28 USC 455 - Disqualification of justice, judge, or magistrate judge

Historical and Revision Notes

Based on title 28, U.S.C., 1940 ed., § 24 (Mar. 3, 1911, ch. 231, § 20, 36 Stat. 1090).

Section 24 of title 28, U.S.C., 1940 ed., applied only to district judges. The revised section is made applicable to all justices and judges of the United States.

The phrase “in which he has a substantial interest” was substituted for “concerned in interest in any suit.”

The provision of section 24 of title 28, U.S.C., 1940 ed., as to giving notice of disqualification to the “senior circuit judge,” and words “and thereupon such proceedings shall be had as are provided in sections 17 and 18 of this title,” were omitted as unnecessary and covered by section 291 et seq. of this title relating to designation and assignment of judges. Such provision is not made by statute in case of disqualification or incapacity, for other cause. See sections 140, 143, and 144 of this title. If a judge or clerk of court is remiss in failing to notify the chief judge of the district or circuit, the judicial council of the circuit has ample power under section 332 of this title to apply a remedy.

Relationship to a party’s attorney is included in the revised section as a basis of disqualification in conformity with the views of judges cognizant of the grave possibility of undesirable consequences resulting from a less inclusive rule.

Changes were made in phraseology.

Editorial Notes

Amendments

1988—Subsec. (f). Puspan. L. 100–702 added subsec. (f).

1978—Puspan. L. 95–598 struck out references to referees in bankruptcy in section catchline and in subsecs. (a) and (e).

1974—Puspan. L. 93–512 substituted “Disqualification of justice, judge, magistrate, or referee in bankruptcy” for “Interest of justice or judge” in section catchline, reorganized structure of provisions, and expanded applicability to include magistrates and referees in bankruptcy and grounds for which disqualification may be based, and inserted provisions relating to waiver of disqualification.

Statutory Notes and Related Subsidiaries

Change of Name

Words “magistrate judge” substituted for “magistrate” in section catchline and wherever appearing in subsecs. (a), (e), and (f) pursuant to section 321 of Puspan. L. 101–650, set out as a note under section 631 of this title.

Effective Date of 1978 Amendment

Amendment by Puspan. L. 95–598 effective Oct. 1, 1979, see section 402(c) of Puspan. L. 95–598, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. For procedures relating to Bankruptcy matters during transition period see note preceding section 151 of this title.

Effective Date of 1974 Amendment

Puspan. L. 93–512, § 3, Dec. 5, 1974, 88 Stat. 1610, provided that:

“This Act [amending this section] shall not apply to the trial of any proceeding commenced prior to the date of this Act [Dec. 5, 1974], nor to appellate review of any proceeding which was fully submitted to the reviewing court prior to the date of this Act.”