28 U.S.C. § 452 — Courts always open; powers unrestricted

Page 153 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 452 ment Officers and Employees, the provisions of which are covered by section 101 of Title 5, Government Orga- nization and Employees. AMENDMENTS 1982—Pub. L. 97–164 struck out references to the Court of Claims and to the Court of Customs and Pat- ent Appeals in the definitions of ‘‘court of the United States’’ and ‘‘judge of the United States’’. 1980—Pub. L. 96–417 redesignated the Customs Court as the Court of International Trade. 1978—Pub. L. 95–598 directed the amendment of sec- tion by inserting references to bankruptcy courts and bankruptcy judges, which amendment did not become effective pursuant to section 402(b) of Pub. L. 95–598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. 1966—Pub. L. 89–571 removed the United States Dis- trict Court for the District of Puerto Rico from the def- inition of ‘‘court of the United States’’. 1959—Pub. L. 86–3 substituted ‘‘including the United States District for the District of Puerto Rico’’ for ‘‘in- cluding the district courts of the United States for the districts of Hawaii and Puerto Rico’’ in provisions de- fining ‘‘court of the United States’’. Editorial Notes EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97–164 effective Oct. 1, 1982, see section 402 of Pub. L. 97–164, set out as a note under section 171 of this title. EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96–417 effective Nov. 1, 1980, and applicable with respect to civil actions pending on or commenced on or after such date, see section 701(a) of Pub. L. 96–417, set out as a note under section 251 of this title. EFFECTIVE DATE OF 1959 AMENDMENT Pub. L. 86–3, § 10, Mar. 18, 1959, 73 Stat. 9, provided that the amendment made by section 10 of Pub. L. 86–3 shall be effective on admission of the State of Hawaii into the Union. Admission of Hawaii into the Union was accomplished Aug. 21, 1959, on issuance of Proc. No. 3309, Aug. 21, 1959, 25 F.R. 6868, 73 Stat. c74, as required by sections 1 and 7(c) of Pub. L. 86–3, Mar. 18, 1959, 73 Stat. 4, set out as notes preceding 491 of Title 48, Terri- tories and Insular Possessions. ‘‘CIRCUIT COURT OF APPEALS;’’ ‘‘SENIOR CIRCUIT JUDGE,’’ ETC. DEFINED Act June 25, 1948, ch. 646, § 32, 62 Stat. 991, as amended by act May 24, 1949, ch. 139, § 127, 63 Stat. 107, provided that: ‘‘(a) All laws of the United States in force on Sep- tember 1, 1948, in which reference is made to a ‘circuit court of appeals’; ‘senior circuit judge’; ‘senior district judge’; ‘presiding judge’; ‘chief justice’, except when reference to the Chief Justice of the United States is intended; or ‘justice’, except when used with respect to a justice of the Supreme Court of the United States in his capacity as such or as a circuit justice, are hereby amended by substituting ‘court of appeals’ for ‘circuit court of appeals’; ‘chief judge of the circuit’ for ‘senior circuit judge’; ‘chief judge of the district court’ for ‘senior district judge’; ‘chief judge’ for ‘presiding judge’; ‘chief judge’ for ‘chief justice’, except when ref- erence to the Chief Justice of the United States is in- tended; and ‘judge’ for ‘justice’, except when the latter term is used with respect to a justice of the Supreme Court of the United States in his capacity as such or as a circuit justice. ‘‘(b) All laws of the United States in force on Sep- tember 1, 1948, in which reference is made to the Su- preme Court of the District of Columbia or to the Dis- trict Court of the United States for the District of Co- lumbia are amended by substituting ‘United States Dis- trict Court for the District of Columbia’ for such des- ignations. ‘‘(c) All laws of the United States in force on Sep- tember 1, 1948, in which reference is made to the ‘Con- ference of Senior Circuit Judges,’ or to the ‘Judicial Conference of Senior Circuit Judges’ are amended by substituting ‘Judicial Conference of the United States’ for such designations. ‘‘(d) This section shall not be construed to amend his- torical references to courts or judicial offices which have no present or future application to such courts or offices.’’ JUDGES OF THE UNITED STATES Act June 25, 1948, ch. 646, § 2(a), 62 Stat. 985, as amend- ed by act Sept. 3, 1954, ch. 1263, § 51(a), 68 Stat. 1245, pro- vided that: ‘‘The Chief Justices of the United States Court of Appeals for the District of Columbia, the Dis- trict Court of the United States for the District of Co- lumbia, and the Court of Claims [now United States Court of Federal Claims], and the presiding judge of the Court of Customs and Patent Appeals [now United States Court of Appeals for the Federal Circuit], in of- fice on the effective date of this Act shall be the chief judges of their respective courts. The Chief Justice of the United States Court of Appeals for the District of Columbia and the Associate Justices thereof, the Chief Justice of the District Court of the United States for the District of Columbia (formerly named the Supreme Court of the District of Columbia) and the Associate Justices thereof, the Chief Justice of the Court of Claims [now United States Court of Federal Claims], and the presiding judge of the Court of Customs and Patent Appeals [now United States Court of Appeals for the Federal Circuit], in office on the effective date of this Act, shall be judges of the United States within the meaning of Section 451 of Title 28, Judiciary and Judicial Procedure, of the United States Code, set out in Section 1 of this Act. The Chief Justice of the United States Court of Appeals for the District of Columbia and the Associate Justices thereof, in office on the ef- fective date of this Act, shall be circuit judges of the District of Columbia Circuit and vested with all the rights, powers, and duties thereof, and the said Chief Justice of the United States Court of Appeals for the District of Columbia shall be Chief Judge of said Cir- cuit. The Chief Justice of the District Court of the United States for the District of Columbia (formerly named the Supreme Court of the District of Columbia) and the Associate Justices thereof, in office on the ef- fective date of this Act, shall be district judges for the District of Columbia and vested with all the rights, powers, and duties thereof.’’ Act Sept. 3, 1954, ch. 1263, § 51(b), 68 Stat. 1246, pro- vided that this amendment should take effect as of Sept. 1, 1948. § 452. Courts always open; powers unrestricted by expiration of sessions All courts of the United States shall be deemed always open for the purpose of filing proper papers, issuing and returning process, and making motions and orders. The continued existence or expiration of a ses- sion of a court in no way affects the power of the court to do any act or take any proceeding. (June 25, 1948, ch. 646, 62 Stat. 907; Pub. L. 88–139, § 2, Oct. 16, 1963, 77 Stat. 248.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., §§ 13 and 302 (Mar. 3, 1911, ch. 231, §§ 9, 189, 36 Stat. 1088, 1143; Mar. 2, 1929, ch. 488, § 1, 45 Stat. 1475). Sections 13 and 302 of title 28, U.S.C., 1940 ed., related only to district courts and the Court of Customs and Patent Appeals, and this section has been written to cover all other courts of the United States. Page 154 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 453 Other provisions of said section 302 of title 28, U.S.C., 1940 ed., are incorporated in sections 214, 456, and 604 of this title. The phrase ‘‘always open’’ means ‘‘never closed’’ and signifies the time when a court can exercise its func- tions. With respect to matters enumerated by statute or rule as to which the court is ‘‘always open,’’ there is no time when the court is without power to act. (Ex parte Branch, 63 Ala. 383, 387.) Section 13 of title 28, U.S.C., 1940 ed., provided that ‘‘The district courts, as courts of admiralty and as courts of equity, shall be deemed always open * * *’’ for enumerated purposes, and that the judge ‘‘at cham- bers or in the clerk’s office, and in vacation as well as in term,’’ may make orders and issue process. The re- vised section omits all reference to the nature of the action or proceeding and enumeration of the acts which may be performed by the court. This is in accord with Rules 45(c) and 56 of the new Federal Rules of Criminal Procedure which contain similar provisions with re- spect to criminal procedure both