Recusal:

Analysis of Case Law Under

28 U.S.C. §§ 455 & 144

Federal Judicial Center

2002

This publication was undertaken in furtherance of the Federal Judicial Center’s statutory mission to develop and conduct education

programs for judicial branch employees. The views expressed are

those of the authors and not necessarily those of the Federal Judicial Center.
iii

Contents

Preface v

Part One: The Recusal Statutes 1

I. Summary 1

II. History of Section 455 2

III. Disqualification: Section 455(b) 6

A. P e r s o na lB i a s , Pr e j u d i c e ,o rKn o wl e d g e :S e c t i o n 455 ( b ) ( 1 ) 6 

B. Previous Service Connected to “Matter in Controversy”:

Section 455(b)(2) 8

C. Previous Government Employment: Section 455(b)(3) 9

D. Financial Interest: Section 455(b)(4) 10

E. Party to, Attorney in, or Other Substantial Interest in Proceeding: Section 455(b)(5) 12

IV. Disqualification Based on Question of Partiality: Section

455(a) 15

A. Standard for Applying 15

B. Applications of Section 455(a) 19

1. Recusal usually unnecessary 19

a. Judge’s adverse rulings or expression of opinion 20

b. Rumor, suspicion, or innuendo 25

c. Familiarity with parties or events 26

d. Personal attacks on the judge 27

e. Threats or lawsuits against the judge 28

2. Recusal more likely 29

a. Close personal or professional relationship to attorneys

or others 29

b. Public comments or outside activities 33

c. Ex parte contacts 37

d. Involvement pertaining to guilty plea 38

e. Judge took personal offense 39

f. Miscellaneous 40

V. Section 455(e): Waiver of Recusal 41

VI. S e c ti on 4 55( f) :D i v e s ti tur eCa n O v e r c om eD i s q ua l i fi c a ti on 42

VII. Assigning Recusal Motion to a Different Judge 44
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

i v 

VIII. Bias or Prejudice: Section 144 45

A. Review of Affidavit 45

B. Applications of Section 144 48

IX. Disqualification of Appellate Judges: 28 U.S.C. § 47 52

X. Judge’s Authority After Deciding to Recuse 54

Part Two: Miscellaneous Issues 57

I. Timeliness of Motion 57

II. Recusal in Bench Trials 59

III. Standing 60

IV. Efforts to Investigate 60

V. Rule of Necessity 62

VI. Substitution of Counsel 63

Part Three: Appellate Issues 65

I. Standard of Review 65

II. Harmless Error 66

III. Interlocutory Review 68

IV. Reviewability of Recusal 70

V. Mootness 71

VI. Guilty Plea 72

VII. Jurisdiction 73

Table of Cases 75

For Further Reference 85
v

Preface

Litigants often move for trial judges to recuse themselves on

grounds of partiality or the appearance of partiality. Improper denial of motions seeking recusal may have serious consequences.

First, it can deprive citizens of their right to a “neutral and detached judge.”1 Second, it can diminish public trust in the judicial

system, which requires confidence in the impartiality of judges.

This monograph offers a synthesis and analysis of the case law

under 28 U.S.C. §§ 455 and 144 to assist judges in ruling on

recusal. It identifies the core principles and recurring issues in the

voluminous case law, and it examines how the courts of appeals

have applied these principles. The monograph does not propose

reforms or critique court decisions. Judges should, of course, review the applicable decisions in their own circuits, as cases may

exist in addition to the representative cases discussed here.

This monograph does not discuss the requirements of the Code

of Conduct for United States Judges or the opinions on recusal issued by the Codes of Conduct Committee of the Judicial Conference of the United States.2 Decisions rendered under the recusal

statutes sometimes differ from advice provided by the committee

under Canon 3C of the Code of Conduct. Also, recusal problems

other than those covered by the statutes may be raised by the Code

of Conduct. Consequently, judges should consult the committee’s

opinions for advice on how to proceed under the Code. The Code

of Conduct, Published Advisory Opinions, and a Compendium of

Selected Opinions of the Committee may be found in Volume II,

Chapters 1, 4, and 5, respectively, of the Guide to Judiciary Policies

and Procedures.

This monograph was prepared by Alan Hirsch, Esq., and Kay

Loveland, of the Federal Judicial Center, with substantial editorial

assistance from Kris Markarian, also a Center staff member. The

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

2 . 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).
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

v i 

Federal Judicial Center acknowledges the contribution of the

Codes of Conduct Committee of the Judicial Conference of the

United States and staff members of the Office of the Associate Director and General Counsel of the Administrative Office of the U.S.

Courts.
1

PART ONE

The Recusal Statutes

I. Summary

The two principal statutes dealing with judicial recusal are 28

U.S.C. § 144, “Bias or prejudice of judge,” and 28 U.S.C. § 455,

“Disqualification of justice, judge, or magistrate.” The relationship

between the two has been a source of some confusion. While section 455 substantially overlaps and subsumes section 144, there are

some important differences. First, section 144 aims exclusively at

actual bias or prejudice, whereas section 455 deals not only with

actual bias as well as other specific conflicts of interest, but also

with the appearance of partiality. Second, section 144 is triggered

by a party’s affidavit, whereas section 455 not only may be invoked

by motion but also requires judges to recuse sua sponte where appropriate. Third, section 144 applies only to district judges while

section 455 covers “any justice, judge, or magistrate of the United

States.”

There is a third, little-noted recusal statute, 28 U.S.C. § 47, that

applies only to appellate judges (or trial judges sitting by designation on appellate panels). This statute provides that “[n]o judge

shall hear or determine an appeal from the decision of a case or

issue tried by him,”3 thereby prohibiting a recently promoted appellate judge from hearing an appeal of a case that the judge tried.

3 . 28 U.S.C. § 47 (1948).
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

2 

II. History of Section 455

The first federal judicial disqualification statute dates back to 17924 

and was later amended several times until it became section 20 of

the Judicial Code of 1911.5 In 1948, the U.S. Congress reconstituted and recodified it as section 455. The 1948 version of section

455 stated that “[a]ny 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 any party or his attorney as to render it

improper, in his opinion, for him to sit on the trial, appeal, or other

proceeding therein.”6 

In subsequent years, Congress perceived several problems with

this statute. First, determining whether a conflict merited disqualification was entirely subjective—a judge might decide, for instance,

that he could maintain his impartiality even if he had a substantial

financial stake in the outcome of the case or if a family member

were a litigant. Second, the statute’s vague language (“so related to

or connected with any party or . . . attorney”) provided little guidance. Finally, a judicial “gloss” on section 455 created a “duty to

sit” whereby judges resolved close questions against recusal.

In order to resolve these issues, in 1974 Congress enacted an

extensive revision of section 4557 based on the 1972 American Bar

Association Code of Judicial Conduct, which was adopted with

only slight modifications by the Judicial Conference in 1973 as the

Code of Conduct for United States Judges. The legislative history

made it clear that in revising the statute, Congress wished to remove the “duty to sit.”8 The wording of section 455 now parallels

that of Canon 3C of the Code.9 The current version of section 455

reads:

4 . Act of May 8, 1792, ch. 36, § 11, 1 Stat. 278.

5 . Act of Mar. 3, 1911, ch. 23, § 20, 36 Stat. 1090.

6 . Act of June 25, 1948, ch. 646, § 455, 62 Stat. 908.

7 . Dec. 5, 1974, Pub. L. 93-512, § 1, 88 Stat. 1609.

8 . H.R. Rep. No. 1453, 93d Cong., 2d Sess. 5, reprinted in 1974 U.S. Code

Cong. & Admin. News 6351, 6355.

9 . While Canon 3C of the Code of Judicial Conduct uses gender-neutral lan-
Part One: The Recusal Statutes

3 

(a) Any justice, judge, or magistrate of the United States shall

disqualify himself in any proceeding in which his impartiality

might reasonably be questioned.

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

(1) Where he has a personal bias or prejudice concerning a

party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(2) Where in private practice he served as lawyer in the

matter in controversy, or a lawyer with whom he previously

practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

(3) Where he has served in governmental employment and

in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;

(4) He knows that he, individually or as a fiduciary, or his

spouse or minor child residing in his household, has a financial

interest in the subject matter in controversy or in a party to the

proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

(5) He or his spouse, or a person within the third degree of

relationship to either of them, or the spouse of such a person:

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

trustee of a party;

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

(iii) Is known by the judge to have an interest that could

be substantially affected by the outcome of the proceeding;

(iv) Is to the judge’s knowledge likely to be a material

witness in the proceeding.

(c) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform

himself about the personal financial interests of his spouse and

minor children residing in his household.

(d) For the purposes of this section the following words or

phrases shall have the meaning indicated:

guage, this monograph occasionally cites directly to the statute, section 455,

which does not contain gender-neutral language exclusively.
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

4 

(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 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, 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
Part One: The Recusal Statutes

5 

or minor child, as the case may be, divests himself or herself of

the interest that provides the grounds for disqualification.10

The new section 455(a) replaced the subjective standard of the

1948 statute with an objective standard. It is no longer the case that

a judge should recuse where “in his opinion” sitting would be improper, but rather where his or her impartiality “might reasonably

be questioned.” Also, section 455(b) spells out certain situations in

which partiality is presumed and recusal is required.

Judges should keep in mind that sections 455(a) and (b) provide separate (though substantially overlapping) bases for recusal.

The former deals exclusively with the appearance of partiality in

any circumstance, whereas the latter pertains to conflicts of interest

in specific instances. Thus, the existence of the facts listed in section 455(b) requires recusal, even if the judge believes they do not

create an appearance of impropriety.1 1 Any circumstance in which a

judge’s impartiality might reasonably be questioned, whether or not

touched on in section 455(b), requires recusal under section

455(a).1 2 

In addition, where section 455(b) sets forth a particular situation requiring recusal, it will tend to control any section 455(a)

analysis with respect to that specific circumstance. For example,

section 455(b)(5) requires recusal where one of the parties is of a

third degree of relationship to the judge. Consequently, it would be

improper for a court to find that a fourth-degree relationship alone

created an appearance of partiality requiring recusal under section

455(a). 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 Sec. 455(a) as well.”1 3 

There is another important difference between sections 455(a)

and (b). Under the express terms of section 455(e), in cases in1 0 . 28 U.S.C. § 455 (1988).

1 1 . Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 860 n.8

(1988).

1 2 . See id.

1 3 . Liteky v. United States, 510 U.S. 540, 553 (1994).
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

6 

volving an appearance of impropriety under section 455(a) the

parties may waive disqualification of the judge. By contrast, waiver

is not permitted when recusal is pursuant to section 455(b).

Because section 455(b) deals with explicitly enumerated conflicts of interest in which recusal is mandatory and nonwaivable, it

is more specific and thus easier to apply than the broader provision

of section 455(a). Also, as noted above, section 455(b)’s specific

provisions often mark boundaries for decisions under section

455(a). For these reasons, this monograph covers section 455(b)

first, and then goes on to cover section 455(a).

III. Disqualification: Section 455(b)

A. Personal Bias, Prejudice, or Knowledge: Section 455(b)(1)

Subsection 455(b)(1) requires a judge to disqualify himself

“[w]here he has a personal bias or prejudice concerning a party, or

personal knowledge of disputed evidentiary facts concerning the

proceeding.” The standard for determining disqualification is

“whether a reasonable person would be convinced the judge was

biased.”1 4 “Recusal under Section 455(b)(1) ‘is required only if actual bias or prejudice is proved by compelling evidence.’”1 5 

The Seventh Circuit Court of Appeals held that section

455(b)(1) required recusal 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 section 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

1 4 . Brokaw v. Mercer County, 235 F.3d 1000, 1025 (7th Cir. 2000) (citing

Hook v. McDade, 89 F.3d 350, 355 (7th Cir. 1996)).

1 5 . Id. at 1025 (concluding that a reasonable person would not be convinced

of bias based solely on judicial rulings, which didn’t demonstrate evidence of “personal animosity or malice,” and thus recusal wasn’t required under section

455(b)(1); also holding recusal not required under section 144 using identical

analysis).
Part One: The Recusal Statutes

7 

case the judge has forbidden any attempt at reconstruction. . . .

This is ‘personal’ knowledge . . . .”1 6 

In another Seventh Circuit case, the court held that section

455(b)(1) did not require recusal. 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 section 455(b)(1) is concerned.”1 7 

The Fifth Circuit reversed a refusal to recuse 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.”1 8 

In United States v. Alabama,

1 9 the Eleventh Circuit held that the

trial judge should have recused 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.”2 0 

Alabama is reconcilable with Easley v. University of Michigan

Board of Regents,

2 1 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 recuse himself from a discrimination suit against the law school. In Easley, the judge’s posi1 6 . Edgar v. K.L., 93 F.3d 256, 259 (7th Cir. 1996).

1 7 . In re Hatcher, 150 F.3d 631, 635 (7th Cir. 1998). The court held that

recusal was required under section 455(a), however, because the cases were so

closely related. Id. (see infra text accompanying notes 137–38).

1 8 . In re Faulkner, 856 F.2d 716, 721 (5th Cir. 1988).

1 9 . 828 F.2d 1532 (11th Cir. 1987).

2 0 . Id. at 1545.

2 1 . 906 F.2d 1143 (6th Cir. 1990).
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

8 

tion did not give him knowledge of the events at issue in the litigation.

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.2 2 While the court did not explicitly cite section

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.”2 3 

B. Previous Service Connected to “Matter in Controversy”:

Section 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 association as a lawyer concerning the matter, or the judge or

such lawyer has been a material witness concerning it.”

The “matter in controversy” has been defined broadly by courts

of appeals, requiring recusal even in cases where the matter under

consideration seemed separate from the earlier case. For example,

in In re Rogers2 4 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. 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 recusal was required under section

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.”2 5 

2 2 . United States v. Microsoft Corp., 56 F.3d 1448 (D.C. Cir. 1995).

2 3 . Id. at 1463.

2 4 . 537 F.2d 1196 (4th Cir. 1976).

2 5 . Id. at 1198.
Part One: The Recusal Statutes

9 

In United States v. DeTemple,

2 6 the Fourth Circuit distinguished

Rogers and held recusal 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.”2 7 

The Ninth Circuit held that recusal 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.2 8 

C. Previous Government Employment: Section 455(b)(3)

Subsection 455(b)(3) requires recusal 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.”

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.”2 9 

The Ninth Circuit held that a judge, who was formerly a U.S.

attorney when the case at hand was under investigation, should

have recused himself from ruling on the appellant’s motion for a

2 6 . 162 F.3d 279 (4th Cir. 1998).

2 7 . Id. at 284.

2 8 . 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).

2 9 . United States v. DeLuna, 763 F.2d 897, 908 (8th Cir. 1985).
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

1 0 

new trial.3 0 The court noted that its analysis “imputes to the United

States Attorney the knowledge and acts of his assistants.”3 1 

The Seventh Circuit held recusal was not required where the

judge presiding over a tax evasion case had previously served as an

assistant U.S. attorney at the same time, and in the same district,

where the defendant had been indicted.3 2 The court of appeals

stated that, “[a]s applied to judges who were formerly [assistant

U.S. attorneys], § 455(b)(3) requires some level of actual participation in a case to trigger disqualification.”3 3 Because no evidence

of actual participation was presented, the court found the judge did

not commit plain error in not recusing himself.3 4 

D. Financial Interest: Section 455(b)(4)

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.” Section 455(d)(4) defines “financial interest” for the purposes of section 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 recusal. It is a judge’s duty to keep abreast

of all of his or her financial interests.3 5 

3 0 . United States v. Arnpriester, 37 F.3d 466, 467 (9th Cir. 1994).

3 1 . Id. The court held that both sections 455(a) and (b) required recusal in

this case.

3 2 . United States v. Ruzzano, 247 F.3d 688 (7th Cir. 2001).

3 3 . 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)).

3 4 . Ruzzano, 247 F.3d at 696. Because the defendant didn’t request recusal at

trial and raised the issue for the first time on appeal, the court of appeals could

only review for plain error. Id. at 695.

