Checklist · Litigation

Moving to Disqualify a Judge and Preserving the Issue: A Practical Checklist

28 U.S.C. § 455

Type
Checklist
Jurisdiction
National
Date
2024-03-08
Topic
Litigation

A sequenced checklist for evaluating, filing, opposing, and preserving a judicial disqualification issue. Section A screens the ground in five minutes, and Section B runs the objective grounds. Section C runs the appearance analysis, and Section D tests timeliness and waiver. Section E drafts the motion and Section F drafts the section 144 affidavit. Section G preserves the issue for appeal, and Section H covers mandamus. Section I opposes a motion, and Section J covers post-judgment vacatur and reassignment. Section K covers judicial conduct complaints, and Section L is a disclosure and prevention practice for counsel.

Moving to Disqualify a Judge and Preserving the Issue: A Practical Checklist

Litigation > Judicial Disqualification and Recusal | Published 8 March 2024 - Updated 18 July 2025 | UpLaw - uplaw.us

How to use this

Section A takes five minutes and resolves most inquiries. The single most consequential item is number 1 — if there is no fact outside this case that a stranger could verify, there is no motion, and everything after Section A is wasted effort.

SECTION A — THE FIVE-MINUTE SCREEN

☐ 1. ⚠️ Is there a fact outside this case that a stranger could verify? A holding, a relationship, a prior representation, a public statement about the parties. ☐ yes → continue ☐ no → there is no motion

☐ 2. Is the entire basis rulings, tone, impatience, or adverse decisions? → Liteky v. United States forecloses it. Stop.

☐ 3. Does the ground fall within a specific subsection of 28 U.S.C. § 455? Identify it now.

☐ 4. Is it a financial interest? → mandatory, non-waivable, no de minimis exception.

☐ 5. Is it a relationship within the third degree, or a spouse who is a lawyer in the proceeding? → mandatory.

☐ 6. Is it prior service as a lawyer or in government in this matter? → mandatory.

☐ 7. If none of the above, does it support the appearance standard under § 455(a)? Would a well-informed observer question impartiality?

☐ 8. When did you learn the facts? Document the date today.

☐ 9. In state court: is there a peremptory challenge, and has the deadline run? This is the only mechanism requiring no proof, and it expires quickly.

☐ 10. Is the real concern a decision (appeal), scheduling or attention (status conference), or conduct (judicial conduct complaint)? Match the remedy to the concern.

SECTION B — THE OBJECTIVE GROUNDS

☐ 11. Financial interest — any legal or equitable interest, however small; or a role as director, adviser, or active participant in a party's affairs.

☐ 12. Check for holdings in the party's parent, subsidiary, sister company, and affiliates under common control, and in any insurer.

☐ 13. Distinguish mutual fund holdings, which generally are not a financial interest in the underlying securities absent participation in fund management.

☐ 14. Check whether divestiture was available and used.

☐ 15. Prior service as a lawyer in the matter, or a lawyer with whom the judge previously practiced who served during that association as a lawyer in the matter.

☐ 16. Prior government service involving participation as counsel, adviser, or material witness.

☐ 17. Personal knowledge of disputed evidentiary facts.

☐ 18. Relationships — the judge, spouse, or a person within the third degree of relationship or that person's spouse, as party, lawyer in the proceeding, person with a substantially affected interest, or likely material witness.

☐ 19. Check 28 U.S.C. § 47 — is the judge hearing an appeal from a case they tried?

☐ 20. Check 28 U.S.C. § 458 and 28 U.S.C. § 454 for related restrictions.

☐ 21. Gather the documentary proof — ownership records, docket sheets from the prior matter, disclosure forms, corporate structure charts.

SECTION C — THE APPEARANCE ANALYSIS

☐ 22. State the standard correctly: would a reasonable, well-informed observer knowing all the facts harbor doubts about impartiality?

☐ 23. Identify what the observer would know that the movant is not emphasizing. Weak motions omit context that defeats them.

☐ 24. Separate extrajudicial facts from everything else, and count them.

☐ 25. ⚠️ Do not pad the motion with in-case complaints. Padding signals that the extrajudicial facts are weak.

☐ 26. Consider whether the conduct, if in-case, rises to deep-seated favoritism or antagonism making fair judgment impossible — the narrow Liteky exception.

☐ 27. Consider whether due process independently requires recusal: Caperton v. A.T. Massey Coal Co., Tumey v. Ohio, Ward v. Village of Monroeville, In re Murchison, Aetna Life Insurance Co. v. Lavoie.

