Implementation of the Judicial Conduct 

and Disability Act of 1980

A Report to the Chief Justice

The Judicial Conduct and Disability Act Study Committee

Stephen Breyer, Chair

Associate Justice, Supreme Court of the United States

Sarah Evans Barker 

U.S. District Judge, Southern District of Indiana

Pasco M. Bowman 

Senior U.S. Circuit Judge, Eighth Circuit

D. Brock Hornby

U.S. District Judge, District of Maine

Sally M. Rider

Administrative Assistant to the Chief Justice

J. Harvie Wilkinson III

U.S. Circuit Judge, Fourth Circuit

September 2006
Implementation of the Judicial Conduct 

and Disability Act of 1980

A Report to the Chief Justice

The Judicial Conduct and Disability Act Study Committee

Stephen Breyer, Chair

Associate Justice, Supreme Court of the United States

Sarah Evans Barker 

U.S. District Judge, Southern District of Indiana

Pasco M. Bowman 

Senior U.S. Circuit Judge, Eighth Circuit

D. Brock Hornby

U.S. District Judge, District of Maine

Sally M. Rider

Administrative Assistant to the Chief Justice

J. Harvie Wilkinson III

U.S. Circuit Judge, Fourth Circuit

September 2006

iii

Contents

Foreword and Executive Summary, 1

The Committee’s charge, 1

Resources, 2

The Committee’s method, 2

Major conclusions, 5

Findings, 6

Recommendations, 8

Chapter 1: Committee Creation and Activities; Previous Studies; Act Provisions, 11

The Committee, 11

Previous studies of the Act and its administration, 13

The Act’s major provisions, 14

Illustrative Rules and Committee Standards, 17

Chapter 2: Complaints Terminated; Source, Nature and Object; Types of Dispositions, 

2001–2005, 19

Source of data, 19

Complaints terminated, 20

Errors in the circuit-reported data, 30

Chapter 3: How the Judicial Branch Administers the Act—Process, 31

Providing information about the Act, 31

Initial analysis of the complaint, 33

Limited inquiries, 35

Monitoring petitions for review, 37

Chapter 4: How the Judicial Branch Administers the Act—Results, 39

Overall considerations, 40

593-case sample, 41

100-case sample, 66

Disposition of high-visibility complaints, 67

Comparison of assessments, comments, 95

Chapter 5: Activity Outside the Formal Complaint Process, 99

Extent of informal activity, 101

Typical objects of informal activity, 101

Dealing with problems not likely to produce complaints under the Act, 102

Possible other approaches, 103

Chapter 6: Recommendations, 107

Principal findings, 107

Summary of recommendations, 109

Recommendations aimed primarily at enhancing chief judges’ and council members’ 

ability to apply the Act, 109
iv 

Implementation of the Judicial Conduct and Disability Act ~ September 2006

Recommendations to encourage public and bar knowledge of the Act and its 

appropriate use, 119

Recommendations to promote accurate understanding by legislators, press, public, 

and judges of how the Act is (and should be) administered, 121

Clarifying the authority of the Conference vis-à-vis its Review Committee, 123

Programs to make counseling available to all judges in all circuits, 124

Additional commentary, 124

Summary of recommendations concerning the administration of the Act, 125

Endnotes, 127

Figures

1 Flowchart of Major Steps in Complaint Processing, 15

2 Complaints Terminated by Year, 1982–2005, 22

Tables

1 Complaints Terminated in 2001–2005, 21

2 Types of Complainants, 23

3 Types of Judges Named in the Complaints, 24

4 Annual Rate of Complaints for Different Types of Judges, 25

5 Types of Allegations, 26

6 Time to Disposition by Chief Judge, 27

7 Reasons Given in Chief Judge Dismissal Orders, 28

8 Special Committees and Council Action, 29

9 Percentage of Orders Restating Allegations and Giving Reasons, 2002 and 2004, 35

10 Types of Limited Inquiries in 593-Case Sample, 2001–2003, 37

11 Complaints in 593-Case Sample, 42

12 Filers and Dispositions in Sample and Population, 42

13 Distribution of Complaints in the Sample, by Circuit, 43

14 Filers and Dispositions in 100-Case Sample, 66

15 Distribution of Complaints in the 100-Case Sample, by Circuit, 66

16 Problematic Dispositions in Complaints Committee Examined, and Those 

Examined in the 1993 Study, 95

17 Measures of Circuit Judge Workload, 96

18 Summary of Committee Recommendations, 126

Appendices

A Announcement of Committee Appointment, 131

B Committee Members, 133

C Key Staff, 135

D Judicial Conduct and Disability Act, 137

E Committee Standards for Assessing Compliance with the Act, 145 

F AO Form 372, 153

G Tables 11 and S-22, Judicial Business of the United States Courts (2005), 155

H Selected Court of Appeals and District Court Website Homepages, 159

I Forms Used for Committee Review of Terminations, 161
Foreword and Executive Summary

The Committee’s charge

The Judicial Conduct and Disability Act authorizes any person to file a complaint 

alleging that a federal judge has engaged in conduct “prejudicial to the effective and 

expeditious administration of the business of the courts.” The Act also permits any 

person to allege conduct reflecting a judge’s inability to perform his or her duties 

because of “mental or physical disability.” 

In 2004, Chief Justice William H. Rehnquist pointed out that there “has been 

some recent criticism from Congress about the way in which the Judicial Conduct 

and Disability Act of 1980 is being implemented.” The Chief Justice consequently 

created this Committee to look into the matter. He appointed to the Committee 

three judges who as former circuit chief judges had had considerable experience 

administering the Act, two district court judges who have served as chief judges and 

as members of their circuits’ judicial councils, and his administrative assistant, with 

experience in judicial branch administration. He asked the Committee to examine 

the Act’s implementation, particularly in light of the recent criticism, and to report 

its findings and any recommendations directly to him. Chief Justice John G. Roberts, 

Jr., asked the Committee to continue its work.