3 5 . In June 2001 the Standing Committee on Rules of Practice & Procedure
Part One: The Recusal Statutes

1 1 

Courts of appeals have interpreted “financial interest” to refer

to a direct interest, not a “remote or contingent” interest.3 6 In a case

involving the constitutionality of a “privilege” tax as applied to federal judges working within Jefferson County, the Eleventh Circuit

raised the issue of recusal 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.”3 7 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 chambers in Jefferson County, the court held that any possible

interest the judges may have was too remote and contingent to

constitute a financial interest.3 8 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 section 455(b)(4).3 9 In each

case, the courts considered the potential benefit an “other interest”

under the statute, which meant, under section 455(b)(4), that

recusal was required only if this “other interest” would be “substantially affected by the outcome of the proceeding.”

of the Judicial Conference approved proposed amendments to the civil, criminal,

and appellate rules that 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). Under the proposed

criminal rule, 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.

3 6 . See, e.g., In re Virginia Elec. & Power Co., 539 F.2d 357, 366–67 (4th Cir.

1976).

3 7 . Jefferson County v. Acker, 92 F.3d 1561, 1581 (11th Cir. 1996). The

issue of recusal was discussed in an appendix to the opinion.

3 8 . Id. at 1582. The court also held that disqualification would be contrary to

the rule of the necessity. Id. at 1583, 1584. See infra note 293 and accompanying

text.

3 9 . In re New Mexico Natural Gas Antitrust Litig., 620 F.2d 794, 796 (10th Cir.

1980).
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

1 2 

The Fifth Circuit held that where the judge or someone in his

family is a member of a class seeking monetary relief, section

455(b)(4) imposes a “per se rule” requiring recusal.4 0 

In United States v. Rogers,

4 1 a Ninth Circuit mail fraud case, the

trial judge was “one of millions of stockholders” in the defrauded

bank. In holding that recusal was not required under section

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 section 455(b)(4).4 2 Moreover, “stock ownership in the corporate victim of a crime cannot be deemed a financial interest in the subject

matter in controversy” under section 455(b)(4).4 3 

E. Party to, Attorney in, or Other Substantial Interest in

Proceeding: Section 455(b)(5)

Under subsection 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 recused himself on the habeas claims challenging state court cases in which his uncle had participated as a criminal appeals judge. His uncle, who had since died, was a named defendant in the claims.4 4 

Subsection 455(b)(5)(ii) requires recusal 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

4 0 . Tramonte v. Chrysler Corp., 136 F.3d 1025, 1029–30 (5th Cir. 1998).

4 1 . 119 F.3d 1377 (9th Cir. 1997).

4 2 . Id. at 1384. See also United States v. Aragon, No. 99-50341, 2000 U.S.

App. LEXIS 15423 (9th Cir. June 29, 2000).

4 3 . Rogers, 119 F.3d at 1384. Recusal was not required under section 455(a)

either, the court ruled. See infra text and accompanying note 197.

4 4 . Harris v. Champion, 15 F.3d 1538, 1571 (10th Cir. 1994) (“[A]lthough

[the judge’s] uncle had died by the time [the judge] was assigned to these cases,

his uncle is, nonetheless, a named party in this action. Therefore, recusal under

§ 455(b) was required.”). Id. at 1571.
Part One: The Recusal Statutes

1 3 

attendance at a related trial, to watch his son act as assistant counsel, did not require recusal under section 455(b)(1).4 5 The defendant also sought recusal under section 455(b)(5)(ii). Although the

son, who was a third-year law student, “acted as a lawyer,” the

court held that recusal 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 co-defendants. “No matter how closely related the two

cases were factually or legally . . . the fact remains that they were

separate ‘proceedings.’”4 6 

In similar circumstances, the Sixth Circuit, sitting en banc, required recusal. In In re Aetna Casualty & Surety Co.,

4 7 seven claims

against an insurance company were consolidated for trial, and the

trial judge initially recused 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 precedent.”4 8 The

court did not specify whether it based its decision on section

455(a) or section 455(b)(5)(ii), but a concurring opinion, joined

by seven judges, emphasized that there was an actual conflict of

interest pursuant to section 455(b)(5) as well as an appearance of

partiality.

Subsection 455(b)(5)(iii) states that a judge must disqualify

himself “where he or his spouse, or a person within the third de4 5 . In re Hatcher, 150 F.3d 631 (7th Cir. 1998) (see supra text accompanying

note 17).

4 6 . Id. at 637. The court found that recusal was required under section

455(a), which illustrates that the appearance of impropriety may require recusal

even absent ground for recusal specifically enumerated in § 455(b). See infra text

accompanying notes 137–38.

4 7 . 919 F.2d 1136 (6th Cir. 1990).

4 8 . Id. at 1143.
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

1 4 

gree 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.”

In Potashnick v. Port City Construction Co.,4 9 the Fifth Circuit

adopted a per se rule requiring recusal 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.”5 0 

However, the Second Circuit explicitly rejected this per se approach in Pashaian v. Eccelston Properties, Ltd.

5 1 The court found

recusal 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.”5 2 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.

The Eighth Circuit likewise found recusal unnecessary in a case

where the judge’s daughter had clerked for one summer and accepted a permanent job offer as associate starting in the fall, with

one of the law firms involved in a case before the judge. 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.”5 3 The decision is fact dependent, and the facts in this case

4 9 . 609 F.2d 1101 (5th Cir. 1980).

5 0 . Id. at 1113 (quoting § 455(b)(5)(iii)).

5 1 . 88 F.3d 77 (2d Cir. 1996).

5 2 . Id. at 83 (quoting § 455(b)(5)(iii)).

5 3 . In re Kansas Pub. Employees Ret. Sys., 85 F.3d 1353, 1364 (8th Cir.

1996).
Part One: The Recusal Statutes

1 5 

didn’t show an actual conflict under section 455(b)(iii).5 4 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.”5 5 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.

In Southwestern Bell Co. v. FCC,

5 6 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 recusal from the panel hearing the appeal.

IV. Disqualification Based on Question of

Partiality: Section 455(a)

A. Standard for Applying

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

should apply an objective standard in determining whether to

recuse. A judge contemplating recusal should not ask whether he

or she believes he or she is capable of impartially presiding over the

case. The statute requires recusal in any case “in which [the

judge’s] impartiality might reasonably be questioned.” Because of

that language, every circuit has adopted some version of the “reasonable person” standard.5 7 

5 4 . Id. at 1364. The court also held that there was no appearance of a conflict

of interest in violation of section 455(a). Id. at 1365.

5 5 . Id. at 1364.

5 6 . 153 F.3d 520 (8th Cir. 1998).

5 7 . 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 Township, 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
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

1 6 

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.”5 8 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.”5 9 The

Fifth and Seventh Circuits have noted that while a judge must ask

“how things appear to the well-informed, thoughtful observer

rather than to a hypersensitive or unduly suspicious person,”6 0 an

outside observer is “less inclined to credit judges’ impartiality and

mental discipline than the judiciary . . . .”6 1 

The First, Fifth, Sixth, Tenth, and Eleventh Circuits have said

that close questions should be decided in favor of recusal.6 2 The

Seventh Circuit remarked that “[a] judge may decide close calls in

favor of recusal.”6 3 However, most circuits have also 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.”6 4 

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).

5 8 . United States v. DeTemple, 162 F.3d 279, 287 (4th Cir. 1998), cert. denied, 119 S. Ct. 1793 (1999).

5 9 . Id.

6 0 . In re Mason, 916 F.2d 384, 386 (7th Cir. 1990). See also United States v.

Jordan, 49 F.3d 152, 156 (5th Cir. 1995); O’Regan v. Arbitration Forums, Inc.,

246 F.3d 975, 988 (7th Cir. 2001).

6 1 . Mason, 916 F.2d at 386; Jordan, 49 F.3d at 157.

6 2 . See Republic of Pan. v. American 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 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).

6 3 . New York City Hous. Dev. Corp. v. Hart, 796 F.2d 976, 980 (7th Cir.

1986) (emphasis added).

6 4 . 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. University of Mich. Bd. of Regents,
Part One: The Recusal Statutes

1 7 

There is a second respect, apart from application of the reasonable person standard, in which the determination under section

455(a) is objective. The Supreme Court has held that a violation of

section 455(a) takes place even if the judge is unaware of the circumstance that created the appearance of impropriety. In Liljeberg

v. Health Services Acquisition Corp.,

6 5 the trial judge was a member

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

in the litigation, but 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 recuse himself pursuant to section

455(a), and the Supreme Court agreed. Noting that the purpose of

section 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.”6 6 

Courts of appeals have applied this principle in various circumstances. The Seventh Circuit, for example, remanded a habeas case

directing the judge to whom the case had been reassigned to provide the petitioner the opportunity to challenge the dismissal of

four counts by the previously assigned district judge. 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.6 7 

In In re Continental Airlines,

6 8 the Fifth Circuit found a violation of section 455(a) where a law firm for one of the parties ap853 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 College, 664

F.2d 10, 12 (1st Cir. 1981).

6 5 . 486 U.S. 847 (1988).

6 6 . Id. at 860.

6 7 . 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 that district judge’s lack of actual knowledge of his former firm’s involvement in the litigation is irrelevant).

6 8 . 901 F.2d 1259 (5th Cir. 1990).
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

1 8 

pearing before the judge was considering him for employment,

even though he was unaware of it. Quoting from Liljeberg, the

court explained that section 455(a) “does not call upon judges to

perform the impossible.”6 9 “To 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.’”7 0 In this case that meant “either . . .

reject[ing] the offer outright, or, if he seriously desired to consider

accepting the offer, stood recused and vacated the rulings made

shortly before the offer was made.”7 1 

An Eighth Circuit case, United States v. Tucker,

7 2 is noteworthy

for the court’s ruling on the standard for recusal. The Office of Independent Counsel (OIC) sought recusal of the district judge because of “reported connections among Judge Woods, the Clintons,

and [defendant] Tucker,”7 3 connections it chronicled with various

newspaper articles. Although none of the articles directly connected the judge to the defendant, the Eighth Circuit ordered remand of the case to a different judge, noting the judge’s connection

6 9 . Id. at 1262.

7 0 . Id. (quoting Liljeberg v. Health Servs. Corp., 486 U.S. 847, 861 (1988)).

7 1 . Id. at 1262–63. The court held, however, that the violation of section

455(a) constituted harmless error. Id. at 1263.

7 2 . 78 F.3d 1313, 1324–25 (8th Cir. 1996). The decision also involved the

use of an unusual procedure for requesting recusal 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 court of appeals held that it was empowered, pursuant to 28 U.S.C. § 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 28 U.S.C. § 455(a), the judge’s “impartiality might reasonably be

questioned.” Id. at 1324. See also United States v. Microsoft Corp., 253 F.3d 34,

109 (D.C. Cir. 2001) (In “a departure from [its] usual practice of declining to

address issues raised for the first time on appeal,” the D.C. Circuit considered

Microsoft’s request for disqualification of the trial judge since “the full extent of

[the judge’s] actions [were] not [] revealed until this case was on appeal.”). Id. at

108.

7 3 . Tucker, 78 F.3d at 1325.
Part One: The Recusal Statutes

1 9 

to President and Mrs. Clinton—that is, 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”7 4 and attended a

fund-raising luncheon for him. In the court’s view, reassignment

was necessary because of the “risk of a perception of judicial bias or

partiality”7 5 given the “high profile”7 6 of the OIC’s work and the

widely reported connections. A request to rehear the case en banc

was rejected, but prompted a strong dissent, which described the

majority’s standard—“a friend of a friend creates an impermissible

appearance of bias—as without precedential support and unworkable.”7 7 Another Eighth Circuit decision during the same period

acknowledged the Tucker ruling but found it was not controlling

because the court in Tucker based its decision on its authority under 28 U.S.C. § 2106 rather than section 455(a).7 8 

B. Applications of Section 455(a)

Although recusal motions generally require a fact-specific analysis,

judges can benefit from knowing how courts of appeals have evaluated such motions under different circumstances. While there are

literally hundreds of cases to choose from, many fall into several

broad categories. The next sections canvas the case law and discuss

the circumstances in which courts of appeals most often deem

recusal necessary or not.

1. Recusal usually unnecessary

The Tenth Circuit listed seven areas that are frequently alleged as a

basis for recusal but ordinarily do not warrant it:

(1) Rumor, speculation, beliefs, conclusions, innuendo, suspicion, opinion, and similar non-factual matters; (2) the mere fact

7 4 . Id. at 1323.

7 5 . Id. at 1324.

7 6 . Id. at 1325.

7 7 . United States v. Tucker, 82 F.3d 1423, 1424 (8th Cir. 1996).

7 8 . In re Kansas Pub. Employees Ret. Sys., 85 F.3d 1353 (8th Cir. 1996).
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

2 0 

that a judge has previously expressed an opinion on a point of

law or has expressed a dedication to upholding the law or a determination to impose severe punishment within the limits of the

law upon those found guilty of a particular offense; (3) prior

rulings in the proceeding, or another proceeding, solely because

they were adverse; (4) mere familiarity with the defendant(s), or

the type of charge, or kind of defense presented; (5) baseless personal attacks on or suits against the judge by a party; (6) reporters’ personal opinions or characterizations appearing in the media, media notoriety, and reports in the media purporting to be

factual, such as quotes attributed to the judge or others, but

which are in fact false or materially inaccurate or misleading; and

(7) threats or other attempts to intimidate the judge.7 9 

The case law confirms that the other circuits likewise tend to

reject claims for recusal based on these circumstances. The next

section explains the rationale for rejecting these factors as a basis

for recusal and notes exceptions where recusal is warranted.

a. Judge’s adverse rulings or expression of opinion. A judge’s rulings and expressions of opinion generally fail to justify recusal.8 0 It

has long been understood that, absent extreme cases, the circumstances suggesting or creating the appearance of partiality cannot

derive from the trial itself—naturally, judges hold and express attitudes about the litigants and issues that they have formed during

the trial. As the Supreme Court succinctly put it in United States v.

Grinnell Corp.,

8 1 a case predating the 1974 amendment to section

455: “The 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.”8 2 The Court ruled against

recusal in Grinnell because “[a]ny adverse attitudes that [the judge]

evinced toward the defendants were based on his study of the

7 9 . Nichols v. Alley, 71 F.3d 347, 351 (10th Cir. 1995).

8 0 . See, e.g., Byrne v. Nezhat, 261 F.3d 1075, 1103 (11th Cir. 2001) (“adverse

rulings alone do not provide a party with a basis for holding that the court’s impartiality is in doubt”).

8 1 . 384 U.S. 563 (1966).

8 2 . Id. at 583.
Part One: The Recusal Statutes

2 1 

depositions and briefs which the parties had requested him to

make.”8 3 

In Liteky v. United States,

8 4 the Supreme Court applied this rule,

commonly called the “extrajudicial source” doctrine, to the

amended section 455(a), but clarified that the doctrine has exceptions. Just prior to his second criminal trial, the defendant in Liteky

moved to disqualify the judge on the ground that, during an earlier

criminal trial, the judge displayed “impatience, disregard for the

defense and animosity”8 5 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 recusal was in order.

First, judicial rulings alone almost never constitute a valid basis

for a bias or partiality motion. In and of themselves (i.e., apart

from surrounding comments or accompanying opinion), they

cannot possibly show reliance upon an extrajudicial source; and

can only in the rarest circumstances evidence the degree of favoritism or antagonism required . . . when no extrajudicial source

is involved. . . . Second, opinions 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 deepseated favoritism or antagonism that would make fair judgment

impossible.8 6 

Consistent with Liteky, courts of appeals rarely reverse refusals

to recuse when the alleged partiality did not derive from an extrajudicial source. For example, the Tenth Circuit upheld a refusal to

recuse even though the trial judge opined pretrial that “the obvious

thing that’s going to happen . . . is that she’s going to get convicted

. . . .”8 7 The court of appeals believed the judge merely expressed a

view of what was likely to happen derived from what he had observed in the case: “Nothing in the remark indicates that the judge

8 3 . Id.

