holding that § 455(a) involves a “reasonable man test”
How later courts described this case
- holding that § 455(a) involves a “reasonable man test”
- Tuttle, Goldberg, dissenting, Wisdom separately dissenting
Written by the judges who cited it.
The opinion
RONEY, Circuit Judge
(specially concurring):
I concur in the result and Part II of Judge Bell’s opinion. As to Part I, I join in Chief Judge Brown’s concurrence. Part III considers a question which I do not believe is before the Court, i. e., whether the district judge’s refusal to recuse himself was proper under 28 U.S. C.A. § 455 standards, as amended on December 5, 1974.
*105 I agree that en bane consideration makes this an appellate review not “fully submitted,” so that § 455, as amended, would apply to this appellate review, which means it would set the standard for recusal of any of our reviewing judges who might be challenged for bias. But that is not the question. The district judge sat at trial. What act applied to the trial? Congress clearly provided that the new § 455 Act “shall not apply to the trial of any proceeding” commenced prior to December 5, 1974. The trial of this proceeding was completed prior to that date. We are judging the correctness of that trial and should do so by the standard applying to it as clearly set forth in the statute.
The Act amending § 455 provides:
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. Pub.L. 93-512, § 3 , 88 Stat. 1609 .
The application of this act to the district judge’s refusal to recuse himself at trial of this proceeding envisions a provision as to when the amendment is to be applied in “appellate review,” not to appellate review. Congressional approach, however, was to address the level “of any proceeding” that the statute would apply to. Part III of Judge Bell’s opinion applies § 455 in appellate review to a trial of this proceeding to which the act specifically says it does not apply. It seems inconsistent to provide one standard of recusal for the trial judge to apply to himself at the trial, and provide a different standard by which to review the correctness of his failure to recuse. Apparently Congress thought so too. I would not apply the act contrary to the express directions of Congress.