The federal judiciary, like all institutions, will sometimes suffer instances of misconduct. But the design of any system for discovering (and assessing discipline for) the 

misconduct of federal judges must take account of a special problem. On the one hand, 

a system that relies for investigation upon persons or bodies other than judges risks 

undue interference with the Constitution’s insistence upon judicial independence, 

threatening directly or indirectly distortion of the unbiased handling of individual 

cases that Article III seeks to guarantee. On the other hand, a system that relies for 

investigation solely upon judges themselves risks a kind of undue “guild favoritism” 

through inappropriate sympathy with the judge’s point of view or de-emphasis of 

the misconduct problem. 

In 1980, Congress, in the Judicial Conduct and Disability Act, sought to create 

a discipline system that would prove effective while taking proper account of these 

competing risks. The Act creates a complex system that, in essence, requires the chief 

judge of a circuit to consider each complaint and, where appropriate, to appoint a 

special committee of judges to investigate further and to recommend that the circuit 

judicial council assess discipline where warranted. In a word, the Act relies upon 

internal judicial branch investigation of other judges, but it simultaneously insists 

upon consideration by the chief circuit judge and members of the circuit judicial 

council, using careful procedures and applying strict statutory standards.
Implementation of the Judicial Conduct and Disability Act ~ September 2006

The basic question presented is whether the judiciary, in implementing the Act, 

has failed to apply the Act strictly as Congress intended, thereby engaging in institutional favoritism. This question is important not only to Congress and the public, 

but to the judiciary itself. 

The Committee soon realized that the only way it could answer this question was 

to review the complaints themselves, bringing its own judgment to bear upon other 

judges’ handling of those complaints. The Committee sought, through statistical 

sampling, the use of strict objective standards, and the use of experienced staff, to 

make its own assessment as objectively as possible. 

The question is a narrow one. It does not ask us to rewrite the Act, and none of 

our recommendations requires statutory amendment. It does not ask us to consider 

revisions of the ethical rules governing judicial conduct, or to study other similar 

proposals for change. It does not seek comparisons with state, foreign, or other 

disciplinary systems. It does not demand the assistance of academic experts. It does 

require us to undertake a practical task, namely to examine the actual implementation of the Act in practice and to provide the Chief Justice with our conclusions and 

recommendations for improvement.

We are aware of news reports alleging various ethical improprieties, such as judges’ 

failures to report reimbursement for attending privately sponsored seminars and 

judges’ failures to recuse in cases where they own stock. These issues are important 

ones. They may well merit inquiry. And we recognize that the Judicial Conference 

of the United States has asked other committees to make recommendations about 

these matters. They do not fall within the mandate of this Committee. Complaints, 

though, are nevertheless filed under the Act alleging that judges failed to recuse 

themselves when their financial holdings created conflicts of interest. Thus, after we 

present our recommendations, we endorse consideration of requiring judges to use 

conflict-avoidance software to reduce the number of recusal complaints filed under 

the Act. 

Resources

The Committee received no special funding. The Committee was assisted by experienced staff from the Federal Judicial Center and the Administrative Office of the 

United States Courts. We thank them for their work.

The Committee’s method

The Committee initially examined individual instances in which members of Congress had complained (to the Judicial Conference and the public) about the handling 

of allegations of judicial misconduct. This initial informal examination suggested 

that, in some of those instances, the judiciary’s own handling of the complaint may 


Foreword and Executive Summary

have been problematic. This indicated a need to determine how serious any such 

implementation problems were and how frequently they occurred. In particular, did 

the problems that had come to public attention so far amount only to the “tip of the 

iceberg”? In other words, were problems occurring frequently when the judiciary 

processed complaints brought under the Act?

The Committee determined that it must first evaluate that “iceberg,” i.e., how the 

judiciary handled the vast number of complaints filed, few of which would ever come 

to public notice. The total number of complaints filed each year, however, averages 

over 700. That number is not large compared to the total number of cases handled 

in the federal system annually (over 2 million in 2005—appeals, civil, criminal, and 

bankruptcy); but the number is large when considered in light of the Committee’s 

own ability to determine whether the courts have properly handled the complaint—an 

exercise that typically requires careful examination of the individual complaint and its 

disposition. Many complaints are handwritten, lengthy, and difficult to decipher. The 

Committee could not itself review the complaints filed over, say, three years—more 

than 2,000. Nor could it completely delegate to its staff the work of reexamining and 

evaluating the decisions of chief judges and the members of circuit councils—both 

because the staff was small and because the very point of the Committee was to obtain 

a judicial evaluation of those judge-made decisions. 

Ultimately the Committee asked its staff of experienced researchers to design, 

and the Committee then approved, a research plan that would enable it to examine 

both (1) the vast bulk of complaints that receive little or no public notice, and (2) the 

very few “high-visibility” complaints. We began by examining the complaints resolved 

in the three years immediately prior to our appointment—a period during which 

more than 2,000 complaints were resolved. From this group of 2,000 cases, we created 

two samples. The first (the “stratified sample”) consisted of 593 cases drawn from 

the 2,000 that included all of those complaints most likely to have merit (those filed 

by attorneys, for example) and a random sample of other complaints. The second 

sample consisted of 100 cases drawn completely at random from the 2,000. As our 

research progressed, we decided to look at a third, far-smaller group of “high-visibility” complaints, i.e., those complaints that had received some public attention. For 

that third group, we looked at five years (not three years): cases from 2001 through 

2005. We identified 17 cases—16 in which complaints had been filed or initiated by 

the chief judge and one case in which a complaint had not been filed but arguably 

should have been initiated and considered by the chief judge.

In order to evaluate the cases, we developed a set of “Standards for Assessing 

Compliance with the Act.” We based those Standards on the Act itself and upon orders 

of chief circuit judges and judicial councils implementing the Act. Staff researchers 

and the members of the Committee used those Standards to assess whether each 

complaint had, or had not, been properly handled. As the Committee’s work continued, the Committee revised the Standards slightly in light of experience to make 

clear that to be “inherently incredible” an allegation need not be literally impossible, 
 

Implementation of the Judicial Conduct and Disability Act ~ September 2006

to clarify the standards for examining the merits of a judge’s written opinion, and to 

add a Standard concerning chief judges’ initiation of complaints (what the Act calls 

“identifying” a complaint).

In order to ensure that the researchers were applying the Committee Standards 

in the way that the Committee’s judicial members would apply them, after the Committee staff examined 300 of the 593 cases in the stratified sample, the Committee 

reviewed 53 of them—40 drawn at random and all 13 that the researchers had identified up to that time as problematic. (“Problematic” means not that the complaint 

was meritorious, but that the handling of the complaint deviated from the Act’s 

requirements; “problematic” includes, for example, dismissals without adequate investigation or for the wrong reasons.) We agreed unanimously with the researchers 

where they determined that handling was “nonproblematic”; we also agreed with 

the researchers unanimously or by a majority in respect to the 13 instances they had 

labeled problematic. 

When the researchers concluded their review of all 593 cases, they had identified 

25 as problematic. The Committee reviewed all 25. It agreed with the researchers 

in respect to 20 of the 25. The Committee also examined without comment from 

staff the 100 complaints drawn at random. The Committee identified two of those 

instances as involving problematic handling. 

The Committee then conducted a separate assessment of the judiciary’s handling 

of the “iceberg’s tip,” namely cases that had received some public notoriety. We looked 

for such cases by examining national and regional news sources over a five-year period. 

We found 17, including five that had been included in the three-year 593-case stratified sample. We had already found that two of those five cases involved problematic 

handling.

We then considered (or reconsidered) each of the 17 cases individually, first 

through examination by staff applying the same Committee Standards previously 

applied and then by the entire Committee proceeding case by case. The Committee 

ultimately determined that five of the 17 cases involved problematic handling.

In addition to the research already described, the judges on the Committee interviewed all current chief judges and one judge who had just stepped down as chief 

judge. Committee staff interviewed current and former chief circuit judges and circuit 

staff at length, and the Committee reviewed detailed reports of those interviews. And 

staff reviewed other relevant materials, such as information about the Act available 

on circuit and district court websites, and allegations of judicial misconduct sent to 

Congress and contained in the files of the House Committee on the Judiciary. 


Foreword and Executive Summary

Major conclusions

The Committee has reached two major conclusions. First, the chief circuit judges and 

judicial councils have properly implemented the Act in respect to the vast majority 

of the complaints filed, what we have referred to as the bulk of “the iceberg.” The 

Committee sought to determine whether each complaint in the samples was properly 

reviewed and resolved in accordance with the Act’s criteria. The Committee found 

that the relevant error rate, i.e., that of failing properly to process such complaints, is 

about 2% to 3%. While a perfectly operating system remains the goal, the Committee 

recognizes that no human system operates perfectly; some error is inevitable. And the 

Committee is unanimous in its view that a processing error rate of 2% to 3% does 

not demonstrate a serious flaw in the operation of the system—given the number of 

complaints filed, their occasional lack of clarity, and the judgmental nature of the decision as to whether further inquiry is required. Further, the Committee Standards are 

strict and we applied them strictly. For example, some complaints make far-fetched, 

but not totally implausible, allegations of fact, such as a complaint that alleged that 

an intern had impersonated a judge on the bench. Because the complaint pointed out 

that the hearing had been tape-recorded and listed specific witnesses, we concluded 

in that case that the chief judge could have checked, or directed circuit staff to check, 

the factual basis for the complaint and should have done so.

In sum, we find no serious problem with the judiciary’s handling of the vast bulk 

of complaints under the Act. The federal judiciary handles more than 2 million cases 

annually; 700 users of the system file complaints; the handling of 2% to 3% of those 

is problematic. We find this last number reflective of the difficulties of creating an 

error-free system. We nonetheless make suggestions that we believe will reduce this 

last-mentioned number further. But we conclude that there is no problem-riddled 

“iceberg” lurking below the “high-visibility” surface. 

Second, we have separately assessed high-visibility cases—those that have received 

national or regional press coverage, including matters that have come to the attention 

of (or been filed by) members of Congress. Such cases were few—we identified 17 

over a five-year period. But we found the handling of five of them problematic. The 

proper handling of high-visibility complaints has particular importance. Because 

the matters at issue have received publicity, the public is particularly likely to form 

a view of the judiciary’s handling of all cases upon the basis of these few. And the 

mishandling of these cases may discourage those with legitimate complaints from 

using the Act. We consequently consider the mishandling of five such cases out of 

17—an error rate of close to 30%—far too high.
Implementation of the Judicial Conduct and Disability Act ~ September 2006

Findings

Chapters 2 through 5 of this report each contain a set of findings. Those findings 

include:

Chapter 2: Complaints Terminated; Source, Nature, and Object; Types of Dispositions, 

2001–2005

1. The number of terminated complaints peaked in 1998 and has hovered between 

600 and 800 per year since then. 

2. Almost all complaints are filed by prisoners or litigants.

3. Almost all complaints allege misconduct rather than disability.

4. Almost all complaints are dismissed by the chief judge; 88% of the reasons given 

for dismissal are that the complaint relates to the merits of a proceeding or is 

unsubstantiated.

5. The circuits vary considerably in the time they take to terminate complaints.

6. There are mistakes in the data that circuits submit to the Administrative Office 

of the U.S. Courts for national statistical reports on the Act’s administration; 

perhaps most serious, for the period we examined, the circuit data underreported 

the number of special committees that chief judges appointed.

Chapter 3: How the Judicial Branch Administers the Act—Process

1. Many courts do not use their websites to provide the public with information 

about the Act and about how to file a complaint.

2. In most circuits, staff in the clerk’s office or in the circuit executive’s office analyze complaints and present them to the chief circuit judge, often with a draft 

order.

3. Chief judges report that, consistent with the Act, they reserve for themselves 

decisions whether to undertake further inquiries about complaint allegations, 

e.g., seeking a response from the judge, speaking to witnesses, or other inquiries 

that go beyond simple inspection of routine documents.

4. In the 593-case sample (i.e., the sample that overrepresents complaints most likely 

to allege conduct that the Act covers):

• chief judge orders were ordinarily consistent with the statutory requirement 

that they state reasons and with Judicial Conference policy that they restate 

the complaint’s allegations; and

• in about half the instances chief judges undertook limited inquiries—the most 

common limited inquiry took the form of an examination of the record in 

the underlying court case.


Foreword and Executive Summary

Chapter 4: How the Judicial Branch Administers the Act—Results

1. Overall, terminations that are not consistent with our understanding of the Act’s 

requirements are rare, amounting to about 2% to 3% of all terminations.

2. Chief circuit judges’ rate of problematic dispositions is consistent with the rate 

reported in 1993 (for the period 1980–1991) by the National Commission on 

Judicial Discipline and Removal, despite the substantial increase since 1991 in 

the per-judge caseload of circuit judges (including chief judges) as well as in the 

number of complaints with which chief circuit judges must deal.

3. The rate of problematic dispositions is significantly higher, about 29%, for complaints that have come to public attention. The higher rate may reflect the greater 

complexity of such cases and less familiarity with their proper handling as a 

result of their infrequent occurrence. The high rate in such cases is of particular 

concern because it could lead the public to question the Act’s effectiveness, and 

it may discourage the filing of legitimate complaints.

4. Most of the dispositions labeled “problematic” were problematic for procedural 

reasons, in particular the chief judge’s failure to undertake an adequate inquiry 

into the complaint before dismissing it. We did not attempt to determine whether 

appropriate handling would have changed the substantive outcome. 

Chapter 5: Activity Outside the Formal Complaint Process

1. Based primarily upon our interviews, we conclude that informal efforts to resolve 

problems remain (as the Act’s sponsors intended) the principal means by which 

the judicial branch deals with difficult problems of judicial misconduct and disability.

2. The main problems that the informal efforts seek to address are decisional delay, 

mental and physical disability, and complaints about the judge’s temperament.

3. The 1993 Report of the National Commission on Judicial Discipline and Removal 

recommended that committees of local lawyers serve as conduits between lawyers 

and judges to communicate problems of judicial behavior. The Judicial Conference endorsed the proposal but few committees have been created. 

4. The Ninth Circuit has created a program to make counseling available at all 

times both to judges who may benefit from it and to other judges who may seek 

guidance as to how to deal with colleagues. Ninth Circuit judges report that the 

program has proved successful. 
Implementation of the Judicial Conduct and Disability Act ~ September 2006

Recommendations

1. The Judicial Conference should authorize the chair of its Review Committee, or 

a designee, to provide advice and counsel regarding the implementation of the 

Act to chief circuit judges and judicial councils. The role of the Committee, while 

advisory, should be sufficiently vigorous to address and ameliorate the kinds of 

problematic terminations, especially in high-visibility cases, that we describe in 

our report.

2. In dealing with chief judges and judicial councils in this more aggressive advisory 

role, Review Committee members should stress the desirability, in appropriate 

cases, of (1) chief judges’ identifying complaints, (2) transferring complaints for 

handling in other circuits, and (3) appointing special investigative committees.

3. The Review Committee (aided by the Federal Judicial Center) should help chief 

circuit judges, judicial council members, and circuit staff—especially those new 

to their positions—to understand and administer the Act. This assistance should 

consist, at least, of (1) an individual in-court orientation program for new chief 

judges and (2) the development and maintenance of materials, including a compendium, based on chief judges’ and councils’ interpretations of the Act, designed 

to facilitate learning from past experience.

 The orientation program and materials should emphasize, among other 

things, (1) the role of special committees, including their powers and limitations; 

(2) the meaning of statutory terms; (3) the chief judge’s authority in an appropriate instance to identify a complaint, particularly where alleged misconduct 

has come to the public’s attention through press coverage or other means; and 

(4) the desirability in an appropriate instance to transfer a complaint for handling 

outside the circuit and the mechanisms for doing so.

4. The Judicial Conference should ask its Review Committee to make available (on 

www.uscourts.gov) illustrative past and future chief judge dismissal orders and 

judicial council orders, appropriately redacted, in order to inform chief judges, 

judicial council members, and interested members of the media and the public 

how chief judges and councils have terminated complaints and why. Circuit staff 

should be encouraged to send orders promptly to be considered for public availability.

5. Circuit councils should ask all courts in the circuit to encourage the formation of 

committees of local lawyers whose senior members can serve as intermediaries 

between individual lawyers and the formal complaint process.

6. Circuit councils should require all courts covered by the Act to provide information about filing a complaint on the homepage of the court website, as well as to 

take other steps to publicize the Act’s availability.
Foreword and Executive Summary

7. Circuit councils, through their circuit executives or the clerks of court, should 

take steps to ensure the submission of timely and accurate information about 

complaint filings and terminations.