in the courts of ap- peals and in the district courts. Rules 6(c) and 77(a) of the Federal Rules of Civil Pro- cedure contain provisions similar to the second and first paragraphs, respectively, of this section with re- spect to civil actions in district courts. Editorial Notes AMENDMENTS 1963—Pub. L. 88–139 substituted ‘‘expiration of ses- sions’’ for ‘‘terms’’ in section catchline, and ‘‘session’’ for ‘‘term’’ in text. § 453. Oaths of justices and judges Each justice or judge of the United States shall take the following oath or affirmation be- fore performing the duties of his office: ‘‘I, lll lll, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially dis- charge and perform all the duties incumbent upon me as lll under the Constitution and laws of the United States. So help me God.’’ (June 25, 1948, ch. 646, 62 Stat. 907; Pub. L. 101–650, title IV, § 404, Dec. 1, 1990, 104 Stat. 5124.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., §§ 241, 372, and Dis- trict of Columbia Code, 1940 ed., §§ 11–203, 11–303 (R.S.D.C., § 752, 18 Stat. pt. II, 90; Feb. 9, 1893, ch. 74, § 3, 27 Stat. 435; Mar. 3, 1901, ch. 854, § 223, 31 Stat. 1224; Mar. 3, 1911, ch. 231, §§ 136, 137, 257, 36 Stat. 1135, 1161; Feb. 25, 1919, ch. 29, § 4, 40 Stat. 1157). This section consolidates sections 11–203 and 11–303 of District of Columbia Code, 1940 ed., and section 372 of title 28, U.S.C., 1940 ed., with that portion of section 241 of said title 28 providing that judges of the Court of Claims shall take an oath of office. The remainder of said section 241 comprises sections 171 and 173 of this title. The phrase ‘‘justice or judge of the United States’’ was substituted for ‘‘justices of the Supreme Court, the circuit judges, and the district judges’’ appearing in said section 372, in order to extend the provisions of this section to judges of the Court of Claims, Customs Court, and Court of Customs and Patent Appeals and to all judges of any court which may be created by enact- ment of Congress. See definition in section 451 of this title. The Attorney General has ruled that the expression ‘‘any judge of any court of the United States’’ applied to the Chief Justice and all judges of the Court of Claims. (21 Op. Atty. Gen. 449.) Editorial Notes AMENDMENTS 1990—Pub. L. 101–650 substituted ‘‘under the Constitu- tion’’ for ‘‘according to the best of my abilities and un- derstanding, agreeably to the Constitution’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1990 AMENDMENT Amendment by Pub. L. 101–650 effective 90 days after Dec. 1, 1990, see section 407 of Pub. L. 101–650, set out as a note under section 332 of this title. § 454. Practice of law by justices and judges Any justice or judge appointed under the au- thority of the United States who engages in the practice of law is guilty of a high misdemeanor. (June 25, 1948, ch. 646, 62 Stat. 908.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., § 373 (Mar. 3, 1911, ch. 231, § 258, 36 Stat. 1161). Changes in phraseology were made. § 455. Disqualification of justice, judge, or mag- istrate judge (a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might rea- sonably be questioned. (b) He shall also disqualify himself in the fol- lowing circumstances: (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the pro- ceeding; (2) Where in private practice he served as lawyer in the matter in controversy, or a law- yer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it; (3) Where he has served in governmental em- ployment and in such capacity participated as counsel, adviser or material witness con- cerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy; (4) He knows that he, individually or as a fi- duciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding; (5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: (i) Is a party to the proceeding, or an offi- cer, director, or trustee of a party; (ii) Is acting as a lawyer in the proceeding; (iii) Is known by the judge to have an in- terest that could be substantially affected by the outcome of the proceeding; (iv) Is to the judge’s knowledge likely to be a material witness in the proceeding. (c) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself