At page 1303 Duty to probe affidavit sufficiency before disqualification17 citing casesaffidavits based on conclusions, opinions, and rumors are insufficient for recusal
- Hunter v. Kijakazi, No. 0:21-cv-00850 (D. Minn. Mar. 23, 2022).An unfavorable ruling alone “is insufficient to require disqualification absent a showing of ‘pervasive personal bias and prejudice.’” Holloway v. United States, 960 F.2d 1348, 1351 (8th Cir. 1992) (quoting Davis v. Comm'r of Internal Reve…
- Kevin Johnson v. Troy Steele, 999 F.3d 584 (8th Cir. 2021).published Liteky, 510 U.S. at 555 (citation omitted). “[U]nfavorable judicial ruling[s]” are not sufficient “to require disqualification absent a showing of ‘pervasive personal bias and prejudice . . . .” Holloway v. United -6- States, 960 F.2d 1348…
- Thomas v. Federated Mut., No. 0:18-cv-03491 (D. Minn. Mar. 4, 2020).An unfavorable ruling alone “is insufficient to require disqualification absent a showing of ‘pervasive personal bias and prejudice.’” Holloway v. United States, 960 F.2d 1348, 1351 (8th Cir. 1992) (quoting Davis v. Comm’r of Internal Reve…
- In Re Indep. Couns. Starr, 986 F. Supp. 1144 (E.D. Ark. 1997).publishedLikewise, in Kurz v. Justices of the Supreme Court of New York, Kings County, 228 A.D.2d 74 , 654 N.Y.S.2d 783 (1997) the Appellate Division of the Supreme Court of New York stated, “A judge who recuses himself or herself should state, on…
- United States v. Fiske, 968 F. Supp. 433 (E.D. Ark. 1996).publishedAs a matter of fact, even when a motion to recuse has been filed, “judges are charged with an affirmative duty to probe the legal sufficiency of petitioner’s affidavits of prejudice and not to disqualify themselves unnecessarily.” Davis v.…
- Rodney Glen King v. United States Dist. Court for the Cent. Dist. of California, City of Los Angeles, Real Parties in Interest, 16 F.3d 992 (9th Cir. 1994).published Davis v. CIR, 734 F.2d 1302, 1303 (8th Cir.1984); United States v. Sims, 845 F.2d 1564, 1570 (11th Cir.), cert. denied, 488 U.S. 957 , 109 S.Ct. 395 , 102 L.Ed.2d 384 (1988).
- Keithian L. Arnold v. Resolution Trust Corp., as Receiver for Cmty. Fed., 982 F.2d 525 (8th Cir. 1992).unpublishedUnfavorable judicial rulings, however, are "insufficient to require disqualification absent a showing of 'pervasive personal bias and prejudice.' " Holloway v. United States, 960 F.2d 1348, 1351 (8th Cir. 1992) (quoting Davis v. Commission…
- Bruce E. Holloway v. United States, 960 F.2d 1348 (8th Cir. 1992).published For recusal to be necessary, the bias must be personal and extra-judicial. *1351 Davis v. Commissioner, 734 F.2d 1302, 1303 (8th Cir.1984) (per curiam) (citations omitted).
- United States v. R. Randall Walker, 920 F.2d 513 (8th Cir. 1990).publishedDavis v. Commissioner, 734 F.2d 1302, 1303 (8th Cir.1984).
- Jerry D. Fertig & Bonnie L. Fertig v. United States of Am. & Internal Revenue Serv., 786 F.2d 1164 (6th Cir. 1986).unpublishedDavis v. C.I.R., 734 F.2d 1302, 1303 (8th Cir. 1984); Shaw v. Martin, 733 F.2d 304, 308 (4th Cir.), cert. denied, 105 S.Ct. 230 , reh'g denied, 105 S.Ct. 555 (1984); United States v. Carmichael, 726 F.2d 158, 160 (4th Cir. 1984); United St…
Show 7 more citing cases
- Modla v. United States, 779 F.2d 51 (6th Cir. 1985).unpublishedDavis v. C.I.R., 734 F.2d 1302, 1303 (8th Cir. 1984); Shaw v. Martin, 733 F.2d 304, 308 (4th Cir.), cert. denied, 105 S.Ct. 230 , reh'g denied, 105 S.Ct. 55 (1984); United States v. Carmichael, 726 F.2d 158, 160 (4th Cir. 1984); United Sta…
- Yanga v. Eastman, No. 8:19-cv-00420 (D. Neb. Nov. 19, 2020).See Holloway v. United States, 960 F.2d 1348, 1350 (8th Cir. 1992) (“Affidavits based on conclusions, opinions, and rumors are an insufficient basis for recusal.” (quoting Davis v. Commissioner, 734 F.2d 1302, 1303 (8th Cir.1984)).