8. The Administrative Office should refine two aspects of its annual report on the 

Act’s administration. Table 11 should tally the number of special committees 

appointed each year. Table S-22 should report council actions in the same way 

that Table 11 does.

9. The Judicial Conference Review Committee should consider periodic monitoring 

of the Act’s administration.

10. The Federal Judicial Center should seek to ensure that all judges understand the 

Act and how it operates.

11. The Judicial Conference should make clear that it possesses the authority to 

review its Review Committee decisions on appeal by complainants and judges 

from judicial council orders.

12. The councils and Judicial Conference should consider giving support to programs 

that provide telephonic or similar assistance for chief judges and others where 

judicial disability or lack of judicial temperament is at issue. 

As noted earlier, committees of the Judicial Conference are examining other matters that fall under the rubric of “judicial ethics” but that do not directly involve the 

administration of the Judicial Conduct and Disability Act. One matter is compliance 

with statutory standards mandating a judge’s recusal from a case when he or she 

has any financial holding in the parties in litigation. Although recusal decisions are 

almost always merits-related and thus not covered by the Act, litigants (and sometimes others) nevertheless file complaints alleging improper failure to recuse, and 

chief judges must act on the complaints even if only to dismiss them. To reduce this 

unnecessary burden, we encourage the Judicial Conference to consider mandating 

use of conflict-avoidance software and other steps to reduce potential conflicts of 

interest and complaints over failure to recuse. Our report notes other steps courts 

have taken to try to reduce other judicial behavior that produces either complaints 

under the Act or is presented to chief circuit judges informally, such as local rules 

designed to avoid circuit judges’ delay in producing opinions assigned to them.

The body of this report and its appendices describe in detail our examination of 

the Act’s implementation and set forth the bases for these findings and recommendations.

11

Chapter 1

Committee Creation and Activities; Previous Studies; 

Act Provisions

Congress enacted the Judicial Conduct and Disability Act in 1980.1 The Act permits 

any person to file a complaint alleging misconduct by a federal judge or a federal 

judge’s inability to discharge the duties of office because of a mental or physical disability and describes how such complaints are to be treated.

The Committee

Committee creation—On May 25, 2004, Chief Justice Rehnquist appointed this sixmember Committee to assess how the judicial branch has administered the Act. The 

Chief Justice said “[t]here has been some recent criticism from Congress about the 

way in which the Judicial Conduct and Disability Act of 1980 is being implemented, 

and I decided that the best way to see if there are any real problems is to have a committee look into it.” (See Appendix A.) Chief Justice Roberts asked the Committee 

to continue its work. 

Members—Chief Justice Rehnquist appointed Associate Supreme Court Justice 

Stephen Breyer (chair), District Judge Sarah Evans Barker of the Southern District 

of Indiana, Senior U.S. Circuit Judge Pasco M. Bowman of the Eighth Circuit, U.S. 

District Judge D. Brock Hornby of the District of Maine, U.S. Circuit Judge J. Harvie 

Wilkinson III of the Fourth Circuit, and Sally M. Rider, administrative assistant to 

the Chief Justice. All appellate judges on the Committee had served as chief judges 

of their courts of appeals, and thus as chairs of their circuit judicial councils and 

members of the Judicial Conference of the United States. Both district judges on the 

Committee had served as members of the Judicial Conference and of its Executive 

Committee, and as members of their circuits’ judicial councils. Ms. Rider was a litigator in the District of Columbia for 13 years, then served as Chief Justice Rehnquist’s 

administrative assistant from August 2000 until September 2005, and she currently 

serves Chief Justice Roberts in the same capacity. Appendix B has biographical summaries for the Committee members.

Staff and budget—Chief Justice Rehnquist requested the directors of the Administrative Office of U.S. Courts and the Federal Judicial Center to assign members of the 

agencies’ staffs to assist us. Four Center employees and one Administrative Office 

employee provided principal support, and other staff of both agencies provided ad-
12 

Implementation of the Judicial Conduct and Disability Act ~ September 2006

ditional assistance, including Federal Judicial Center editorial assistance. Appendix 

C has biographical information about key staff.

We did our work with no special appropriation or grant of funds. The Federal 

Judicial Center and Administrative Office absorbed the salary and travel costs of their 

employees’ work for the Committee; the Center funded several small contract research 

projects. Committee members’ travel for meetings came from funds appropriated for 

the operation of the courts. Our individual interviews with chief circuit judges took 

place when members and chief judges were both in Washington for other business, 

or by telephone.

The Committee’s assignment—Chief Justice Rehnquist asked us to examine, in his 

words, “the way in which the Judicial Conduct and Disability Act of 1980 is being 

implemented.”

Because the great majority of complaints are resolved by dismissal by chief circuit 

judges, the central task was to assess the degree to which the actions of chief judges 

(and on rare occasion, judicial councils) complied with the Act. 

We undertook both quantitative and qualitative research to inform our assessment of the Act’s implementation by

• assessing the number and types of complaints filed and the types of 

dispositions provided by chief judges and judicial councils for statistical 

reporting years 2001 through 2005, based primarily on data supplied by the 

Administrative Office of the U.S. Courts (see Chapter 2); 

• documenting the processes and procedures that chief judges, judicial 

councils, and their staffs use to process complaints filed under the Act, based 

largely on our interviews and our staff’s interviews of current and former 

chief circuit judges, and circuit staff, and also surveying court websites to 

learn how, if at all, the websites provide information about the Act (see 

Chapter 3);

• analyzing three different sets of complaint dispositions for compliance with 

the Act and measuring the actions of chief judges and judicial councils 

against standards we developed for assessing compliance with the Act (see 

Chapter 4); and

• seeking to learn, through our interviews, about informal efforts to identify 

and resolve allegations of misconduct and disability (see Chapter 5).

We present recommendations in Chapter 6.

The Committee met five times, each time in Washington, D.C., starting with an 

organizational meeting on June 10, 2004. The last meeting was on June 28, 2006, to 

review findings and recommendations for this final report.

As of August 14, 2006, we received 105 unsolicited submissions from 48 individuals (for example, one individual sent us six separate packets over several months 

objecting to a chief judge’s dismissal of his complaint, which we later realized was 
13

Chapter 1: Committee Creation and Activities; Previous Studies; Act Provisions

case C-9, discussed in Chapter 4). Of the 48 individuals who communicated by letter 

or fax, as best we can determine:

• 22 protested a judicial decision or sent copies of filings in litigation;

• nine protested the disposition of a misconduct complaint under the Act;

• five alleged federal judicial misconduct (e.g., bias or conspiracy);

• 11 alleged misconduct by state judges or non-judicial officials (e.g., a U.S. 

attorney); and

• five asked to meet with the Committee. 

We sent a postcard acknowledging receipt of each submission and giving the citation of the Act as the proper vehicle for filing misconduct and disability complaints; 

because we had no authority to act on individual complaints, we took no other action. 

Previous studies of the Act and its administration

The Act’s administration has been the object of one major inquiry: that of the National Commission on Judicial Discipline and Removal, which Congress created in 

19902 and which filed its report in 1993.3 The Commission’s statutory charge, size, 

and funding, and thus its report and numerous supporting studies, went well beyond 

our narrower mandate: The report and studies covered the varied means available 

and potentially available to Congress and the executive branch in dealing with judicial 

misconduct and disability, as well as the administration of the 1980 Act and related 

actions within the judicial branch. The Commission made various recommendations, 

principally to the judicial branch, concerning the Act, its administration, and related 

matters, most of which have been implemented.

As to the Act’s administration, the Commission observed:4

It would be surprising if a rigorous evaluation of experience under the 

1980 Act had unearthed no instances where those charged with its 

implementation failed to treat complaints with the seriousness they 

deserved. The Commission identified such instances, but not many. 

The Commission based this conclusion on its own analysis, informed by several research inquiries undertaken for the Commission, including Jeffrey Barr’s 

and Thomas Willging’s Federal Judicial Center study of chief judges’ disposition of 

complaints and their informal resolution of allegations,5 Charles Geyh’s analysis of 

methods of judicial discipline other than those provided in the Act,6 and Richard 

Marcus’s review of public orders relating to complaints and the products of the 

Barr/Willging interviews.7

In 2002, the chair and ranking member of the House Judiciary Subcommittee on 

Courts, the Internet, and Intellectual Property asked the Federal Judicial Center for 

some follow-up research on chief circuit judge orders dismissing complaints, which 
14

Implementation of the Judicial Conduct and Disability Act ~ September 2006

the study found were generally in compliance with a specific statutory requirement 

and another Judicial Conference recommendation.8

Beyond the National Commission report, supporting research, and the 2002 FJC 

follow-up study of the Act’s administration, there have been several case studies on 

the disposition of highly publicized complaints filed under the Act in the 1980s,9 and 

at least two articles describing how real or asserted misconduct or disability problems 

were handled informally in the shadow of the Act.10

The Act’s major provisions

Congress enacted the Judicial Councils Reform and Judicial Conduct and Disability 

Act of 1980 to make circuit judicial councils more effective governance agencies by 

broadening their membership and enhancing their authority, including providing a 

formal means by which individuals could seek review of judicial behavior apart from 

decisions in cases. The sections that constitute the Judicial Conduct and Disability Act 

came after more than ten years of debate about the most appropriate federal judicial 

administrative structure to receive and process complaints of judicial misconduct 

and disability and the constitutional permissibility of various types of sanctions that 

could be statutorily authorized.11 The Act has been amended only twice. Congress 

enacted minor revisions in 1990,12 and in 2002 recodified the Act as a separate chapter 

in title 28.13 Appendix D reproduces the Act in its codified form.

Figure 1 provides an overview of the Act’s process for presenting and dealing with 

complaints of judicial misconduct and disability. The great majority of complaints 

end with the chief judge dismissal order or council refusal to upset that order.

Because of the complexities of processing a complaint, we describe the statutory 

steps in some detail.

Initiating the complaint—Section 351(a) authorizes “[a]ny person alleging that a 

judge has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts, or alleging that such judge is unable to discharge 

all the duties of office by reason of mental or physical disability” to “file with the 

clerk of the court of appeals for the circuit a written complaint containing a brief 

statement of the facts constituting such conduct.” Section 351(c) directs the clerk to 

transmit the complaint to the chief circuit judge (or, if the chief judge is the object 

of the complaint, to the active judge on the court of appeals who is senior in service) 

and to the judge complained against. (Complaints against International Trade Court 

or Federal Claims Court judges are handled by those courts’ chief judges.)

Section 351(b) authorizes the chief judge, by written order, to “identify” a complaint (begin the process) on the basis of “information available to the chief judge” 

and “thereby dispense with filing of a written complaint.”
15

Chapter 1: Committee Creation and Activities; Previous Studies; Act Provisions

Complaint initiated by complainant or 

by chief judge, copy to subject judge.

Chief judge reviews complaint and “may conduct a limited 

inquiry,” but “shall not undertake to make finding of facts 

about any matter that is reasonably in dispute.” 

Chief judge may:

Issue written order (1) that dismisses 

complaint as not in conformity with statute, as merits-related, as frivolous, or as 

lacking in factual foundation or (2) that 

concludes complaint on basis of corrective action taken or intervening events.

Complainant may petition judicial council to review dismissal order.

Appoint a special 

committee to investigate complaint, 

report to judicial 

council. 

Council, upon receipt of special 

committee report, may conduct additional investigation, dismiss complaint, take action authorized by 

statute, or refer complaint to Judicial 

Conference for action, including reference to House of Representatives 

for possible impeachment.

Complainant or judge aggrieved 

by council action may petition 

Judicial Conference for review.

or

Figure 1. Flowchart of Major Steps in Complaint Processing
16 

Implementation of the Judicial Conduct and Disability Act ~ September 2006

Chief judge review—Section 352(a) directs the chief judge to “expeditiously review” 

every complaint. The purpose of the review is “not . . . to make findings of fact about 

any matter that is reasonably in dispute.” The purpose is to determine if the complaint 

should be dismissed or the proceedings concluded, or, alternatively, if a special committee should investigate disputed facts. Section 352(a) authorizes the chief judge to 

“conduct a limited inquiry” to determine “whether appropriate corrective action has 

been or can be taken without the necessity for a formal investigation” or whether the 

complaint states facts that “are either plainly untrue or incapable of being established 

through investigation” by a special committee. The Act says a limited inquiry may 

include the chief judge’s seeking a response from the subject judge; oral or written 

communications by the chief judge or staff with the judge, the complainant, or other 

witnesses; and examination of relevant documents.

After completing the section 352(a) review, the chief judge, under section 352(b), 

must either:

• Terminate the complaint by (1) dismissing it as (a) “not in conformity with 

section 351(a)” (i.e., alleging conduct not covered by the Act); (b) “directly 

related to the merits of a decision or procedural ruling”; (c) “frivolous, lacking 

sufficient evidence to raise an inference that misconduct has occurred, or 

containing allegations which are incapable of being established through 

investigation”; or (d) “lack[ing] any factual foundation or . . . conclusively 

refuted by objective evidence”; or (2) “conclud[ing] the proceeding” because 

“appropriate corrective action has been taken or . . . action on the complaint 

is no longer necessary because of intervening events.” Section 352 directs the 

chief judge to dismiss the complaint or conclude the proceeding by “written 

order, stating his or her reasons” and provide the order to the complainant 

and subject judge. Either may petition the judicial council to review the 

order; a council’s denial of a petition is, as interpreted to this point, “final 

and conclusive.”

or

• Appoint “a special committee to investigate the facts and allegations contained 

in the complaint” and so advise the complainant and subject judge. The chief 

judge is to serve on the committee and to appoint to the committee “equal 

numbers of circuit and district judges of the circuit” (section 353(a)).

Special committee investigation and judicial council action—Section 353(c) directs 

the special committee to “conduct an investigation as extensive as it considers necessary” and expeditiously to “file a comprehensive written report thereon” with the 

circuit council, presenting the committee’s findings and its recommendations for 

council action.

Section 354 authorizes the council to undertake any additional investigation it 

finds necessary and to either dismiss the complaint or take any of a range of actions 
17

Chapter 1: Committee Creation and Activities; Previous Studies; Act Provisions

as to the subject judge, including the following: a temporary halt in case assignments; 

a private or public censure; certifying a district or circuit judge’s disability pursuant 

to 28 U.S.C. § 372(b); requesting such a judge’s voluntary retirement; or ordering 

the removal from office of term-limited judges (according to statutory procedures). 

Section 357 authorizes the complainant or subject judge to petition the Judicial 

Conference to review council actions taken under section 354. The council may also 

refer judicial misconduct to the Judicial Conference for its action, including advising 

the House of Representatives that impeachment may be warranted. 

Judicial Conference action—Section 354 authorizes the judicial council to refer any 

action to the Judicial Conference for resolution and to advise the Conference of any 

judicial conduct that may constitute grounds for impeachment, which the Conference may refer to the House of Representatives. Section 331 of title 28 authorizes the 

Judicial Conference to establish a “standing committee” to exercise its functions under 

the Act, and, pursuant to that authority, the Conference established its Committee to 

Review Circuit Council Conduct and Disability Orders (Review Committee).

Other provisions deal with written notice requirements; subpoena power of special 

committees, councils, and the Judicial Conference and its Review Committee; confidentiality of proceedings; and the effect of felony convictions on judges’ authority 

to decide cases and creditable service for taking senior status. Section 359(a) bars a 

judge who is the subject of special committee, judicial council, or Judicial Conference 

proceedings from serving on the circuit judicial council, the Judicial Conference, or 

the Conference’s Review Committee.

Illustrative Rules and Committee Standards

Section 358 authorizes judicial councils to adopt “rules for the conduct of proceedings” under the Act. In 1986, a special committee of the chief judges of the courts of 

appeals formulated Illustrative Rules Governing Complaints of Judicial Conduct and 

Disability (AO 2000) for circuit councils to consider adopting; the Review Committee revised them in 2000. Most circuit councils have adopted the Illustrative Rules 

verbatim or with slight modifications. 

For our research, we developed “Standards for Assessing Compliance with the 

Act,” in order to promote uniformity in Committee and staff assessments of complaint dispositions. The Standards (see Appendix E) draw from the Illustrative Rules 

and observed patterns of chief judge and judicial council actions in applying the Act. 

Chapter 4’s assessments of complaint terminations quote the Standards applicable 

to the particular aspect of the Act at issue. 

19

Chapter 2

Complaints Terminated; Source, Nature, and Object;

Types of Dispositions, 2001–2005

This chapter presents an overall description of all complaints terminated in fiscal 

years 2001 to 2005 (October 1, 2000, through September 30, 2005). 

Key findings:

1. The number of terminated complaints peaked in 1998 and has hovered between 

600 and 800 per year since then.

2. Almost all complaints are filed by prisoners or litigants.

3. Almost all complaints allege misconduct rather than disability.

4. Almost all complaints are dismissed by the chief judge; 88% of the reasons given 

for dismissal are that the complaint relates to the merits of a proceeding or is 

unsubstantiated.

