28 USC 455

28 U.S.C. 455 is the primary recusal statute for federal judges, which contains important exceptions.

This statute is cited 13,572 times by federal courts and federal agencies, including 30 by the U.S. Supreme Court, and perhaps a surprisingly 404 times by state courts, as of September 21, 2022.

This statute is inapplicable to most administrative proceedings. "The term 'judge of the United States' includes judges of the courts of appeals, district courts, Court of International Trade and any court created by Act of Congress ...." 28 U.S.C. § 451. The judicial disqualification provision in 28 U.S.C. § 455 is inapplicable adjudicators who are not judges. See, e.g., Bunnell v. Barnhart, 336 F.3d 1112, 1115 (9th Cir. 2003) (administrative law judges do not fall within 28 U.S.C. § 455); Greenberg v. Bd. of Governors of Fed. Res. Sys., 968 F.2d 164, 166-67 (2d Cir. 1992) (same); Prospector Capital Partners, Inc. v. DTTM Operations LLC, 2017 TTAB LEXIS 261, *6 (Trademark Trial & App. Bd. August 18, 2017).

Relevant cases

Supreme Court

Kotteakos v. United States, 328 U.S. 750 (1946) - decision about harmless error

Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (1988)

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

Pub. Utils. Comm’n of D.C. v. Pollak, 343 U.S. 451 (1952)

Shinseki v. Sanders, 556 U.S. 396 (2009) - decision about harmless error

Courts of Appeals

Doddy v. Oxy USA, 101 F.3d 448 (5th Cir. 1996)

Fowler v. Butts, 829 F.3d 788 (7th Cir. 2016)

In re Allied Signal, 891 F.2d 974 (1st Cir. 1989)

In re Continental Airlines Corp., 901 F.2d 1259 (5th Cir. 1990)

In re Literary Works in Elec. Databases Copyright Litig., 509 F.3d 136 (2d Cir. 2007)

In re Sch. Asbestos Litig., 977 F.2d 764 (3d Cir. 1992)

Muchnick v. Thomson Corp., 509 F.3d 136 (2d Cir. 2007)

Parker v. Connors Steel, 855 F.2d 1510 (11th Cir. 1988)

Patterson v. Mobil Oil, 335 F.3d 476 (5th Cir. 2003)

Shell Oil v. United States, 672 F.3d 1283 (Fed. Cir. 2012)

United States v. Cerceda, 172 F.3d 806 (11th Cir. 1999)

United States v. Williams, 949 F.3d 1056 (7th Cir. 2020)

Section 455(f)

In 1988, Congress added 28 USC § 455(f) to allow divesture of stock without requiring recusal, if a judge had already spent a substantial amount of time on a case:

“

Notwithstanding the preceding provisions of this section, if any justice, judge, magistrate [magistrate judge], or bankruptcy judge to whom a matter has been assigned would be disqualified, after substantial judicial time has been devoted to the matter, because of the appearance or discovery, after the matter was assigned to him or her, that he or she individually or as a fiduciary, or his or her spouse or minor child residing in his or her household, has a financial interest in a party (other than an interest that could be substantially affected by the outcome), disqualification is not required if the justice, judge, magistrate [magistrate judge], bankruptcy judge, spouse or minor child, as the case may be, divests himself or herself of the interest that provides the grounds for the disqualification.

”

Court decisions

570 federals cases -- none by the U.S. Supreme Court -- discuss Section 455(f) and recusal. About 140 of those decisions are by the U.S. Court of Appeals.