8 4 . 510 U.S. 540 (1994).

8 5 . Id. at 542.

8 6 . Id. at 555 (citation omitted).

8 7 . United States v. Young, 45 F.3d 1405, 1414 (10th Cir. 1995).
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

2 2 

was unable or unwilling to carry out his responsibilities impartially.”8 8 

Likewise, the Seventh Circuit upheld a refusal to recuse by a

trial judge who stated that “any predisposition this court has in this

matter is a result of things that have taken place in this very courtroom.”8 9 Even the acknowledgment of a predisposition was not

“remotely sufficient evidence of the required ‘deep-seated and unequivocal antagonism that would render fair judgment impossible.’”9 0 

So, too, the Seventh Circuit found recusal 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: “[W]e do not believe that the Judge’s

comments . . . reflect a bias or prejudice gained from outside the

courtroom . . . .”9 1 

Recusal was also 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.”9 2 The Seventh Circuit held that “[t]hat

comment, standing alone, is not enough to prove an improper motive.”9 3 The judge had also told the petitioner “he harbored no animosity towards her and would therefore consider the merits of her

claim.”9 4 

8 8 . Id. at 1416. See also United States v. Martin, 278 F.3d 988 (9th Cir. 2002)

(holding that district court didn’t abuse discretion in denying motion to recuse

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”).

8 9 . In re Huntington Commons Assocs., 21 F.3d 157, 158 (7th Cir. 1994).

9 0 . Id. at 159 (quoting Liteky).

9 1 . Hook v. McDade, 89 F.3d 350, 356 (7th Cir. 1996).

9 2 . In re Mann, 229 F.3d 657, 658 (7th Cir. 2000).

9 3 . Id. at 659.

9 4 . Id. at 658.
Part One: The Recusal Statutes

2 3 

The Ninth Circuit found that the district judge did not abuse

his discretion in denying a motion to recuse 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].”9 5 The

Ninth Circuit found that the district judge’s comments did not rise

to the level required for recusal under section 455(a), stating that

“[a] judge’s views on legal issues may not serve as the basis for

motions to disqualify.”9 6 

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 recusal.9 7 

Although decided before Liteky, United States v. Barry9 8 nicely

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.”9 9 The court of appeals 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.”1 0 0 

A rare exception, where the court of appeals reversed a refusal

to recuse even though the alleged bias did not derive from an extrajudicial source, is instructive. During a sentencing hearing fol9 5 . United States v. Wilkerson, 208 F.3d 794, 797 (9th Cir. 2000).

9 6 . Id. (quoting United States v. Conforte, 624 F.2d 869, 882 (9th Cir.

1980)).

9 7 . See, e.g., United States v. Pearson, 203 F.3d 1243, 1277–78 (10th Cir.

2000) (recusal not required where during sentencing a district judge made remarks about defendant’s character); United States v. Kimball, 73 F.3d 269, 273

(10th Cir. 1995) (recusal not necessary despite judge’s “unfortunate comment”

that he wanted defendant to “die in prison”).

9 8 . 938 F.2d 1327 (D.C. Cir. 1991).

9 9 . Id. at 1341.

1 0 0 . Id.
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

2 4 

lowing a conviction for massive securities fraud, the trial judge ruminated about 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.”1 0 1 The Third Circuit held

that the remark reflected a mindset requiring recusal:

[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.1 0 2 

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.”1 0 3 

In another notable departure, United States v. Microsoft Corp.,

1 0 4 

the court of appeals granted Microsoft’s request to disqualify the

trial judge because of the cumulative effect of the judge’s comments

on the merits of the case in a series of secret interviews with reporters throughout the course of the trial. The court emphasized

that “all 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 un1 0 1 . United States v. Antar, 53 F.3d 568, 573 (3d Cir. 1995).

1 0 2 . Id. at 576.

1 0 3 . Id.

1 0 4 . 253 F.3d 34 (D.C. Cir. 2001) (also discussed infra, text accompanying

notes 152–61).
Part One: The Recusal Statutes

2 5 

known to the parties, in anticipation that ultimately the Judge’s

remarks would be reported.”1 0 5 

While it is rare for attitudes formed during judicial proceedings

to give rise to recusal, it does not follow that a judge’s opinion derived from an extrajudicial source automatically requires recusal.

The Court in Liteky stated that such an opinion is neither a necessary nor a sufficient condition for “‘bias or prejudice’ recusal.” The

Court observed that “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 recusal.1 0 6 

b. Rumor, suspicion, or innuendo. As the First Circuit put it:

[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.1 0 7 

Numerous cases follow the admonition to reject recusal where

the alleged basis for it requires suspicion or speculation beyond

what the reasonable person would indulge. The Second Circuit upheld a refusal to recuse 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. “A disinterested

observer could not reasonably question [the judge’s] impartiality

based upon his alleged failure to return the plaintiff’s greetings.”1 0 8 

Likewise, where a defendant moved for an Asian judge to

recuse himself because the defendant had been publicly critical of a

prominent Asian, the Second Circuit opined that “it is intolerable

for a litigant, without any factual basis, to suggest that a judge can1 0 5 . Id. at 115.

1 0 6 . Liteky, 510 U.S. at 554.

1 0 7 . In re Allied-Signal Inc., 891 F.2d 967, 970 (1st Cir. 1989) (Breyer, J.)

(citation omitted).

1 0 8 . Diamondstone v. Macaluso, 148 F.3d 113, 121 (2d Cir. 1998).
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

2 6 

not be impartial because of his or her race and political background.”1 0 9 

c. Familiarity with parties or events. Judges often cannot avoid

some acquaintance with the underlying parties or events that give

rise to litigation. Such acquaintance, by itself, will generally not

require recusal. The Second Circuit upheld a refusal to recuse

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 . . . .”1 1 0 

The Second Circuit also upheld a refusal to recuse where the defendant had a remote (but adversarial) business relationship with

the judge’s husband. The Second Circuit stated that “it 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.”1 1 1 

In some cases, the judge’s familiarity with aspects of a case

comes from having presided over related cases. Here, too, absent

unusual circumstances, recusal is unnecessary. The case of Town of

Norfolk v. United States Army Corps of Engineers1 1 2 is illustrative. 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

recusal, 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

1 0 9 . Macdraw, Inc. v. CIT Group Equip. Fin., Inc., 157 F.3d 956, 963 (2d

Cir. 1998).

1 1 0 . United States v. Lovaglia, 954 F.2d 811, 817 (2d Cir. 1992).

1 1 1 . United States v. Morrison, 153 F.3d 34, 47–49 (2d Cir. 1998).

1 1 2 . 968 F.2d 1438 (1st Cir. 1992).
Part One: The Recusal Statutes

2 7 

the judge’s prior official decisions and positions may have a connection.”1 1 3 

d. Personal attacks on the judge. Upholding a refusal to recuse

where the litigant had verbally attacked the judge in public, the

First Circuit noted that “‘[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].’”1 1 4 Indeed, where a

party argued that the judge’s ongoing hostility toward him required

recusal, 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 recusal,

“lest we encourage tactics designed to force recusal.”1 1 5 

In upholding a refusal to recuse where the plaintiff had sent a

letter to the Senate Judiciary Committee opposing the judge’s

nomination to the bench, the Ninth Circuit’s succinct response

captures why such circumstances generally do not require recusal:

“Such a letter is probative of [the plaintiff’s] dislike for [the judge],

not the other way around.”1 1 6 

These cases reflect a more general principle articulated by the

Seventh Circuit in a case where a lawyer showed the judge a letter

written by the opposing lawyer praising the judge, then moved for

recusal on the ground that the praise could influence the judge:

“[I]t is improper for a lawyer or litigant . . . to create the ground on

which he seeks the recusal of the judge assigned to his case. That is

arrant judge-shopping.”1 1 7 

1 1 3 . Id. at 1462.

1 1 4 . FDIC v. Sweeney, 136 F.3d 216, 219 (1st Cir. 1998) (quoting 13A

Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3542).

1 1 5 . United States v. Bertoli, 40 F.3d 1384, 1414 (3d Cir. 1994). See also

United States v. Bayless, 201 F.3d 116, 129 (2d Cir. 2000) (The judge did not

commit clear error in denying recusal because of media and political attacks on

him. To read section 455 to allow such recusal “would create a moral hazard by

encouraging litigants or other interested parties to maneuver to obtain a judge’s

disqualification.”).

1 1 6 . DeNardo v. Municipality of Anchorage, 974 F.2d 1200, 1201 (9th Cir.

1992).

1 1 7 . Sullivan v. Conway, 157 F.3d 1092, 1096 (7th Cir. 1998). Accord United
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

2 8 

e. Threats or lawsuits against the judge. Threats against judges or

their families can be made solely to spur recusal, and, as previously

discussed, such judge-shopping is impermissible. Therefore, this

kind of threat generally does not constitute a basis for recusal. One

exceptional case in which the court of appeals reversed a refusal to

recuse in the face of a threat to the judge is instructive. The Tenth

Circuit held that a trial judge should have recused 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 in an

effort to obtain a different judge.”1 1 8 Moreover, the trial court had

expedited sentencing in order to “‘get [defendant] into the federal

penitentiary system immediately, where he can be monitored more

closely.’”1 1 9 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

recusal:

[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 section 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.1 2 0 

States v. Owens, 902 F.2d 1154, 1156 (4th Cir. 1990) (“Parties cannot be allowed

to create the basis for recusal 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”).

1 1 8 . United States v. Greenspan, 26 F.3d 1001, 1006 (10th Cir. 1994).

1 1 9 . Id. at 1005.

1 2 0 . Id. at 1006.
Part One: The Recusal Statutes

2 9 

For the same reason, the filing of a collateral lawsuit or other

adversarial legal action against the judge will generally not require

recusal.1 2 1 

2. Recusal more likely

Most of the cases in which courts of appeals found that a trial judge

should have recused himself or herself fall into one of six categories: close personal or professional relationship to attorneys or others; public comments or outside activities; ex parte contacts; involvement pertaining to a guilty plea; the judge took personal offense; and miscellaneous.

a. Close personal or professional relationship to attorneys or others. A judge’s friendship with one of the attorneys, or acquaintance

with witnesses or even parties, does not ordinarily require recusal.

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

circumstances, renders recusal necessary.

The Eleventh Circuit held that a trial judge improperly failed to

recuse himself when, among other things, a close personal friend

was a key defense witness.1 2 2 The judge had expressed concern on

the record that he might “bend over backwards to prove he lacked

favoritism” towards the witness, and that a guilty verdict might

“jeopardize his wife’s friendship” with the witness’s wife.1 2 3 “The

judge expressed profound doubts about the propriety of continuing

. . . on the case; . . . such doubts should have been resolved in favor

of disqualification.”1 2 4 In another case, the Eleventh Circuit held

that the trial judge should have recused 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. Also, the

law clerk had held a hearing with counsel in the judge’s absence. In

1 2 1 . See Jones v. Pittsburgh Nat’l Corp., 899 F.2d 1350, 1355–56 (3d Cir.

1990) (recusal not necessary where party’s spouse filed complaint against judge

with Judicial Inquiry Board); 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).

1 2 2 . United States v. Kelly, 888 F.2d 732 (11th Cir. 1989).

1 2 3 . Id. at 738.

1 2 4 . Id. at 745.
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

3 0 

addition, as a matter of course, the judge credited his law clerk in

his written opinions.1 2 5 Nevertheless, the court found failure to

recuse harmless error in this case.1 2 6 

The First Circuit held that refusal to recuse 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.1 2 7 Because of the procedural

posture of the case, the court did not make a final resolution 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.1 2 8 

The Fifth Circuit reversed a failure to recuse in a criminal case

where there was a publicized history of “bad blood” between the

defendant and a close personal friend of the judge.1 2 9 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.1 3 0 The Eighth Circuit required recusal in a case in

which both the district judge and the defendant, who did not have

1 2 5 . 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 a firm representing a party hires the law clerk of

the presiding judge, the judge must make sure the law clerk ceases further involvement in the case).

1 2 6 . Parker, 855 F.2d at 1527. See also infra note 281.

1 2 7 . In re Cargill, 66 F.3d 1256 (1st Cir. 1995).

1 2 8 . Id. at 1261 n.4 (citation omitted).

1 2 9 . United States v. Jordan, 49 F.3d 152 (5th Cir. 1995).

1 3 0 . Id. at 157.
Part One: The Recusal Statutes

3 1 

a connection with each other, had an association with President

and Mrs. Clinton.1 3 1 

The Seventh Circuit stated that a judge should have recused

himself where he and the prosecuting attorney were close friends

and planned to vacation together immediately after the trial.1 3 2 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.”1 3 3 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.”1 3 4 

The Sixth Circuit reversed a failure to recuse in a sex discrimination suit where, pretrial, the judge stated that he personally knew

one of the people accused of discrimination and “he is an honorable man and I know he would never intentionally discriminate

against anybody.”1 3 5 The court noted that “[o]nce the district court

expressed his ardent sentiments . . . the objective appearance of

impartiality vanished.”1 3 6 

The Seventh Circuit reversed a refusal to recuse 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.”1 3 7 The court emphasized that a

1 3 1 . United States v. Tucker, 78 F.3d 1313 (8th Cir. 1996). See supra text

accompanying notes 72–78.

1 3 2 . United States v. Murphy, 768 F.2d 1518 (7th Cir. 1985).

1 3 3 . Id. at 1537.

1 3 4 . Id. at 1538. Nevertheless, the court chose not to reverse because the

defendant’s recusal motion was inexcusably untimely.

1 3 5 . Roberts v. Bailar, 625 F.2d 125, 127 (6th Cir. 1980).

1 3 6 . Id. at 129.

1 3 7 . In re Hatcher, 150 F.3d 631, 638 (7th Cir. 1998).
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

3 2 

judge whose son is an assistant U.S. attorney need not recuse himself from all cases in which the United States is a party, or even

whenever 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 recusal under § 455(a) was the only permissible option.”1 3 8 

While connection to the case by someone close to the judge

should raise a red flag, certain professional relationships confront

judges frequently and generally do not require recusal. As the First

Circuit explained:

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 . . . . So, too, appointees to the bench have sometimes

had a former active connection with a political party. But many

judges also sit, usually after a self-imposed cooling off period, on

cases involving former clients (assuming always no current financial ties and that the judge did not work on the same or a related

matter while in practice). Former affiliations with a party may

persuade a judge not to sit; but they are rarely a basis for compelled recusal.1 3 9 

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

the Eleventh Circuit has noted that “it is the clerk, not the judge

who must be disqualified.”1 4 0 In this case, involving medical malpractice, the plaintiff had moved for recusal because the judge’s law

clerk used to work for the law firm representing some of the defendants. The court of appeals held that recusal wasn’t required under

section 455(a) since the judge had isolated the law clerk from the

case and assigned the matter to another law clerk.1 4 1 

1 3 8 . Id.

1 3 9 . In re Martinez-Catala, 129 F.3d 213, 221 (1st Cir. 1997).

1 4 0 . Byrne v. Nezhat, 261 F.3d 1075, 1101–02 (11th Cir. 2001) (quoting

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

1 4 1 . Id. at 1100. The court reasoned that since “precedent approves the isolation of a law clerk who has accepted future employment with counsel appearing

before the court (see e.g., Hunt, 783 F.2d at 1015–16) it follows that isolating a
Part One: The Recusal Statutes

3 3 

b. Public comments or outside activities. A trial judge’s outside

professional activities may create an appearance of partiality. In

United States v. Cooley,

1 4 2 the Tenth Circuit reversed a refusal to

recuse where the defendants were abortion protesters and the trial

judge had appeared on national television and stated that “these

people are breaking the law.”1 4 3 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 unmistakenly 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.1 4 4 

In In re Boston’s Children First,

145 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 recusal. 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 “is more complex.”1 4 6 The plaintiffs moved for recusal; the judge denied the motion. The court of

appeals held that recusal was necessary and granted the petitioners’

writ of mandamus pursuant to section 455(a). Although it found

the media contact “less inflammatory than that in Cooley,” it saw

law clerk should also be acceptable when the clerk’s former employer appears

before the court.” Id. at 1102.

1 4 2 . 1 F.3d 985 (10th Cir. 1993).

1 4 3 . Id. at 990.

1 4 4 . Id. at 995.

1 4 5 . 244 F.3d 164 (1st Cir. 2001).

1 4 6 . Id. at 166.
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

3 4 

“the same factors at work.”1 4 7 First, because the school assignment

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.”1 4 8 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.”1 4 9 Finally, a judge’s defense of her own orders, before

the resolution of appeal, could also create the appearance of partiality.1 5 0 The court noted that its holding was “based on the particular events” of a “highly idiosyncratic case.”1 5 1 

In granting a disqualification request in United States v. Microsoft,

1 5 2 the D.C. Circuit noted that other courts of appeals had

found violations of section 455(a) “for judicial commentary on

pending cases that seems mild in comparison to what we are confronting in this case.”1 5 3 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.”1 5 4 The interviews began

to appear in press accounts immediately after the final judgment

1 4 7 . Id. at 169.

1 4 8 . Id. at 170.

1 4 9 . Id.

1 5 0 . Id. Canon 3A(6) does not bar comment on final, completed cases so long

as judges refrain from revealing the deliberation process and don’t place in question their impartiality in similar future cases. See Compendium of Selected Opinions § 3.9-1(d) (2001).

1 5 1 . Boston’s Children, 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 recusal under section 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.

1 5 2 . 253 F.3d 34 (D.C. Cir. 2001).

1 5 3 . 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)).

1 5 4 . Id. at 108.
Part One: The Recusal Statutes

3 5 

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.”1 5 5 The court noted that 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

actually “disclosed his views on the factual and legal matters at the

heart of the case.”1 5 6 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.1 5 7 The D.C. Circuit observed that it had

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).”1 5 8 However, it believed “the line ha[d] been crossed” in

this case and the judge’s comments would cause “a reasonable, informed observer to question” the judge’s impartiality.1 5 9 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.”1 6 0 It concluded that there was no reason to set aside the

findings of fact and conclusions of law and that the appropriate

1 5 5 . Id. at 112. Canon 3A(6) forbids federal judges to comment publicly “on

the merits of a pending or impending action” and applies to cases pending before

any court—state or federal, trial or appellate.

1 5 6 . Microsoft, 253 F.3d at 112.

1 5 7 . Id.

1 5 8 . Id. at 114.

1 5 9 . Id. at 115.

1 6 0 . Id. at 116.
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

3 6 

remedy was disqualification of the judge “retroactive only to the

date he entered the order breaking up Microsoft.”1 6 1 

The Third Circuit reversed a refusal to recuse where the trial

judge in a mass tort asbestos case attended a scientific conference

on the dangers of asbestos. 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.1 6 2 

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 . . . .1 6 3 

The court declined to address whether any of these facts alone

compelled disqualification, because “together they create an appearance of partiality that mandates disqualification.”1 6 4 

Similarly, the Fourth Circuit reversed a refusal to recuse where,

while a jury trial on damages was pending against an automobile

company, the judge gave a speech at an Auto Torts Seminar that

expressed hostility toward defendants and defense counsel in such

cases.1 6 5 

There are somewhat similar cases that went the other way,

however. In United States v. Pitera,

1 6 6 the judge gave a videotaped

lecture to a government drug enforcement task force seven months

before the narcotics prosecution in question, 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 recuse because the judge’s lec1 6 1 . Microsoft, 253 F.3d at 116.

1 6 2 . In re School Asbestos Litig., 977 F.2d 764, 779 (3d Cir. 1992).

1 6 3 . Id. at 781–82.

1 6 4 . Id. at 782.

1 6 5 . Hathcock v. Navistar Int’l Transp. Corp., 53 F.3d 36 (4th Cir. 1995).

1 6 6 . 5 F.3d 624 (2d Cir. 1993).
Part One: The Recusal Statutes

3 7 

ture “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.”1 6 7 In addition, the judge participated in various programs for criminal defense lawyers, and she

“commendably lectures to a variety of trial practice seminars.”1 6 8 

The Second Circuit also upheld a refusal to recuse in a case involving a trial judge’s attendance at an expense-paid environmental

seminar funded indirectly by Texaco. After the judge attended the

seminar, a lawsuit against Texaco that he had previously dismissed

was remanded to him.1 6 9 The court of appeals agreed with the district judge that his presence at the seminar did not warrant recusal

under section 455(a) because Texaco provided only a minor part of

the funding to one of two nonprofit organizations that conducted

the seminar and 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.

In United States v. Barry,

1 7 0 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 recusal, claiming the judge’s remarks at Harvard created an appearance of partiality. The court found, however, that because the judge’s remarks

were “based on his own observations during the performance of his

judicial duties,” recusal was not required.1 7 1 

c. Ex parte contacts. 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.1 7 2 “[C]oncerned by the district judge’s acceptance of ex

1 6 7 . Id. at 626.

1 6 8 . Id. at 627.

1 6 9 . In re Aguinda, 241 F.3d 194 (2d Cir. 2001).

1 7 0 . 961 F.2d 260 (D.C. Cir. 1992).

1 7 1 . Id. at 263.

1 7 2 . United States v. Microsoft Corp., 56 F.3d 1448 (D.C. Cir. 1995) (see

supra text accompanying notes 22–23) (the contacts included argumentative letters and a redacted exhibit). See also United States v. Microsoft Corp., 253 F.3d
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

3 8 

parte submissions,” the court thought that “the appropriate course

would have been simply to refuse to accept any ex parte communications.”1 7 3 

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

had sent his law clerk to gather evidence and therefore should have

recused himself. The court observed that while “not every ex parte

communication to the trial court requires reversal,”1 7 4 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 recuse.1 7 5 However, the

Sixth Circuit upheld a refusal to recuse 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.”1 7 6 

Counsel chose not to attend, and “failed to register any objection to

the meetings at that time . . . .”1 7 7 

d. Involvement pertaining to guilty plea. In Halliday v. United

States,

1 7 8 the First Circuit implied that recusal is sometimes appropriate when a judge faces a motion under 28 U.S.C. § 2255 to vacate a conviction when he presided over the trial or imposed the

sentence.1 7 9 In a post-conviction motion, the defendant argued that

34, 113 (D.C. Cir. 2001) (holding that the judge’s secret interviews with reporters

during the course of the 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”).

1 7 3 . Microsoft, 56 F.3d at 1464.

1 7 4 . 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).

1 7 5 . Edgar v. K.L., 93 F.3d 256 (7th Cir. 1996).

1 7 6 . Reed v. Rhodes, 179 F.3d 453, 468 (6th Cir. 1999).

1 7 7 . Id.

1 7 8 . 380 F.2d 270 (1st Cir. 1967).

1 7 9 . Id.
Part One: The Recusal Statutes

3 9 

the judge improperly conducted the Rule 11 plea agreement hearing. Since the section 2255 challenge would have forced the same

judge to evaluate his own actions, the First Circuit found it preferable (but not required) for a different judge to conduct the section

2255 evidentiary hearing. In subsequent cases, the First Circuit

clarified that Halliday is limited to cases where the section 2255

motion accuses the sentencing judge of violating Rule 11.1 8 0 

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.1 8 1 

The Eighth Circuit concurred that when a case is remanded after a

court of appeals finds a Rule 11 violation, the judge need not

recuse himself from the subsequent trial, though recusal might be

in order for sentencing if the defendant is convicted.1 8 2 

Similarly, the Third Circuit required resentencing before a new

judge where the trial judge had communicated to defense counsel

his preference that the defendant plead guilty and indicated that

the defendant would receive a lighter sentence if he did.1 8 3 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.”1 8 4 

e. Judge took personal offense. In assorted cases, recusal has been

deemed necessary where trial judges took unusual actions, or made

comments, that indicated they took personal offense. In In re Johnson,

1 8 5 a bankruptcy trustee had been held in contempt because the

trial judge thought she had misrepresented the judge to another

judge in order to obtain a favorable court order. At the contempt

1 8 0 . See, e.g., Panzardi-Alvarez v. United States, 879 F.2d 975, 985 (1st Cir.

1989).

1 8 1 . United States v. Adams, 634 F.2d 830, 835–43 (5th Cir. 1981).

1 8 2 . In re Larson, 43 F.2d 410, 416 (8th Cir. 1994).

1 8 3 . United States v. Furst, 886 F.2d 558 (3d Cir. 1989).

1 8 4 . Id. at 583.

1 8 5 . 921 F.2d 585 (5th Cir. 1991).
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

4 0 

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 he would serve as “complaining witness,

prosecutor, judge, jury, and executioner . . . .”1 8 6 The Fifth 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.1 8 7 

Trial judges occasionally appear insulted when a litigant challenges their rulings. The Third Circuit reversed a refusal to recuse

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.”1 8 8 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.1 8 9 

f. Miscellaneous. Both the Fourth and Seventh Circuits have

held recusal necessary where the judge was called on to review (in

a habeas motion) a ruling that he himself participated in while a

state court judge.1 9 0 The Fifth Circuit found reversible error when a

judge denied a recusal motion in a criminal case after the defendant’s attorney had testified against the judge in proceedings before

a special investigating committee of the circuit judicial council.1 9 1 

A judge subject to criminal investigation should consider

recusing from criminal cases, though it is not required.1 9 2 In United

States v. Cerceda,

1 9 3 an evenly divided en banc court affirmed by

operation of law the district court’s holding that a judge who was

1 8 6 . Id. at 587.

1 8 7 . Id.

1 8 8 . Alexander v. Primerica Holdings, Inc., 10 F.3d 155, 165 (3d Cir. 1993).

1 8 9 . United States v. Holland, 655 F.2d 44 (5th Cir. 1981).

1 9 0 . Russell v. Lane, 890 F.2d 947 (7th Cir. 1989); Rice v. McKenzie, 581

F.2d 1114 (4th Cir. 1978).

1 9 1 . United States v. Anderson, 160 F.3d 231, 233 (5th Cir. 1998).

1 9 2 . The Judicial Conference has urged each circuit judicial council to adopt

a policy on the subject.

1 9 3 . 172 F.3d 806 (11th Cir. 1999).
Part One: The Recusal Statutes

4 1 

the subject of a federal grand jury investigation had violated section

455(a) by failing to recuse himself from presiding at defendants’

trials and sentencing hearings. The court reversed the district

court’s order granting new trials and sentencing hearings, however,

based on a consideration of the three-factor test in Liljeberg v.

Health Services Acquisition Corp.1 9 4 

Courts of appeals have approached the question of whether a

judge s stock or note ownership in an entity that has been the “victim” of a crime requires disqualification under section 455(a) on a

case-by-case basis, reaching different results.

1 9 5 

V. Section 455(e): Waiver of Recusal

Pursuant to 28 U.S.C. § 455(e), waiver of a ground for disqualification based on subsection 455(a) “may be accepted provided it is

preceded by a full disclosure on the record of the basis for disqualification”; waiver of disqualification under subsection 455(b) is

not permissible.1 9 6 

Some courts of appeals have recognized waivers pursuant to

section 455(e).1 9 7 The Eleventh Circuit has 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

1 9 4 . 486 U.S. 847 (1988).

1 9 5 . See, e.g., United States v. Nobel, 696 F.2d 231, 235-36 (3d Cir. 1982)

(recusal required); United States v. Farrington, 2001 U.S. App. LEXIS 24978 (7th

Cir. Nov. 16, 2001) (recusal not required); United States v. Aragon, No. 99-50341,

2000 U.S. App. LEXIS 15423 (9th Cir. June 29, 2000) (recusal not required under

either section 455(a) or section 455(b)(4)); United States v. Sellers, 566 F.2d 884,

887 (4th Cir. 1977) (recusal not required); United States v. Ravich, 421 F.2d 1196

(2d Cir. 1970) (recusal not required). See also Andrew L. Wright, Comment, Invested in the Outcome: When the Judge Owns Stock in the Victim of a Crime, 1998 U.

Chi. Legal F. 481 (1998).

1 9 6 . 28 U.S.C. § 455(e) (1988).

1 9 7 . See, e.g., United States v. Rogers, 119 F.3d 1377, 1382 (9th Cir. 1997)

(The defendant “expressly approved of the district judge’s continued service in

this case. [His] election to proceed after this disclosure constitutes an effective

waiver under § 455(e).”); In re Cargill, 66 F.3d 1256, 1261 (1st Cir. 1995); United

States v. Nobel, 696 F.2d 231, 236–37 (3d Cir. 1982).
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

4 2 

and should be exercised with the utmost restraint.”1 9 8 Finding that

the defendant did not validly waive his recusal claim even though

he was apprised of the potential disqualifying circumstance and did

not seek recusal, the Eleventh Circuit held that, as a general rule,

“a federal judge should reach his own determination [on recusal],

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.”1 9 9 

Failure to comply with the procedural requirements for disclosure under section 455(e) for waiver of disqualification can result

in reversal. In Barksdale v. Emerick,

2 0 0 the trial court, rejecting a

recusal motion, issued the following order: “The Court having 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

having voiced no objections . . . . Plaintiff’s belated Motion to Disqualify is DENIED.”2 0 1 Quoting section 455(e), the Sixth Circuit

reversed, noting that “[t]here is no disclosure ‘on the record’ and

therefore no properly obtained ‘waiver.’”2 0 2 The court went on to

say that section 455(e)’s disclosure and waiver requirements “must

be strictly construed.”2 0 3 

VI. Section 455(f): Divestiture Can Overcome

Disqualification

The conflicts enumerated in section 455(b) require automatic

recusal—even if the judge believes he or she is capable of impartial

1 9 8 . United States v. Kelly, 888 F.2d 732, 745 (11th Cir. 1989).

1 9 9 . Id. at 745–46 (quoting In re National Union Fire Ins. Co, 839 F.2d 1226,

1231 (7th Cir. 1988) (quoting Resolution L, Judicial Conference of the United

States, Oct. 1971)).

2 0 0 . 853 F.2d 1359 (6th Cir. 1988).

2 0 1 . Id. at 1361.

2 0 2 . Id. (Contie, J., dissenting).

2 0 3 . Id. Accord United States v. Murphy, 768 F.2d 1518, 1538–39 (7th Cir.

1985) (disclosure must be on record).
Part One: The Recusal Statutes

4 3 

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 section 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 minor child, as

the case may be, divests himself or herself of the interest that

provides the grounds for disqualification.2 0 4 

A number of courts of appeals have upheld and applauded the

use of this subsection to prevent recusal.2 0 5 In Kidder, Peabody &

Co. v. Maxus Energy Corp.,

2 0 6 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 his curative action pursuant to section 455(f) prevented

2 0 4 . 28 U.S.C. § 455(f) (1988).

2 0 5 . 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 recusal and holding that, under

section 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 recuse himself, noting that recusal would be

mandatory except for the provisions of section 455(f)). But see Gordon v. Reliant

Energy, Inc., 141 F. Supp. 2d 1041 (S.D. Cal. 2001), relying on Tramonte (both

cases holding that disqualifying interests are incurable even if discovered and removed at the beginning of a case).

2 0 6 . 925 F.2d 556 (2d Cir. 1991).
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

4 4 

the waste of “three years of the litigants’ time and resources and

substantial judicial efforts.”2 0 7 

Some courts, however, have limited the “divestiture cure” to

the terms of this subsection. The Sixth Circuit held that recusal 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.2 0 8 The Sixth Circuit observed

that section 455(f) refers to the judge himself, his or her spouse, or

a minor child residing with the 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).”2 0 9 

VII. Assigning Recusal Motion to a Different

Judge

A judge wishing to remove any doubt about his or her objectivity

may be tempted to have another judge decide the recusal question;

a litigant may ask the court to do so. The question arises whether it

is necessary or proper for a judge to transfer a recusal motion to

another judge. Section 144 requires the judge to transfer the motion once he or she has determined that the affidavit is legally sufficient.2 1 0 Section 455 does not have the same requirement.

The First Circuit recently observed that “[a]lthough a trial

judge faced with a section 455(a) recusal motion may, in her discretion, leave the motion to a different judge, no reported case or

accepted principle of law compels her to do so . . . .”2 1 1 The weight

of authority indicates that it is perfectly proper, indeed the norm,

for the challenged judge to rule on a recusal motion pursuant to

section 455.2 1 2 

2 0 7 . Id. at 561.

2 0 8 . In re Aetna Cas. & Sur. Co., 919 F.2d 1136 (6th Cir. 1990).

2 0 9 . Id. at 1147.

2 1 0 . See, e.g., United States v. Azhocar, 581 F.2d 735, 738 (9th Cir. 1978).

2 1 1 . 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).

2 1 2 . See, e.g., Schurz Communications, Inc. v. FCC, 982 F.2d 1057, 1059
Part One: The Recusal Statutes

4 5 

VIII. Bias or Prejudice: Section 144

On its terms, section 144 makes a district judge’s recusal mandatory upon a timely and sufficient affidavit accompanied by a certificate from counsel that the affidavit is made in good faith.

Section 144 reads as follows:

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 good faith.2 1 3 

Unlike section 455(a), which can be brought by motion but

also requires judges to recuse sua sponte where appropriate, section 144 is triggered only by the submission of an affidavit and motion for recusal. Absent this trigger, there is no basis for recusal

under section 144, and no appeal based on section 144 will be

heard.2 1 4 

A. Review of Affidavit

In an early case, the Supreme Court held that the challenged judge

must determine only the sufficiency of the affidavit, not the truth of

(7th Cir. 1992) (opinion of Posner, J., in chambers); United States v. Balistrieri,

779 F.2d 1191, 1202–03 (7th Cir. 1985).

2 1 3 . 28 U.S.C. § 144 (1949). Originally enacted as section 21 of the Judicial

Code of 1911, the statute was recodified as section 144 in 1948 without significant

change.

2 1 4 . See, e.g., United States v. Sammons, 918 F.2d 592, 598 (6th Cir. 1999).
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

4 6 

the allegations.2 1 5 In more recent cases, many circuits have reiterated this principle.2 1 6 

In Ronwin v. State Bar of Arizona,

2 1 7 the Ninth Circuit took a

different approach. While acknowledging that “a judge is generally

required to accept the truth of the factual assertions in an Affidavit

of Bias filed pursuant to 28 U.S.C. § 144,”2 1 8 the court made an exception because the allegation of bias “relates to facts that were peculiarly within the judge’s knowledge.”2 1 9 The party had accused

the judge of various improper ex parte communications, but the

Ninth Circuit held that recusal was unnecessary in part because the

judge knew the allegations were false.

The Ronwin decision is contrary to the prevailing rule that facts

in a section 144 affidavit must be accepted as true. On occasion,

this rule produces an odd result. For example, in United States v.

Rankin,

2 2 0 the defendant alleged that in a previous trial the judge

had chased the defendant around the courtroom and assaulted him.

2 1 5 . Berger v. United States, 255 U.S. 22 (1921).

2 1 6 . 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 [section 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.”); Henderson v. Department of

Pub. Safety & Corr., 901 F.2d 1288, 1296 (5th Cir. 1990); Weatherhead v. Globe

Int’l, Inc., 832 F.2d 1226, 1227 (10th Cir. 1987); Albert v. United States Dist. Ct.,

283 F.2d 61, 62 (6th Cir. 1960) (in assessing a section 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 that

trial court felt “bound by statute and Supreme Court precedent to accept Rankin’s

factual allegations as true”).

2 1 7 . 686 F.2d 692 (9th Cir. 1981), rev’d on other grounds, Hoover v. Ronwin,

466 U.S. 558 (1984).

2 1 8 . Id. at 701.

2 1 9 . Id.

2 2 0 . 870 F.2d 109 (3d Cir. 1989).
Part One: The Recusal Statutes

4 7 

While denying the bizarre accusation, the trial judge nevertheless

recused himself from the second trial on the ground that section

144 bound him to accept the allegations as true.2 2 1 In an earlier unrelated case, the Third Circuit had held a refusal to recuse improper, even though “[p]robably the district court is right that

there is no basis for the allegations”2 2 2 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 section 144

requires acceptance of factual allegations as true.2 2 3 

It does not follow, however, that a section 144 affidavit will

always suffice to effect a transfer of the case to another judge.

Rather, as the First Circuit explained, “courts have responded to

the draconian procedure—automatic transfer based solely on one

side’s affidavit—by insisting on a firm showing in the affidavit that

the judge does have a personal bias or prejudice to a party.”2 2 4 The

Seventh Circuit concurs: “[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.”2 2 5 Likewise, the Eleventh Circuit has said that the allegations in a section

144 affidavit must be “material and stated with particularity” and

be such that “they would convince a reasonable person that a bias

exists.”2 2 6 Indeed, virtually every circuit has adopted some version

of the “convince a reasonable person” test.2 2 7 

2 2 1 . 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.

2 2 2 . Mims v. Shapp, 541 F.2d 415, 417 (3d Cir. 1976).

2 2 3 . Id.

2 2 4 . Martinez-Catala, 129 F.3d at 218.

2 2 5 . United States v. Sykes, 7 F.3d 1331, 1339 (7th Cir. 1993) (citation

omitted).

2 2 6 . United States v. Alabama, 828 F.2d 1532, 1540 (11th Cir. 1987), cert.

denied, 487 U.S. 1210 (1988). See also Brokaw v. Mercer County, 235 F.3d 1000,
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

4 8 

The Tenth Circuit has gone further, holding that “the affidavits

filed in support of recusal are strictly construed against the affiant

and there is a substantial burden on the moving party to demonstrate that the judge is not impartial.”2 2 8 

Even if 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.”2 2 9 

In sum, the court reviewing a section 144 motion must assume

the factual allegations in the movant’s affidavit are true, but must

recuse itself only if those allegations clearly suffice to establish a

disqualifying bias. In addition to meeting this substantive requirement of a “sufficient” affidavit, section 144 motions must meet several procedural requirements, as discussed in the cases below.

B. Applications of Section 144

For several reasons, recent case law involves far more extensive

discussion and application of section 455 than section 144. Litigants more often move for recusal pursuant to section 455 rather

than file affidavits pursuant to section 144. This is largely because

section 144 requires the more difficult showing of “actual” bias,

whereas section 455 requires a mere “appearance” of bias. Section

455 subsumes section 144—where there is actual bias, there will

generally be an appearance of bias as well. Also, many of the conditions that might constitute actual bias under section 144 are

1025 (7th Cir. 2000), discussed supra note 15.

2 2 7 . 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).

2 2 8 . 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) (same).

2 2 9 . In re Martinez-Catala, 129 F.3d 213, 218 (1st Cir. 1997).
Part One: The Recusal Statutes

4 9 

treated separately in section 455(b), which explicitly addresses

various conflicts of interest.2 3 0 

On appeal, litigants often invoke both sections, and courts

sometimes treat them simultaneously—but in the overwhelming

majority of cases the analysis focuses on section 455. Indeed, unless a timely section 144 affidavit is filed, there is no reason for the

court of appeals to discuss section 144.

Of the cases dealing primarily with section 144, a sizable percentage involves a judge’s alleged antipathy toward counsel. On its

terms, section 144 requires bias against the party. Accordingly, a

judge’s antipathy toward counsel is generally insufficient ground

for disqualification.2 3 1 However, courts have held that “under specific circumstances bias against an attorney can reasonably be imputed to a party.”2 3 2 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.”2 3 3 The allegations to that effect cannot be “merely conclusory.”2 3 4 

Conversely, the Seventh Circuit rejected the contention that a

lawyer’s praise of the judge required recusal. In Sullivan v.

Conway,

2 3 5 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.” By mistake, the letter ended up in the hands of

opposing counsel, who showed it to the judge and petitioned for

recusal. The Seventh Circuit rejected the contention that the affida2 3 0 . See id. (“section 455 is the more modern and complete recusal statute”).

2 3 1 . 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). The ABA added bias against counsel as a basis for

disqualification in the 1990 Model Code of Judicial Conduct.

2 3 2 . 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.

Board of Sch. Comm’rs, 517 F.2d 1044, 1050–51 (5th Cir. 1975).

2 3 3 . Sykes, 7 F.3d at 1339.

2 3 4 . Id. at 1340. Accord Souder, 939 F.2d at 653 n.6.

2 3 5 . 157 F.3d 1092, 1095 (7th Cir. 1998).
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

5 0 

vit 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.2 3 6 

The “extrajudicial source” doctrine applies to section 144 (indeed it was initially developed under section 144) as well as to section 455(a). Thus a section 144 affidavit must show “that the bias

is personal rather than judicial, and that it stems from an extrajudicial source—some source other than what the judge has learned

through participation in the case.”2 3 7 

Apart from meeting the substantive standard, section 144 sets

forth several procedural requirements, and courts demand “strict

compliance.”2 3 8 Specifically, section 144 affidavits must be timely,

signed by the party, and accompanied by a certificate of good faith

from counsel. Only one affidavit may be filed in a given case.

Section 144 says that a motion for recusal “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 specific provision no longer applies. However, courts have held that a section 144 motion must be filed with

reasonable promptness after the party learns of the facts that may

call into question the judge’s impartiality. Numerous cases have

involved rejection of section 144 motions because of untimely affidavits.2 3 9 

2 3 6 . Id. at 1096.

2 3 7 . United States v. Balistrieri, 779 F.2d 1191, 1199 (7th Cir. 1985); Liberty

Lobby, Inc. v. Dow Jones Co., 838 F.2d 1287, 1301 (D.C. Cir. 1988) (citing

cases).

2 3 8 . In re Martinez-Catala, 129 F.3d 213, 218 (1st Cir. 1997).

2 3 9 . 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).
Part One: The Recusal Statutes

5 1 

Although less common, failure to comply with the other procedural requirements can also result in rejection of a section 144 motion.2 4 0 The question arises 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 statute provides that a party’s affidavit “shall be accompanied by a certificate of counsel of record stating that it is

made in good faith.” The word “it” seems to refer back to plaintiff’s

affidavit, and thus to require that counsel vouch for the good faith

of the plaintiff’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 section 144

motion inadequate in part because counsel’s certificate of good

faith asserted only that the party acted in good faith.2 4 1 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.2 4 2 

2 4 0 . 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).

2 4 1 . In re Union Leader Corp., 292 F.2d 381 (1st Cir. 1961).

2 4 2 . Id. at 385. Accord Brotherhood of Locomotive Firemen v. Bangor &
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

5 2 

IX. Disqualification of Appellate Judges:

28 U.S.C. § 47

A little-used recusal 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.”2 4 3 One reason the statute has barely surfaced in

the case law is that, on those occasions where it suggests a basis of

recusal, the same result would also be reached by reference to section 455(a).

In Russell v. Lane2 4 4 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 court found that this created an appearance of impropriety in violation of section 455(a). In reaching that

decision, however, the court cited the relevance of 28 U.S.C. § 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.”2 4 5 

A somewhat more extended discussion of section 47 is found in

an opinion by Judge James Craven, Jr., of the U.S. Court of Appeals

for the Fourth Circuit, explaining his recusal from a school desegregation case.2 4 6 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

28 U.S.C. § 47, Judge Craven held that the statute must be “strictly

construed” to prevent judges from, in effect, sitting in appellate

judgment of their own earlier decisions.2 4 7 

Aroostook R.R., 380 F.2d 570, 577–78 & n. 17 (D.C. Cir.), cert. denied, 389 U.S.

327 (1967). But cf. United States v. Sykes, 7 F.3d 1331, 1339 (7th Cir. 1993) (certificate must “stat[e] that the affidavit is made in good faith”).

2 4 3 . 28 U.S.C. § 47 (1994).

2 4 4 . 890 F.2d 947 (7th Cir. 1989).

2 4 5 . Id. at 948.

2 4 6 . Swann v. Charlotte-Mecklenburg Bd. of Educ., 431 F.2d 135 (4th Cir.

1970).

2 4 7 . Id. at 136. See Rexford v. Brunswick-Balke-Collender Co., 228 U.S. 339

(1913); Moran v. Dillingham, 174 U.S. 153 (1899).
Part One: The Recusal Statutes

5 3 

In Rexford v. Brunswick-Balke-Collender Co.,

2 4 8 the Supreme

Court said 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.2 4 9 In Cramp & Sons Ship & Engine Building Co. v. International Curtiss Marine Turbine Co.,

2 5 0 the

U.S. 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.”2 5 1 

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

recused pursuant to 28 U.S.C. § 47.2 5 2 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 recusal 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 . . . .”2 5 3 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.

2 4 8 . 228 U.S. 339 (1913).

2 4 9 . Id. at 344.

2 5 0 . 228 U.S. 645 (1913).

2 5 1 . Id. at 652.

2 5 2 . United States v. Morrow, 717 F.2d 800 (3d Cir. 1983).

2 5 3 . Id. at 801 n.1.
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

5 4 

X. Judge’s Authority After Deciding to Recuse

Many courts of appeals have held that after recusal a judge may

take no nonministerial actions with respect to the case.2 5 4 For example, in El Fenix de Puerto Rico v. The M/Y Johanny,

2 5 5 on motion

from one party the trial judge recused himself under section

455(a). However, when the other party moved for reconsideration,

the court listened to arguments and entered a reconsideration order

vacating the recusal 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.’”2 5 6 

Similarly, in United States v. Feldman,

2 5 7 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.2 5 8 

In United States v. O’Keefe,

2 5 9 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

2 5 4 . 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 recuse. See Doddy v. Oxy USA, Inc., 101 F.3d 448, 457 (5th Cir.

1996) (holding that judge erred in vacating refusal order after recusing herself);

Moody v. Simmons, 858 F.2d 137, 143–44 (3d Cir. 1988) (after recusal, 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.”).

2 5 5 . 36 F.3d 136 (1st Cir. 1994).

2 5 6 . Id. at 141 (quoting 13A Charles A. Wright & Arthur R. Miller, Federal

Practice and Procedure § 3550 (2d ed. 1984)).

2 5 7 . 983 F.2d 144 (9th Cir. 1992).

2 5 8 . 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”).

2 5 9 . 128 F.3d 885 (5th Cir. 1997), cert. denied, 523 U.S. 1078 (1998).
Part One: The Recusal Statutes

5 5 

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.”2 6 0 The

court noted that new judges must move on motions for reconsideration in the case of a judge’s death or illness and other circumstances. The court “recognize[d] that our 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,”2 6 1 but found this circumstance outweighed by “the values

underlying 28 U.S.C. § 455,”2 6 2 which require that a judge who has

recused himself or herself take no further action.

The Second Circuit, however, has refused to apply a pure

bright-line approach. In Pashaian v. Eccelston Properties, Ltd.,

2 6 3 although the trial judge concluded that recusal in the face of an alleged conflict of interest was not legally required, he recused himself as a matter of prudence to avoid any possibility of appellate

reversal after prolonged proceedings. He chose, however, to make

recusal effective only after he ruled on a pending motion for preliminary injunction. On appeal, the Second Circuit found that

recusal 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.”2 6 4 As a result, ruling on the motion for preliminary injunction would have

been clearly improper. The court held that the trial court’s willing2 6 0 . Id. at 891.

2 6 1 . Id. at 891–92 n.6.

2 6 2 . Id. at 892 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.”).

2 6 3 . 88 F.3d 77 (2d Cir. 1996).

2 6 4 . Id. at 84.
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

5 6 

ness to rule on the preliminary injunction motion prior to recusal

was “a practical and appropriate resolution of the situation. . . . We

note also the potential for mischief in imposing an inflexible rule

. . . and are accordingly loathe to articulate a rule that would frustrate or obviate the careful exercise of judicial discretion by district

judges in responding to recusal motions in unusual circumstances

. . . .”2 6 5 The unusual circumstances included the fact that plaintiffs

sought enforcement of a judgment ensuing from litigation that had

occurred years earlier, with the motion for recusal 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 recusal was entirely prudential, not legally obligatory. In any event, the safest course for a trial judge is to take no

nonministerial action after recusal.

A few litigants have objected to a recused judge transferring the

case to another judge. This claim is generally rejected.2 6 6 An exception was McCuin v. Texas Power & Light Co.,

2 6 7 where the Fifth Circuit said 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.”2 6 8 

2 6 5 . Id. at 84–85.

2 6 6 . 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.”).

2 6 7 . 714 F.2d 1255 (5th Cir. 1983).

2 6 8 . Id. at 1261.
57

PART TWO

Miscellaneous Issues

I. Timeliness of Motion

While section 144 explicitly requires a “timely” affidavit, section

455 has no equivalent provision. All the circuits that have considered the question, however, agree that a party may not hold back “a

recusal application as a fall-back position in the event of adverse

rulings on pending matters.”2 6 9 Most circuits require that a motion

for disqualification be brought “at the earliest possible moment after obtaining knowledge of facts demonstrating the basis for such a

claim.”2 7 0 “[A] party having information that raises a possible

2 6 9 . In re IBM Corp., 45 F.3d 641, 643 (2d Cir. 1995); 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 (8th Cir. 1996) and United States v. Microsoft

Corp., 253 F.3d 34 (D.C. Cir. 2001) (issue first raised on appeal). The circuits that

have considered the question have held that the timeliness requirement applies to

section 455(b) as well, even though recusal under that subsection cannot be

waived. 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 Kansas 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.”).

2 7 0 . See, e.g., Travelers Ins. Co. v. Liljeberg Enters., Inc., 38 F.3d 1404, 1410

(5th Cir. 1994); Apple v. Jewish Hosp. & Med. Ctr., 829 F.2d 326, 333 (2d Cir.

1987). Accord United States v. Vadner, 160 F.3d 263, 264 (5th Cir. 1998); United

States v. Sanford, 157 F.3d 987, 988 (5th Cir. 1998); Pontarelli v. Stone, 978 F.2d

773 (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 National Union Fire Ins. Co., 839 F.2d 1226, 1232 (7th Cir. 1988) (“Counsel
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

5 8 

ground for disqualification cannot wait until after an unfavorable

judgment before bringing the information to the court’s attention.”2 7 1 

The Ninth Circuit requires “reasonable promptness after the

ground for such a motion is ascertained.”2 7 2 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.2 7 3 

The Fifth Circuit has noted 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.”2 7 4 

who perceive a problem under § 455(a) must not tarry, for delay imposes heavy

costs on other litigants and the judicial system.”).

2 7 1 . Nordbrock v. United States, No. 00-15911, 2001 U.S. App. LEXIS 1109,

at *3 (9th Cir. Jan. 24, 2001) (citing United States v. Rogers, 119 F.3d 1377, 1380

(9th Cir. 1997)).

2 7 2 . Preston v. United States, 923 F.2d 731, 733 (9th Cir. 1991).

2 7 3 . Apple, 829 F.2d at 334.

2 7 4 . Vadner, 160 F.3d at 264. 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). See also United

States v. Bayless, 201 F.3d 116, 127 (2d Cir. 2000) (Stating 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.” Assuming the defendant’s failure to move

for recusal until after the trial judge had ruled against her was a forfeiture and not

an implied waiver, the court of appeals could review the claim only for plain error,

and it held that the judge’s decision not to recuse himself sua sponte was not plain

error.).
Part Two: Miscellaneous Issues

5 9 

II. Recusal in Bench Trials

The question arises whether the standard for recusal 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.

2 7 5 the court of appeals noted the following: “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.”2 7 6 “When the judge is the actual

trier of fact, the need to preserve the appearance of impartiality is

especially pronounced.”2 7 7 

Price Brothers v. Philadelphia Gear Corp.2 7 8 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.2 7 9 

It does not follow, of course, that recusal is unnecessary in jury

trials. As the Third Circuit said in a different case: “[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.”2 8 0 

The D.C. Circuit Court of Appeals stated that “recusal might

well be prudent when a perjury bench trial involves testimony from

a proceeding over which the same judge presided,” but “section

455(a) does not require it.”2 8 1 

2 7 5 . 10 F.3d 155 (3d Cir. 1993).

2 7 6 . Id. at 163.

2 7 7 . Id. at 166.

2 7 8 . 629 F.2d 444 (discussed supra text accompanying note 174).

2 7 9 . 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).

2 8 0 . In re School Asbestos Litig., 977 F.2d 764, 782 (3d Cir. 1992).

2 8 1 . 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) (recusal not required in same circumstance).
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

6 0 

III. Standing

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

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

favor arose in Pashaian v. Eccelston Properties.

2 8 2 In that case, even

though any alleged bias would have been in their favor, certain defendants moved for recusal 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 recusing himself; the

defendant challenged the judge’s failure to recuse earlier. The Second Circuit raised the standing issue sua sponte, holding that 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.2 8 3 

IV. Efforts to Investigate

United States v. Morrison2 8 4 addressed the question of whether a

trial judge, asked to recuse herself based on conflict of interest,

could investigate the matter. When the defendant sought recusal

based on an alleged adverse business relationship between himself

and the judge’s husband and a friend of the judge’s, 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 court declined to recuse itself. The Second Circuit noted that “it was not irregular for [the judge] to as2 8 2 . 88 F.3d 77 (2d Cir. 1996) (discussed supra text accompanying notes

51–52, 263–65).

2 8 3 . Id. at 83.

2 8 4 . 153 F.3d 34 (2d Cir. 1998).
Part Two: Miscellaneous Issues

6 1 

certain 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.”2 8 5 

In a variation on this theme, the Sixth Circuit clarified that a

litigant has no obligation to investigate possible bases for recusal.2 8 6 

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 recusal motion had been filed after the judge’s

adverse ruling, and stated that “the Court refuses to reward [the

movant] or encourage this trend.”2 8 7 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.”2 8 8 The Sixth Circuit rejected the analysis, stating

that:

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.2 8 9 

2 8 5 . Id. at 48 n.4.

2 8 6 . American Textile Mfrs. Inst., Inc. v. Limited, Inc., 190 F.3d 729 (6th Cir.

1999).

2 8 7 . Id. at 742.

2 8 8 . Id.

2 8 9 . Id. In an ongoing class action suit alleging widespread securities violations, the plaintiffs sought to present evidence in the form of expert testimony by

law professors explaining why the judge should recuse himself. In re Initial Pub.

Offering Sec. Litig., 174 F. Supp. 2d 61 (S.D.N.Y. 2001) (the court held that where

the facts are undisputed, expert opinion on a recusal motion is not acceptable).

See also United States v. Eyerman, 660 F. Supp. 775, 781 (S.D.N.Y. 1987).
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

6 2 

V. Rule of Necessity

The Supreme Court, in United States v. Will,

2 9 0 held that the adoption of section 455 was not intended to abridge the rule of necessity.2 9 1 This rule, which has roots in the common law dating back

to the fifteenth century, holds that “where all are disqualified, none

are disqualified.”2 9 2 

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 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.

Various courts of appeals have employed the rule of necessity

to reject recusal.2 9 3 

2 9 0 . 449 U.S. 200 (1980).

2 9 1 . Id. at 217.

2 9 2 . Pilla v. American Bar Ass’n, 542 F.2d 56, 59 (8th Cir. 1976).

2 9 3 . 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). See also In re Wireless Tel. Radio

Frequency Emissions Prods. Liab. Litig., 170 F. Supp. 2d 1356 (J.P.M.L. 2001)

(rule of necessity precluded disqualification under section 455(a) of four of seven

members of the Judicial Panel on Multidistrict Litigation who held stock interests,

because there was no statutory provision for substitute members and disqualification would result in fewer than the statutorily prescribed number of members to

render a decision).
Part Two: Miscellaneous Issues

6 3 

VI. Substitution of Counsel

A proposed substitution or addition of counsel by one of the parties

may create a conflict of interest requiring disqualification of the

judge under section 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 recusal, 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.”2 9 4 

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.”2 9 5 Otherwise, it observed, “a litigant could in effect veto

the allotment and obtain a new judge by the simple expedient of

finding one of the judge’s relatives who is willing to act as counsel

. . . .”2 9 6 

2 9 4 . Robinson v. Boeing Co., 79 F.3d 1053, 1056 (11th Cir. 1996).

2 9 5 . McCuin v. Texas Power & Light Co., 714 F.2d 1255, 1265 (5th Cir.

1983).

2 9 6 . Id. at 1264.
65

PART THREE

Appellate Issues

Recusal issues discussed generally confront trial judges in the first

instance, but they can also arise on appeal. In addition, courts of

appeals may face several issues that will not arise at trial.

I. Standard 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 recusal.2 9 7 The Seventh Circuit employs de novo review.2 9 8 

A party’s motion must be timely. A few courts of appeals are

willing to entertain an argument about recusal that was not raised

in a timely manner, but apply a “plain error” standard.2 9 9 

2 9 7 . See, e.g., United States v. Wilkerson, 208 F.3d 794, 797 (9th Cir. 2000).

In Southern Pacific Communications Co. v. AT&T, 740 F.2d 980, 984 (D.C. Cir.

1984), the D.C. Circuit used a somewhat 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. But see United States v. Microsoft Corp., 253 F.3d 34,

117 (D.C. Cir. 2001) (rejecting greater scrutiny of judge’s fact findings because,

absent evidence of actual bias, Fed. R. Civ. P. 52(a) “mandates clearly erroneous

review of all district court factfindings”).

2 9 8 . See United States v. Balistrieri, 779 F.2d 1191, 1203 (7th Cir. 1985). 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”).

2 9 9 . See, e.g., United States v. Pearson, 203 F.3d 1243, 1276 (10th Cir. 2000);

United States v. Arache, 946 F.2d 129 (1st Cir. 1991); Osei-Afriyie v. Medical
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

6 6 

II. Harmless Error

Section 455 tells judges when recusal is required but does not spell

out the appropriate remedy for a failure to recuse. In Liljeberg v.

Health Services Acquisition Corp.,

3 0 0 the U.S. 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 recuse. The Court cautioned that Rule 60(b)(6)

relief is “neither categorically available nor categorically unavailable for all § 455(a) violations.”3 0 1 Rather, “there is surely room for

harmless error committed by busy judges who inadvertently overlook a disqualifying circumstance.”3 0 2 

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.’”3 0 3 

Heeding the Court’s warning, courts of appeals have been slow

to deem a failure to recuse harmless error. A few exceptions are

instructive.

College of Pa., 937 F.2d 876, 886 (3d Cir. 1991) (applying plain error standard to

a motion based on section 455(b)). See also United States v. Gray, 105 F.3d 956,

968 (5th Cir. 1997) (applying plain error standard “for the sake of argument”).

3 0 0 . 486 U.S. 847 (1988).

3 0 1 . Id. at 864.

3 0 2 . Id. at 862. Courts have also applied the harmless error standard to section 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).

3 0 3 . Id. at 864 (quoting In re Murchison, 349 U.S. 133, 136 (1955) (citation

omitted)).
Part Three: Appellate Issues

6 7 

In Harris v. Champion,

3 0 4 a judge in a habeas case failed to

recuse himself even though his uncle had been a judge in some of

the state cases challenged on appeal. The Tenth Circuit found that

recusal was required under both section 455(a) (appearance of impropriety) and section 455(b)(5)(i) (when person within thirddegree of relationship is a party). 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

. . . .”3 0 5 In part for that reason, the court opted not to vacate the

rulings.

In Doddy v. Oxy USA, Inc.,

3 0 6 the judge recused herself based on

inaccurate information, then vacated her recusal order when she

realized the mistake. The Fifth Circuit held that it was error to vacate the recusal order. However, the error was harmless because the

recusal 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.307

The Fifth Circuit also found harmless error in an improper

failure to recuse in United States v. Jordan.

3 0 8 The court found that

the defendant’s well-known, extremely antagonistic relationship

with a close personal friend of the judge created an appearance of

impropriety under section 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.”3 0 9 Under the circumstances, the court found that

3 0 4 . 15 F.3d 1538 (10th Cir. 1994).

3 0 5 . Id. at 1572.

3 0 6 . 101 F.3d 448 (5th Cir. 1996).

3 0 7 . Id. at 459.

3 0 8 . 49 F.3d 152 (5th Cir. 1995).

3 0 9 . Id. at 158.
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

6 8 

upholding the conviction would not be 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.”3 1 0 Thus, even assuming arguendo

that recusal was improperly denied, the court nevertheless would

deny the requested relief because it would mean retrying complex

and costly litigation and reopening settlement agreements.3 1 1 

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.”3 1 2 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.”3 1 3 

III. Interlocutory Review

Often, a challenge to a judge’s refusal to recuse occurs on appeal.

All courts of appeals permit a party to seek interlocutory review via

mandamus, 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 post-judgment appeal.3 1 4 

3 1 0 . In re Allied-Signal Inc., 891 F.2d 967, 973 (1st Cir. 1989) (Breyer, J.).

3 1 1 . Id. at 973.

3 1 2 . Id.

3 1 3 . Id.

3 1 4 . 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 School 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);
Part Three: Appellate Issues

6 9 

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 recuse pursuant to section 455(a), it is

unavailable for a challenge under section 144.3 1 5 The reasoning is

that section 144, dealing with actual bias, protects litigants, but

section 455, dealing with circumstances in which 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 section 455 is designed to

prevent.”3 1 6 

Most circuits apply their usual standard for mandamus—whatever that might be—often placing a heavy burden on

the movant.3 1 7 However, the First Circuit has adopted a separate

criterion for entertaining a mandamus motion seeking recusal:

“[w]hen the issue of partiality has been broadly publicized, and the

claim of bias cannot be labelled as frivolous . . . .”3 1 8 The court 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.”3 1 9 Where

the government seeks recusal in a criminal case, “the ordinary

abuse-of-discretion standard rather than the more exacting standard usually applicable to petitions for mandamus” should be

used.3 2 0 

Liddell v. Board 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).

3 1 5 . See School Asbestos Litig., 977 F.2d at 774–78; SCA Servs., 557 F.2d at

117.

3 1 6 . School Asbestos Litig., 977 F.2d at 776.

3 1 7 . See, e.g., In re Larson, 43 F.3d 410, 412 (8th Cir. 1994) (petitioner must

establish “clear and indisputable right” to recusal).

3 1 8 . In re United States, 158 F.3d 26, 30 (1st Cir. 1998) (internal quotation

marks omitted).

3 1 9 . Id. at 30.

3 2 0 . Id. at 31.
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

7 0 

In the Seventh Circuit, mandamus is the only means to challenge a refusal to recuse pursuant to section 455(a), although postfinal-judgment appeal is available to challenge refusals to recuse

under section 144 and section 455(b).3 2 1 The Seventh Circuit’s rationale in requiring a party to petition for writ of mandamus to preserve a recusal 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.”3 2 2 

IV. Reviewability of Recusal

The previous section applies to a judge’s refusal to recuse. The

courts of appeals are split as to whether a judge’s decision to recuse

is reviewable.

Holding that a decision to recuse 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.3 2 3 

The court held that the order to recuse 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.3 2 4 The Eighth and Ninth Cir3 2 1 . See, e.g., United States v. Farrington, 2001 U.S. App. LEXIS 24978, at *5

(7th Cir. Nov. 16, 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 the rest of courts of appeals

in permitting appellate review of failure to recuse under section 455(a)).

3 2 2 . Ruzzano, 247 F.3d at 695.

3 2 3 . Hampton v. City of Chicago, 643 F.2d 478, 479 (7th Cir. 1981) (per

curiam).

3 2 4 . Id. at 479–80.
Part Three: Appellate Issues

7 1 

cuits have taken the same position.3 2 5 However, the Ninth Circuit

has said that it would allow a party to seek a writ of mandamus to

review a decision to recuse 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.”3 2 6 

Both the Fourth and Sixth Circuits have been willing to review

orders by judges recusing themselves, at least in some circumstances.3 2 7 

V. Mootness

A claim for disqualification, like any other claim, cannot be adjudicated absent a live dispute between the parties. In Pontarelli v.

