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)

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)

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)