous judicial position), counsel, advisor, or material witness concerning the proceeding 

294. Id.

295. United States v. Ruzzano, 247 F.3d 688 (7th Cir. 2001).

296. Id. at 695 (citing United States v. Boyd, 208 F.3d 638, 647 (7th Cir. 2000); 

Mangum v. Hargett, 67 F.3d 80, 83 (5th Cir. 1995); Kendrick v. Carlson, 995 F.2d 1440, 

1444 (8th Cir. 1993); United States v. Di Pasquale, 864 F.2d 271, 279 (3d Cir. 1988); cf.

United States v. Pepper & Potter, Inc., 677 F. Supp. 123, 126 (E.D.N.Y. 1988)).

297. Ruzzano, 247 F.3d at 696. Because the defendant didn’t request disqualification at trial and raised the issue for the first time on appeal, the Seventh Circuit 

could only review for plain error. Id. at 695.

298. 377 F.3d 322 (3d Cir. 2004).
60 Judicial Disqualification: An Analysis of Federal Law

or has expressed an opinion concerning the merits of the particular 

case in controversy.”299

d. Financial interest in matter: § 455(b)(4) and § 455(f)

i. Disqualification for financial interest

Subsection 455(b)(4) requires disqualification where a judge “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.”300

Section 455(d)(4) defines “financial interest” for the purposes of 

§ 455(b) and provides specific exemptions, such as investment in a mutual fund or ownership of government securities. Note that, apart from 

such exemptions, even the smallest financial interest (e.g., ownership 

of a single share of stock) requires disqualification. Under § 455(c), it is 

a judge’s duty to keep abreast of all of his or her financial interests.

301

Courts of appeals have interpreted “financial interest” to refer to a 

direct interest, not a “remote or contingent” interest.

302 In a case involving the constitutionality of a “privilege” tax as applied to federal 

judges working within Jefferson County, Alabama, the Eleventh Circuit 

raised the issue of disqualification sua sponte where “nine of the en 

banc panel’s twelve judges [had] sat in Jefferson county at least one 

day—and some a few days more.”303 Because the city had never tried to 

collect the privilege tax from a federal judge who did not have chambers in the county, and none of the Eleventh Circuit judges had cham299. See Appendix, infra (emphasis added).

300. The corollary to § 455(b)(4) in the Code of Conduct for United States 

Judges is Canon 3C(1)(c). See Appendix, infra.

301. Fed. R. Civ. P. 7.1, Fed. R. Crim. P. 12.4, and Fed. R. App. P. 26.1 require a 

nongovernmental corporate party to a proceeding to file a statement identifying any 

parent corporation or publicly held corporation that owns 10% or more of its stock. 

This disclosure is meant to aid judges in decisions about disqualification under 

Canon 3C(1)(c) and § 455(b)(4). Under Fed. R. Crim. P. 12.4, the government must 

also file a statement identifying an organizational victim of a crime and providing the 

same information on a corporate victim that a nongovernmental corporate party 

must file.

302. See, e.g., In re Va. Elec. & Power Co., 539 F.2d 357, 366–67 (4th Cir. 1976).

303. Jefferson County v. Acker, 92 F.3d 1561, 1581 (11th Cir. 1996). The issue of 

disqualification was discussed in an appendix to the opinion.
II. Disqualification Under 28 U.S.C. § 455 61

bers in Jefferson County, the court held that any possible interest the 

judges may have was too remote and contingent to constitute a financial interest.

304

Similarly, in an antitrust case alleging price-fixing by oil companies, all of the trial judges in the district were residents of New Mexico 

whose future utility bills could have been affected by the outcome of 

the litigation. The Tenth Circuit held that this was too remote and contingent to qualify as a “financial interest” under § 455(b)(4).

305 In each 

case, the courts considered the potential benefit an “other interest” 

under the statute, which meant, under § 455(b)(4), that disqualification 

was required only if this “other interest” would be “substantially affected by the outcome of the proceeding.”

In a Second Circuit case involving an attack on an abortion clinic, 

the defendant moved for disqualification on the grounds that the 

judge’s wife had made financial contributions to the victim clinic and 

so had created a financial interest under § 455(b)(4).

306 The court 

noted that “[r]ecusal is not required . . . when the alleged interest or 

bias on the part of the judge or his spouse is ‘not direct, but remote, 

contingent, or speculative.’”307 In affirming the trial judge’s denial of 

the disqualification motion, the court explained that the clinic in question, although named as the victim, was not a party to the litigation, 

and that “contributions made by [the judge’s] wife to [the clinic] did 

not constitute a financial interest in the organization.”308

In Draper v. Reynolds,

309 the plaintiff in a 42 U.S.C. § 1983 civil suit 

sought to disqualify the trial judge on the grounds that the judge 

owned property in the same county that the defendant was deputy 

sheriff. The Eleventh Circuit rejected the plaintiff’s argument that the 

304. Id. at 1582. The court also held that disqualification would be contrary to 

the rule of necessity. Id. at 1583, 1584.

305. In re New Mexico Natural Gas Antitrust Litig., 620 F.2d 794, 796 (10th Cir. 

1980).

306. United States v. Arena, 180 F.3d 380 (2d Cir. 1999).

307. Id. at 398 (quoting United States v. Morrison, 153 F.3d 34, 48 (2d Cir. 

1998)). See also Sensley v. Albritton, 385 F.3d 591, 600 (5th Cir. 2004) (holding trial 

judge not disqualified even though his wife’s position at district attorney’s office 

might conceivably be indirectly affected by outcome of case, because such an interest was “remote, contingent or speculative”).

308. Id.

309. 369 F.3d 1270 (11th Cir. 2004).
62 Judicial Disqualification: An Analysis of Federal Law

judge, who previously filed a zoning application in the county, would 

likely side with his own financial interests and hence the county in violation of § 455(b)(4). The court held that a property interest in a given 

county is grounds for disqualification only if “[that county and its 

commissioners] are parties to the case and [the judge’s] zoning application is currently pending before [that county and its commissioners].”310

The Fifth Circuit held that where the judge or someone in his family is a member of a class seeking monetary relief, § 455(b)(4) imposes 

a “per se rule” requiring disqualification.

311 The Fourth Circuit, in 

contrast, held that a trial judge who, as a rate-paying customer of a 

utility company involved in the case before him, had the possibility of 

recovering a $100 refund as a putative member of the class of plaintiffs, 

should not have disqualified himself under § 455(b)(4).

312 The court 

classified the potential refund as an expectancy interest, and as such it 

was not a “financial interest,” but rather “some other interest” under 

the language of § 455(b)(5). It further explained that the words “however small” apply only to financial interests under § (b)(4), and that in 

addressing other interests, a judge “must necessarily consider the remoteness of the interest and its extent or degree.”313 The Fourth Circuit

held that the possible refund was “de minimis” and therefore not 

grounds for disqualification.

314

In a class action lawsuit arising from the damage caused by Hurricane Katrina, a New Orleans district judge refused to disqualify himself 

on the grounds that possible inconvenience experienced by the judge 

and his family gave him a potential financial interest in the outcome of 

the proceedings under § 455(b)(4).

315 In its disqualification analysis, 

the district court referred to the Fifth Circuit’s statement that “[a] re310. Id. at 1280.

311. Tramonte v. Chrysler Corp., 136 F.3d 1025, 1029–30 (5th Cir. 1998).

312. In re Va. Elec. & Power Co., 539 F.2d 357 (4th Cir. 1976).

313. Id. at 368.

314. Id. But see Gordon v. Reliant Energy, Inc., 141 F. Supp. 2d 1041, 1043–44 

(S.D. Cal. 2001) (holding disqualification required of a judge who, as wholesale customer of defendant electrical company, had “legal claims identical to those raised by 

plaintiffs,” which qualified both as financial and other claims under language of 

§ 455(b)(4)).

315. Berthelot v. Boh Bros. Constr. Co., L.L.C., 431 F. Supp. 2d 639 (E.D. La. 

2006).
II. Disqualification Under 28 U.S.C. § 455 63

mote, contingent, or speculative interest is not a disqualifying financial 

interest under the statute.”316 Because the judge and his family had suffered no financial loss or property damage as a result of Katrina, any 

interest or potential class membership based on possible inconvenience was, at best, “ephemeral, inchoate, and bordering on the metaphysical,” and so could not justify disqualification.

317

In United States v. Rogers,

318 a mail fraud case, the trial judge was 

“one of millions of stockholders” in a defrauded bank. Holding that

disqualification was not required under § 455(b)(4), the Ninth Circuit 

explained that the bank, which was the victim of the crime, is not a 

party to the proceeding under § 455(b)(4).

319 Moreover, “stock ownership in the corporate victim of a crime cannot be deemed a financial 

interest in the subject matter in controversy” under § 455(b)(4).

320

ii. Divestiture as a cure for financial interest disqualification

The conflicts enumerated in § 455(b) require automatic disqualification—even if the judge believes he or she is capable of impartial judgment; even if he or she believes that a reasonable person would not 

question his or her impartiality; and even if the parties are willing to 

waive any objections. Section 455(f), however, provides an opportunity 

for the judge to “cure” certain § 455(b) conflicts.

Notwithstanding the preceding provisions of this section, if any justice, 

judge, magistrate, 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, bankruptcy judge, spouse or 

316. Id. at 648 (citing In re Placid Oil Co., 802 F.2d 783, 786–87 (5th Cir. 1986)).

317. Id. at 649–50.

318. 119 F.3d 1377 (9th Cir. 1997).

319. Id. at 1384. See also United States v. Aragon, No. 99-50341, 2000 U.S. App. 

LEXIS 15423 at *5 (9th Cir. June 29, 2000).

320. Rogers, 119 F.3d at 1384. Disqualification was not required under § 455(a) 

either, the court ruled.
64 Judicial Disqualification: An Analysis of Federal Law

minor child, as the case may be, divests himself or herself of the interest that provides the grounds for disqualification.

321

A number of courts of appeals have upheld and applauded the use 

of this subsection to prevent disqualification.

322 In Kidder, Peabody & 

Co. v. Maxus Energy Corp.,

323 the judge sold stock as soon as he 

learned that the corporation in which he owned stock held a large percentage of the stock of one of the parties. The Second Circuit noted 

that the judge’s curative action pursuant to § 455(f) prevented the waste 

of “three years of the litigants’ time and resources and substantial judicial efforts.”324

In United States v. Lauersen,

325 the trial judge in an insurance fraud 

case disclosed his ownership of a small number of shares in one of the 

victim insurance companies eligible to receive monetary restitution as 

a result of the judge’s ruling in the case. Because the recovery of restitution would affect the price of the shares in question, the company 

agreed to waive its right to monetary recovery so as to allow the judge 

to continue on the case with no financial conflict. The Second Circuit 

held that what would otherwise have provided a basis for disqualification under § 455(b)(4) was not a financial interest in this case because 

the decision by the company in question to “forgo its restitution claim” 

served to “eliminate such a basis” under § 455(f).

326

321. 28 U.S.C. § 455(f) (1988).

322. See, e.g., In re Initial Pub. Offering Sec. Litig., 174 F. Supp. 2d 70, 80–81 

(S.D.N.Y. 2001) (denying defendants’ motion for disqualification and holding that, 

under § 455, “a judge . . . assigned a case in which she has a financial or other curable 

conflict . . . may continue to preside if she promptly eliminates it”) (criticizing Tramonte v. Chrysler Corp., 136 F.3d 1025 (5th Cir. 1998)); Key Pharm., Inc. v. Mylan 

Labs., Inc., 24 F. Supp. 2d 480 (W.D. Pa. 1998) (judge divested stock in parent corporation and declined to disqualify himself, noting that disqualification would be 

mandatory except for the provisions of § 455(f)). But see Gordon v. Reliant Energy, 

Inc., 141 F. Supp. 2d 1041 (S.D. Cal. 2001) (relying on Tramonte) (both cases holding 

disqualifying interests incurable even if discovered and removed at beginning of 

case).

323. 925 F.2d 556 (2d Cir. 1991).

324. Id. at 561.

325. 348 F.3d 329 (2d Cir. 2003).

326. Id. at 338.
II. Disqualification Under 28 U.S.C. § 455 65

In In re Certain Underwriter,

327 the district judge discovered—after 

being assigned to hear a class action antitrust suit—that she owned 

shares in two of the defendant corporations, making her a putative 

class member. The judge immediately informed the parties of the conflict, divested herself of the shares, and opted out of the class. She denied the subsequent § 455(b)(4) disqualification motion, and the Second Circuit affirmed, stating that § 455(f) was created to allow the continued participation of a “district judge with a minor interest in a class 

action lawsuit discovered after assignment, who quickly divested herself 

of the conflicting interest.”328

In a class action copyright case, two of the reviewing Second Circuit judges declined to disqualify themselves despite their membership 

in the relevant class for five months during their work on the case.

329

The class included anyone with copyrighted material posted on the 

electronic databases LexisNexis and Westlaw, among others. Having 

promptly divested themselves of any legal or financial claim as soon as 

they realized that they were members in the class, the judges relied on 

§ 455(f) to justify their decision not to disqualify themselves. As they 

explained, “a reasonable person would not have known that we were 

class members” before the date on which they discovered—and 

promptly divested themselves of—the interest.

330 Also relevant to their 

refusal to disqualify was the fact that “many—if not most—other judges 

are similarly situated,” including all but one of the other members of 

the Second Circuit, as well as (presumably) all the members of the Supreme Court.

331

Some courts, however, have construed the “divestiture cure” 

strictly. The Sixth Circuit held that disqualification was required in a 

case where the trial judge’s daughter was employed by the law firm 

representing a party before the judge, even though the daughter resigned from the law firm.

332 It observed that § 455(f) refers to the judge 

himself or herself, his or her spouse, or a minor child residing with the 

327. 294 F.3d 297 (2d Cir. 2002).

328. Id. at 304.

329. In re Literary Works in Elec. Databases Copyright Litig., 509 F.3d 136 (2d 

Cir. 2007).

330. Id. at 142.

331. Id. at 142–43.

332. In re Aetna Cas. & Sur. Co., 919 F.2d 1136 (6th Cir. 1990).
66 Judicial Disqualification: An Analysis of Federal Law

judge. This “suggests that Congress intended to exclude the types of 

cure not permitted by this provision, for Congress had the opportunity 

to enact a broader amendment than it devised with section 455(f).”333

The Second Circuit held that a district judge who had unknowingly 

possessed a substantial financial stake in one of the plaintiffs during a 

bench trial could not cure this conflict by divesting himself of the interest on remand.

334 Although the court based its decision on the creation of an appearance problem under § 455(a), its analysis is relevant 

to the divestment cure of a § 455(b)(4) conflict as well. The court held 

that “where an earlier ‘appearance’ of a potentially disqualifying interest mandated recusal under Section 455(a), a divestiture years later 

cannot cure a judge’s presiding over significant proceedings in a 

case—here rendering a decision after a bench trial—in the intervening

years.”335

e. Other interests of judge and judge’s family: § 455(b)(5)

Section 455(b)(5) requires a judge’s disqualification when:

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.

336

i. Where judge or relatives are parties or associated with parties

Under § 455(b)(5)(i), a judge shall disqualify himself where “[h]e or 

his spouse, or a person within the third degree of relationship to either 

of them, or the spouse of such a person . . . [i]s a party to the proceeding, or an officer, director, or trustee of a party.” Based on this subsection, the Tenth Circuit held that a trial judge should have disqualified 

333. Id. at 1147 (Kennedy, J., concurring).

334. Chase Manhattan Bank v. Affiliated FM Ins. Co., 343 F.3d 120 (2d Cir. 

2003).

335. Id. at 131.

336. The corollary to § 455(b)(5) in the Code of Conduct for United States 

Judges is Canon 3C(1)(d). See Appendix, infra.
II. Disqualification Under 28 U.S.C. § 455 67

himself from hearing habeas claims challenging state court cases in 

which his uncle had participated as a criminal appeals judge. His uncle, who had since died, was nonetheless a named defendant in the 

claims, thus requiring disqualification pursuant to § 455(b).

337

The District Court of Puerto Rico held that § 455(b)(5) did not 

reach the father of the judge’s son-in-law, who was on the board of 

directors of one of the named parties.

338 The Checklist for Financial 

and Other Conflicts contained within the Code of Conduct for United 

States Judges identified “the following blood relatives as falling within 

the third degree relationship: parent, child, grandchild, great grandparent, great grandchild, sister, brother, aunt, uncle, niece, and

nephew.”339 Regarding this as an exclusive list of possible third-degree 

relationships, the court concluded that a judge could not disqualify 

himself under § 455(b)(5) without establishing the existence of such a

relationship.

340

ii. Where judge or relatives acting as lawyer

Subsection 455(b)(5)(ii) requires disqualification where the judge “or 

his spouse, or a person within the third degree of relationship to either 

of them, or the spouse of such a person . . . is acting as a lawyer in the 

proceeding.” The Seventh Circuit held that a judge’s attendance at a 

related trial, to watch his son act as assistant counsel, did not require 

disqualification under § 455(b)(1).

341 The defendant also sought disqualification under § 455(b)(5)(ii). Although the son, who was a thirdyear law student, “acted as a lawyer,” the court held that disqualification was not required under this subsection because the proceeding 

was not the same as that involving the defendant. It involved a defendant charged with conduct arising from the same conduct as the defendant in the case at bar, but the two men were not codefendants. “No 

337. Harris v. Champion, 15 F.3d 1538, 1571 (10th Cir. 1994).

338. Oriental Fin. Group, Inc. v. Fed. Ins. Co., Inc., 467 F. Supp. 2d 176 (D.P.R. 

2006).

339. Id. at 179.

340. Id.

341. In re Hatcher, 150 F.3d 631 (7th Cir. 1998), discussed supra text accompanying notes 116–18 and 274–75.
68 Judicial Disqualification: An Analysis of Federal Law

matter how closely related the two cases were factually or legally . . . 

the fact remains that they were separate ‘proceedings.’”342

In similar circumstances, the Sixth Circuit, sitting en banc, required disqualification. In In re Aetna Casualty & Surety Co.,

343 seven 

claims against an insurance company were consolidated for trial, and 

the trial judge initially disqualified himself because his daughter’s law 

firm represented four of the claimants. The judge later separated the 

cases and planned to try the three claims in which his daughter’s firm 

was not involved. On mandamus petition, the court reversed because 

the cases remained intimately connected: “A decision on the merits of 

any important issue in any of the seven cases . . . could . . . constitute 

the law of the case in all of them, or involve collateral estoppel, or 

might be highly persuasive as a precedent.”344 The court did not specify whether it based its decision on § 455(a) or § 455(b)(5)(ii), but a 

concurring opinion, joined by seven judges, emphasized that there was 

an actual conflict of interest pursuant to § 455(b)(5) as well as an appearance of partiality.

345

A proposed substitution or addition of counsel by one of the parties 

may create a conflict of interest requiring disqualification of the judge

under § 455(b). The Eleventh Circuit held that, in such a case, the court 

may deny the request for new counsel, even apart from evidence or 

suspicion that it is made to spark disqualification, if it would cause undue delay. However, a showing of “overriding need” for the new counsel “would trump both time delay and the loss of prior judicial activity.”346 Where the defendants retained the judge’s brother-in-law six 

years after the complaint was filed, the Fifth Circuit remanded for a determination of whether the primary motive in his hiring had been to 

disqualify the judge. The court held that “a lawyer may not enter a case 

for the primary purpose of forcing the presiding judge’s recusal.”347

Otherwise, it observed, “a litigant could in effect veto the allotment and 

342. Id. at 637. The court found that disqualification was required under 

§ 455(a), which illustrates that the appearance of impropriety may require disqualification even absent ground for disqualification specifically enumerated in § 455(b).

343. 919 F.2d 1136 (6th Cir. 1990).

344. Id. at 1143.

345. Id. at 1147.

346. Robinson v. Boeing Co., 79 F.3d 1053, 1056 (11th Cir. 1996).

347. McCuin v. Tex. Power & Light Co., 714 F.2d 1255, 1265 (5th Cir. 1983).
II. Disqualification Under 28 U.S.C. § 455 69

obtain a new judge by the simple expedient of finding one of the 

judge’s relatives who is willing to act as counsel . . . .”348

iii. Where judge or relatives have an interest that could be 

substantially affected

Subsection 455(b)(5)(iii) states that a judge must disqualify himself 

“where 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 known 

by the judge to have an interest that could be substantially affected by 

the outcome of the proceeding.” A recurring problem implicating this 

section has arisen when relatives of the judge are employed by a law 

firm representing a party in litigation before the judge. In 1993, seven 

members of the Supreme Court, each with relatives employed by law 

firms, issued a letter responding to this concern.

349 The justices noted 

that in cases where a relative appears before the judge as counsel, 

§ 455(b)(5)(ii) requires disqualification. Since Congress could have,

but did not, broaden this subsection to require disqualification whenever a relative is affiliated with a law firm that appears before a judge, 

the justices opined that Congress must not have regarded so broad a 

disqualification as necessary.

350 That, in turn, refuted categorical assertions under § 455(a) that a judge’s impartiality might reasonably be 

questioned whenever a firm that employs one of the judge’s relatives 

appears before him or her. And in the minds of the justices, it likewise 

refuted categorical claims that any lawyer–relative at the firm possessed 

an interest in the case under § 455(b)(5)(iii) sufficient to require disqualification. The signatories to the letter nonetheless indicated that 

they would disqualify themselves from any case in which a relative held 

a partnership interest in a firm appearing before the Court, unless the 

Court received assurances from the firm that the relative would not 

share in profits derived from the case. Salaried employees, in contrast, 

did not share in the profits of the firm and so had no significant interest in the outcome of cases heard by the Court.

The courts of appeals appear to concur that disqualification is unnecessary when a relative is simply a salaried employee of the firm that 

348. Id. at 1264.

349. Supreme Court Statement of Recusal Policy, 114 S. Ct. (Orders Section, 

p. 52) (Nov. 1, 1993).

350. Id. at 53.
70 Judicial Disqualification: An Analysis of Federal Law

appears before the court. For example, the Eighth Circuit found disqualification unnecessary in a case in which a law firm representing a 

party before the judge had hired the judge’s daughter, who worked for 

the firm as a law clerk and later accepted a permanent job offer as associate starting in the fall. The court said, “an employment relationship 

between a party and a judge’s son or daughter does not per se necessitate a judge’s disqualification.”351 The issue is fact-dependent, and the 

facts in this case didn’t show an actual conflict under § 455(b)(iii).

352

The daughter was not and would not, as a future employee of the law 

firm, be involved in the present litigation. She “was to be a salaried 

employee . . . not a partner whose income is directly related to the 

profit margin of the firm and could be substantially affected by the 

outcome of this case.”353 Finally, the firm was only one of many firms

representing the parties, and its share of any damages almost certainly 

wouldn’t affect the salary or benefits of a first-year associate. Similarly, 

in Southwestern Bell Co. v. FCC,

354 a court of appeals judge found that 

his son’s employment as a nonmanagement entry-level computer programmer for an intervenor in the case on appeal did not require the 

judge’s disqualification from the panel hearing the appeal.

The circuits are divided, however, on whether a relative of the 

judge who is a partner at a firm in litigation before the judge has an 

interest in the outcome that is sufficient to trigger the need for disqualification. In Potashnick v. Port City Construction Co.,

355 the Fifth Circuit 

adopted a per se rule requiring disqualification where a relative of the 

judge is a partner in a law firm representing a party in the case: 

“[W]hen a partner in a law firm is related to a judge within the third 

degree, that partner will always be ‘known by the judge to have an interest that could be substantially affected by the outcome’ of a proceeding involving the partner’s law firm.”356

351. In re Kan. Pub. Employees Ret. Sys., 85 F.3d 1353, 1364 (8th Cir. 1996).

352. Id. The court also held that there was no appearance of a conflict of interest in violation of § 455(a). Id. at 1365.

353. Id. at 1364.

354. 153 F.3d 520 (8th Cir. 1998).

355. 609 F.2d 1101 (5th Cir. 1980).

356. Id. at 1113 (quoting § 455(b)(5)(iii)).
II. Disqualification Under 28 U.S.C. § 455 71

However, the Second Circuit explicitly rejected this per se approach in Pashaian v. Eccelston Properties, Ltd.

357 It found disqualification unnecessary where a partner in the law firm representing the defendant was married to the sister of the judge’s wife. “It would simply 

be unrealistic to assume . . . that partners in today’s law firms invariably ‘have an interest that could be substantially affected by the outcome of’ any case in which any other partner is involved.”358 The trial 

court had noted that the law firm in question had sixty partners and 

gross revenue in excess of $100 million. Moreover, the case was not 

likely to affect the firm’s reputation. The judge had concluded that his 

sister-in-law’s interest would not be “substantially affected” by the outcome of the case, and the court of appeals agreed.

In a Fifth Circuit false advertising case,

359 the district judge was not 

disqualified even though her father-in-law was a retired partner in the 

firm representing the defendants. The judge’s alleged interest in the 

proceeding under § 455(b)(5)(iii) was connected to the fact that since 

her father-in-law’s death, the firm had been paying her husband death 

benefits that were adjustable based on the salaries of partners within 

the firm. The Fifth Circuit held that this interest was too remote to constitute a disqualifying financial interest because “the Consumer Price 

Index always served as a ceiling on the adjustment to which [the 

judge’s father-in-law] was entitled,” making any interest the judge had 

in the outcome of the case so small as to be insignificant.

360

In Sensley v. Albritton,

361 the plaintiffs moved to disqualify the trial 

judge, whose wife was employed as an assistant district attorney in the 

office representing the defendants, though she herself was in no way 

involved in the case. The plaintiffs, relying on § 455(b)(5)(iii), alleged 

that the outcome of the case might have an indirect effect on the 

judge’s wife’s ongoing employment in the office, in the event that the 

district attorney were to lose political popularity by losing the case. 

The Fifth Circuit found the plaintiffs’ allegations unconvincing because 

“they are only able to make this argument by layering several specula357. 88 F.3d 77 (2d Cir. 1996).

358. Id. at 83 (quoting § 455(b)(5)(iii)).

359. IQ Prods. Co. v. Pennzoil Prods. Co., 305 F.3d 368 (5th Cir. 2002).

360. Id. at 378.

361. 385 F.3d 591 (5th Cir. 2004).
72 Judicial Disqualification: An Analysis of Federal Law

tive premises on top of one another to reach a speculative conclusion.”362

In a case concerning the constitutionality of state taxation practices,

363 the Tenth Circuit concluded that § 455(b)(5) did not require

disqualification even though the trial judge’s son’s father-in-law was 

state governor. It found that the governor was not within the third degree of relationship required by § 455(b)(5). In addition, the court rejected the idea that the governor had an interest in the outcome of the 

suit because it was not “alleged that [the governor] has a personal or 

financial interest in the outcome of this litigation,” and “[a]ny political 

interest that [the governor] may have in the outcome of this case is filtered through the State.”364

iv. Where judge or relatives likely to be material witnesses

Subsection 455(b)(5)(iv) states that a judge must disqualify himself 

where “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 to the 

judge’s knowledge likely to be a material witness in the proceeding.”

In United States v. Robinson,

365 the Eighth Circuit ruled that the trial 

judge’s failure to disqualify himself under § 455(b)(5)(iv) when his 

nephew was one of thirty-four witnesses testifying on the same subject 

was harmless error. The court declined to reach the issue of whether 

the nephew was a material witness, holding that even if he was, the 

judge’s failure to disqualify was harmless. The court explained that, 

“[a]s in other areas of the law, there is surely room for harmless error 

committed by busy judges who inadvertently overlook disqualifying

circumstances.”366

C. Disqualification procedure

By its terms, § 455 simply states that “[a] judge shall disqualify himself” 

under the circumstances specified. In so stating, it obligates disqualifi362. Id. at 600.

363. Higganbotham v. Oklahoma, 328 F.3d 638 (10th Cir. 2003).

364. Id. at 645.

365. 439 F.3d 777 (8th Cir. 2006).

366. Id. at 779 (quoting Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 

847, 862 (1988)).
II. Disqualification Under 28 U.S.C. § 455 73

cation regardless of whether a motion to disqualify has been filed. Accordingly, the disqualification process may be triggered by a judge on 

his or her own initiative, or by a party, on motion.

1. Investigating disqualification claims

United States v. Morrison367 addressed the question whether a trial 

judge, asked to disqualify herself based on conflict of interest, may investigate the matter. When the defendant sought disqualification based 

on an alleged adverse business relationship between himself, the 

judge’s husband, and a friend of the judge, the judge asked her husband and friend to review the materials submitted in the defendant’s 

motion. Both the judge’s husband and friend stated that the allegations 

were false, and denied any relationship with the defendant. Accordingly, the judge declined to disqualify herself. The Second Circuit 

noted that “it was not irregular for [the judge] to ascertain her husband’s and friend’s possible involvement with the defendant simply by 

asking them, in a reasonable effort to confirm that [defendant’s] incredible claims were indeed not factual.”368

Conversely, when the trial judge does not adequately investigate 

and disclose potential grounds for disqualification, the judge’s ignorance of those grounds does not eliminate the potential conflict. In 

Chase Manhattan v. Affiliated FM Insurance,

369 Chemical Bank merged 

with The Chase Manhattan Bank just prior to the case being assigned to 

the district judge. The newly merged entity used the Chase name, while 

counsel and the court used the Chemical Bank name to refer to the 

plaintiff. As a consequence, the district judge was unaware that his 

stock in Chase actually meant he had a financial interest in the plaintiff.

370 Three years later and on remand, the judge became aware of the 

interest and immediately divested himself of his stock.

371 Although it 

could not be established that the judge was in fact aware of his financial interest, the Second Circuit concluded that “a reasonable person 

knowing the pertinent facts” would conclude the judge was aware, 

367. 153 F.3d 34 (2d Cir. 1998).

368. Id. at 48 n.4.

369. 343 F.3d 120 (2d Cir. 2003).

370. Id. at 123.

371. Id.
74 Judicial Disqualification: An Analysis of Federal Law

which created the appearance of partiality under § 455(a).

372 The appropriate remedy was the vacatur of the district court’s judgment 

awarding damages to Chemical Bank.373

In a variation on this theme, the Sixth Circuit clarified that a litigant has no obligation to investigate possible bases for disqualification.

374 After a trial judge learned of a conflict, he transferred the case 

to another judge. Faced with deciding whether a prior dispositive ruling by the first judge should be allowed to stand, the second judge 

noted that the disqualification motion had been filed after the judge’s 

adverse ruling, and stated that “the Court refuses to reward [the 

movant] or encourage this trend.”375 She further observed that “litigants have a duty to investigate and inform the court of any perceived 

biases before the court and the parties invest time and expense in a

case.”376 The Sixth Circuit rejected this analysis, stating:

We believe instead that litigants (and, of course, their attorneys) should 

assume the impartiality of the presiding judge, rather than pore 

through the judge’s private affairs and financial matters. Further, 

judges have an ethical duty to “disclose on the record information 

which the judge believes the parties or their lawyers might consider 

relevant to the question of disqualification.” Porter v. Singletary, 49 

F.3d 1483, 1489 (11th Cir. 1995). . . . [The judge] possibly did not consider the matter sufficiently relevant to merit disclosure, but his nondisclosure did not vest in [the parties] a duty to investigate him.

377

2. Waiver of disqualification: § 455(e)

Pursuant to 28 U.S.C. § 455(e), waiver of a ground for disqualification 

based on § 455(a) “may be accepted provided it is preceded by a full 

372. Id. at 130.

373. Id. at 132–33.

374. Am. Textile Mfrs. Inst., Inc. v. Limited, Inc., 190 F.3d 729 (6th Cir. 1999).

375. Id. at 742.

376. Id.

377. Id. See also In re Initial Pub. Offering Sec. Litig., 174 F. Supp. 2d 61 

(S.D.N.Y. 2001). In an ongoing class action suit alleging widespread securities violations, the plaintiffs sought to present expert testimony by law professors explaining 

why the judge should disqualify himself. The court held that where the facts are 

undisputed, expert opinion on a disqualification motion is not acceptable. Id. at 66–

67. See also United States v. Eyerman, 660 F. Supp. 775, 781 (S.D.N.Y. 1987) (same).
II. Disqualification Under 28 U.S.C. § 455 75

disclosure on the record of the basis for disqualification”; waiver of 

disqualification under § 455(b) is not permissible.

378

Some courts of appeals have recognized waivers pursuant to 

§ 455(e).

379 In Perkins v. Spivey,380 the trial judge fully disclosed the potential conflict arising from his law clerk accepting an employment offer from a firm that occasionally represented one of the parties to the 

lawsuit. Counsel for both parties elected to proceed, and expressed no 

concern for the continued participation of the law clerk.

381 The Eighth 

Circuit found that where counsel expressly assented to the clerk’s participation and failed to seek the judge’s disqualification in a timely 

manner after disclosure, the parties effectively waived the grounds for 

the judge’s disqualification.

382

The Eleventh Circuit noted, however, that “[w]hile it is . . . permissible for a judge to accept a waiver of recusal, we believe this option 

should be limited to marginal cases and should be exercised with the 

utmost restraint.”383 Finding that the defendant did not validly waive 

his disqualification claim even though he was apprised of the potential 

disqualifying circumstance and did not seek disqualification, the Eleventh Circuit held that, as a general rule, “a federal judge should reach

his own determination [on disqualification], without calling upon 

counsel to express their views. . . . The too frequent practice of advising counsel of a possible conflict, and asking counsel to indicate their 

approval of a judge’s remaining in a particular case is fraught with potential coercive elements which make this practice undesirable.”384

378. 28 U.S.C. § 455(e) (1988). The corollary to § 455(e) in the Code of Conduct 

for United States Judges is Canon 3D. See Appendix, infra.

379. See, e.g., United States v. Rogers, 119 F.3d 1377, 1382 (9th Cir. 1997); In re

Cargill, 66 F.3d 1256, 1261 (1st Cir. 1995); United States v. Nobel, 696 F.2d 231, 236–37 

(3d Cir. 1982).

380. 911 F.2d 22 (8th Cir. 1990).

381. Id. at 33.

382. Id.

383. United States v. Kelly, 888 F.2d 732, 745 (11th Cir. 1989).

384. Id. at 745–46 (quoting In re Nat’l Union Fire Ins. Co., 839 F.2d 1226, 1231 

(7th Cir. 1988) (quoting Resolution L, Judicial Conference of the United States, Oct. 

1971)).
76 Judicial Disqualification: An Analysis of Federal Law

Failure to comply with the procedural requirements for disclosure 

under § 455(e) for waiver of disqualification can result in reversal.

385 In 

Barksdale v. Emerick,

386 the trial court rejected a “belated” disqualification motion, explaining in its order that the court “order disclosed to 

counsel that one of its law clerks was related to a Defendant party 

herein at the July 8, 1986 status conference and counsel voiced no objections.”387 Quoting § 455(e), the Sixth Circuit reversed, noting that 

“[t]here is no disclosure ‘on the record’ and therefore no properly obtained ‘waiver.’”388 The court went on to say that § 455(e)’s disclosure 

and waiver requirements “must be strictly construed.”389

3. Timeliness of disqualification motion

Unlike § 144, § 455 has no explicit requirement for a “timely” affidavit.

Most circuits, however, require that a motion for disqualification be 

brought “at the earliest moment after knowledge of the facts demonstrating the basis for such disqualification.”390 And all the circuits that 

have considered the issue agree that a party may not withhold “a 

recusal application as a fall-back position in the event of adverse rulings on pending matters.”391 These circuits have held that the timeli385. See, e.g., Hall v. Small Bus. Admin., 695 F.2d 175, 180 (5th Cir. 1983) (holding

§ 455(e) waiver not valid where magistrate judge “failed fully to disclose the basis on 

which a reasonable person might ‘harbor doubts about the magistrate’s impartiality’”; vacating lower court’s judgment) (quoting Potashnick v. Port City Constr. Co., 

609 F.2d 1101, 1111 (5th Cir. 1980)).

386. 853 F.2d 1359 (6th Cir. 1988).

387. Id. at 1361.

388. Id. (Contie, J., dissenting).

389. Id. Accord United States v. Murphy, 768 F.2d 1518, 1538–39 (7th Cir. 1985) 

(disclosure must be on record).

390. Travelers Ins. Co. v. Liljeberg Enters., Inc., 38 F.3d 1404, 1410 (5th Cir. 

1994). See also Apple v. Jewish Hosp. & Med. Ctr., 829 F.2d 326, 333 (2d Cir. 1987). 

Accord Pontarelli v. Stone, 978 F.2d 773, 775 (1st Cir. 1992); United States v. Barnes, 

909 F.2d 1059, 1071 (7th Cir. 1990); United States v. Barrett, 111 F.3d 947, 951–52 

(D.C. Cir. 1997) (citing cases); In re Nat’l Union Fire Ins. Co., 839 F.2d 1226, 1232 (7th 

Cir. 1988).

391. In re IBM Corp., 45 F.3d 641, 643 (2d Cir. 1995). See also Polaroid Corp. v. 

Eastman Kodak Co., 867 F.2d 1415, 1418–21 (Fed. Cir. 1989). But see United States v. 

Tucker, 78 F.3d 1313, 1324 (8th Cir. 1996) and United States v. Microsoft Corp., 253 

F.3d 34, 109 (D.C. Cir. 2001).
II. Disqualification Under 28 U.S.C. § 455 77

ness requirement applies to § 455(b) as well, even though disqualification under that section cannot be waived.

392 “[A] party having information that raises a possible ground for disqualification cannot wait until 

after an unfavorable judgment before bringing the information to the 

court’s attention.”393 The Fifth Circuit has said that “[t]he most egregious delay—the closest thing to per se untimeliness—occurs when a 

party already knows the facts purportedly showing an appearance of 

impropriety but waits until after an adverse decision has been made by 

the judge before raising the issue of recusal.”394

The Ninth Circuit requires “reasonable promptness after the 

ground for such a motion is ascertained.”395 The Second Circuit uses a 

four-factor analysis for determining the timeliness of a motion:

(1) whether the movant has participated in a substantial manner in trial 

or pretrial proceedings; (2) whether granting the motion would waste 

judicial resources; (3) whether the motion was made after entry of 

judgment; and (4) whether the movant can show good cause for delay.

396

At the same time, the Third Circuit has held that where a judge has 

knowledge of facts that lend themselves to an appearance of impropriety but fails to disclose this information, a party will not be charged 

392. See Summers v. Singletary, 119 F.3d 917, 921 (11th Cir. 1997) (“The policy 

considerations supporting a timeliness requirement are the same in each section: to 

conserve judicial resources and prevent a litigant from waiting until an adverse decision has been handed down before moving to disqualify the judge.”); In re Kan. 

Pub. Employees Ret. Sys., 85 F.3d 1353, 1363 (8th Cir. 1996) (“While it is true that a 

§ 455(b)(1) objection cannot be waived, it is still subject to the timeliness requirement of our cases.”).