Stone,

3 2 8 after all the parties had settled the merits of the underlying

disputes, one of the attorneys appealed the denial of attorneys’ fees.

However, the focus of the attorney’s claim was that the judge

should have recused himself pursuant to section 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.3 2 9 

3 2 5 . See, e.g., United States v. Jaramillo, 745 F.2d 1245 (9th Cir. 1984); Liddell v. Board of Educ., 677 F.2d 626, 644 (8th Cir. 1982); In re Cement Antitrust

Litig., 673 F.2d 1020, 1022–24 (9th Cir. 1982).

3 2 6 . Cement Antitrust, 673 F.2d at 1025.

3 2 7 . See In re Virginia Elec. & Power Co., 539 F.2d 357 (4th Cir. 1976) (decision to recuse reviewable by mandamus, and as collateral order pursuant to

28 U.S.C. § 1292(b), where it raises an important legal issue that would otherwise

escape review); Kelley v. Metropolitan County Bd., 479 F.2d 810, 811 n.1 (6th

Cir. 1973) (decision to recuse reviewable, apparently immediately, though court

did not clarify).

3 2 8 . 978 F.2d 773 (1st Cir. 1992).

3 2 9 . Id. at 775.
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

7 2 

Where, as here, the underlying case has settled, and no party

challenges the settlement, the issue of disqualification is moot. The

court noted that counsel was not without recourse to state his objection to the judge’s failure to recuse himself; 28 U.S.C. § 372(c)

outlines means of protesting judicial misconduct.

In other circumstances, too, courts of appeals have spared resources by finding a recusal issue moot.3 3 0 

VI. Guilty Plea

The courts of appeals differ about whether a defendant who pleads

guilty waives a challenge to the trial judge’s nonrecusal. In United

States v. Chantal,

3 3 1 a defendant was charged with and pled guilty to

various drug-related offenses. At the sentencing hearing, the trial

judge made unflattering comments about the defendant. It turned

out that the defendant had engaged in further drug-related activity—while free on bond pending sentencing—that later resulted in

a second indictment. The defendant moved for the court to recuse

itself with respect to the new charge, but the court refused. Subsequently the defendant pled guilty to that charge as well. On appeal,

when the defendant challenged the trial court’s refusal to recuse

itself with respect to the second indictment, the government argued

that a plea of guilty waives all but jurisdictional defenses and

therefore waived the defendant’s section 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

3 3 0 . See, e.g., In re Starr, 152 F.3d 741, 751 n.23 (8th Cir. 1998) (holding

that party moving for recusal 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. International Amateur Athletic

Fed’n, 23 F.3d 1110, 1121 (6th Cir. 1994) (trial court’s judgment reversed on

substantive grounds unrelated to recusal); United States v. Ahmed, 980 F.2d 161,

163 (2d Cir. 1992) (trial judge had already directed the clerk of court to reassign

the case to a different judge); Mallory v. Eyrich, 922 F.2d 1273, 1282 (6th Cir.

1991) (trial judge had already withdrawn from case).

3 3 1 . 902 F.2d 1018 (1st Cir. 1990).
Part Three: Appellate Issues

7 3 

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.3 3 2 

The Fifth and Tenth Circuits have taken the opposite approach,

holding that an unconditional guilty plea waives appeal of a section

455(a) disqualification motion.3 3 3 These courts have reasoned that

since section 455(e) permits waiver of disqualification when a

judge is faced with an appearance of impropriety under section

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.3 3 4 

As previously mentioned, because in the Seventh Circuit the

route to appeal a refusal to recuse pursuant to section 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.3 3 5 However, the Seventh Circuit has also held that

“denial of a motion for mandatory recusal under section 144 need

not be appealed immediately, and is not waived when the defendant pleads guilty . . . .”3 3 6 

VII. Jurisdiction

Courts of appeals have found in some circumstances that they have

jurisdiction to review a refusal to recuse, for example, on a habeas

3 3 2 . Id. at 1021. Accord United States v. Brinkworth, 68 F.3d 633, 638 (2d

Cir. 1995) (endorsing the reasoning and conclusion of the First Circuit).

3 3 3 . United States v. Hoctel, 154 F.3d 506, 507 (5th Cir. 1998); United States

v. Gipson, 835 F.2d 1323 (10th Cir. 1988).

3 3 4 . Hoctel, 154 F.3d at 508 (citing Gipson, 835 F.2d at 1325).

3 3 5 . See, e.g., United States v. Horton, 98 F.3d 313, 316. See supra text accompanying notes 321–22.

3 3 6 . Id. at 316 (citing United States v. Troxell, 887 F.2d 830, 833 (7th Cir.

1989)).
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

7 4 

petition, even though they lack jurisdiction to review the underlying merits of the trial court’s decision on the issue in the case.3 3 7 

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 recuse. The court reasoned that because a trial

judge who has recused himself from a case may take no further action (except transferring the case to another federal judge), if the

judge should have recused himself then any orders entered after

denying the motion to recuse were improper.3 3 8 Therefore, reviewing the refusal to recuse would not really be reviewing the order of

remand, even though a finding that recusal 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.”3 3 9 

3 3 7 . 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, 1118 (4th Cir.

1978).

3 3 8 . Tramonte v. Chrysler Corp., 136 F.3d 1025, 1027–28 (5th Cir. 1998).

3 3 9 . Id. at 1028.
75

Table of Cases

A

Aetna Cas. & Sur. Co., In re, 919 F.2d 1136 (6th Cir. 1990), 13, 44, 56,

68

Aguinda, In re, 241 F.3d 194 (2d Cir. 2001), 37

Albert v. United States Dist. Ct., 283 F.2d 61 (6th Cir. 1960), 46

Alexander v. Primerica Holdings, Inc., 10 F.3d 155 (3d Cir. 1993), 40, 59

Allied-Signal Inc., In re, 891 F.2d 967 (1st Cir. 1989), 25, 68

American Textile Mfrs. Inst., Inc. v. Limited, Inc., 190 F.3d 729 (6th Cir.

1999), 61

Apple v. Jewish Hosp. & Med. Ctr., 829 F.2d 326 (2d Cir. 1987), 57, 58

Arnold v. Eastern Air Lines Inc., 712 F.2d 899 (4th Cir. 1983), 54

B

Baldwin Hardware Corp. v. Franksu Enter. Corp., 78 F.3d 550 (Fed. Cir.

1996), 15

Barksdale v. Emerick, 853 F.2d 1359 (6th Cir. 1988), 42

Barry, In re, 946 F.2d 913 (D.C. Cir. 1991), 15

Bartley v. United States, 123 F.3d 466 (7th Cir. 1997), 62

Beard, In re, 811 F.2d 818 (4th Cir. 1987), 49

Bell v. Chandler, 569 F.2d 556 (10th Cir. 1978), 69

Berger v. United States, 255 U.S. 22 (1921), 46

Blanche Rd. Corp. v. Bensalem Township, 57 F.3d 253 (3d Cir. 1995), 15

Boston’s Children First, In re, 244 F.3d 164 (1st Cir. 2001), 33-34

Brody v. President & Fellows of Harvard College, 664 F.2d 10 (1st Cir.

1981), 17

Brokaw v. Mercer County, 235 F.3d 1000 (7th Cir. 2000), 6, 47-48

Brotherhood of Locomotive Firemen v. Bangor & Aroostook R.R., 380

F.2d 570 (D.C. Cir. 1967), 51-52

Byrne v. Nezhat, 261 F.3d 1075 (11th Cir. 2001), 20, 32
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

7 6 

C

Cargill, In re, 66 F.3d 1256 (1st Cir. 1995), 30, 41

Cement Antitrust Litig., In re, 673 F.2d 1020 (9th Cir. 1982), 56, 69, 71

Chevron, In re, 121 F.3d 163 (5th Cir. 1997), 16

Chitimacha Tribe v. Laws, 690 F.2d 1157 (5th Cir. 1982), 48

Continental Airlines, In re, 901 F.2d 1259 (5th Cir. 1990), 17-18

Cooper & Lynn, In re, 821 F.2d 833 (1st Cir. 1987), 49, 51

Corrugated Container Antitrust Litig., In re, 614 F.2d 958 (5th Cir.

1980), 68

Cramp & Sons Ship & Engine Bldg. Co. v. International Curtiss Marine

Turbine Co., 228 U.S. 645 (1913), 53

Curry v. Jensen, 523 F.2d 387 (9th Cir. 1975), 48

D

Davis v. Board of Sch. Comm’rs, 517 F.2d 1044 (5th Cir. 1975), 49

DeNardo v. Municipality of Anchorage, 974 F.2d 1200 (9th Cir. 1992),

27

Diamondstone v. Macaluso, 148 F.3d 113 (2d Cir. 1998), 25

Doddy v. Oxy USA, Inc., 101 F.3d 448 (5th Cir. 1996), 54, 67

Drexel Burnham Lambert Inc., In re, 861 F.2d 1307 (2d Cir. 1988), 16

Duplantier v. United States, 606 F.2d 654 (5th Cir. 1979), 62

E

E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280 (9th Cir. 1992),

17

Easley v. University of Mich. Bd. of Regents, 853 F.2d 1351 (6th Cir.

1988), 7-8, 16-17, 50

Edgar v. K.L., 93 F.3d 256 (7th Cir. 1996), 7, 38

El Fenix de Puerto Rico v. The M/Y Johanny, 36 F.3d 136 (1st Cir. 1994),

54

F

Faulkner, In re, 856 F.2d 716 (5th Cir. 1988), 7

FCC, In re, 208 F.3d 137 (2d Cir. 2000), 9

FDIC v. Sweeney, 136 F.3d 216 (1st Cir. 1998), 27
Table of Cases

7 7 

First Interstate Bank of Ariz. v. Murphy, Weir & Butler, 210 F.3d 983 (9th

Cir. 2000), 30

G

Green v. Dorrell, 969 F.2d 915 (10th Cir. 1992), 50

H

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), 70

Harris v. Champion, 15 F.3d 1538 (10th Cir. 1994), 12, 66, 67

Hatcher, In re, 150 F.3d 631 (7th Cir. 1998), 7, 13, 15, 31-32, 70

Hathcock v. Navistar Int’l Transp. Corp., 53 F.3d 36 (4th Cir. 1995), 36

Henderson v. Department of Pub. Safety & Corr., 901 F.2d 1288 (5th Cir.

1990), 46

Hinman v. Rogers, 831 F.2d 937 (10th Cir. 1987), 16

Hodgdon v. United States, 365 F.2d 679 (8th Cir. 1966), 48

Hook v. McDade, 89 F.3d 350 (7th Cir. 1996), 6, 22

Hunt v. American Bank & Trust Co., 783 F.2d 1011 (11th Cir. 1986), 32-

33

Huntington Commons Assocs., In re, 21 F.3d 157 (7th Cir. 1994), 22

I

IBM Corp., In re, 618 F.2d 923 (2d Cir. 1980), 68

IBM Corp., In re, 45 F.3d 641 (2d Cir. 1995), 57

Initial Pub. Offering Sec. Litig., In re, 174 F. Supp. 2d 70 (S.D.N.Y. 2001),

43

Initial Pub. Offering Sec. Litig., In re, 174 F. Supp. 2d 61 (S.D.N.Y. 2001),

61

J

Jefferson County v. Acker, 92 F.3d 1561 (11th Cir. 1996), 11, 62

Johnson, In re, 921 F.2d 585 (5th Cir. 1991), 39-40

Jones v. Pittsburgh Nat’l Corp., 899 F.2d 1350 (3d Cir. 1990), 29
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

7 8 

K

Kansas Pub. Employees Ret. Sys., In re, 85 F.3d 1353 (8th Cir. 1996), 14-

15, 19, 57

Kelley v. Metropolitan County Bd., 479 F.2d 810 (6th Cir. 1973), 71

Kendrick v. Carlson, 995 F.2d 1440 (8th Cir. 1993), 10

Key Pharm., Inc. v. Mylan Labs., Inc., 24 F. Supp. 2d 480 (W.D. Pa.

1998), 43

Kidder, Peabody & Co. v. Maxus Energy Corp., 925 F.2d 556 (2d Cir.

1991), 43-44

L

Larson, In re, 43 F.2d 410 (8th Cir. 1994), 39, 69

Liberty Lobby, Inc. v. Dow Jones Co., 838 F.2d 1287 (D.C. Cir. 1988), 50

Liddell v. Board of Educ., 677 F.2d 626 (8th Cir. 1982), 69, 71

Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (1988), 5, 17,

18, 41, 66, 68

Liteky v. United States, 510 U.S. 540 (1994), 5, 21, 22, 23, 25

Little Rock Sch. Dist. v. Arkansas, 902 F.2d 1289 (8th Cir. 1990), 16

M

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

1998), 25-26

Mallory v. Eyrich, 922 F.2d 1273 (6th Cir. 1991), 72

Mangum v. Hargett, 67 F.3d 80 (5th Cir. 1995), 10

Mann, In re, 229 F.3d 657 (7th Cir. 2000), 22, 28

Martinez-Catala, In re, 129 F.3d 213 (1st Cir. 1997), 32, 46, 47, 48-49,

50

Mason, In re, 916 F.2d 384 (7th Cir. 1990), 16

McCuin v. Texas Power & Light Co., 714 F.2d 1255 (5th Cir. 1983), 56,

63

Mims v. Shapp, 541 F.2d 415 (3d Cir. 1976), 47

Moody v. Simmons, 858 F.2d 137 (3d Cir. 1988), 54

Moran v. Dillingham, 174 U.S. 153 (1899), 52

Morrison v. United States, 432 F.2d 1227 (5th Cir. 1970), 51

Murchison, In re, 349 U.S. 133 (1955), 66
Table of Cases

7 9 

N

Nakell v. AG of N.C., 15 F.3d 319 (4th Cir. 1994), 16

National Union Fire Ins. Co., In re, 839 F.2d 1226 (7th Cir. 1988), 42,

57-58

New Mexico Natural Gas Antitrust Litig., In re, 620 F.2d 794 (10th Cir.

1980), 11

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

16

Nichols v. Alley, 71 F.3d 347 (10th Cir. 1995), 16, 20

Nordbrock v. United States, No. 00-15911, 2001 U.S. App. LEXIS 1109

(9th Cir. Jan. 24, 2001), 58

Norfolk, Town of v. United States Army Corps of Eng’rs, 968 F.2d 1438

(1st Cir. 1992), 26-27

O

O’Regan v. Arbitration Forums, Inc., 246 F.3d 975 (7th Cir. 2001), 16

Osei-Afriyie v. Medical College of Pa., 937 F.2d 876 (3d Cir. 1991),

65-66

P

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), 16, 29-30,

66

Pashaian v. Eccelston Props., Ltd., 88 F.3d 77 (2d Cir. 1996), 14, 55-56,

60

Pilla v. American Bar Ass’n, 542 F.2d 56 (8th Cir. 1976), 62

Polaroid Corp. v. Eastman Kodak Co., 867 F.2d 1415 (Fed. Cir. 1989),

57, 66

Pontarelli v. Stone, 978 F.2d 773 (1st Cir. 1992), 57, 71-72

Potashnick v. Port City Constr. Co., 609 F.2d 1101 (5th Cir. 1980), 14

Preston v. United States, 923 F.2d 731 (9th Cir. 1991), 9, 58

Price Bros. v. Philadelphia Gear Corp., 629 F.2d 444 (6th Cir. 1980), 38,

59

Price Bros. v. Philadelphia Gear Corp., 649 F.2d 416 (6th Cir. 1981), 38,

59
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

8 0 

R

Rabushka v. Crane Co., 122 F.3d 559 (8th Cir. 1997), 58

Reed v. Rhodes, 179 F.3d 453 (6th Cir. 1999), 38

Republic of Pan. v. American Tobacco Co., 217 F.3d 343 (5th Cir. 2000),

16

Rexford v. Brunswick-Balke-Collender Co., 228 U.S. 339 (1913), 52, 53

Reynolds v. International Amateur Athletic Fed’n, 23 F.3d 1110 (6th Cir.