- Conrad & Debra Himes v. United States of Am. & Internal Revenue Serv., 802 F.2d 458 (6th Cir. 1986).unpublishedSee Davis v. Commissioner, 734 F.2d 1302, 1303 (8th Cir. 1984) (per curiam); Shaw v. Martin, 733 F.2d 304, 308 (4th Cir.), cert. denied, 105 S.Ct. 230 , reh'g denied, 105 S.Ct. 555 (1984); United States v. Story, 716 F.2d 1088, 1091 (6th C…
- Firsov, No. 5:25-cv-03784 (N.D. Cal. Dec. 11, 2025).(noting that, 15 “[u]nder the statutory standard for judicial disqualification, judges are charged with an affirmative 16 duty to probe the legal sufficiency of petitioner’s affidavit of prejudice and not to disqualify 1…)
- Hinman v. Rogers, 831 F.2d 937 (10th Cir. 1987).published(affidavits based on conclusions, opinions, and rumors are insufficient for recusal)
- Dr. Myra M. Hinman v. Honorable Richard D. Rogers, United States Dist. Judge for the Dist. of Kansas, Dr. Myra M. Hinman Tommy C. Ashley Frank D. Blackburn James L. Bolden Betty D. Commons Ola L. Drake Bobby J. Fair Floyd H. Garrett Noah L. Goddard Alan W. Jack Sherri L. Kelly Roy Laster Wayne A. Lewis Thomas McHan Anita Martin Dennis Joe Miller Michele Richards & Paula M. Williams v. Honorable Richard D. Rogers, United States Dist. Judge for the Dist. of Kansas, 831 F.2d 937 (10th Cir. 1987).published(affidavits based on conclusions, opinions, and rumors are insufficient for recusal)
- United States v. Stacey Lynn Merkt & John B. Elder, 794 F.2d 950 (5th Cir. 1986).publishedSee also Davis v. Comm’r, 734 F.2d 1302, 1303 (8th Cir.1984). 11 IV.
Other citing cases
- John A. Fisher v. United States, 802 F.2d 457 (6th Cir. 1986).unpublished
- United States v. Scott Faul, United States of Am. v. Yorie Von Kahl, United States of Am. v. David Ronald Broer A/K/A David Ronald Brewer, 748 F.2d 1204 (8th Cir. 1985).published
v.
COMMISSIONER OF INTERNAL REVENUE, Appellee
Keith B. Davis, proceeding pro se, appeals from the Tax Court’s dismissal for lack of prosecution and its refusal to vacate that order. We affirm.
Davis practiced general and patent law in Minnesota for eleven years before he was suspended in 1978 for misconduct, incompetence, failure to refund a retainer, and failure to represent a client zealously. As a result of his suspension, Davis claimed on his 1977 income tax return a $120,000 “loss of intangible assets” (his law practice). The IRS disallowed his loss and notified Davis of his tax deficiency of $1,018.31. The parties were unable to agree on a stipulation of facts for trial. Therefore, pursuant to Tax Court Rule 91(f), the court ordered the IRS to show cause why Davis’s stipulation was unacceptable. At the show cause hearing, Davis presented no evidence to rebut the showing made by the IRS, but intimated that his tax records had been tampered with “by the U.S. mail” and that he was “a victim.” The Tax Court discharged the order to show cause, denied Davis’s motion to compel stipulation, and scheduled a trial on the merits. Because he viewed the court as being biased, Davis failed to attend the trial and the court granted the government’s motion to dismiss. Davis subsequently filed an affidavit of prejudice and a motion to vacate, both of which were denied.
Under the statutory standard for judicial disqualification, [1] judges are charged with an affirmative duty to probe the legal sufficiency of petitioner’s affidavit of prejudice and not to disqualify themselves unnecessarily. National Auto Brokers Corp. v. General Motors Corp., 572 F.2d 953, 958 (2d Cir.1978), cert. denied, 439 U.S. 1072, 99 S.Ct. 844, 59 L.Ed.2d 38 (1979). Affidavits based on conclusions, opinions, and rumors are an insufficient basis for recusal. City of Cleveland v. Krupansky, 619 F.2d 576, 578 (6th Cir.), cert. denied, 449 U.S. 834, 101 S.Ct. 106, 66 L.Ed.2d 40 (1980). For recusal to be necessary, the bias must be personal and extrajudicial. United States v. Phillips, 664 F.2d 971, 1002 (5th Cir.1981), ce rt. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982). The courts have recognized an exception to this rule in extreme eases of pervasive personal bias and prejudice. Id. 664 F.2d at 1003.
[*1304] The Tax Court was correct in rejecting Davis’s affidavit of prejudice. When the judge asked if the proposed stipulation on file was Davis’s, Davis suggested it appeared to be his, but that it might have been altered “by the U.S. mail,” to which the judge replied, “Oh, come on.” On this exchange, Davis bases his claim concerning the judge’s “insensitive demeanor.” We have reviewed the record and we do not see any impropriety or any reflection of bias in the judge’s remark. Moreover, whatever bias might inhere in the judge’s remark is not extrajudicial and does not appear personal. Certainly his comment does not reflect pervasive bias and prejudice.
Accordingly, the judgment of the Tax Court is affirmed.
. § 455. Disqualification of justice, judge, or magistrate
(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
28 U.S.C. § 455; see also id. § 144 (disqualification for bias of district court judges).