393. Nordbrock v. United States, 2 F. App’x 779 (9th Cir. 2001) (citing United 

States v. Rogers, 119 F.3d 1377, 1380 (9th Cir. 1997)).

394. United States v. Vadner, 160 F.3d 263, 264 (5th Cir. 1998). Accord Rabushka 

v. Crane Co., 122 F.3d 559, 566 (8th Cir. 1997), cert. denied, 523 U.S. 1040 (1998); 

United States v. Rogers, 119 F.3d 1377, 1382 (9th Cir. 1997); United States v. Barrett, 

111 F.3d 947, 952 (D.C. Cir. 1997); United States v. Stenzel, 49 F.3d 658, 661 (10th Cir. 

1995); United States v. Owens, 902 F.2d 1154, 1156 (4th Cir. 1990).

395. Preston v. United States, 923 F.2d 731, 733 (9th Cir. 1991).

396. Apple, 829 F.2d at 334. See also United States v. Amico, 486 F.3d 764 (2d Cir. 

2007) (where motion seeking disqualification made prior to entry of judgment, and 

movant demonstrated good cause for delay, motion not untimely when raised two 

years after judge’s impartiality was first questioned).
78 Judicial Disqualification: An Analysis of Federal Law

with constructive or imputed knowledge of those facts when determining whether the motion was made in a timely manner.

397

However, in a case in which a city board of education was charged 

with constructive knowledge of the facts it used as grounds for its disqualification motion, the district court held that by failing to file the 

motion in a timely manner “in the vain and remote hope that a jury 

would somehow rule in favor of the Board and against the Plaintiff,” 

the board waived its right to raise the disqualification issue.

398

The Second Circuit has said that untimeliness can “constitute the 

basis for finding an implied waiver. But the distinction is a critical one, 

because while waiver—whether express or implied—will preclude appellate [review], untimeliness need not do so.”399 Assuming the defendant’s failure to move for disqualification until after the trial judge had 

ruled against her was a forfeiture and not an implied waiver, the Second Circuit could review the claim only for plain error, and it held that 

the judge’s decision not to disqualify himself sua sponte was not plain 

error.

4. Evaluation of motion by merits judge

In a statutory scheme so committed to the appearance of impartial justice that it requires disqualification whenever a judge’s impartiality 

“might reasonably be questioned,” it is curious that the task of deciding whether a judge is (or appears to be) too biased or conflicted to 

decide a matter fairly is left to the judge who is allegedly too biased or 

conflicted to decide the matter fairly. But given the presumption of impartiality to which a judge is entitled, and the inefficiency of calling 

upon a second judge to resolve a preliminary motion, the conventional 

practice in federal courts has been for disqualification motions to be 

decided by the judge whose disqualification is sought.

The First Circuit observed that “[a]lthough a trial judge faced with 

a § 455(a) disqualification motion may, in her discretion, leave the motion to a different judge, no reported case or accepted principle of law 

397. In re Kensington Int’l Ltd., 368 F.3d 289 (3d Cir. 2004).

398. Drake v. Birmingham Bd. of Educ., 476 F. Supp. 2d 1341, 1349 (N.D. Ala. 

2007).

399. United States v. Bayless, 201 F.3d 116, 127 (2d Cir. 2000).
II. Disqualification Under 28 U.S.C. § 455 79

compels her to do so . . . .”400 The weight of authority indicates that it 

is proper, indeed the norm, for the challenged judge to rule on a disqualification motion pursuant to § 455.

401 Because § 455 contains no 

provision concerning the transfer of disqualification motions to another judge, a district judge in the Southern District of Illinois ruled 

that the motion to disqualify “must be decided by the judge whose disqualification is sought.”402

5. Judge’s postdisqualification authority

Many courts of appeals have held that, after disqualification, a judge 

may take no nonministerial actions with respect to the case.

403 For example, in El Fenix de Puerto Rico v. The M/Y Johanny,

404 on motion 

from one party the trial judge disqualified himself under § 455(a). 

However, when the other party moved for reconsideration, the court 

listened to arguments and entered a reconsideration order vacating the 

disqualification order. The First Circuit found this action improper: 

“[A] trial judge who has recused himself ‘should take no other action 

in the case except the necessary ministerial acts to have the case transferred to another judge.’”405

400. In re United States, 158 F.3d 26, 34 (1st Cir. 1998) (citations omitted). Accord United States v. Heldt, 668 F.2d 1238, 1271 (D.C. Cir. 1981).

401. See, e.g., Schurz Commc’ns, Inc. v. FCC, 982 F.2d 1057, 1059 (7th Cir. 1992) 

(opinion of Posner, J., in chambers); United States v. Balistrieri, 779 F.2d 1191, 1202–

03 (7th Cir. 1985).

402. Cohee v. McDade, 472 F. Supp. 2d 1082, 1084 (S.D. Ill. 2006) (emphasis 

added).

403. The Third, Fourth, and Fifth Circuits concur with the First and Ninth 

Circuits that a judge can take no nonministerial actions after announcing his or her 

intentions to disqualify. See Doddy v. Oxy USA, Inc., 101 F.3d 448, 457 (5th Cir. 1996) 

(holding that district judge erred in vacating her disqualification order after disqualifying herself); Moody v. Simmons, 858 F.2d 137, 143–44 (3d Cir. 1988) (after disqualification, judge is limited to “the ‘housekeeping’ duties necessary to transfer a case to 

another judge”); Arnold v. Eastern Air Lines Inc., 712 F.2d 899, 904 (4th Cir. 1983) 

(“Patently a judge who is disqualified from acting must not be able to affect the 

determination of any cause from which he is barred.”).

404. 36 F.3d 136 (1st Cir. 1994).

405. Id. at 141 (quoting 13A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 3550 (2d ed. 1984)).
80 Judicial Disqualification: An Analysis of Federal Law

Similarly, in United States v. Feldman,

406 during the pendency of a 

criminal defendant’s appeal, a merger was effected that made the judge 

a stockholder in an institution to which the defendant had been ordered to pay restitution. On remand, the trial judge wished to sentence 

the defendant while reassigning to a different judge only the restitution 

aspect of the sentence. The Ninth Circuit rejected that effort.

407

In United States v. O’Keefe,

408 the judge granted a party’s motion for 

a new trial, then disqualified himself from further involvement. After 

the case was transferred to a new judge, the government moved for reconsideration of the order granting a new trial. The new judge transferred the case back to the original judge to rule on the motion for reconsideration, which the judge did. The Fifth Circuit ruled that this 

was improper, rejecting the contention “that an exception from the 

bright-line rule for recusals . . . should be created for motions for reconsideration because a [new] judge cannot reconsider what that judge 

has not considered previously.”409 New judges often must act on motions for reconsideration first heard by other judges who later died or 

became ill.

410 The Fifth Circuit acknowledged that its “ruling today may 

put one district court judge in the somewhat uncomfortable position of 

having to pass judgment on the discretionary rulings of another judge,” 

but found this circumstance was outweighed by “the values underlying 

28 U.S.C. § 455,” which require that a judge who has disqualified himself or herself take no further action.

411

The Second Circuit, however, has refused to apply a pure brightline approach. In Pashaian v. Eccelston Properties, Ltd.,

412 the trial judge 

concluded that disqualification in the face of an alleged conflict of interest was not legally required, but disqualified himself as a matter of 

406. 983 F.2d 144 (9th Cir. 1992).

407. Id. at 145. Accord Stringer v. United States, 233 F.2d 947, 948 (9th Cir. 1956) 

(“once having disqualified himself for cause . . . it was incurable error for the district 

judge to resume full control and try the case”).

408. 128 F.3d 885 (5th Cir. 1997), cert. denied, 523 U.S. 1078 (1998).

409. Id. at 891.

410. Id.

411. Id. at 891–92 n.6. See also United States v. Will, 449 U.S. 200, 212 (1980) (“In 

federal courts generally, when an individual judge is disqualified . . . by reason of 

§ 455, the disqualified judge simply steps aside and allows the normal administrative 

processes of the court to assign the case to another judge not disqualified.”).

412. 88 F.3d 77 (2d Cir. 1996).
II. Disqualification Under 28 U.S.C. § 455 81

prudence to avoid any possibility of appellate reversal after prolonged 

proceedings. He chose, however, to make disqualification effective 

only after he ruled on a pending motion for preliminary injunction. 

On appeal, the Second Circuit found that disqualification was indeed 

unnecessary and then addressed the contention that, nevertheless, 

“once he decided to recuse himself as a matter of discretion, such 

recusal had to be total and immediate.”413 If so, ruling on the motion 

for preliminary injunction would have been clearly improper. The 

Second Circuit held that the trial court’s willingness to rule on the preliminary injunction motion prior to disqualification was 

a practical and appropriate resolution of the situation . . . . We note also 

the potential for mischief in imposing an inflexible rule . . . and are accordingly loath to articulate a rule that would frustrate or obviate the 

careful exercise of judicial discretion by district judges in responding 

to disqualification motions in unusual circumstances.

414

The unusual circumstances included the fact that the plaintiffs sought 

enforcement of a judgment ensuing from litigation that had occurred 

years earlier, with the motion for disqualification surfacing just prior to 

the scheduled ruling on the proposed injunction.

Pashaian may be reconciled with the other cases on the ground 

that the delayed disqualification was entirely prudential, not legally

obligatory.

415 Although it is beyond the scope of this monograph, 

“prudential” disqualification presents ethical problems of its own, 

given the judge’s obligation under Canon 3A(2) of the Code of Conduct to “hear and decide matters assigned, unless disqualified.” The 

best course for a trial judge is to disqualify himself or herself only 

when disqualification is necessary, and to take no nonministerial action 

after disqualification.

413. Id. at 84.

414. Id. at 84–85.

415. See also United States v. Lauersen, 348 F.3d 329 (2d Cir. 2003). The trial 

judge owned an insubstantial amount of stock in a company entitled to a negligible 

restitution claim against the criminal defendant. Disqualification was unnecessary, 

and the judge was allowed to reverse his decision because the case had not yet been 

transferred to another judge, and no final judgment had been entered.
82 Judicial Disqualification: An Analysis of Federal Law

A few litigants have objected to a disqualified judge transferring the 

case to another judge. This claim is generally rejected.

416 The Fifth Circuit, however, drew a different conclusion in McCuin v. Texas Power & 

Light Co.

417 It stated that permitting a disqualified judge to assign the 

case “would violate the congressional command that the disqualified 

judge be removed from all participation in the case” and might also 

“create suspicion that the disqualified judge will select a successor 

whose views are consonant with his.”418

416. See United States v. Moody, 977 F.2d 1420, 1424 (11th Cir. 1992) (“Judge 

Tjoflat’s assignment of Judge Alaimo was a purely ministerial act, without any implications concerning the merits of the case.”); In re Aetna Cas. & Sur. Co., 919 F.2d 

1136, 1145 (6th Cir. 1990) (“even a judge who has recused himself ought to be permitted to perform the duties necessary to transfer the case to another judge”); In re

Cement Antitrust Litig., 673 F.2d 1020, 1024–25 (9th Cir. 1982) (“[W]e refuse to construe the word ‘proceeding’ to include the performance of ministerial duties such as 

assigning a case to another judge.”).

417. 714 F.2d 1255 (5th Cir. 1983).

418. Id. at 1261.
83

III. Disqualification Under 

28 U.S.C. § 144

A. Overview

Section 144 of Title 28 states in its entirety:

Whenever a party to any proceeding in a district court makes and 

files a timely and sufficient affidavit that the judge before whom the 

matter is pending has a personal bias or prejudice either against him or 

in favor of any adverse party, such judge shall proceed no further 

therein, but another judge shall be assigned to hear such proceeding.

The affidavit shall state the facts and the reasons for the belief that 

bias or prejudice exists, and shall be filed not less than ten days before 

the beginning of the term at which the proceeding is to be heard, or 

good cause shall be shown for failure to file it within such time. A party 

may file only one such affidavit in any case. It shall be accompanied by a 

certificate of counsel of record stating that it is made in goodfaith.

419

By its terms, § 144 applies only to district judges, as compared to 

§ 455, which applies to any “justice, judge, or magistrate judge of the 

United States.” A literal reading of § 144 suggests that a party can force 

disqualification automatically, simply by filing an affidavit alleging that 

the judge is biased against the affiant or in favor of the affiant’s opponent. Such an interpretation would render § 144 akin to peremptory 

disqualification procedures adopted by judicial systems in a number of 

western states—and the legislative history of § 144 lends some support 

for this interpretation.

420

The federal courts have indeed held that under § 144 a judge must 

step aside upon the filing of a facially sufficient affidavit; but they have 

been exacting in their interpretations of what a facially sufficient affidavit requires and of the procedural prerequisites to application of the 

statute. Thus, motions have been dismissed for untimeliness; because 

the movant failed to submit an affidavit or submitted more than one 

affidavit; because the attorney rather than a party submitted the affida419. 28 U.S.C. § 144 (1949). Originally enacted as § 21 of the Judicial Code of 

1911, the statute was recodified as § 144 in 1948 without significant change.

420. 46 Cong. Rec. 2627 (1911) (remarks of Representative Cullop).
84 Judicial Disqualification: An Analysis of Federal Law

vit; because the movant’s affidavit was unaccompanied by a certificate 

of counsel or failed to make allegations with particularity; and because 

the certificate of counsel certified only to the affiant’s—not counsel’s—

good faith.

421

As a consequence, § 144 has been rendered a much more cumbersome tool to obtain disqualification than § 455, even though § 455 calls 

upon judges to evaluate the merits of a movant’s allegations and not 

simply the facial sufficiency of those allegations. Some have criticized 

the federal courts for what they regard as an unduly stingy construction 

of § 144, but it bears note that over the years, several members of Congress have introduced bills to override federal court interpretation of 

§ 144, and none have passed.

422

An additional reason that § 144 has fallen into relative disuse is that 

it requires the more difficult showing of actual bias, whereas § 455(a)

requires a mere appearance of bias. Section 455 thus subsumes § 144: 

As the Supreme Court has observed of § 144, it “seems to be properly 

invocable only when § 455(a) can be invoked anyway.”423 Moreover, 

many of the circumstances that might qualify as actual bias under § 144 

are specifically enumerated in § 455(b), which explicitly addresses 

various conflicts of interest, in addition to actual bias.

424 In short, while 

parties still file motions under § 144, they usually do so in tandem with

421. See, e.g., United States v. Barnes, 909 F.2d 1059, 1072 (7th Cir. 1990) (counsel did not present certificate of good faith, “another requirement of section 144 

with which Barnes failed to comply”); In re Cooper & Lynn, 821 F.2d 833, 838 (1st 

Cir. 1987) (“[N]o party filed an affidavit. . . . Rather the affidavit was filed by an attorney.”); United States v. Merkt, 794 F.2d 950, 961 (5th Cir. 1986) (“Elder’s affidavit 

violates the one-affidavit rule . . . and need not be considered.”); United States v. 

Balistrieri, 779 F.2d 1191, 1200 (7th Cir. 1985) (“Because of the statutory limitation 

that a party may file only one affidavit in a case, we need consider only the affidavit 

filed with Balistrieri’s first motion.”); Roberts v. Bailar, 625 F.2d 125, 128 (6th Cir. 

1980) (motion rejected because counsel, not plaintiff, signed and filed affidavit); 

United States ex rel. Wilson v. Coughlin, 472 F.2d 100, 104 (7th Cir. 1973) (same); 

Morrison v. United States, 432 F.2d 1227, 1229 (5th Cir. 1970) (motion rejected because there was no certificate of good faith by counsel); United States v. Hoffa, 382 

F.2d 856, 860 (6th Cir. 1967) (same).

422. For a discussion of failed amendments, see Comment, Disqualifying Federal 

District Judges Without Cause, 50 Wash. L. Rev. 109 (1974).

423. Liteky v. United States, 510 U.S. 540, 548 (1994).

424. Seeid. (“section 455 is the more modern and complete recusal statute”).
III. Disqualification Under 28 U.S.C. § 144 85

§ 455, with the latter section typically monopolizing the court’s attention.

B. Grounds for disqualification

1. Bias or prejudice

As noted in the overview, under § 144 disqualification is triggered by 

an affidavit that alleges “the judge before whom the matter is pending 

has a personal bias or prejudice either against [the affiant] or in favor 

of any adverse party.” The Fifth and Eleventh Circuits have explained 

that “[t]o warrant recusal under § 144, the moving party must allege 

facts that would convince a reasonable person that bias actually exists.”425 In Liteky v. United States,

426 the Supreme Court noted that the 

standard for bias or prejudice under § 144 is identical to disqualification for bias and prejudice under § 455(b)(1).

427 In so stating, it distinguished § 455(a), which requires allegations of bias “to be evaluated on 

an objective basis, so that what matters is not the reality of bias or 

prejudice but its appearance.”428 The Ninth Circuit, however, has imported § 455(a)’s objective standard into its § 144 analysis (before and 

after Liteky), declaring that “[u]nder both recusal statutes, the substantive standard is ‘[W]hether a reasonable person with knowledge of all 

the facts would conclude that the judge’s impartiality might reasonably 

be questioned.’”429

2. Extrajudicial source doctrine revisited

The “extrajudicial source” doctrine, previously discussed in Part II in 

connection with § 455, likewise applies to § 144—indeed the doctrine 

was initially developed under § 144. Thus, ordinarily, disqualifying bias 

will have an extrajudicial origin—judges often acquire an unfavorable 

425. Phillips v. Joint Legislative Comm. on Performance & Expenditure Review, 

637 F.2d 1014, 1019 n.6 (5th Cir. 1981); Christo v. Padgett, 323 F.3d 1324, 1333 (11th 

Cir. 2000).

426. 510 U.S. 540 (1994).

427. Id. at 548 (“paragraph (b)(1) entirely duplicated the grounds of recusal set 

forth in § 144”).

428. Id.

429. Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir. 2008) (citing United 

States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997)).
86 Judicial Disqualification: An Analysis of Federal Law

opinion of a party in light of what they learn in the course of judicial 

proceedings, but that will rarely warrant disqualification. It bears reemphasis, however, that in Liteky—the Supreme Court’s latest word on 

the extrajudicial source doctrine—the Court took pains to emphasize 

that “there is not much doctrine to the doctrine,”430 and that sometimes 

a judge is subject to disqualification under §§ 144 and 455 for bias 

manifested in judicial proceedings:

[O]pinions formed by the judge on the basis of facts introduced or 

events occurring in the course of the current proceedings, or of prior 

proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would 

make fair judgment impossible. Thus, judicial remarks during the 

course of a trial that are critical or disapproving of, or even hostile to, 

counsel, the parties, or their cases, ordinarily do not support a bias or 

partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such 

a high degree of favoritism or antagonism as to make fair judgment

impossible.

431

To illustrate the disqualifying bias that can manifest itself in judicial 

proceedings, the Liteky Court pointed to a comment of the district 

judge in the 1921 case of Berger v. United States:

432 “‘One must have a 

very judicial mind, indeed, not [to be] prejudiced against the German 

Americans’ because their ‘hearts are reeking with disloyalty.’”433

Liteky rejected an additional argument in support of a rigid extrajudicial source rule under § 144. Section 144 requires disqualification 

for “personal bias or prejudice.” Limiting § 144 to “personal” bias arguably justifies the exclusion of official or “judicial” bias from its 

scope, and so confines its application to allegations of extrajudicial or 

personal bias. In Liteky, the Supreme Court acknowledged that “a 

number of Courts of Appeals have relied upon the word ‘personal’ in 

restricting § 144 to extrajudicial sources,” but concluded “that that mistakes the basis for the ‘extrajudicial source’ doctrine.”434

430. Liteky, 510 U.S. at 554.

431. Id. at 555.

432. 255 U.S. 22 (1921).

433. Id. at 28 (quoted in Liteky, 510 U.S. at 555).

434. Liteky, 510 U.S. at 548–49.
III. Disqualification Under 28 U.S.C. § 144 87

Bias and prejudice seem to us not divided into the “personal” kind, 

which is offensive, and the official kind, which is perfectly all right. As 

generally used, these are pejorative terms, describing dispositions that 

are never appropriate. . . . Secondly, interpreting the term “personal” to 

create a complete dichotomy between court-acquired and extrinsically 

acquired bias produces results so intolerable as to be absurd. Imagine, 

for example, a lengthy trial in which the presiding judge for the first 

time learns of an obscure religious sect, and acquires a passionate hatred 

for all its adherents. This would be “official” rather than “personal” bias, 

and would provide no basis for the judge’s recusing himself.

435

Some federal courts have since adopted Liteky’s more nuanced approach to § 144 and analyze allegations of in-court bias to see if they 

meet the “high degree of favoritism or antagonism” standard.

436 Others,

however, continue to use the pre-Liteky analysis by rejecting § 144 motions if the accompanying affidavit does not allege an “extrajudicial 

source” for the judge’s purported bias, or fails to show that the bias 

was “personal,” as opposed to “judicial.”437

3. Bias toward counsel

Of the cases dealing primarily with § 144, a sizable percentage involves

a judge’s alleged antipathy toward counsel. On its terms, § 144 requires 

bias against the party. Accordingly, a judge’s hostility toward counsel is 

435. Id. at 549–50.

436. See, e.g., Pesnell v. Arsenault, 543 F.3d 1038, 1044 (9th Cir. 2008) (quoting 

Liteky at length, noting allegations of bias were based on conduct in judicial proceedings, and upholding district court’s assessment that “Pesnell failed to ‘demonstrate any such “deep-seated favoritism that would make fair judgment impossible”’”); Christo v. Padgett, 323 F.3d 1324, 1333–34 (2000) (quoting Liteky and concluding that affiant’s allegations did not show extrajudicial source of bias or reflect 

improper hostility or partiality).

437. United States v. Miller, 355 F. Supp. 2d 404, 406 (D.D.C. 2005) (“Defendant’s allegations concern judicial, non-personal matters and cannot properly be the 

basis of a motion for disqualification.”); Young v. Track, Inc., 324 F.3d 409, 422–23 

(6th Cir. 2003) (relying on pre-Liteky cases for the propositions that the “alleged bias 

‘must stem from an extrajudicial source’” and that “extrajudicial conduct encompasses only ‘personal bias as distinguished from a judicial one,’” and concluding that 

“recusal is also unwarranted because Plaintiffs do not allege bias from extrajudicial 

sources”).
88 Judicial Disqualification: An Analysis of Federal Law

generally an insufficient ground for disqualification.

438 However, courts 

have held that “under specific circumstances bias against an attorney 

can reasonably be imputed to a party.”439 As the Seventh Circuit explained, “the party seeking recusal on that theory must allege facts suggesting that the alleged bias against counsel might extend to the

party.”440 The allegations to that effect cannot be “merely conclusory.”441

Conversely, the Seventh Circuit rejected the contention that a lawyer’s praise of the judge required disqualification. In Sullivan v.

Conway,

442 the lawyer had written a letter to his client maintaining that, 

as a result of removal of the case to federal court, “we have a much 

better judge.”443 By mistake, the letter ended up in the hands of opposing counsel, who showed it to the judge and petitioned for disqualification. The Seventh Circuit rejected the contention that the affidavit 

evinced alleged bias sufficient to require referral of the matter to another judge:

We can imagine, though only with great difficulty, a case in which public praise of a judge by a lawyer was so fulsome as to call into question 

the judge’s psychological fortitude to rule against his encomiast. But 

here there was no public praise . . . and the praise would not have come 

to [the judge’s] attention, and so would never have threatened to turn 

his head, had not the lawyer wishing to disqualify him brought it to his

attention.

444

438. See, e.g., United States v. Sykes, 7 F.3d 1331, 1339 (7th Cir. 1993); Rhodes v. 

McDannel, 945 F.2d 117, 120 (6th Cir. 1991); Souder v. Owens-Corning Fiberglas 

Corp., 939 F.2d 647, 653 (8th Cir. 1991); In re Cooper & Lynn, 821 F.2d 833, 838 (1st 

Cir. 1987).

439. Souder, 939 F.2d at 653. Accord Sykes, 7 F.3d at 1339; United States v. Jacobs, 

855 F.2d 652, 656 n.2 (9th Cir. 1988); In re Beard, 811 F.2d 818, 830 (4th Cir. 1987); 

United States v. Ritter, 540 F.2d 459, 462 (10th Cir. 1976); Davis v. Bd. of Sch. 

Comm’rs, 517 F.2d 1044, 1050–51 (5th Cir. 1975).

440. Sykes, 7 F.3d at 1339.

441. Id. at 1340. Accord Souder, 939 F.2d at 653 n.6.

442. 157 F.3d 1092 (7th Cir. 1998).

443. Id. at 1095.

444. Id. at 1096.
III. Disqualification Under 28 U.S.C. § 144 89

C. Disqualification procedure

Unlike § 455(a), which can be brought by motion but also requires 

judges to disqualify sua sponte where appropriate, § 144 is triggered 

only by the submission of an affidavit and motion for disqualification. 

Absent this trigger, there is no basis for disqualification under § 144, 

and no appeal based on § 144 will be heard.

445 Apart from meeting the 

substantive standard, § 144 sets forth several procedural requirements, 

and courts demand “strict compliance.”446

1. Timeliness

Section 144 raises issues of timing twice—in the first paragraph, when it 

calls for the filing of a “timely” affidavit, and again in the second paragraph, when it states that a motion for disqualification “shall be filed 

not less than ten days before the beginning of the term [session] at 

which the proceeding is to be heard.” With the abolition of terms of 

court in 1963, this latter provision no longer applies directly. Some 

federal courts, however, have nonetheless required that the affidavit be 

filed within ten days of the beginning of the proceeding.

447 Other courts 

have determined timeliness on the basis of whether the affidavit was 

filed as soon as practicable448 or promptly “after the facts forming the 

basis of the disqualification became known.”449 Either way, numerous 

cases have involved rejection of § 144 motions because of untimely

affidavits.

450

445. See, e.g., United States v. Sammons, 918 F.2d 592, 598 (6th Cir. 1999).

446. In re Martinez-Catala, 129 F.3d 213, 218 (1st Cir. 1997).

447. See, e.g., Bumpus v. Uniroyal Tire Co. Div. of Uniroyal, Inc., 385 F. Supp. 

711 (E.D. Pa. 1974); United States v. Iddeen, 854 F.2d 52 (5th Cir. 1988); Wilson v. 

City of Chicago, 710 F. Supp. 1168 (N.D. Ill. 1989).

448. Danielson v. Winnfield Funeral Home of Jefferson, Inc., 634 F. Supp. 1110 

(E.D. La. 1986).

449. United States v. Boffa, 513 F. Supp. 505, 510 (D. Del. 1981).

450. See, e.g., Green v. Dorrell, 969 F.2d 915, 919 (10th Cir. 1992); United States v. 

Young, 907 F.2d 867, 868 (8th Cir. 1990); Easley v. University of Mich. Bd. of Regents, 

853 F.2d 1351, 1357 (6th Cir. 1988).
90 Judicial Disqualification: An Analysis of Federal Law

2. Facially sufficient affidavit

Section 144 conditions disqualification on the moving party filing a 

sufficient affidavit. If no affidavit is filed, disqualification will be denied. In the landmark case, Berger v. United States,

451 the Supreme 

Court interpreted the statutory predecessor to § 144 to require that the 

challenged judge accept all facts alleged in the affidavit as true, and not 

pass on the truth of the alleged facts.

452 Rather, the judge’s role was 

limited to evaluating the facial sufficiency of the affidavit for the purpose of determining whether a reasonable person could find “fair support” for the charge that the judge was biased against the movant or in 

favor of another party.

453 Many circuits have since reiterated this principle.

454

In Ronwin v. State Bar of Arizona,

455 the Ninth Circuit departed 

from the prevailing view. While acknowledging that “a judge is generally required to accept the truth of the factual assertions in an Affidavit 

451. 255 U.S. 22 (1921).

452. Id.

453. Id. at 33–34.

454. See In re Martinez-Catala, 129 F.3d 213, 218 (1st Cir. 1997) (“Section 144 is 

unusual because it requires that the district judge accept the affidavit as true even 

though it may contain averments that are false and may be known to be so to the 

judge.”); United States v. Sykes, 7 F.3d 1331, 1339 (7th Cir. 1993) (“In passing on the 

legal sufficiency of the affidavit, the court must assume the truth of its factual assertions even if it ‘knows them to be false.’”) (quoting United States v. Balistrieri, 779 

F.2d 1191, 1199 (7th Cir. 1985)); Souder v. Owens-Corning Fiberglas Corp., 939 F.2d 

647, 653 (8th Cir. 1991) (“In reviewing [§ 144] affidavits the court must not pass on 

the factual merit of any allegation but must restrict its analysis to the legal sufficiency 

of the affidavit.”); Weatherhead v. Globe Int’l, Inc., 832 F.2d 1226, 1227 (10th Cir. 

1987) (“Under § 144, the judge cannot assess the truth of the facts alleged.”); and

Albert v. United States Dist. Ct., 283 F.2d 61, 62 (6th Cir. 1960) (in assessing § 144 

motion, judge “must accept the facts alleged in the affidavit as true, as they may not 

be controverted”). See also United States v. Rankin, 870 F.2d 109, 110 (3d Cir. 1989) 

(noting trial court felt “bound by statute and Supreme Court precedent to accept 

Rankin’s factual allegations as true”). But see Henderson v. Dep’t of Pub. Safety & 

Corrs., 901 F.2d 1288, 1296 (5th Cir. 1990) (“the judge must pass on the legal sufficiency of the affidavit, but may not pass on the truth of the matter alleged”) (quoting Davis v. Bd. of Sch. Comm’rs of Mobile County, 517 F.2d 1044, 1051 (5th Cir. 

1975)).

455. 686 F.2d 692 (9th Cir. 1981), rev’d on other grounds, Hoover v. Ronwin, 466 

U.S. 558 (1984).
III. Disqualification Under 28 U.S.C. § 144 91

of Bias filed pursuant to 28 U.S.C. § 144,”456 the court made an exception because the allegation of bias “relates to facts that were peculiarly 

within the judge’s knowledge.”457 The party had accused the judge of 

various improper ex parte communications, but the Ninth Circuit held 

that disqualification was unnecessary, in part, because the judge knew 

the allegations were false.

The prevailing view that judges accept all allegations in a § 144 affidavit as true has prompted the concern that judges are left helpless to 

stop parties from disqualifying judges by filing false affidavits. There 

are isolated cases in which disqualification on the basis of sham affidavits may have occurred. For example, in United States v. Rankin,

458 the 

defendant alleged that in a previous trial the judge had chased the defendant around the courtroom and assaulted him. While denying the 

bizarre accusation, the trial judge nevertheless disqualified himself 

from the second trial on the ground that § 144 bound him to accept the 

allegations as true.

459 In an earlier unrelated case, the Third Circuit had 

held a refusal to disqualify improper, even though “[p]robably the district court is right that there is no basis for the allegations”460 that the 

judge made improper statements (e.g., “If I had anything to do with it 

you would have gone to the electric chair.”). The court of appeals expressed “sympathy with district judges confronted with what they know 

to be groundless charges of personal bias” but held that § 144 requires 

acceptance of factual allegations as true.

461

Courts have, however, countered this potential problem by scrutinizing the facial sufficiency of § 144 affidavits. As the First Circuit explained, “courts have responded to the draconian procedure—

automatic transfer based solely on one side’s affidavit—by insisting on 

456. Id. at 701.

457. Id.

458. 870 F.2d 109 (3d Cir. 1989). 

459. The second trial was reassigned. Thereafter, the government indicted the 

defendant for perjury arising out of the statements in his affidavit seeking the first 

judge’s disqualification. The Rankin opinion concerned issues relating to this indictment.

460. Mims v. Shapp, 541 F.2d 415, 417 (3d Cir. 1976).

461. Id.
92 Judicial Disqualification: An Analysis of Federal Law

a firm showing in the affidavit that the judge does have a personal bias 

or prejudice to a party.”462

Virtually every circuit has therefore imposed some variation of the 

requirement that movants’ affidavits be sufficient to “convince a reasonable person” that their judge is biased.

463 For example, the Seventh 

Circuit stated:

[T]he facts averred must be sufficiently definite and particular to convince a reasonable person that bias exists; simple conclusions, opinions, or rumors are insufficient. . . . Because the statute “is heavily 

weighed in favor of recusal,” its requirements are to be strictly construed to prevent abuse.

464

In a similar vein, the Tenth Circuit observed that § 144 creates the rebuttable presumption that the challenged judge is impartial, which imposes a burden on the affiant to demonstrate the judge’s partiality.

465

Several circuits have thus ruled that the movant’s affidavit must state 

with particularity material facts supporting allegations of the judge’s

bias.

466 According to the D.C. Circuit, “stating the facts with particularity” means the affidavit “must be strictly construed [against the affiant]; 

it must be definite as to time, place, persons and circumstances.”467

The Tenth Circuit has reached a similar conclusion.

468 By requiring 

that the challenging party state facts material to the allegations of the 

judge’s bias with particularity, the courts have excluded conclusory 

462. In re Martinez-Catala, 129 F.3d 213, 218 (1st Cir. 1997).

463. See, e.g., United States v. Story, 716 F.2d 1088, 1090 (6th Cir. 1983); Chitimacha Tribe v. Laws, 690 F.2d 1157, 1167 (5th Cir. 1982); United States v. Bray, 546 

F.2d 851, 858 (10th Cir. 1976); United States v. Dansker, 537 F.2d 40, 53 (3d Cir. 1976), 

cert. denied, 429 U.S. 1038 (1977); Curry v. Jensen, 523 F.2d 387, 388 (9th Cir.), cert. 

denied, 423 U.S. 998 (1975); Hodgdon v. United States, 365 F.2d 679, 686 (8th Cir. 

1966), cert. denied, 385 U.S. 1029 (1967).

464. United States v. Sykes, 7 F.3d 1331, 1339 (7th Cir. 1993) (citation omitted).

465. In re McCarthy, 368 F.3d 1266, 1269 (10th Cir. 2004) (citing United States v. 

Burger, 964 F.2d 1065, 1070 (10th Cir. 1992)).

466. Henderson v. Dep’t of Pub. Safety & Corrs., 901 F.2d 1288, 1296 (5th Cir. 

1990); United States v. Ala., 828 F.2d 1532, 1540 (11th Cir. 1987), cert. denied, 487 U.S. 

1210 (1988); Brokaw v. Mercer County, 235 F.3d 1000, 1025 (7th Cir. 2000).

467. United States v. Miller, 355 F. Supp. 2d 404, 406 (D.D.C. 2005) (quoting 

United States v. Haldeman, 559 F.2d 31, 135 (D.C. Cir. 1976)).

468. United States v. Burger, 964 F.2d 1065, 1070 (10th Cir. 1992). See also 

Weatherhead v. Globe Int’l, Inc., 832 F.2d 1226, 1227 (10th Cir. 1987).
III. Disqualification Under 28 U.S.C. § 144 93

assertions, as well as opinions and rumors, from the realm of allegations that may support a judge’s disqualification.

469 Even if the affidavit 

is deemed facially sufficient and the case is transferred, the First Circuit 

has observed that “the possibility remains, although not developed in 

the statute, that the transferee judge might hold a hearing, conclude 

that the affidavit was false and transfer the action back to the original

judge.”470

3. Counsel’s certificate of good faith

Section 144 states: “A party may file only one such affidavit in any case. 

It shall be accompanied by a certificate of counsel of record stating 

that it is made in good faith.”471 The question has arisen whether counsel’s certificate of good faith must assert that counsel believes the allegations to be true or whether counsel merely believes that his or her client is acting in good faith. The word “it” in the phrase quoted above 

seems to refer back to the party’s affidavit, and thus to require that 

counsel vouch for the good faith of the party’s belief—not counsel’s 

own belief—that the facts are true. However, the two circuits that have 

addressed the question directly have held otherwise. The First Circuit 

held a § 144 motion inadequate in part because counsel’s certificate of 

good faith asserted only that the party acted in good faith.

472 The court 

noted that

[o]ne may well question the value of counsel’s opinion of what is in his 

client’s mind, and we certainly must disagree . . . that it is a client’s 

“right” to have counsel’s certification when counsel believes the affidavit’s recitation to be false. If a certificate is to serve the purpose of 

shielding a court which cannot test the truth of claimed facts, it should 

at least carry the assertion that counsel believes the facts alleged to be 

accurate and correct.

473

The D.C. Circuit reached a similar conclusion.

474

469. See, e.g., Burger, 964 F.2d 1065; Weatherhead, 832 F.2d 1226.

470. In re Martinez-Catala, 129 F.3d 213, 218 (1st Cir. 1997).

471. 28 U.S.C. § 144 (1949).

472. In re Union Leader Corp., 292 F.2d 381 (1st Cir. 1961).

473. Id. at 385. 

474. Brotherhood of Locomotive Firemen v. Bangor & Aroostook R.R., 380 

F.2d 570, 577–78 & n.17 (D.C. Cir.), cert. denied, 389 U.S. 327 (1967). Cf. United States 
94 Judicial Disqualification: An Analysis of Federal Law

Failure to comply with other procedural requirements of § 144 has 

likewise resulted in rejection of motions under the statute.

475

v. Sykes, 7 F.3d 1331, 1339 (7th Cir. 1993) (certificate must “stat[e] that the affidavit is 

made in good faith”).

475. See supra text accompanying and cases cited in note 421.
95

IV. Disqualification Under 

28 U.S.C. § 47

A little-used disqualification statute, 28 U.S.C. § 47, provides that “no 

judge shall hear or determine an appeal from the decision of a case or 

issue tried by him.”476 One reason the statute has barely surfaced in the 

case law is that its applicability is limited to cases in which a trial judge 

subsequently serves as an appellate judge in the same matter, which 

may occur when a district judge is appointed to the circuit court or sits 

on the circuit court by designation. A second reason it is so rarely employed is that on those occasions where it suggests a basis of disqualification, the same result would also be reached by reference to § 455(a).

As an historical aside, however, it may be noted that this was not always so. When members of the Supreme Court “rode circuit” in the 

eighteenth and early nineteenth centuries, it was not uncommon for 

them to hear appeals as Supreme Court justices from cases they decided as circuit court judges.

In Russell v. Lane,

477 the trial judge in a habeas case reviewed a decision of a state appellate court in which the judge had been a member 

of the panel. The Seventh Circuit found that this created an appearance 

of impropriety in violation of § 455(a). In reaching that decision, however, the court cited the relevance of § 47, noting that it “is an express 

ground for recusal . . . in modern American law for a judge to sit on 

the appeal from his own case.”478

A somewhat more extended discussion of § 47 is found in an opinion by Judge James Craven, Jr., of the U.S. Court of Appeals for the 

Fourth Circuit, explaining his disqualification from a school desegregation case.

479 As a district judge years earlier, he heard and decided a 

case involving the same parties. Although the instant case was a separate lawsuit, it raised the identical “ultimate question.” Citing the Supreme Court’s treatment of the predecessor statute to § 47, Judge Craven held that the statute must be “strictly construed” to prevent judges 

476. 28 U.S.C. § 47 (1994).

477. 890 F.2d 947 (7th Cir. 1989).

478. Id. at 948.

479. Swann v. Charlotte-Mecklenburg Bd. of Educ., 431 F.2d 135 (4th Cir. 

1970).
96 Judicial Disqualification: An Analysis of Federal Law

from, in effect, sitting in appellate judgment of their own earlier decisions.

480

In Rexford v. Brunswick-Balke-Collender Co.,

481 the Supreme Court 

observed that it makes no difference whether “the question may be 

easy of solution or that the parties may consent to the judge’s participation” because “the sole [statutory] criterion” is whether the case on 

appeal “involve[s] a question which the judge has tried or heard” in 

the proceedings below.

482 In Cramp & Sons Ship & Engine Building Co. 

v. International Curtiss Marine Turbine Co.,

483 the Supreme Court vacated an appellate decision notwithstanding the parties’ consent to the 

trial judge sitting on the appeal, holding that the appellate panel was 

“not organized in conformity to law.”484

The Third Circuit, however, rejected without explanation the contention that a district judge, sitting by designation on the Third Circuit 

panel (and the author of the court opinion), should be disqualified 

pursuant to § 47.

485 In his capacity as trial judge, he had accepted the 

defendant’s conditional plea of guilt. On appeal, the defendant argued 

that his guilty plea should be vacated because the indictment against 

him resulted from prosecutorial vindictiveness. At oral argument, the 

judge informed counsel of his involvement in the case. Counsel did 

not object, and disqualification was waived. In a footnote, the Third 

Circuit, after “[h]aving independently considered this matter, . . . conclude[d] that there is no basis for recusal under 28 U.S.C. § 47.”486 The 

court’s reasoning may have been based on the nature of the defendant’s appeal, which did not claim any impropriety in the plea agreement or challenge any action taken by the judge. Rather, the defendant 

objected to the bringing of the indictment in the first place.

480. Id. at 136. See also Rexford v. Brunswick-Balke-Collender Co., 228 U.S. 339 

(1913); Moran v. Dillingham, 174 U.S. 153 (1899).

481. 228 U.S. 339 (1913).

482. Id. at 344.

483. 228 U.S. 645 (1913).

484. Id. at 652.

485. United States v. Morrow, 717 F.2d 800 (3d Cir. 1983).

486. Id. at 801 n.1.
97

V. Disqualification on Appeal

A. Routes of appellate review

Aggrieved parties often challenge a judge’s refusal to disqualify. All 

courts of appeals permit a party to seek interlocutory review via mandamus,

487 reasoning that, at least in some cases, the damage to public 

confidence in the justice system (or perhaps to the litigants) would not 

be undone by postjudgment appeal.

488

The Third and Seventh Circuits have said that while petitioning for 

a writ of mandamus is a proper means for appellate review of a district 

court’s refusal to disqualify pursuant to § 455(a), it is unavailable for a 

challenge under § 144.

489 The reasoning is that § 144, which addresses 

actual bias, protects litigants, but § 455, which concerns whether a 

judge’s impartiality might reasonably be questioned, also protects public confidence in the judiciary. “While review after final judgment can 

(at a cost) cure the harm to a litigant, it cannot cure the additional, 

separable harm to public confidence that § 455 is designed to prevent.”490

487. See, e.g., In re Va. Elec. & Power Co., 539 F.2d 357 (4th Cir. 1976). A motion 

for mandamus was brought pursuant to 28 U.S.C. § 1292(b). The motion involved a 

“controlling question of law as to which there is substantial ground for difference of opinion” as to how the recently amended § 455 should be applied to the facts. Id. at 363 

(quoting § 1292(b)), 364. While the decision against disqualification was not ordinarily appealable under this statute, this case presented an exception because the trial 

judge’s decision effectively meant that no judge residing in the state of Virginia 

could preside over the case, even though the lawsuit was filed in the Eastern District 

of Virginia.

488. See, e.g., In re United States, 666 F.2d 690, 694 (1st Cir. 1981); In re IBM 

Corp., 618 F.2d 923, 926–27 (2d Cir. 1980); In re Sch. Asbestos Litig., 977 F.2d 764, 

774–78 (3d Cir. 1992); In re Rogers, 537 F.2d 1196, 1197 n.1 (4th Cir. 1976) (per curiam); In re Corrugated Container Antitrust Litig., 614 F.2d 958, 961 n.4 (5th Cir. 

1980); In re Aetna Cas. & Sur. Co., 919 F.2d 1136, 1139–43 (6th Cir. 1990); SCA Servs.

v. Morgan, 557 F.2d 110, 117 (7th Cir. 1977) (per curiam); Liddell v. Bd. of Educ., 677 

F.2d 626, 643 (8th Cir. 1982); In re Cement Antitrust Litig., 673 F.2d 1020, 1025 (9th 

Cir. 1982); Bell v. Chandler, 569 F.2d 556, 559 (10th Cir. 1978).

489. See Sch. Asbestos Litig., 977 F.2d at 774–78; SCA Servs., 557 F.2d at 117.

490. Sch. Asbestos Litig., 977 F.2d at 776.
98 Judicial Disqualification: An Analysis of Federal Law

Most circuits apply their usual standard for mandamus—often

placing a heavy burden on the movant.

491 Allocating the burden to the 

movant serves a “strong judicial policy” that disfavors piecemeal appeals.

492 After all, the movant has the opportunity to appeal the disqualification decision after the case has been decided on the merits,

493

and a full “contextual assessment” can be done for allegations of impartiality.494

The First Circuit, however, has adopted a separate standard for 

entertaining a mandamus action seeking disqualification: “[w]hen the 

issue of partiality has been broadly publicized, and the claim of bias 

cannot be labeled as frivolous.”495 It has also stated that the standard 

for granting mandamus should be relaxed “in a criminal case in which 

the government seeks the judge’s recusal, for a defendant’s verdict will 

terminate the case, thereby rendering the usual remedy, end-of-case 

appeal, illusory.”496 Where the government seeks disqualification in a 

criminal case, “the ordinary abuse-of-discretion standard rather than 

491. See, e.g., In re Larson, 43 F.3d 410, 412 (8th Cir. 1994) (petitioner must establish “clear and indisputable right” to disqualification); In re McCarthy, 368 F.3d 

1266, 1269 (10th Cir. 2004) (where a party “lacks an adequate factual basis for disqualification,” the court of appeals will not issue a mandamus).

492. Alexander v. Chi. Park Dist., 709 F.2d 463, 470 (7th Cir. 1983).

493. See, e.g., In re Vazquez-Botet, 464 F.3d 54, 57 (1st Cir. 2006) (where motion 

for mandamus denied because of lack of “clear and indisputable” entitlement to 

relief, court did not have to address whether judge should have disqualified; so defendant was still free to raise denial of motion for disqualification on appeal after 

final judgment).

494. Alexander, 709 F.2d at 471. See also Scenic Holding, LLC v. The New Bd. of 

Tr. of the Tabernacle Missionary Baptist Church, Inc., 506 F.3d 656, 665 (8th Cir. 

2007) (although the judge improperly injected his religious beliefs into the proceedings, looking at the totality of the circumstances, a reasonable person would not conclude religious favoritism on the part of the judge; thus the judge did not abuse his 

discretion in refusing to disqualify).

495. In re United States, 158 F.3d 26, 30 (1st Cir. 1998) (internal quotation marks 

omitted). See also In re Boston’s Children First, 244 F.3d 164, 167 (1st Cir. 2001) (where 

question of judge’s partiality was highly publicized, writ of disqualification issued 

where it may not have under normal circumstances) (citing In re Martinez-Catala, 

129 F.3d 213, 217 (1st Cir. 1997)).

496. In re United States, 158 F.3d at 30.
V. Disqualification on Appeal 99

the more exacting standard usually applicable to petitions for mandamus” should be used.

497

In the Seventh Circuit, mandamus is the only means to challenge a 

refusal to disqualify pursuant to § 455(a), although post-final-judgment 

appeal is available to challenge refusals to disqualify under § 144 and 

§ 455(b).

498 The Seventh Circuit’s rationale in requiring a party to petition for writ of mandamus to preserve a disqualification challenge is 

that the injury the court seeks to prevent “is not an injury to an individual party, but rather to the judicial system as a whole.”499

B. Standards of review

Every court of appeals except the Seventh Circuit generally uses an 

“abuse of discretion” standard for reviewing a trial court’s decision 

about disqualification.

500 The Seventh Circuit sometimes applies a de 

novo standard of review.

501

497. Id. at 31.

498. See, e.g., United States v. Farrington, 27 F. App’x 640, 643 (7th Cir. 2001); 

United States v. Ruzzano, 247 F.3d 688, 694 (7th Cir. 2001); In re Hatcher, 150 F.3d 

631, 637 (7th Cir. 1998); United States v. Horton, 98 F.3d 313, 316 (7th Cir. 1996); 

United States v. Balistrieri, 779 F.2d 1191, 1205 (7th Cir. 1985). Cf. United States v. 

Boyd, 208 F.3d 638, 650 (7th Cir. 2000) (Ripple, J., dissenting) (urging Seventh Circuit 

to join rest of courts of appeals in permitting appellate review of failure to disqualify 

under § 455(a)).

499. Ruzzano, 247 F.3d at 695.

500. See, e.g., Comfort v. Lynn Sch. Comm., 418 F.3d 1, 26 (1st Cir. 2005); Omega 

Eng’g, Inc. v. Omega, S.A., 432 F.3d 437, 447 (2d Cir. 2005); Selkridge v. United of 

Omaha Life Ins. Co., 360 F.3d 155, 166 (3d Cir. 2004); United States v. Cherry, 330 

F.3d 658, 665 (4th Cir. 2003); In re Chevron, U.S.A., Inc., 121 F.3d 163, 165 (5th Cir. 

1997); In re Triple S Rests., Inc., 422 F.3d 405, 417 (6th Cir. 2005); United States v. Larsen, 427 F.3d 1091, 1095 (8th Cir. 2005); United States v. Wilkerson, 208 F.3d 794, 797 

(9th Cir. 2000); Bryce v. Episcopal Church in the Diocese of Colo., 289 F.3d 648, 659 

(10th Cir. 2002); Draper v. Reynolds, 369 F.3d 1270, 1274 (11th Cir. 2004); United 

States v. Roach, 108 F.3d 1477, 1483 (D.C. Cir. 1997).

501. See United States v. Balistrieri, 779 F.2d 1191, 1203 (7th Cir. 1985) (applying 

de novo standard of review to motions brought pursuant to both §§ 144 and 455). 

See also Sac & Fox Nation v. Cuomo, 193 F.3d 1162, 1168 (10th Cir. 1999) (applying de 

novo standard where district judge “did not create a record or document her decision not to recuse”). But see Tezak v. United States, 256 F.3d 702, 716 (7th Cir. 2001) 

(applying abuse of discretion standard).
100 Judicial Disqualification: An Analysis of Federal Law

In Southern Pacific Communications Co. v. AT&T,

502 the D.C. Circuit used a stricter standard in reviewing a judge’s factual findings that 

gave rise to Southern Pacific’s claim that it was denied a fair trial because of the judge’s legal and policy bias. Southern Pacific asked the 

court to remand the case for a new trial or, in the alternative, to abandon the “clearly erroneous” standard when reviewing the district 

court’s factual findings. Although the court declined to abandon the 

standard, it “reviewed the District Court’s findings against the record 

with particular, even painstaking, care” in view of the judicial misconduct allegations.

503

In SEC v. Loving Spirit Foundation Inc., although the D.C. Circuit 

adopted the “abuse of discretion” standard for disqualification under 

§ 455, it did not articulate a binding standard of review for § 144, finding that it “need not decide which standard to adopt, for even reviewing de novo we can easily sustain [the trial judge’s] decision.”504 In

United States v. Microsoft Corp., however, the D.C. Circuit rejected

greater scrutiny of the judge’s fact-findings because, absent evidence of 

actual bias, Federal Rule of Civil Procedure 52(a) “mandates clearly 

erroneous review of all district court factfindings.”505

When applying the “abuse of discretion” standard, the appellate 

courts recognize that there “will be occasions in which [it] affirm[s] the 

district court even though [it] would have gone the other way” had the 

standard been de novo review.

506 Factors that may be used to assess 

whether the trial judge abused his or her discretion include whether 

the trial judge “engaged in measured and considered deliberations” 

before handing down a ruling;

507 whether the ruling was “wellreasoned”;

508 whether, after declining to disqualify, the judge’s rulings 

502. 740 F.2d 980 (D.C. Cir. 1984).

503. Id. at 984.

504. 392 F.3d 486, 492 (D.C. Cir. 2004).

505. 253 F.3d 34, 117 (D.C. Cir. 2001).

506. Alloco v. City of Coral Gables, 159 F. App’x 921, 923 (11th Cir. 2005).

507. Hoffman v. Caterpillar, Inc., 368 F.3d 709, 719 (7th Cir. 2004). See also

Dixon v. Clem, 492 F.3d 665, 679 (5th Cir. 2007) (judge didn’t abuse discretion by 

writing “lengthy and meticulous legal analysis” as to why he refused to disqualify 

himself, and imposing sanctions against plaintiff’s attorney).

508. Alloco, 159 F. App’x at 923.
V. Disqualification on Appeal 101

and conduct called the judge’s impartiality into question;

509 whether 

the judge provided the appellant an opportunity to argue and brief his

positions;

510 and whether the judge fully considered the appellant’s

motions.

511

In Moran v. Clarke,

512 the plaintiff moved to disqualify the judge 

after a defendant revealed at her deposition that she had known the 

judge socially for over twenty years. The district judge declined to disqualify himself without comment, and the Eighth Circuit, faced with a 

record insufficient to apply the “abuse of discretion” standard to the 

case before it, remanded to the same judge for further proceedings, 

with the following explanation and instructions:

The district judge’s appearances at the same social events as Clarke and 

Smith brooks little mention. Judges, attorneys and public officials will 

often share public appearances. This does little to create the appearance 

of impropriety. The social relationship, however, invites more scrutiny. 

The image of one sitting in judgment over a friend’s affairs would 

likely cause the average person in the street to pause. That the judge and 

Clarke enjoyed a friendship of sufficient depth and duration as to warrant several reciprocal visits to one another’s homes only exacerbates 

the problem. We find particularly worrisome the district court’s failure 

to disclose this conflict himself, as permitted by section 455(e). 

Moreover, the record suggests a fractious relationship between the district court and Moran’s attorneys. We do, however, have the utmost 

faith in the district court’s ability to rule impartially, and have imposed 

on ourselves an obligation to reverse a district court only where we can 

say with certainty that it has abused its discretion. Accordingly, rather 

than remand to a different judge, we remand this question to the district 

court with the suggestion that it revisit and more thoroughly consider 

and respond to Moran’s recusal request.

513

509. In re Basciano, 542 F.3d 950, 956 (2d Cir. 2008) (citing United States v. 

Amico, 486 F.3d 764, 775 (2d Cir. 2007)).

510. Lewin v. Cooke, 28 F. App’x 186, 197 (4th Cir. 2002).

511. Id.

512. 296 F.3d 638 (8th Cir. 2002).

513. Id. at 649.
102 Judicial Disqualification: An Analysis of Federal Law

A party’s motion must be timely. A few appellate courts are willing 

to entertain an argument about disqualification that was not raised in a 

timely manner, but apply a “plain error” standard.

514

C. Issues on appeal

1. Harmless error

Section 455 tells judges when disqualification is required, but does not 

spell out the appropriate remedy for a failure to disqualify. In Liljeberg 

v. Health Services Acquisition Corp.,

515 the Supreme Court held that 

Federal Rule of Civil Procedure 60(b), authorizing relief from a final 

judgment, is an appropriate remedy for a trial court’s improper failure 

to disqualify. The Court cautioned that Rule 60(b)(6) relief is “neither 

categorically available nor categorically unavailable for all § 455(a) violations.”516 Rather, “there is surely room for harmless error committed 

by busy judges who inadvertently overlook a disqualifying circumstance.”517

In spelling out the factors to be considered in determining whether 

a new trial is the appropriate remedy, the Court cautioned against too 

casual a finding of harmless error:

[I]t is appropriate to consider the risk of injustice to the parties in the 

particular case, the risk that the denial of relief will produce injustice in 

other cases, and the risk of undermining the public’s confidence in the 

judicial process. We must continuously bear in mind that “to perform 

its high function in the best way ‘justice must satisfy the appearance of

justice.’”

518

514. See, e.g., United States v. Pearson, 203 F.3d 1243, 1276 (10th Cir. 2000); 

United States v. Arache, 946 F.2d 129, 140 (1st Cir. 1991); Osei-Afriyie v. Med. Coll. of 

Pa., 937 F.2d 876, 886 (3d Cir. 1991). See also United States v. Gray, 105 F.3d 956, 968 

(5th Cir. 1997).

515. 486 U.S. 847 (1988).

516. Id. at 864.

517. Id. at 862. Courts have also applied the harmless error standard to § 455(b) 

violations. See Harris v. Champion, 15 F.3d 1538, 1571 (10th Cir. 1994); Polaroid Corp. 

v. Eastman Kodak Co., 867 F.2d 1415, 1421 (Fed. Cir. 1989); Parker v. Connors Steel 

Co., 855 F.2d 1510, 1527 (11th Cir. 1988).

518. Liljeberg, 486 U.S. at 864 (quoting In re Murchison, 349 U.S. 133, 136 (1955) 

(citation omitted)).
V. Disqualification on Appeal 103

Heeding the Court’s warning, courts of appeals have been slow to 

deem a failure to disqualify harmless error. A few exceptions are instructive.

In Harris v. Champion,

519 a judge in a habeas case failed to disqualify 

himself even though his uncle had been a judge in some of the state cases 

challenged on appeal. The Tenth Circuit found that disqualification was 

required under both § 455(a) and § 455(b)(5)(i). However, “this case presents the very unusual situation that [the judge] did not act alone, but 

rather as one member of a three-judge panel that ruled unanimously

. . . .”520 In part for that reason, the court opted not to vacate the rulings.

In Doddy v. Oxy USA, Inc.,

521 the judge disqualified herself based 

on inaccurate information, then vacated her disqualification order 

when she realized the mistake. The Fifth Circuit held that it was error 

to vacate the disqualification order. However, the error was harmless 

because:

[R]ecusal was sua sponte, and based on incomplete and incorrect information. . . . [N]one of the parties ever moved to have the judge step 

aside, and none has suggested any actual bias or prejudice. . . . [T]here is 

no risk of undermining the public’s confidence in the judicial process. 

Indeed, overturning the many decisions [the judge] made after vacating 

her recusal order—simply because she recused herself too hastily and 

in error—would be wasteful and unnecessary.

522

The Fifth Circuit also found harmless error in an improper failure 

to disqualify in United States v. Jordan.

523 It found that the defendant’s 

well-known, extremely antagonistic relationship with a close personal 

friend of the judge created an appearance of impropriety under 

§ 455(a). The court upheld the defendant’s conviction, but vacated the 

sentence and remanded the case for resentencing by a different judge. 

The “[a]ppellant never contends that she suffered any harm during 

trial because of any alleged bias or prejudice.”524 Under the circumstances, the court found that upholding the conviction would not be 

519. 15 F.3d 1538 (10th Cir. 1994).

520. Id. at 1572.

521. 101 F.3d 448 (5th Cir. 1996).

522. Id. at 459.

523. 49 F.3d 152 (5th Cir. 1995).

524. Id. at 158.
104 Judicial Disqualification: An Analysis of Federal Law

unjust to the appellant and would not undermine the public’s confidence in the judicial process.

Faced with a mandamus action seeking mistrial in the midst of 

complex mass tort litigation, the First Circuit noted that while the Liljeberg analysis was in the context of a Rule 60(b) motion, “we believe it 

should apply as well to present circumstances, where ‘mistrial’ . . . 

would threaten to undo matters of considerable importance previously

decided.”525 Thus, even assuming arguendo that disqualification was 

improperly denied, the court nevertheless denied the requested relief 

because it would mean retrying complex and costly litigation and reopening settlement agreements.

526 Moreover, no future injustice would 

result because there were no allegations of actual bias infecting any 

findings or rulings, and no rulings had been made that “are incurable 

or could have preclusive effect in some other action.”527 Finally, because the alleged appearance of impropriety (brothers of the judge’s 

law clerks were among the attorneys in the case) was not egregious, the 

court did “not believe . . . that the relevant public’s confidence in the 

judiciary would be seriously undermined were no mistrial declared.”528

2. Reviewability of lower court decisions to disqualify

The vast majority of disqualification appeals concern a judge’s refusal 

to disqualify. The courts of appeals are split as to whether a judge’s

decision to disqualify is reviewable.

Holding that a decision to disqualify is unreviewable, the Seventh 

Circuit explained its rationale:

[W]e fail to conceive of any interest which the plaintiffs have as litigants for review of [the judge’s] recusal order. The effect of his decision to step aside is merely to have the case reassigned to another judge 

of the district court. The order does not strip plaintiffs of a fair forum 

in which they can pursue their claim. . . . [T]hey have no protectable interest in the continued exercise of jurisdiction by a particular judge.

529

525. In re Allied-Signal Inc., 891 F.2d 967, 973 (1st Cir. 1989).

526. Id.

527. Id.

528. Id.

529. Hampton v. City of Chi., 643 F.2d 478, 479 (7th Cir. 1981) (per curiam).
V. Disqualification on Appeal 105

The court held that the order to disqualify is not a final order and, because a party lacks a claim of right to the original judge, the collateral 

order doctrine does not apply.

530 The Eighth and Ninth Circuits have 

taken the same position.

531

The Ninth Circuit, as noted above, concurs that a decision to disqualify is not reviewable on appeal, but has allowed a party to seek a 

writ of mandamus to review a decision to disqualify in “exceptional

situations in which the costs of familiarizing a new judge, in terms of 

delay, will prove to be very great” and the litigation is “greatly disrupted.”532 The First Circuit addressed the reviewability of sua sponte 

disqualifications in United States v. Snyder.

533 The district court judge 

expressed pervasive hostility toward a federal prosecutor for what the 

judge perceived to be a selective and “grossly disparate” sentencing

request.

534 The district judge disqualified himself sua sponte, and the 

defendant appealed the decision claiming the judge had a duty to sit. 

The First Circuit held that a sua sponte disqualification must be examined in light of both the duty to sit and the duty to disqualify:

535

We have recognized that the duty to recuse and the duty to sit do not exert equal pull; in close cases, “doubts ordinarily ought to be resolved in 

favor of recusal.” No one suggests that different principles of review 

apply here, where a judge has recused himself sua sponte. Hence, our 

review in this case, as in our prior cases, is both deferential and 

weighted: we inquire whether, in light of the policy favoring recusal in 

close cases, [the trial judge] abused his discretion in finding that he had 

a duty to recuse himself.

536

Both the Fourth and Sixth Circuits have been willing to review orders 

by judges disqualifying themselves, at least in some circumstances.

537

530. Id. at 479–80.

531. See, e.g., Liddell v. Bd. of Educ., 677 F.2d 626, 644 (8th Cir. 1982); In re Cement Antitrust Litig., 673 F.2d 1020, 1022–24 (9th Cir. 1982).

532. Cement Antitrust, 673 F.2d at 1025.

533. 235 F.3d 42 (1st Cir. 2000).

534. Id. at 47.

535. Id. at 46.

536. Id. 

537. See In re Va. Elec. & Power Co., 539 F.2d 357, 363–65 (4th Cir. 1976) (decision to disqualify reviewable by mandamus, and as collateral order pursuant to 28 

U.S.C. § 1292(b), where it raises important legal issue that would otherwise escape 
106 Judicial Disqualification: An Analysis of Federal Law

3. Mootness of underlying dispute

A claim for disqualification, like any other claim, cannot be adjudicated 

absent a live dispute between the parties. Courts have implicitly or explicitly 

rejected disqualification requests as moot in a variety of circumstances.

538 In 

Pontarelli v. Stone,

539 after all the parties had settled the merits of the 

underlying disputes, one of the attorneys appealed the denial of attorneys’ fees. The focus of the attorney’s claim, however, was that the 

judge should have disqualified himself pursuant to § 455(a). The First 

Circuit found the issue moot:

[B]efore an appellate court can make a ruling on the appropriateness of 

disqualification by a district judge . . . the underlying dispute as to 

which the district court ruling is relevant must still remain a live controversy. . . . If a trial judge has wrongly failed to disqualify him or herself, the remedy to correct this situation is for the appellate court to reverse the decision of the case on the merits and to order a new trial before a different judge.

540

Where, as here, the underlying case had settled, and no party challenged the settlement, the issue of disqualification was moot. The court 

noted that counsel’s recourse was to file a disciplinary complaint pursuant to 28 U.S.C. § 351.

541

review); Kelley v. Metro. County Bd., 479 F.2d 810, 811 n.1 (6th Cir. 1973) (decision to

disqualify reviewable, apparently immediately, though court did not clarify).

538. See, e.g., In re Starr, 152 F.3d 741, 751 n.23 (8th Cir. 1998) (holding party 

moving for disqualification lacked standing to bring underlying action); United 

States v. Kraus, 137 F.3d 447, 452 (7th Cir. 1998) (violation of Rule 11 required remand to a different judge anyway); Reynolds v. Int’l Amateur Athletic Fed’n, 23 F.3d 

1110, 1121 (6th Cir. 1994) (trial court’s judgment reversed on substantive grounds 

unrelated to disqualification); United States v. Ahmed, 980 F.2d 161, 163 (2d Cir. 

1992) (trial judge had already directed clerk of court to reassign case to a different 

judge); Mallory v. Eyrich, 922 F.2d 1273, 1282 (6th Cir. 1991) (trial judge had already 

withdrawn from case).

539. 978 F.2d 773 (1st Cir. 1992).

540. Id. at 775.

541. Id. at 776.
V. Disqualification on Appeal 107

4. Impact of guilty plea on reviewability of nondisqualification

The courts of appeals differ as to whether a defendant who pleads 

guilty waives her challenge to the trial judge’s denial of a motion to 

disqualify. In United States v. Chantal,

542 a defendant was charged with,

and pled guilty to, various drug-related offenses. At the sentencing 

hearing, the trial judge made critical comments about the defendant. It 

was later discovered that the defendant engaged in further drug-related 

activity while free on bond pending sentencing that resulted in a second indictment. The new case was assigned to the same judge, and the 

defendant moved to disqualify, but the judge refused. Subsequently the 

defendant pled guilty to that charge as well. On appeal, when the defendant challenged the judge’s refusal to disqualify himself with respect 

to the second indictment, the government argued that a guilty plea 

waives all but jurisdictional defenses and therefore waived the defendant’s § 455(a) challenge. The First Circuit disagreed:

Considering the laudable congressional aim that § 455(a) would assure 

not only an impartial court but the appearance of one, the idea that a plea 

of guilty would wipe out the attainment of adjudication by that kind of 

court is simply contrary to fundamental fairness. . . . [I]t is plain that 

Congress would never have thought its purpose to assure actions by 

judges who are not only impartial but appear to be, could be . . . eradicated by a plea engendered by the immediate prospect of a trial/decision 

by a biased judge.

543

The Fifth and Tenth Circuits have taken the opposite approach, 

holding that an unconditional guilty plea waives appeal of a § 455(a) 

disqualification motion.

544 They reason that since § 455(e) permits

waiver of disqualification when a judge is faced with an appearance of 

impropriety under § 455(a) but makes full disclosure, waiver may also 

be found when a party enters a guilty plea without specifically preserving the issue for appeal.

545

542. 902 F.2d 1018 (1st Cir. 1990).

543. Id. at 1021. Accord United States v. Brinkworth, 68 F.3d 633, 638 (2d Cir. 

1995) (endorsing First Circuit’s reasoning and conclusion).

544. United States v. Hoctel, 154 F.3d 506, 507 (5th Cir. 1998); United States v. 

Gipson, 835 F.2d 1323, 1324 (10th Cir. 1988).

545. Hoctel, 154 F.3d at 508 (citing Gipson, 835 F.2d at 1325).
108 Judicial Disqualification: An Analysis of Federal Law

Because in the Seventh Circuit the sole route to review a refusal to 

disqualify pursuant to § 455(a) is an immediate application for writ of 

mandamus, a party who fails to seek mandamus waives its right to raise 

the issue in a postjudgment appeal.

546 However, the Seventh Circuit has 

also held that “denial of a motion for mandatory disqualification under 

§ 144 need not be appealed immediately, and is not waived when the 

defendant pleads guilty.”547

5. Jurisdiction

Courts of appeals have sometimes found that they have jurisdiction to 

review a refusal to disqualify—for example, on a habeas petition—even 

though they lack jurisdiction to review the underlying merits of the trial 

court’s decision on the issue in the case.

548

Under 28 U.S.C. § 1447(d), “an order remanding a case to the State 

court from which it was removed is not reviewable on appeal or otherwise.” Yet the Fifth Circuit held that it had jurisdiction to determine 

whether the district court abused its discretion in denying a motion to 

disqualify. It reasoned that because a trial judge who has disqualified 

himself from a case may take no further action (except transferring the 

case to another federal judge), if the judge should have disqualified 

himself then any orders entered after denying the motion to disqualify 

were improper.

549 Therefore, reviewing the refusal to disqualify would 

not really be reviewing the order of remand, even though a finding that 

disqualification was required would lead to vacating the remand order. 

“[W]e would be performing an essentially ministerial task of vacating 

an order that the district court had no authority to enter into for reasons unrelated to the order of remand itself.”550

546. See, e.g., United States v. Horton, 98 F.3d 313, 316 (7th Cir. 1996); see also

supra notes 498–99 and accompanying text.

547. Id. (citing United States v. Troxell, 887 F.2d 830, 833 (7th Cir. 1989)).

548. See Trevino v. Johnson, 168 F.3d 173 (5th Cir. 1999); Russell v. Lane, 890 

F.2d 947 (7th Cir. 1989); Rice v. McKenzie, 581 F.2d 1114 (4th Cir. 1978).

549. Tramonte v. Chrysler Corp., 136 F.3d 1025, 1027–28 (5th Cir. 1998).

550. Id. at 1028.
V. Disqualification on Appeal 109

D. Disqualification under 28 U.S.C. § 2106

In addition to the explicitly iterated disqualification statutes, appellate 

courts have employed 28 U.S.C. § 2106 to disqualify judges on appeal. 

In Liteky v. United States,

551 the Supreme Court recognized this practice 

and acknowledged that “Federal appellate courts’ ability to assign a 

case to a different judge on remand rests not on the recusal statutes 

alone, but on the appellate courts’ statutory power . . . 28 U.S.C. 

§ 2106.”552

Section 2106 provides:

The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order 

of a court lawfully brought before it for review, and may remand the 

cause and direct entry of such appropriate judgment, decree, or order, 

or require such further proceedings to be had as may be just under the

circumstances.

553

Appellate courts have interpreted this statute to require reassignment to 

a different judge on remand when “removal is essential to ‘preserve[ ] 

both the appearance and reality of fairness.’”554 Generally, this power 

of reassignment should only be used in “rare and extraordinary circumstances,”555 including but not necessarily limited to circumstances 

manifesting personal bias.

556

The presence of personal bias will merit reassignment to a different 

judge on remand. In determining whether personal bias is evident, 

courts often base their determinations on the framework set forth in 

§ 455 and interpreted by Liteky.

557 For example, the First Circuit has 

551. 510 U.S. 540 (1994).

552. Id. at 554.

553. 28 U.S.C. § 2106 (emphasis added).

554. Cobell v. Kempthorne, 455 F.3d 317, 332 (D.C. Cir. 2006). 

555. Mustang Mktg., Inc. v. Chevron Prods. Co., 406 F.3d 600, 610 (9th Cir. 

2005). See also Johnson v. Sawyer, 120 F.3d 1307, 1333 (5th Cir. 1997).

556. See Smith v. Mulvaney, 827 F.2d 558, 562 (9th Cir. 1987).

557. See, e.g., Smith, 827 F.2d at 562 (determining that “[r]emand to a different 

trial judge is appropriate under a demonstration of personal bias”). See also Arthur 

D. Hellman, The Regulation of Judicial Ethics in the Federal System: A Peek Behind 

Closed Doors, 69 U. Pitt. L. Rev. 189, 204 (2007) (highlighting appellate courts’ use of 

§ 2106 as “a device for enforcing an ethical standard almost identical to that of 

§ 455(a)”).
110 Judicial Disqualification: An Analysis of Federal Law

held that when the district judge’s views—even if arguably incendiary—were grounded entirely on information acquired at trial, there 

was no evidence of personal bias sufficient to require reassignment.

558

Likewise, the Ninth Circuit has ruled that even though adopting a 

party’s findings in their entirety is a “disfavored practice,” this action 

does not meet the standard for personal bias necessary to require reassignment.

559

Absent personal bias, appellate courts require a showing of “unusual circumstances” in order to determine that reassignment on remand is required.

560 Appeals courts use two different tests to determine 

whether unusual circumstances exist such that reassignment on remand 

is warranted: a three-factor test and an “objective observer” test.

The Second, Sixth, and Ninth Circuits apply a three-factor test to 

determine whether unusual circumstances exist that would merit reassignment: (1) “whether on remand the district judge can be expected to 

follow [the appellate] court’s dictates”; (2) “whether reassignment is 

advisable to maintain the appearance of justice”; and (3) “whether reassignment risks undue waste and duplication.”561 In weighing these 

factors, “[t]he first two factors are considered to be of equal importance and a finding of either one will support a remand to a different

judge.”562

558. Hull v. Municipality of San Juan, 356 F.3d 98, 104 (1st Cir. 2004) (holding, 

as in Liteky, that “views formed by a judge in considering a case are normally not a 

sound basis either for required recusal or for directing that a different judge be assigned on remand” (citing Liteky v. United States, 510 U.S. 540, 555–56 (1994)).

559. See Vuitton et Fils v. J. Young, 644 F.2d 769, 778 (9th Cir. 1980).

560. See, e.g., Mustang Mktg., 406 F.3d at 610 (discussing the two inquiries that 

must be made in applying 28 U.S.C. § 2106: (1) “whether the district court has exhibited personal bias requiring recusal from a case” and (2) “whether ‘unusual circumstances’ merit reassignment”) (quoting United States v. Sears, Roebuck & Co., 785 

F.2d 777, 779–80 (9th Cir. 1986)).

561. United States v. Lyons, 472 F.3d 1055, 1071 (9th Cir. 2007). See also Solomon v. United States, 467 F.3d 928, 935 (6th Cir. 2007); United States v. Robin, 533 

F.2d 8, 10 (2d Cir. 1977) (en banc).

562. Beckman Instruments, Inc. v. Cincom Sys., Inc., Nos. 99-55111 & 55453, 

2000 U.S. App. LEXIS 18166 at *13 (9th Cir. July 25, 2000) (unpublished table opinion); see also Living Designs v. E.I. Dupont de Nemours, 431 F.3d 353, 372 (9th Cir. 

2005).
V. Disqualification on Appeal 111

This test has been applied most frequently by the Ninth Circuit in 

addressing situations where questionable judicial tactics have compromised the appearance of justice. For example, in Living Designs v. 

E.I. Dupont de Nemours,

563 the district court adopted a party’s summary 

judgment order wholesale with only minor changes; directed publication of the ghost-written order; and reversed a previously entered certification sub silento. The Ninth Circuit concluded that even though the 

district judge’s impartiality was arguably still intact, his actions constituted the unusual circumstances necessary to require reassignment on

remand.

564 Similarly, in Beckman Instruments, Inc. v. Cincom Systems,

Inc.,

565 when the district judge displayed blatant disregard for the circuit court’s mandates (as evidenced by the reaffirmation of his prior 

ruling without addressing or attempting to distinguish the appellate 

court’s determination), and overt animosity toward a party (as displayed by his denial of the party’s motions without review), the Ninth 

Circuit ordered reassignment on remand.

566

The Third, Eighth, Eleventh, and District of Columbia Circuits 

have adopted a more lenient “objective observer” standard to determine whether unusual circumstances that would merit reassignment on 

remand are present.

567 This test requires reassignment when “facts 

‘might reasonably cause an objective observer to question [the judge’s] 

impartiality.’”568 In this way, the appellate courts can combat not only 

actual bias but also the appearance of bias by remanding to a different 

judge when “reasonable observers could believe that a judicial decision flowed from the judge’s animus toward a party rather than from 

the judge’s application of law to fact.”569

563. 431 F.3d 353 (9th Cir. 2005).

564. Id. at 372.

565. Nos. 99-55111 & 55453, 2000 U.S. App. LEXIS 18166 (9th Cir. July 25, 2000).

566. Id. at *14.

567. See In re DaimlerChrysler Corp., 294 F.3d 697, 701 (5th Cir. 2002) (describing both “objective observer” and three-factor tests, but declining to specifically 

adopt either).

568. United States v. Microsoft (Microsoft I), 56 F.3d 1448, 1463 (D.C. Cir. 1995) 

(per curiam) (quoting Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 865 

(1988)). See also Haines v. Liggett Group, Inc., 975 F.2d 81, 93 (3d Cir. 1992); United 

States v. Torkington, 874 F.2d 1441, 1446 (11th Cir. 1989).

569. Cobell v. Kempthorne, 455 F.3d 317, 332 (D.C. Cir. 2006).
112 Judicial Disqualification: An Analysis of Federal Law

In applying the objective observer test, appellate courts have typically found reassignment necessary when judicial conduct exceeds the 

bounds of unquestioned impartiality. For example, in Cobell v.

Kempthorne,

570 the D.C. Circuit heard the ninth appeal in six years of a 

case involving a dispute between the beneficiaries of Indian land trusts 

and their trustee, the United States. Although the district judge’s conduct had not met the Liteky standard for personal bias,

571 the harsh language in all eight of the judge’s prior opinions, coupled with a string of 

reversals by the D.C. Circuit, required reassignment.

572 The court concluded that, taken together, these facts would leave “‘an objective observer . . . with the overall impression’

573 that the district court’s professed hostility to [the defendant] has become ‘so extreme as to display 

clear inability to render fair judgment.’”574

Similarly, in United States v. Tucker, the Office of Independent 

Counsel (OIC) sought disqualification of the district judge because of 

“reported connections among Judge Woods, the Clintons, and [defendant] Tucker,” connections it chronicled with various newspaper articles.

575 Although none of the articles directly linked the judge to the 

defendant, the Eighth Circuit ordered remand of the case to a different 

judge under § 2106, noting that the judge had worked with and admired Hillary Clinton, and had spent a night in the White House. The 

court further noted that “President and Mrs. Clinton have been reported to have expressed continued support for Tucker since his indictment by the grand jury”576 and attended a fundraising luncheon for 

570. 455 F.3d 317 (D.C. Cir. 2006).

571. Id. at 332 (noting that it is a “rare case that meets the Liteky standard” for 

disqualification, in which “the judge’s views have become ‘so extreme as to display 

clear inability to render fair judgment’”) (quoting Liteky v. United States, 510 U.S. 

540, 551 (1994)).

572. Id. at 333–35.

573. Id. at 335 (quoting Microsoft I, 56 F.3d at 1463).

574. Id. (quoting Liteky, 510 U.S. at 551). See also Haines v. Liggett Group, 975 

F.2d 81 (3d Cir. 1992). Although not citing to 28 U.S.C. § 2106 explicitly, the Third 

Circuit found that the district judge’s use of inflammatory language threatened the 

“appearance of impartiality.” To preserve this impartiality, the court exercised its 

“supervisory powers” and remanded the case to a different judge. Haines, 975 F.2d at 

98.

575. 78 F.3d 1313, 1325 (8th Cir. 1996).

576. Id. at 1323.
V. Disqualification on Appeal 113

him. In the court’s view, reassignment was necessary because of the 

“risk of a perception of judicial bias or partiality”577 given the “high 

profile”578 of the OIC’s work and the widely reported connections.

The decision in Tucker also involved the use of an unusual procedure for requesting disqualification of the district judge. Instead of presenting the issue to the judge directly, the appellant presented the request for the first time on appeal. The Eighth Circuit held that it was 

empowered, pursuant to § 2106, to direct the entry of any order “as 

may be just under the circumstances,” including the reassignment of 

the case to a different district judge where, under § 455(a), the judge’s 

“impartiality might reasonably be questioned.”579

The D.C. Circuit, in “a departure from [its] usual practice of declining to address issues raised for the first time on appeal,”580 considered the appellant’s request for disqualification of the trial judge where 

“the full extent of [the judge’s] actions [were] not [ ] revealed until this 

case was on appeal.”581

577. Id. at 1324.

578. Id. at 1325.

579. Id. at 1324.

580. United States v. Microsoft Corp., 253 F.3d 34, 109 (D.C. Cir. 2001).

581. Id. at 108.

115

Appendix

Code of Conduct for United States Judges

(Effective July 1, 2009)

Canon 3: A Judge Should Perform the Duties of the Office Fairly, Impartially and Diligently

. . .

C. Disqualification.

(1) A judge shall disqualify himself or herself in a proceeding in 

which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which:

(a) the judge has a personal bias or prejudice concerning a party, or 

personal knowledge of disputed evidentiary facts concerning the proceeding;

(b) the judge served as a lawyer in the matter in controversy, or a 

lawyer with whom the judge previously practiced law served during 

such association as a lawyer concerning the matter, or the judge or 

lawyer has been a material witness;

(c) the judge knows that the judge, individually or as a fiduciary, or 

the judge’s spouse or minor child residing in the judge’s 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 affected substantially by the outcome of the 

proceeding;

(d) the judge or the judge’s spouse, or a person related to either 

within the third degree of relationship, or the spouse of such a person is:

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

party;

(ii) acting as a lawyer in the proceeding;

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

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

proceeding;
116 Judicial Disqualification: An Analysis of Federal Law

(e) the judge has served in governmental employment and in that 

capacity participated as a judge (in a previous judicial position), 

counsel, advisor, or material witness concerning the proceeding or 

has expressed an opinion concerning the merits of the particular case 

in controversy.

(2) A judge should keep informed about the judge’s personal and fiduciary financial interests and make a reasonable effort to keep informed about the personal financial interests of the judge’s spouse 

and minor children residing in the judge’s household.

(3) For the purposes of this section:

(a) the degree of relationship is calculated according to the civil law 

system; the following relatives are within the third degree of relationship: parent, child, grandparent, grandchild, great grandparent, great 

grandchild, sister, brother, aunt, uncle, niece, and nephew; the listed 

relatives include whole and half blood relatives and most step relatives;

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

(c) “financial interest” means ownership of a legal or equitable interest, however small, or a relationship as director, advisor, 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, or 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;
Appendix 117

(d) “proceeding” includes pretrial, trial, appellate review, or other 

stages of litigation.

(4) Notwithstanding the preceding provisions of this Canon, if a judge 

would be disqualified because of 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 (or the judge’s spouse or 

minor child) divests the interest that provides the grounds for disqualification.

D. Remittal of Disqualification. Instead of withdrawing from the proceeding, a judge disqualified by Canon 3C(1) may, except in the circumstances specifically set out in subsections (a) through (e), disclose 

on the record the basis of disqualification. The judge may participate 

in the proceeding if, after that disclosure, the parties and their lawyers 

have an opportunity to confer outside the presence of the judge, all 

agree in writing or on the record that the judge should not be disqualified, and the judge is then willing to participate. The agreement should 

be incorporated in the record of the proceeding.

119

For Further Reference

James J. Alfini, Steven Lubet, Jeffrey M. Shaman & Charles Gardner 

Geyh, Judicial Conduct and Ethics (4th ed. 2007) 

Richard E. Flamm, Judicial Disqualification: Recusal and Disqualification of Judges (2d ed. 2007)

121

Table of Cases

Aetna Casualty & Surety Co., In re, 919 F.2d 1136 (6th Cir. 1990), 65–66, 68, 82, 97

Aguinda, In re, 241 F.3d 194 (2d Cir. 2001), 45

Albert v. United States District Court, 283 F.2d 61 (6th Cir. 1960), 90

Alexander v. Chicago Park District, 709 F.2d 463 (7th Cir. 1983), 98

Alexander v. Primerica Holdings, Inc., 10 F.3d 155 (3d Cir. 1993), 15, 40

Allied-Signal Inc., In re, 891 F.2d 967 (1st Cir. 1989), 19, 104

Alloco v. City of Coral Gables, 159 F. App’x 921 (11th Cir. 2005), 100

American Textile Manufacturers Institute, Inc. v. Limited, Inc., 190 F.3d 729 (6th Cir. 

1999), 74

Anderson v. United States, 754 A.2d 920 (D.C. Ct. App. 2000), 28

Andrade v. Chojnacki, 338 F.3d 448 (5th Cir. 2003), 50, 51

Apple v. Jewish Hospital & Medical Center, 829 F.2d 326 (2d Cir. 1987), 76, 77

Arnold v. Eastern Air Lines Inc., 712 F.2d 899 (4th Cir. 1983), 79

Bailey v. Broder, No. 94, 1997 WL 73717, at *3 (S.D.N.Y. Feb. 20, 1997), 53

Baldwin Hardware Corp. v. Franksu Enterprise Corp., 78 F.3d 550 (Fed. Cir. 1996), 18

Barksdale v. Emerick, 853 F.2d 1359 (6th Cir. 1988), 76

Barry, In re, 946 F.2d 913 (D.C. Cir. 1991), 18

Bartley v. United States, 123 F.3d 466 (7th Cir. 1997), 14

Basciano, In re, 542 F.3d 950 (2d Cir. 2008), 101

Beard, In re, 811 F.2d 818 (4th Cir. 1987), 88

Beckman Instruments, Inc. v. Cincom Sys., Inc., Nos. 99-55111 & 55453, 2000 U.S. App. 

LEXIS 18166 (9th Cir. July 25, 2000), 110–11

Bell v. Chandler, 569 F.2d 556 (10th Cir. 1978), 97

Berger v. United States, 255 U.S. 22 (1921), 5–6, 86, 90

Berthelot v. Boh Brothers Construction Co., L.L.C., 431 F. Supp. 2d 639 (E.D. La. 2006),

62–63

Blanche Road Corp. v. Bensalem Township, 57 F.3d 253 (3d Cir. 1995), 18

Blue Cross & Blue Shield of Rhode Island v. Delta Dental of Rhode Island, 248 F. Supp.

2d 39 (D.R.I. 2003), 56–57

Boston’s Children First, In re, 244 F.3d 164 (1st Cir. 2001), 41–42, 43, 98

Brody v. President & Fellows of Harvard College, 664 F.2d 10 (1st Cir. 1981), 13

Brokaw v. Mercer County, 235 F.3d 1000 (7th Cir. 2000), 50–51, 92

Brotherhood of Locomotive Firemen v. Bangor & Aroostook Railroad, 380 F.2d 570 (D.C. 

Cir. 1967), 93

Bryce v. Episcopal Church in the Diocese of Colorado, 289 F.3d 648 (10th Cir. 2002), 24, 

99

Bumpus v. Uniroyal Tire Co. Division of Uniroyal, Inc., 385 F. Supp. 711 (E.D. Pa. 1974),

89

Byrne v. Nezhat, 261 F.3d 1075 (11th Cir. 2001), 30
122 Judicial Disqualification: An Analysis of Federal Law

Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009), 1

Cargill, In re, 66 F.3d 1256 (1st Cir. 1995), 26–27, 75

Cement Antitrust Litigation, In re, 673 F.2d 1020 (9th Cir. 1982), 82, 97, 105

Certain Underwriter, In re, 294 F.3d 297 (2d Cir. 2002), 65

Chase Manhattan Bank v. Affiliated FM Insurance Co., 343 F.3d 120 (2d Cir. 2003), 66, 73–

74

Cheney v. United States District Court for the District of Columbia, 541 U.S. 913 (2004),

13, 18, 20, 24–25

Chevron, U.S.A., Inc., In re, 121 F.3d 163 (5th Cir. 1997), 12, 32–33, 99

Chitimacha Tribe v. Laws, 690 F.2d 1157 (5th Cir. 1982), 92

Christo v. Padgett, 323 F.3d 1324 (11th Cir. 2000), 85, 87

Clemmons v. Wolfe, 377 F.3d 322 (3d Cir. 2004), 59

Cobell v. Kempthorne, 455 F.3d 317 (D.C. Cir. 2006), 109, 111–12

Cohee v. McDade, 472 F. Supp. 2d 1082 (S.D. Ill. 2006), 79

Collins v. Illinois, 554 F.3d 693 (7th Cir. 2009), 50

Comfort v. Lynn School Committee, 418 F.3d 1 (1st Cir. 2005), 99

Continental Airlines Corporation, In re, 901 F.2d 1259 (5th Cir. 1990), 22

Cooper & Lynn, In re, 821 F.2d 833 (1st Cir. 1987), 84, 88

Corrugated Container Antitrust Litigation, In re, 614 F.2d 958 (5th Cir. 1980), 97

Cramp & Sons Ship & Engine Building Co. v. International Curtiss Marine Turbine Co., 

228 U.S. 645 (1913), 96

Curry v. Jensen, 523 F.2d 387 (9th Cir. 1975), 92

DaimlerChrysler Corp., In re, 294 F.3d 697 (5th Cir. 2002), 111

Danielson v. Winnfield Funeral Home of Jefferson, Inc., 634 F. Supp. 1110 (E.D. La. 1986),

89

Davis v. Board of School Commissioners, 517 F.2d 1044 (5th Cir. 1975), 88, 90

Dembowski v. New Jersey Transit Rail Operations, Inc., 221 F. Supp. 2d 504 (D.N.J. 2002),

53

DeNardo v. Municipality of Anchorage, 974 F.2d 1200 (9th Cir. 1992), 47

Diamondstone v. Macaluso, 148 F.3d 113 (2d Cir. 1998), 19

Dixon v. Clem, 492 F.3d 665 (5th Cir. 2007), 100

Doddy v. Oxy USA, Inc., 101 F.3d 448 (5th Cir. 1996), 79, 103

Drake v. Birmingham Board of Education, 476 F. Supp. 2d 1341 (N.D. Ala. 2007), 78

Draper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004), 61–62, 99

Drexel Burnham Lambert Inc., In re, 861 F.2d 1307 (2d Cir. 1988), 13, 20

Duplantier v. United States, 606 F.2d 654 (5th Cir. 1979), 14

E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280 (9th Cir. 1992), 22

Easley v. University of Michigan Board of Regents, 853 F.2d 1351 (6th Cir. 1988), 13, 54, 89

Edgar v. K.L., 93 F.3d 256 (7th Cir. 1996), 38, 55

El Fenix de Puerto Rico v. The M/Y Johanny, 36 F.3d 136 (1st Cir. 1994), 79

Faulkner, In re, 856 F.2d 716 (5th Cir. 1988), 19, 23, 54

FCC, In re, 208 F.3d 137 (2d Cir. 2000), 57
Table of Cases 123

FDIC v. Sweeney, 136 F.3d 216 (1st Cir. 1998), 46

First Interstate Bank of Arizona v. Murphy, Weir & Butler, 210 F.3d 983 (9th Cir. 2000), 26

Fletcher v. Conoco Pipe Line Co., 323 F.3d 661 (8th Cir. 2003), 25

Gordon v. Reliant Energy, Inc., 141 F. Supp. 2d 1041 (S.D. Cal. 2001), 62, 64

Green v. Dorrell, 969 F.2d 915 (10th Cir. 1992), 89

Grove Fresh Distributors, Inc. v. John Labatt, Ltd., 299 F.3d 635 (7th Cir. 2002), 52

Haines v. Liggett Group, Inc., 975 F.2d 81 (3d Cir. 1992), 111, 112

Hall v. Small Business Administration, 695 F.2d 175 (5th Cir. 1983), 76

Halliday v. United States, 380 F.2d 270 (1st Cir. 1967), 38–39

Hampton v. City of Chicago, 643 F.2d 478 (7th Cir. 1981), 104–05

Harris v. Champion, 15 F.3d 1538 (10th Cir. 1994), 67, 102, 103

Hatcher, In re, 150 F.3d 631 (7th Cir. 1998), 18, 29, 55, 67–68, 99

Hathcock v. Navistar International Transportation Corp., 53 F.3d 36 (4th Cir. 1995), 42

Henderson v. Department of Public Safety & Corrections, 901 F.2d 1288 (5th Cir. 1990),

90, 92

Higganbotham v. Oklahoma, 328 F.3d 638 (10th Cir. 2003), 24, 72

Hinman v. Rogers, 831 F.2d 937 (10th Cir. 1987), 13, 18

Hodgdon v. United States, 365 F.2d 679 (8th Cir. 1966), 92

Hoffman v. Caterpillar, Inc., 368 F.3d 709 (7th Cir. 2004), 100

Hook v. McDade, 89 F.3d 350 (7th Cir. 1996), 40, 49

Hoover v. Ronwin, 466 U.S. 558 (1984), 90

Hull v. Municipality of San Juan, 356 F.3d 98 (1st Cir. 2004), 110

Hunt v. American Bank & Trust Co., 783 F.2d 1011 (11th Cir. 1986), 30

Huntington Commons Assocs., In re, 21 F.3d 157 (7th Cir. 1994), 32

IBM Corp., In re, 618 F.2d 923 (2d Cir. 1980), 97

IBM Corp., In re, 45 F.3d 641 (2d Cir. 1995), 76

Ignacio v. Ninth Circuit, 453 F.3d 1160 (9th Cir. 2006), 14

Initial Public Offering Securities Litigation, In re, 174 F. Supp. 2d 70 (S.D.N.Y. 2001), 64

Initial Public Offering Securities Litigation, In re, 174 F. Supp. 2d 61 (S.D.N.Y. 2001), 74

IQ Products Co. v. Pennzoil Products Co., 305 F.3d 368 (5th Cir. 2002), 71

Jefferson County v. Acker, 92 F.3d 1561 (11th Cir. 1996), 14, 60–61

Johnson, In re, 921 F.2d 585 (5th Cir. 1991), 39–40

Johnson v. Sawyer, 120 F.3d 1307 (5th Cir. 1997), 109

Jones v. Pittsburgh National Corp., 899 F.2d 1350 (3d Cir. 1990), 46

Kansas Public Employees Retirement System, In re, 85 F.3d 1353 (8th Cir. 1996), 70, 77

Kelley v. Metropolitan County Board, 479 F.2d 810 (6th Cir. 1973), 106

Kendrick v. Carlson, 995 F.2d 1440 (8th Cir. 1993), 59

Kensington International Ltd., In re, 368 F.3d 289 (3d Cir. 2004), 78

Key Pharm., Inc. v. Mylan Laboratories, Inc., 24 F. Supp. 2d 480 (W.D. Pa. 1998), 64

Kidder, Peabody & Co. v. Maxus Energy Corp., 925 F.2d 556 (2d Cir. 1991), 64

Laird v. Tatum, 409 U.S. 824 (1972), 6, 12

Larson, In re, 43 F.2d 410 (8th Cir. 1994), 39, 98
124 Judicial Disqualification: An Analysis of Federal Law

Lewin v. Cooke, 28 F. App’x 186 (4th Cir. 2002), 101 

Liddell v. Board of Education, 677 F.2d 626 (8th Cir. 1982), 97, 105

Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988), 12, 19, 20–21, 22, 72, 

102, 104, 111

Liteky v. United States, 510 U.S. 540 (1994), 12, 30–31, 32, 33, 36–37, 41, 51, 84, 85, 86–87, 

109, 110, 112 

Literary Works in Electronic Databases Copyright Litigation, In re, 509 F.3d 136 (2d Cir. 

2007), 65 

Little Rock School District v. Arkansas, 902 F.2d 1289 (8th Cir. 1990), 18 

Living Designs v. E.I. Dupont de Nemours, 431 F.3d 353 (9th Cir. 2005), 110, 111 

LoCascio v. United States, 473 F.3d 493 (2d Cir. 2007), 47, 53 

Macdraw, Inc. v. CIT Group Equipment Financing, Inc., 157 F.3d 956 (2d Cir. 1998), 20

Mallory v. Eyrich, 922 F.2d 1273 (6th Cir. 1991), 106

Mangum v. Hargett, 67 F.3d 80 (5th Cir. 1995), 59 

Mann, In re, 229 F.3d 657 (7th Cir. 2000), 32, 49 

Mann v. Thalacker, 246 F.3d 1092 (8th Cir. 2001), 50–51 

Marion v. Radtke, No. 07-cv-243-bbc, 2009 U.S. Dist. LEXIS 41031 (W.D. Wis. May 14, 

2009), 51 

Marshall, In re, 291 B.R. 855 (Bankr. C.D. Cal. 2003), 32 

Martinez-Catala, In re, 129 F.3d 213 (1st Cir. 1997), 22, 29, 89, 90, 92, 93, 98

Mason, In re, 916 F.2d 384 (7th Cir. 1990), 18, 19

McCarthy, In re, 368 F.3d 1266 (10th Cir. 2004), 92, 98 

McCuin v. Texas Power & Light Co., 714 F.2d 1255 (5th Cir. 1983), 68–69, 82

Microsoft Corp. v. United States, 530 U.S. 1301 (2000), 18, 20 

Mims v. Shapp, 541 F.2d 415 (3d Cir. 1976), 91

Moody v. Simmons, 858 F.2d 137 (3d Cir. 1988), 79

Moran v. Clarke, 296 F.3d 638 (8th Cir. 2002), 101

Moran v. Dillingham, 174 U.S. 153 (1899), 96

Morrison v. United States, 432 F.2d 1227 (5th Cir. 1970), 84

Murchison, In re, 349 U.S. 133 (1955), 102 

Murray v. Scott, 253 F.3d 1308 (11th Cir. 2001), 58–59 

Mustang Marketing, Inc. v. Chevron Products Co., 406 F.3d 600 (9th Cir. 2005), 109, 110 

Nakell v. Attorney General of North Carolina, 15 F.3d 319 (4th Cir. 1994), 13

National Union Fire Insurance Co., In re, 839 F.2d 1226 (7th Cir. 1988), 75, 76

New Mexico Natural Gas Antitrust Litigation, In re, 620 F.2d 794 (10th Cir. 1980), 61

New York City Housing Development Corp. v. Hart, 796 F.2d 976 (7th Cir. 1986), 13

Nichols v. Alley, 71 F.3d 347 (10th Cir. 1995), 13

Nordbrock v. United States, 2 F. App’x 779 (9th Cir. 2001), 77 

Norfolk, Town of, v. United States Army Corps of Engineers, 968 F.2d 1438 (1st Cir. 1992), 

37

Omega Engineering, Inc. v. Omega, S.A., 432 F.3d 437 (2d Cir. 2005), 99 

O’Regan v. Arbitration Forums, Inc., 246 F.3d 975 (7th Cir. 2001), 18, 19 
Table of Cases 125

Oriental Financial Group, Inc. v. Federal Insurance Co., Inc., 467 F. Supp. 2d 176 (D.P.R. 