1994), 72

Rhodes v. McDannel, 945 F.2d 117 (6th Cir. 1991), 49

Rice v. McKenzie, 581 F.2d 1114 (4th Cir. 1978), 40, 74

Roberts v. Bailar, 625 F.2d 125 (6th Cir. 1980), 31, 51

Robinson v. Boeing Co., 79 F.3d 1053 (11th Cir. 1996), 63

Rogers, In re, 537 F.2d 1196 (4th Cir. 1976), 8-9, 68

Ronwin v. State Bar of Ariz., 686 F.2d 692 (9th Cir. 1981), 46

Russell v. Lane, 890 F.2d 947 (7th Cir. 1989), 17, 40, 52, 74

S

Sac & Fox Nation v. Cuomo, 193 F.3d 1162 (10th Cir. 1999), 65

SCA Servs. v. Morgan, 557 F.2d 110 (7th Cir. 1977), 68, 69

School Asbestos Litig., In re, 977 F.2d 764 (3d Cir. 1992), 36, 59, 68, 69

Schurz Communications, Inc. v. FCC, 982 F.2d 1057 (7th Cir. 1992),

44-45

Souder v. Owens-Corning Fiberglas Corp., 939 F.2d 647 (8th Cir. 1991),

46, 49

Southern Pacific Communications Co. v. AT&T, 740 F.2d 980 (D.C. Cir.

1984), 65

Southwestern Bell Co. v. FCC, 153 F.3d 520 (8th Cir. 1998), 15

Starr, In re, 152 F.3d 741 (8th Cir. 1998), 72

Stringer v. United States, 233 F.2d 947 (9th Cir. 1956), 54

Sullivan v. Conway, 157 F.3d 1092 (7th Cir. 1998), 27, 49-50

Summers v. Singletary, 119 F.3d 917 (11th Cir. 1997), 57

Suson v. Zenith Radio Corp., 763 F.2d 304 (7th Cir. 1985), 17

Swann v. Charlotte-Mecklenburg Bd. of Educ., 431 F.2d 135 (4th Cir.

1970), 52
Table of Cases

8 1 

T

Tapia-Ortiz v. Winter, 185 F.3d 8 (2d Cir. 1999), 62

Tramonte v. Chrysler Corp., 136 F.3d 1025 (5th Cir. 1998), 12, 43, 74

Travelers Ins. Co. v. Liljeberg Enters., Inc., 38 F.3d 1404 (5th Cir. 1994),

57

Trevino v. Johnson, 168 F.3d 173 (5th Cir. 1999), 74

U

Union Leader Corp., In re, 292 F.2d 381 (1st Cir. 1961), 51

United States ex rel. Wilson v. Coughlin, 472 F.2d 100 (7th Cir. 1973),

51

United States, In re, 666 F.2d 690 (1st Cir. 1981), 16, 68

United States, In re, 158 F.3d 26 (1st Cir. 1998), 16, 44, 69

United States v. Adams, 634 F.2d 830 (5th Cir. 1981), 39

United States v. Ahmed, 980 F.2d 161 (2d Cir. 1992), 72

United States v. Alabama, 828 F.2d 1532 (11th Cir. 1987), 7, 47

United States v. Anderson, 160 F.3d 231 (5th Cir. 1998), 40

United States v. Antar, 53 F.3d 568 (3d Cir. 1995), 24

United States v. Arache, 946 F.2d 129 (1st Cir. 1991), 65

United States v. Aragon, No. 99-50341, 2000 U.S. App. LEXIS 15423 (9th

Cir. June 29, 2000), 12, 41

United States v. Arnpriester, 37 F.3d 466 (9th Cir. 1994), 9

United States v. Azhocar, 581 F.2d 735 (9th Cir. 1978), 44

United States v. Balistrieri, 779 F.2d 1191 (7th Cir. 1985), 45, 46, 50, 51,

65, 70

United States v. Barnes, 909 F.2d 1059 (7th Cir. 1990), 51, 57

United States v. Barrett, 111 F.3d 947 (D.C. Cir. 1997), 57, 58, 59

United States v. Barry, 938 F.2d 1327 (D.C. Cir. 1991), 23

United States v. Barry, 961 F.2d 260 (D.C. Cir. 1992), 37

United States v. Bayless, 201 F.3d 116 (2d Cir. 2000), 27, 58

United States v. Bertoli, 40 F.3d 1384 (3d Cir. 1994), 27

United States v. Boyd, 208 F.3d 638 (7th Cir. 2000), 10, 70

United States v. Bray, 546 F.2d 851 (10th Cir. 1976), 48

United States v. Brinkworth, 68 F.3d 633 (2d Cir. 1995), 73

United States v. Burger, 964 F.2d 1065 (10th Cir. 1992), 48

United States v. Cerceda, 172 F.3d 806 (11th Cir. 1999), 40-41
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

8 2 

United States v. Chantal, 902 F.2d 1018 (1st Cir. 1990), 72-73

United States v. Conforte, 624 F.2d 869 (9th Cir. 1980), 23

United States v. Cooley, 1 F.3d 985 (10th Cir. 1993), 33, 34

United States v. Dandy, 998 F.2d 1344 (6th Cir. 1993), 16

United States v. Dansker, 537 F.2d 40 (3d Cir. 1976), 48

United States v. DeLuna, 763 F.2d 897 (8th Cir. 1985), 9

United States v. DeTemple, 162 F.3d 279 (4th Cir. 1998), 9, 15-16

United States v. Di Pasquale, 864 F.2d 271 (3d Cir. 1988), 10

United States v. Eyerman, 660 F. Supp. 775 (S.D.N.Y. 1987), 61

United States v. Farrington, 2001 U.S. App. LEXIS 24978 (7th Cir.

Nov. 16, 2001), 41, 70

United States v. Feldman, 983 F.2d 144 (9th Cir. 1992), 54

United States v. Furst, 886 F.2d 558 (3d Cir. 1989), 39

United States v. Gipson, 835 F.2d 1323 (10th Cir. 1988), 73

United States v. Gray, 105 F.3d 956 (5th Cir. 1997), 66

United States v. Greenspan, 26 F.3d 1001 (10th Cir. 1994), 28

United States v. Grinnell Corp., 384 U.S. 563 (1966), 20-21

United States v. Grismore, 564 F.2d 929 (10th Cir. 1977), 29

United States v. Heldt, 668 F.2d 1238 (D.C. Cir. 1981), 44

United States v. Hoctel, 154 F.3d 506 (5th Cir. 1998), 73

United States v. Hoffa, 382 F.2d 856 (6th Cir. 1967), 51

United States v. Holland, 655 F.2d 44 (5th Cir. 1981), 40

United States v. Horton, 98 F.3d 313 (7th Cir. 1996), 70, 73

United States v. Jacobs, 855 F.2d 652 (9th Cir. 1988), 49

United States v. Jaramillo, 745 F.2d 1245 (9th Cir. 1984), 71

United States v. Jordan, 49 F.3d 152 (5th Cir. 1995), 16, 30, 67-68

United States v. Kelly, 888 F.2d 732 (11th Cir. 1989), 16, 29, 42

United States v. Kimball, 73 F.3d 269 (10th Cir. 1995), 23

United States v. Kraus, 137 F.3d 447 (7th Cir. 1998), 72

United States v. Lovaglia, 954 F.2d 811 (2d Cir. 1992), 15, 26

United States v. Martin, 278 F.3d 988 (9th Cir. 2002), 22

United States v. Merkt, 794 F.2d 950 (5th Cir. 1986), 51

United States v. Microsoft Corp., 56 F.3d 1448 (D.C. Cir. 1995), 8, 37-38

United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001), v, 18, 24-

25, 34-36, 37-38, 57, 65

United States v. Moody, 977 F.2d 1420 (11th Cir. 1992), 56

United States v. Morrison, 153 F.3d 34 (2d Cir. 1998), 26, 60-61
Table of Cases

8 3 

United States v. Morrow, 717 F.2d 800 (3d Cir. 1983), 53

United States v. Murphy, 768 F.2d 1518 (7th Cir. 1985), 31, 42

United States v. Nelson, 922 F.2d 311 (6th Cir. 1990), 15-16

United States v. Nobel, 696 F.2d 231 (3d Cir. 1982), 41

United States v. O’Keefe, 128 F.3d 885 (5th Cir. 1997), 54-55

United States v. Owens, 902 F.2d 1154 (4th Cir. 1990), 27-28, 58

United States v. Parker, 742 F.2d 127 (4th Cir. 1984), 59

United States v. Pearson, 203 F.3d 1243 (10th Cir. 2000), 23, 65

United States v. Pepper & Potter, Inc., 677 F. Supp. 123 (E.D.N.Y. 1988),

10

United States v. Pitera, 5 F.3d 624 (2d Cir. 1993), 36-37

United States v. Rankin, 870 F.2d 109 (3d Cir. 1989), 46-47

United States v. Ravich, 421 F.2d 1196 (2d Cir. 1970), 41

United States v. Ritter, 540 F.2d 459 (10th Cir. 1976), 49

United States v. Rogers, 119 F.3d 1377 (9th Cir. 1997), 12, 41, 58

United States v. Ruzzano, 247 F.3d 688 (7th Cir. 2001), 10, 70

United States v. Sammons, 918 F.2d 592 (6th Cir. 1999), 45

United States v. Sanford, 157 F.3d 987 (5th Cir. 1998), 57

United States v. Sellers, 566 F.2d 884 (4th Cir. 1977), 41

United States v. Stenzel, 49 F.3d 658 (10th Cir. 1995), 58

United States v. Story, 716 F.2d 1088 (6th Cir. 1983), 48

United States v. Studley, 783 F.2d 934 (9th Cir. 1986), 16, 29

United States v. Sykes, 7 F.3d 1331 (7th Cir. 1993), 46, 47, 49, 52

United States v. Troxell, 887 F.2d 830 (7th Cir. 1989), 73

United States v. Tucker, 78 F.3d 1313 (8th Cir. 1996), 18-19, 31, 57

United States v. Tucker, 82 F.3d 1423 (8th Cir. 1996), 19

United States v. Vadner, 160 F.3d 263 (5th Cir. 1998), 57, 58

United States v. Whitesel, 543 F.2d 1176 (6th Cir. 1976), 29

United States v. Wilkerson, 208 F.3d 794 (9th Cir. 2000), 23, 65

United States v. Will, 449 U.S. 200 (1980), 55, 62

United States v. Young, 45 F.3d 1405 (10th Cir. 1995), 21-22

United States v. Young, 907 F.2d 867 (8th Cir. 1990), 50

V

Vieux Carre Prop. Owners v. Brown, 948 F.2d 1436 (5th Cir. 1991), 15

Virginia Elec. & Power Co., In re, 539 F.2d 357 (4th Cir. 1976), 11, 71
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

8 4 

W

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

Weatherhead v. Globe Int’l, Inc., 832 F.2d 1226 (10th Cir. 1987), 46, 48

Williams v. United States, 240 F.3d 1019 (Fed. Cir. 2001), 62

Wireless Tel. Radio Frequency Emissions Prods. Liab. Litig., In re, 170 F.

Supp. 2d 1356 (J.P.M.L. 2001), 62
85

For Further Reference

Leslie W. Abramson, Deciding Recusal Motions: Who Judges the

Judges, 28 Val. U. L. Rev. 543 (1994)

Leslie W. Abramson, Specifying Grounds for Judicial Disqualification

in Federal Courts, 72 Neb. L. Rev. 1046 (1993)

Seth Bloom, Judicial Bias and Financial Interest as Grounds for Disqualification of Federal Judges, 35 Case W. Res. L. Rev. 662

(1985)

William T. Bodoh, On Judging Judges, 55 Ohio St. L.J. 889 (1994)

Jeremy S. Brumbelow, Liteky v. United States: The Extrajudicial

Source Doctrine and Its Implications for Judicial Disqualification,

48 Ark. L. Rev. 1059 (1995)

Christopher Carton, Disqualifying Federal Judges for Bias: A Consideration of the Extrajudicial Bias Limitation for Disqualification

under 28 U.S.C. Sec. 455(a), 24 Seton Hall L. Rev. 2057 (1994)

Mark T. Coberly, Caesar’s Wife Revisited—Judicial Disqualification

after the 1974 Amendments, 34 Wash. & Lee L. Rev. 1201

(1977)

Dean John D. Feerick, Panel Discussion: Disqualification of Judges

(The Saroki Matter): Is it a Threat to Judicial Independence?, 58

Brook. L. Rev. 1063 (1993)

Richard E. Flamm, Judicial Disqualification (Little, Brown & Co.

1996)

David C. Hjelmfelt, Statutory Disqualification of Federal Judges, 30

U. Kan. L. Rev. 255 (1982)
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144

8 6 

Susan Hoekema, Questioning the Impartiality of Judges: Disqualifying

Federal District Court Judges Under 28 U.S.C. Sec. 455(a), 60

Temp. L.Q. 697 (1987)

Ellen Martin, Disqualification of Federal Judges for Bias under 28

U.S.C. Section 144 and Revised Section 455, 45 Fordham L. Rev.

139 (1976)

Karen Nelson Moore, Appellate Review of Judicial Disqualification

Decisions in the Federal Courts, 35 Hastings L.J. 829 (1984)

Donald Nugent, Judicial Bias, 42 Clev. St. L. Rev. 1 (1994)

Jeffrey M. Shaman et al., Judicial Conduct and Ethics (3d ed. Michie 2000)

Jeffrey M. Shaman & Jona Goldschmidt, Judicial Disqualification:

An Empirical Study of Judicial Practices and Attitudes (American

Judicature Society, 1995)

Denelle J. Waynick, A Survey of Recent Case Law: Judicial Disqualification: The Quest for Impartiality and Integrity, 33 How. L.J. 449

(1991)
The Federal Judicial Center

Board

The Chief Justice of the United States, Chair

Senior Judge Pierre N. Leval, U.S. Court of Appeals for the Second Circuit

Judge Pauline Newman, U.S. Court of Appeals for the Federal Circuit

Chief Judge Jean C. Hamilton, U.S. District Court for the Eastern District of Missouri

Senior Judge Robert J. Bryan, U.S. District Court for the Western District of Washington

Judge William H. Yohn, Jr., U.S. District Court for the Eastern District of Pennsylvania

Chief Judge Robert F. Hershner, Jr., U.S. Bankruptcy Court for the Middle District of Georgia

Magistrate Judge Robert B. Collings, U.S. District Court for the District of Massachusetts

Leonidas Ralph Mecham, Director of the Administrative Office of the U.S. Courts

Director

Judge Fern M. Smith

Deputy Director

Russell R. Wheeler

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 Director’s Office is responsible for the Center’s overall management and its relations

with other organizations. Its Systems Innovation & Development Office provides technical

support for Center education and research. Communications Policy & Design edits, produces, and distributes all Center print and electronic publications, operates the Federal Judicial Television Network, and through the Information Services Office maintains a specialized

library collection of materials on judicial administration.

The Judicial Education Division develops and administers education programs and services for judges, career court attorneys, and federal defender office personnel. These include

orientation seminars, continuing education programs, and special-focus workshops. The

Interjudicial Affairs Office provides information about judicial improvement to judges and

others of foreign countries, and identifies international legal developments of importance to

personnel of the federal courts.

The Court Education Division develops and administers education and training programs and services for nonjudicial court personnel, such as those in clerks’ offices and probation and pretrial services offices, and management training programs for court teams of

judges and managers.

The Research Division undertakes empirical and exploratory research on federal judicial

processes, court management, and sentencing and its consequences, often at the request of

the Judicial Conference and its committees, the courts themselves, or other groups in the

federal system. The Federal Judicial History Office develops programs relating to the history

of the judicial branch and assists courts with their own judicial history programs.