☐ 28. Recognize the countervailing duty not to recuse on insufficient grounds.

☐ 29. For an administrative adjudicator, evaluate prejudgment and ex parte contacts — 5 U.S.C. § 554, 5 U.S.C. § 556, 5 U.S.C. § 557 — recognizing that combined functions alone are not disqualifying under Withrow v. Larkin.

SECTION D — TIMELINESS AND WAIVER

☐ 30. ⚠️ File promptly. Delay is the most common procedural reason these motions fail.

☐ 31. Document when the facts were learned, by whom, and from what source, in a dated memorandum.

☐ 32. Address timeliness affirmatively in the motion, before the opposition raises it.

☐ 33. Assess the factors courts weigh: how long the movant knew; whether granting would waste judicial resources; whether delay produced a tactical advantage; and whether the ground is non-waivable.

☐ 34. Determine waivability: § 455(a) grounds may be waived after full disclosure on the record; § 455(b) grounds may not.

☐ 35. If a remittal procedure is used, confirm it was followed: disclosure of the basis, the judge absent while parties confer, and unanimous agreement without the judge's participation.

☐ 36. Note the express timing provision in 28 U.S.C. § 144 and how the forum applies it.

☐ 37. Confirm no prior conduct constitutes waiver — proceeding with knowledge, consenting on the record, or affirmatively invoking the judge's authority after learning the facts.

SECTION E — DRAFTING THE MOTION

☐ 38. Open with the statutory subsection, not with a narrative of grievance.

☐ 39. State the operative facts in short numbered paragraphs, each supported by an exhibit.

☐ 40. Quantify — dates, amounts, share counts, relationships. "Close ties" is not evaluable.

☐ 41. Attach the documentary proof: ownership records, prior docket sheets, disclosure statements, transcript pages.

☐ 42. State the standard accurately and cite Liteky v. United States yourself — acknowledging the doctrine you must satisfy is more persuasive than ignoring it.

☐ 43. Address timeliness with the date of discovery.

☐ 44. Propose the remedy precisely: prospective disqualification, vacatur of specified rulings, or reassignment.

☐ 45. ⚠️ Do not allege bad faith where § 455(a) is satisfied by appearance alone.

☐ 46. Consider whether an informal letter to chambers would resolve it — many objective grounds are, and never appear on a docket.

☐ 47. Consider requesting findings on the record if the motion is denied.

☐ 48. Assess your own professional exposure: is every factual assertion supportable?

SECTION F — THE SECTION 144 AFFIDAVIT

☐ 49. Confirm the affidavit is by a party, not by counsel.

☐ 50. State facts and reasons for the belief of personal bias or prejudice — not conclusions.

☐ 51. Confirm the bias alleged is personal, against the party or in favor of an adverse party.

☐ 52. Attach the certificate of counsel of record stating the affidavit is made in good faith.

☐ 53. ⚠️ Understand that the certificate is a professional representation. Do not sign it without a basis.

☐ 54. Confirm this is the party's only affidavit in the case.

☐ 55. Address the statute's timing provision as the forum applies it.

☐ 56. Recognize that the judge will decide legal sufficiency, accepting the facts as true — so the facts must be legally sufficient on their face.

☐ 57. Consider whether 28 U.S.C. § 455 alone is the better vehicle, since it requires no affidavit and no certificate.

SECTION G — PRESERVATION FOR APPEAL

☐ 58. Move, in writing, and obtain a ruling on the record.

☐ 59. If the ruling is oral, order the transcript promptly.

☐ 60. Renew the objection if new facts emerge.

☐ 61. Ensure the exhibits are in the record, not merely attached to a brief.

☐ 62. Identify the standard of review — generally abuse of discretion for § 455(a), clear error for facts, de novo for the legal standard.

☐ 63. In the appellate brief, request reassignment on remand explicitly if that is the realistic remedy; appellate courts rarely order it on their own.

☐ 64. Address harmlessness — explain how the disqualification affected specific rulings.

☐ 65. Cite 28 U.S.C. § 2106 for the appellate court's remedial authority.

☐ 66. See Civil Appeals for preservation generally.

SECTION H — MANDAMUS

☐ 67. Use it only where the disqualification is clear on the face of the record and the judge has refused.

☐ 68. Establish a clear and indisputable right to relief.

☐ 69. Establish that no other adequate means exist — ordinary appeal is usually adequate, which is why these petitions rarely succeed.

☐ 70. Follow Rule 21 for the petition and Rule 27 for motions practice; the authority is 28 U.S.C. § 1651.