2006), 67

Osei-Afriyie v. Medical College of Pennsylvania, 937 F.2d 876 (3d Cir. 1991), 102

Panzardi-Alvarez v. United States, 879 F.2d 975 (1st Cir. 1989), 39

Parker v. Connors Steel Co., 855 F.2d 1510 (11th Cir. 1988), 18, 26, 102

Pashaian v. Eccelston Properties, Ltd., 88 F.3d 77 (2d Cir. 1996), 16, 71, 80–81

Patterson v. Mobile Oil Corp., 335 F.3d 476 (5th Cir. 2003), 29

Pepsico, Inc. v. McMillan, 764 F.2d 458 (7th Cir. 1985), 27–28

Pesnell v. Arsenault, 543 F.3d 1038 (9th Cir. 2008), 85, 87

Phillips v. Joint Legislative Committee on Performance & Expenditure Review, 637 F.2d 

1014 (5th Cir. 1981), 85

Pilla v. American Bar Association, 542 F.2d 56 (8th Cir. 1976), 13, 14

Placid Oil Co., In re, 802 F.2d 783 (5th Cir. 1986), 63

Polaroid Corp. v. Eastman Kodak Co., 867 F.2d 1415 (Fed. Cir. 1989), 76, 102

Pontarelli v. Stone, 978 F.2d 773 (1st Cir. 1992), 76, 106

Potashnick v. Port City Construction Co., 609 F.2d 1101 (5th Cir. 1980), 70, 76

Preston v. United States, 923 F.2d 731 (9th Cir. 1991), 57, 77

Price Brothers v. Philadelphia Gear Corporation, 629 F.2d 444 (6th Cir. 1980), 15, 38

Price Brothers v. Philadelphia Gear Corporation, 649 F.2d 416 (6th Cir. 1981), 15, 38

Rabushka v. Crane Co., 122 F.3d 559 (8th Cir. 1997), 77

Reed v. Rhodes, 179 F.3d 453 (6th Cir. 1999), 38

Republic of Panama v. American Tobacco Co., 217 F.3d 343 (5th Cir. 2000), 12

Republican Party of Minnesota v. White, 536 U.S. 765 (2002), 40

Rexford v. Brunswick-Balke-Collender Co., 228 U.S. 339 (1913), 96

Reynolds v. International Amateur Athletic Federation, 23 F.3d 1110 (6th Cir. 1994), 106

Rhodes v. McDannel, 945 F.2d 117 (6th Cir. 1991), 88

Rice v. McKenzie, 581 F.2d 1114 (4th Cir. 1978), 108

Roberts v. Bailar, 625 F.2d 125 (6th Cir. 1980), 23, 84

Robinson v. Boeing Co., 79 F.3d 1053 (11th Cir. 1996), 68

Rogers, In re, 537 F.2d 1196 (4th Cir. 1976), 56, 97

Ronwin v. State Bar of Arizona, 686 F.2d 692 (9th Cir. 1981), 90–91

Russell v. Lane, 890 F.2d 947 (7th Cir. 1989), 22, 95, 108

Sac & Fox Nation v. Cuomo, 193 F.3d 1162 (10th Cir. 1999), 99

Sao Paulo State of Federative Republic of Brazil v. American Tobacco Co., Inc., 535 U.S. 

229 (2002), 21

SCA Services v. Morgan, 557 F.2d 110 (7th Cir. 1977), 97

Scenic Holding, LLC v. The New Board of Trustees of the Tabernacle Missionary Baptist 

Church, Inc., 506 F.3d 656 (8th Cir. 2007), 98

School Asbestos Litigation, In re, 977 F.2d 764 (3d Cir. 1992), 15, 45, 97

Schurz Communications, Inc. v. FCC, 982 F.2d 1057 (7th Cir. 1992), 79

SEC v. Loving Spirit Foundation, Inc., 392 F.3d 486 (D.C. Cir. 2004), 100

Selkridge v. United of Omaha Life Insurance Co., 360 F.3d 155 (3d Cir. 2004), 99
126 Judicial Disqualification: An Analysis of Federal Law

Sensley v. Albritton, 385 F.3d 591 (5th Cir. 2004), 61, 71–72

Smith v. Mulvaney, 827 F.2d 558 (9th Cir. 1987), 109

Solomon v. United States, 467 F.3d 928 (6th Cir. 2007), 110

Souder v. Owens-Corning Fiberglas Corp., 939 F.2d 647 (8th Cir. 1991), 88, 90

Southern Pacific Communications Co. v. AT&T, 740 F.2d 980 (D.C. Cir. 1984), 100

Southwestern Bell Co. v. FCC, 153 F.3d 520 (8th Cir. 1998), 70

Starr, In re, 152 F.3d 741 (8th Cir. 1998), 106

Stringer v. United States, 233 F.2d 947 (9th Cir. 1956), 80

Sullivan v. Conway, 157 F.3d 1092 (7th Cir. 1998), 48–49, 88

Summers v. Singletary, 119 F.3d 917 (11th Cir. 1997), 77

Suson v. Zenith Radio Corp., 763 F.2d 304 (7th Cir. 1985), 13

Swann v. Charlotte-Mecklenburg Board of Education, 431 F.2d 135 (4th Cir. 1970), 95–96

Tapia-Ortiz v. Winter, 185 F.3d 8 (2d Cir. 1999), 14

Tezak v. United States, 256 F.3d 702 (7th Cir. 2001), 99

Tramonte v. Chrysler Corp., 136 F.3d 1025 (5th Cir. 1998), 62, 64, 108

Travelers Insurance Co. v. Liljeberg Enterprises, Inc., 38 F.3d 1404 (5th Cir. 1994), 76

Trevino v. Johnson, 168 F.3d 173 (5th Cir. 1999), 108

Triple S Rests., Inc., In re, 422 F.3d 405 (6th Cir. 2005), 99

Tumey v. Ohio, 273 U.S. 510 (1927), 5

Union Leader Corp., In re, 292 F.2d 381 (1st Cir. 1961), 93

United States ex rel. Wilson v. Coughlin, 472 F.2d 100 (7th Cir. 1973), 84

United States, In re, 666 F.2d 690 (1st Cir. 1981), 18, 97

United States, In re, 158 F.3d 26 (1st Cir. 1998), 12–13, 79, 98–99

United States v. Adams, 634 F.2d 830 (5th Cir. 1981), 39

United States v. Ahmed, 980 F.2d 161 (2d Cir. 1992), 106

United States v. Alabama, 828 F.2d 1532 (11th Cir. 1987), 54, 92

United States v. Amico, 486 F.3d 764 (2d Cir. 2007), 77, 101

United States v. Antar, 53 F.3d 568 (3d Cir. 1995), 34–35

United States v. Arache, 946 F.2d 129 (1st Cir. 1991), 102

United States v. Aragon, No. 99-50341, 2000 U.S. App. LEXIS 15423 (9th Cir. June 29, 

2000), 63

United States v. Arnpriester, 37 F.3d 466 (9th Cir. 1994), 57–58

United States v. Balistrieri, 779 F.2d 1191 (7th Cir. 1985), 49, 50, 79, 84, 90, 99

United States v. Barnes, 909 F.2d 1059 (7th Cir. 1990), 76, 84

United States v. Barrett, 111 F.3d 947 (D.C. Cir. 1997), 15, 76, 77

United States v. Barry, 938 F.2d 1327 (D.C. Cir. 1991), 33

United States v. Barry, 961 F.2d 260 (D.C. Cir. 1992), 44

United States v. Bayless, 201 F.3d 116 (2d Cir. 2000), 18, 20, 46, 78

United States v. Bertoli, 40 F.3d 1384 (3d Cir. 1994), 46

United States v. Bobo, 323 F. Supp. 2d 1238 (N.D. Ala. 2004), 25

United States v. Boffa, 513 F. Supp. 505 (D. Del. 1981), 89

United States v. Boyd, 208 F.3d 638 (7th Cir. 2000), 59, 99
Table of Cases 127

United States v. Bray, 546 F.2d 851 (10th Cir. 1976), 92

United States v. Brinkworth, 68 F.3d 633 (2d Cir. 1995), 107

United States v. Burger, 964 F.2d 1065 (10th Cir. 1992), 92, 93

United States v. Chantal, 902 F.2d 1018 (1st Cir. 1990), 107

United States v. Cherry, 330 F.3d 658 (4th Cir. 2003), 99

United States v. Conforte, 624 F.2d 869 (9th Cir. 1980), 34

United States v. Cooley, 1 F.3d 985 (10th Cir. 1993), 41–42, 43

United States v. Dandy, 998 F.2d 1344 (6th Cir. 1993), 13

United States v. Dansker, 537 F.2d 40 (3d Cir. 1976), 92

United States v. Dehghani, 550 F.3d 716 (8th Cir. 2008), 47

United States v. DeLuna, 763 F.2d 897 (8th Cir. 1985), 57

United States v. DeTemple, 162 F.3d 279 (4th Cir. 1998), 18–19, 56

United States v. Di Pasquale, 864 F.2d 271 (3d Cir. 1988), 59

United States v. Edwards, 39 F. Supp. 2d 692 (M.D. La. 1999), 53

United States v. Edwards, 334 F.2d 360 (5th Cir. 1964), 6

United States v. Eyerman, 660 F. Supp. 775 (S.D.N.Y. 1987), 74

United States v. Farrington, 27 F. App’x 640 (7th Cir. 2001), 99

United States v. Feldman, 983 F.2d 144 (9th Cir. 1992), 80

United States v. Franco-Guillen, 196 F. App’x 716 (10th Cir. 2006), 35

United States v. Furst, 886 F.2d 558 (3d Cir. 1989), 39

United States v. Gipson, 835 F.2d 1323 (10th Cir. 1988), 107

United States v. Gray, 105 F.3d 956 (5th Cir. 1997), 102

United States v. Greenspan, 26 F.3d 1001 (10th Cir. 1994), 48

United States v. Griffin, 84 F.3d 820 (7th Cir. 1996), 51

United States v. Grinnell Corp., 384 U.S. 563 (1966), 30, 36

United States v. Grismore, 564 F.2d 929 (10th Cir. 1977), 46

United States v. Haldeman, 559 F.2d 31 (D.C. Cir. 1976), 92

United States v. Heldt, 668 F.2d 1238 (D.C. Cir. 1981), 79

United States v. Hernandez, 109 F.3d 1450 (9th Cir. 1997), 85

United States v. Hoctel, 154 F.3d 506 (5th Cir. 1998), 107

United States v. Hoffa, 382 F.2d 856 (6th Cir. 1967), 84

United States v. Holland, 655 F.2d 44 (5th Cir. 1981), 40

United States v. Honken, 381 F. Supp. 2d 936 (N.D. Iowa 2005), 48

United States v. Horton, 98 F.3d 313 (7th Cir. 1996), 99, 108

United States v. Iddeen, 854 F.2d 52 (5th Cir. 1988), 89

United States v. Jackson, 430 F.2d 1113 (9th Cir. 1970), 55

United States v. Jacobs, 855 F.2d 652 (9th Cir. 1988), 88

United States v. Jordan, 49 F.3d 152 (5th Cir. 1995), 19, 24, 50, 103

United States v. Kelly, 888 F.2d 732 (11th Cir. 1989), 13, 25–26, 75

United States v. Kimball, 73 F.3d 269 (10th Cir. 1995), 33

United States v. Kraus, 137 F.3d 447 (7th Cir. 1998), 106

United States v. Larsen, 427 F.3d 1091 (8th Cir. 2005), 99
128 Judicial Disqualification: An Analysis of Federal Law

United States v. Lauersen, 348 F.3d 329 (2d Cir. 2003), 64, 81 

United States v. Lovaglia, 954 F.2d 811 (2d Cir. 1992), 18, 23

United States v. Lyons, 472 F.3d 1055 (9th Cir. 2007), 110 

United States v. Martin, 278 F.3d 988 (9th Cir. 2002), 34

United States v. Merkt, 794 F.2d 950 (5th Cir. 1986), 84

United States v. Microsoft Corp. (Microsoft I), 56 F.3d 1448 (D.C. Cir. 1995), 37–38, 54, 111, 

112

United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001), 2, 36, 37–38, 43–44, 76, 100, 

113

United States v. Miller, 355 F. Supp. 2d 404 (D.D.C. 2005), 87, 92 

United States v. Moody, 977 F.2d 1420 (11th Cir. 1992), 82

United States v. Morrison, 153 F.3d 34 (2d Cir. 1998), 23, 61, 73

United States v. Morrow, 717 F.2d 800 (3d Cir. 1983), 96

United States v. Mosby, 177 F.3d 1067 (8th Cir. 1999), 47 

United States v. Murphy, 768 F.2d 1518 (7th Cir. 1985), 26, 76

United States v. Nelson, 922 F.2d 311 (6th Cir. 1990), 18

United States v. Nobel, 696 F.2d 231 (3d Cir. 1982), 75

United States v. O’Keefe, 128 F.3d 885 (5th Cir. 1997), 80

United States v. Owens, 902 F.2d 1154 (4th Cir. 1990), 49, 77

United States v. Parker, 742 F.2d 127 (4th Cir. 1984), 15

United States v. Pearson, 203 F.3d 1243 (10th Cir. 2000), 33, 102

United States v. Pepper & Potter, Inc., 677 F. Supp. 123 (E.D.N.Y. 1988), 59 

United States v. Pitera, 5 F.3d 624 (2d Cir. 1993), 42–43

United States v. Rankin, 870 F.2d 109 (3d Cir. 1989), 90, 91

United States v. Ritter, 540 F.2d 459 (10th Cir. 1976), 88

United States v. Roach, 108 F.3d 1477 (D.C. Cir. 1997), 99 

United States v. Robin, 533 F.2d 8 (2d Cir. 1977), 110 

United States v. Robinson, 439 F.3d 777 (8th Cir. 2006), 72 

United States v. Rogers, 119 F.3d 1377 (9th Cir. 1997), 63, 75, 77

United States v. Ruzzano, 247 F.3d 688 (7th Cir. 2001), 59, 99

United States v. Sammons, 918 F.2d 592 (6th Cir. 1999), 89 

United States v. Sciarra, 851 F.2d 621 (3d Cir. 1988), 16–17 

United States v. Silver, 245 F.3d 1075 (9th Cir. 2001), 58 

United States v. Stenzel, 49 F.3d 658 (10th Cir. 1995), 77

United States v. Story, 716 F.2d 1088 (6th Cir. 1983), 92

United States v. Studley, 783 F.2d 934 (9th Cir. 1986), 18, 46

United States v. Sykes, 7 F.3d 1331 (7th Cir. 1993), 88, 90, 92, 93–94

United States v. Toohey, 448 F.3d 542 (2d Cir. 2006), 23 

United States v. Torkington, 874 F.2d 1441 (11th Cir. 1989), 111 

United States v. Troxell, 887 F.2d 830 (7th Cir. 1989), 108 

United States v. Tucker, 78 F.3d 1313 (8th Cir. 1996), 76, 112–13

United States v. Vadner, 160 F.3d 263 (5th Cir. 1998), 77
Table of Cases 129

United States v. Whitesel, 543 F.2d 1176 (6th Cir. 1976), 46

United States v. Whitman, 209 F.3d 619 (6th Cir. 2000), 34

United States v. Wilkerson, 208 F.3d 794 (9th Cir. 2000), 34, 99

United States v. Will, 449 U.S. 200 (1980), 13, 14, 80

United States v. Young, 45 F.3d 1405 (10th Cir. 1995), 33–34

United States v. Young, 907 F.2d 867 (8th Cir. 1990), 89

Vazquez-Botet, In re, 464 F.3d 54 (1st Cir. 2006), 98

Vieux Carre Property Owners v. Brown, 948 F.2d 1436 (5th Cir. 1991), 18

Virginia Electric & Power Co., In re, 539 F.2d 357 (4th Cir. 1976), 60, 62, 97, 105

Vuitton et Fils v. J. Young, 644 F.2d 769 (9th Cir. 1980), 110

Ward v. Village of Monroeville, 409 U.S. 57 (1972), 1

Weatherhead v. Globe International, Inc., 832 F.2d 1226 (10th Cir. 1987), 90, 92, 93

Williams v. Anderson, 460 F.3d 789 (6th Cir. 2006), 52

Williams v. United States, 240 F.3d 1019 (Fed. Cir. 2001), 14

Wilson v. City of Chicago, 710 F. Supp. 1168 (N.D. Ill. 1989), 89

Wilson v. Coughlin, 472 F.2d 100 (7th Cir. 1973), 84

Wireless Telephone Radio Frequency Emissions Products Liability Litigation, In re, 170 F. 

Supp. 2d 1356 (J.P.M.L. 2001), 14

Young v. Track, Inc., 324 F.3d 409 (6th Cir. 2003), 87
The Federal Judicial Center 

Board 

The Chief Justice of the United States, Chair

Judge Susan H. Black, U.S. Court of Appeals for the Eleventh Circuit 

Judge David O. Carter, U.S. District Court for the Central District of California 

Magistrate Judge John M. Facciola, U.S. District Court for the District of Columbia 

Judge James B. Haines, Jr., U.S. Bankruptcy Court for the District of Maine 

Judge Edward C. Prado, U.S. Court of Appeals for the Fifth Circuit 

Judge Loretta A. Preska, U.S. District Court for the Southern District of New York 

Judge Philip M. Pro, U.S. District Court for the District of Nevada 

James C. Duff, Director of the Administrative Office of the U.S. Courts 

Director

Judge Barbara J. Rothstein 

Deputy Director

John S. Cooke 

About the Federal Judicial Center 

The Federal Judicial Center is the research and education agency of the federal judicial 

system. It was established by Congress in 1967 (28 U.S.C. §§ 620–629), on the recommendation of the Judicial Conference of the United States. 

By statute, the Chief Justice of the United States chairs the Center’s Board, which also 

includes the director of the Administrative Office of the U.S. Courts and seven judges 

elected by the Judicial Conference. 

The organization of the Center reflects its primary statutory mandates. The Education 

Division plans and produces education and training programs for judges and court staff, 

including satellite broadcasts, video programs, publications, curriculum packages for incourt training, and Web-based programs and resources. The Research Division examines 

and evaluates current and alternative federal court practices and policies. This research 

assists Judicial Conference committees, who request most Center research, in developing 

policy recommendations. The Center’s research also contributes substantially to its educational programs. The two divisions work closely with two units of the Director’s Office—the Systems Innovations & Development Office and Communications Policy & 

Design Office—in using print, broadcast, and online media to deliver education and 

training and to disseminate the results of Center research. The Federal Judicial History 

Office helps courts and others study and preserve federal judicial history. The International Judicial Relations Office provides information to judicial and legal officials from 

foreign countries and assesses how to inform federal judicial personnel of developments 

in international law and other court systems that may affect their work.