☐ 71. Serve the respondent judge as the rule requires, and understand the judge may respond.

☐ 72. Assess the professional consequences realistically — a denied petition returns the case to the same judge.

☐ 73. Note Rule 38 exposure for a frivolous appellate filing and Rule 46 for attorney discipline in the courts of appeals.

SECTION I — OPPOSING A MOTION

☐ 74. Start with timeliness. When did the movant learn the facts?

☐ 75. Apply Liteky v. United States to each allegation arising from the proceedings, and count how many survive.

☐ 76. Supply the context the motion omits — the well-informed observer knows everything.

☐ 77. Invoke the duty not to recuse on insufficient grounds.

☐ 78. Distinguish the constitutional cases by their facts; Caperton v. A.T. Massey Coal Co. is narrow by its own terms.

☐ 79. Address any waiver by the movant.

☐ 80. ⚠️ Where a ground is genuinely present, say so. Opposing a meritorious disqualification motion damages credibility and rarely succeeds.

☐ 81. Consider whether the motion supports sanctions or filing restrictions if it is part of a pattern.

SECTION J — POST-JUDGMENT AND REASSIGNMENT

☐ 82. For a conflict discovered after judgment, proceed by motion for relief from judgment.

☐ 83. Apply the Liljeberg v. Health Services Acquisition Corp. factors explicitly: risk of injustice to these parties; risk of injustice in other cases; risk of undermining public confidence.

☐ 84. Identify precisely which rulings the judge made and how each affected the outcome.

☐ 85. Anticipate the opposition's emphasis on delay and on the judge's limited role.

☐ 86. Consider partial relief — vacatur of specified rulings rather than the entire judgment.

☐ 87. For reassignment on remand, address whether the judge would have substantial difficulty setting aside expressed views, whether reassignment preserves the appearance of justice, and whether it entails disproportionate waste.

☐ 88. Note that reassignment does not require a finding of bias.

SECTION K — JUDICIAL CONDUCT COMPLAINTS

☐ 89. Understand this is a different remedy: it seeks discipline, not relief in the case, and cannot review a decision.

☐ 90. File under 28 U.S.C. § 351, alleging conduct prejudicial to the effective and expeditious administration of the business of the courts or inability to discharge duties.

☐ 91. ⚠️ Expect dismissal under 28 U.S.C. § 352 if the complaint is directly related to the merits of a decision or procedural ruling.

☐ 92. Confine the complaint to conduct: persistent delay in deciding submitted matters, demeaning treatment, off-bench conduct bearing on fitness, or a pattern no single ruling captures.

☐ 93. Understand the available outcomes under 28 U.S.C. § 354 — censure, reprimand, temporary suspension of assignments, certification of disability — and that removal requires impeachment.

☐ 94. Note the roles of 28 U.S.C. § 332 judicial councils, 28 U.S.C. § 353 special committees, and 28 U.S.C. § 372 disability retirement.

☐ 95. Recognize that repeated meritless complaints can support restrictions on a litigant.

SECTION L — DISCLOSURE AND PREVENTION

☐ 96. File a complete corporate disclosure statement and update it when the structure changes.

☐ 97. File a supplemental identification of every entity in the corporate family with an interest, every insurer, and any non-party whose interest is substantially affected. ⚠️ Standard statements reach parents, not subsidiaries or affiliates.

☐ 98. Disclose relationships on the record at the first conference — social connections, firm connections, prior appearances.

☐ 99. Run a conflicts check against the bench in significant matters, the way you would against opposing parties.

☐ 100. Order transcripts of any exchange that may bear on the issue.

☐ 101. Keep a dated file of when each relevant fact was learned.

☐ 102. Remember that candor to the tribunal requires disclosing facts bearing on the judge's obligation, whether or not the client benefits. See Legal Ethics and Professional Responsibility.

☐ 103. In arbitration, inquire into disclosures promptly; proceeding with knowledge waives the objection.

☐ 104. In state court, calendar the peremptory challenge deadline the day the case is assigned.

☐ 105. The single sentence to remember: disqualification is about who the judge is, not about what the judge decided.

SECTION M — FACT PATTERN QUICK ANSWERS

☐ 106. Judge's former firm, judge left before this matter began. Generally not disqualifying under the specific ground; evaluate appearance separately based on recency, continuing financial ties, and the firm's role.

☐ 107. Judge's former client, unrelated matters, years ago. Usually not disqualifying; disclose anyway.

☐ 108. Spouse is a lawyer in the proceeding. Mandatory disqualification.

☐ 109. Spouse's firm is in the case but the spouse is not. Turns on firm structure, the spouse's financial interest, and appearance. Many judges disqualify regardless.

☐ 110. Mutual fund holds shares in a party. Generally not a financial interest.

☐ 111. Judge directly holds one share of a party. Mandatory, non-waivable.

☐ 112. Judge holds stock in the party's parent or subsidiary. Disqualifying, and the most common late discovery.

☐ 113. Judge presided over a prior related case and formed credibility views. Judicial knowledge, not extrajudicial — Liteky v. United States.

☐ 114. Judge wrote an article about the legal issue. Not disqualifying. Statements about the parties or about how the judge would rule in this case are different.

☐ 115. Judge and a lawyer are friends. Ordinary professional friendship is not disqualifying; a close personal friendship where the lawyer's own interest is at stake may be.

☐ 116. Judge owes money to, or is owed money by, a party or lawyer. Serious ground.

☐ 117. Judge's adult child works for a large party in an unrelated role. Frequently not disqualifying; disclose.

☐ 118. Judge's compensation or the court's funding depends on outcomes. Constitutional problem — Tumey v. Ohio, Ward v. Village of Monroeville.

☐ 119. Judge decided the contempt arising from a proceeding the judge conducted. In re Murchison.

☐ 120. Extraordinary campaign support by a party's principal while the case was pending. Caperton v. A.T. Massey Coal Co..

SECTION N — THE CLIENT CONVERSATION

☐ 121. Separate the questions. Is the judge wrong, or unable to be fair? Those lead to appeal and to recusal respectively.

☐ 122. Ask what the extrajudicial fact is. If there is none, explain Liteky v. United States plainly.

☐ 123. Explain the cost. A denied motion means continuing before a judge who knows the client sought their removal.

☐ 124. Explain the timing constraint. The right is forfeited by delay, so the decision cannot wait until the case's direction is clear.

☐ 125. Identify the alternative — reconsideration, appeal, a status conference, or a conduct complaint — and match it to the actual concern.

☐ 126. Be candid about the odds. Most recusal motions are denied and denials are rarely reversed.

☐ 127. Document the advice, including the client's decision, particularly where the client wants a motion you have advised against.

SECTION O — QUICK REFERENCE

☐ 128. 28 U.S.C. § 455 — self-executing duty; (a) appearance, (b) specific grounds. ☐ 129. 28 U.S.C. § 144 — party affidavit plus counsel's good-faith certificate. ☐ 130. Liteky v. United States — rulings almost never establish bias. ☐ 131. Financial interests admit no de minimis exception, and cannot be waived. ☐ 132. § 455(a) grounds may be waived after full disclosure; § 455(b) grounds may not. ☐ 133. The challenged judge decides, in federal practice. ☐ 134. Mandamus under 28 U.S.C. § 1651 and Rule 21 is rare. ☐ 135. 28 U.S.C. § 2106 authorizes reassignment on remand, which requires no finding of bias. ☐ 136. Liljeberg v. Health Services Acquisition Corp. governs post-judgment relief. ☐ 137. Conduct complaints under 28 U.S.C. § 351 do not review decisions and are dismissed under 28 U.S.C. § 352 when they try to. ☐ 138. Disclose early and completely. Most late-discovered conflicts trace to an incomplete corporate disclosure statement.

SECTION P — THE INFORMAL LETTER

Where the ground is objective, a short letter frequently resolves the matter with no motion, no accusation, and no docket entry that follows anyone.

☐ 139. Address it to chambers, copy all parties, and file it or not according to local practice.

☐ 140. State the fact neutrally and completely: the holding, the relationship, the prior representation, with the supporting record attached.

☐ 141. State when and how you learned it. This is what forecloses a later timeliness objection.

☐ 142. Do not characterize the court's impartiality. Ask only that the court consider whether 28 U.S.C. § 455 applies.

☐ 143. Do not request relief beyond the court's consideration.

☐ 144. Note that the duty under § 455 is self-executing, so the court may act without a motion.

☐ 145. If the court declines to act and a motion becomes necessary, the letter is now Exhibit A — establishing the date of discovery and the movant's restraint.

☐ 146. ⚠️ This approach works only for objective grounds. If the concern is conduct in the case, there was no motion worth making.

📌 A judge who learns of a financial interest from a letter will disqualify and be grateful. A judge who reads a motion accusing them of bias based on rulings will deny it and remember it.

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