5. The circuits vary considerably in the time they take to terminate complaints.

6. There are mistakes in the data that circuits submit to the Administrative Office 

of the U.S. Courts for national statistical reports on the Act’s administration; 

perhaps most serious, for the period we examined, the circuit data underreported 

the number of special committees that chief judges appointed.

Source of data

Circuit staff submit an “AO Form 372” to the Administrative Office for each terminated complaint (see Appendix F). The form classifies the complaining party or parties, the type (but not the names) of judge(s) complained about, the general nature 

of the complaint, the disposition of the complaint by the chief judge, and action, if 

any, by the judicial council. The AO compiles these data annually for Tables 11 and 

S-22 of Judicial Business of the United States Courts (see Appendix G), meeting the 

Act’s reporting mandates.14

The AO provided our staff the forms for the 3,670 complaints reported terminated 

from 2001 through 2005—these forms are the source of most of the information in 

this chapter. Additional information came from the actual case files for 604 of those 

complaints. (Our staff went through a sample of 593 case files from 2001–2003, and 

an additional 11 from dispositions after 2003, as part of the Committee’s assessment 
20 

Implementation of the Judicial Conduct and Disability Act ~ September 2006

of whether chief judges and judicial councils resolve complaints consistently with 

the Act’s requirements. See Chapter 4.)

Complaints terminated 

Table 1 shows that during 2001 through 2005, the 12 regional circuits and three national courts terminated at least 3,670 complaints, an average of 734 per year. (“At 

least” signifies that the drop in terminations in 2005 is almost surely an artifact of 

some circuits’ late reporting of terminations near the end of the year, as explained 

in Table 1’s * note.) The number of terminations varies by size of circuit, but with 

controls for the number of judges, most circuits fell within a range of plus-or-minus 

ten of the overall average of 44 complaints per 100 non-senior judges per year. The 

District of Columbia Circuit is the exception with 83 complaints. (To be clear, the 

ratio’s numerator includes all complaints, those against active status judges as well as 

against senior judges; the denominator, though, excludes senior judges, for two reasons. One is to allow the next paragraph’s comparison with termination data in earlier 

years, assembled for the National Commission on Judicial Discipline and Removal. 

The second reason is the difficulty of knowing how many senior status judges at any 

point are in fact doing no judicial work and thus far less likely to attract complaints. 

Including them in the denominator reduces the ratio of complaints per judge, but, 

we found, has little effect on the rank order of circuits that can be extracted from 

Table 1. The Administrative Office data do not distinguish complaints filed against 

senior judges from those against active judges.)

Figure 1 shows that the number of complaints peaked in 1998 and has stayed 

high since then. And complaints have increased more than the number of judges. 

Complaints in 1992 were about 24 per 100 non-senior judges in the eight circuits 

studied (354 complaints and 1,489 non-senior judges15). From 2001–2005, nationally there were an average of 44 complaints per 100 non-senior judges annually, as 

shown in Table 1.

There is some speculation that the 1996 Prison Litigation Reform Act16 may help 

explain this increase in filings over the last eight to ten years by causing an increase in 

complaints filed by prisoners—41% of all complaints filed in 2001–2005 (see Table 

2). That Act requires most prisoners who seek to file litigation in forma pauperis 

(including challenges to their convictions) to pay at least some portion of the filing 

fee and costs assessed through charges to their prison accounts.17 There is no charge, 

however, for filing a complaint under the Judicial Conduct and Disability Act. This 

causal relationship is speculation, though, in part because we do not have information on the proportion of complaints filed by prisoners prior to 1996.
21

Chapter 2: Complaints Terminated; Source, Nature, and Object; Types of Dispositions, 2001–2005

Table 1. Complaints Terminated in 2001–2005*

 Non-senior Annual rate

 judges in of complaints

 service per 100

 Total 2001 2002 2003 2004 2005 on 9/30/03 non-senior judges†

All circuits 3,670 652 779 754 819 666 1,658 44

1st 121 16 25 17 40 23 64 38

2d 382 75 93 71 52 91 136 56

3d 225 52 48 44 34 47 122 37

4th 316 61 62 72 73 48 127 50

5th 470 90 95 97 98 90 186 51

6th 357 76 98 72 64 47 151 47

7th 152 39 29 33 35 16 113 27

8th 324 41 57 88 93 45 110 59

9th 622 98 125 126 153 120 297 42

10th 196 30 47 42 44 33 113 35

11th 372 57 61 72 102 80 175 43

D.C. 116 17 36 12 29 22 28 83

Fed. 5 — — 2 2 1 12 8

CIT 2 — — 2 — — 9 4

CFC 10 — 3 4 — 3 15 13

* These figures vary slightly from the figures for terminated complaints in Table S-22 of the 2001 through 2005 Judicial 

Business of the United States Courts; those tables do not include the complaints reported very late in the yearly process. 

The 2005 figures in Table 1 do not include reports submitted after the reporting period and therefore underestimate 

the number of terminated complaints in that year to an unknown degree. The figures in this table correspond more 

closely to the figures in Table 11 of Judicial Business, which presents summary information about terminations.

† Computed by dividing the total number of complaints by five to determine the average number of complaints per 

year, dividing this figure by the number of non-senior judges in service on September 30, 2003, and then multiplying 

by 100.
22 

Implementation of the Judicial Conduct and Disability Act ~ September 2006

Complainants 

The numbers in this and the next sections reflect participations in the process rather 

than individuals. One complainant may participate more than once (file more than 

one complaint) or name two or more judges in a complaint, and one judge may 

receive more than one complaint. 

Litigants and prisoners dominate the complaint process. Table 2 indicates that 

during the five-year period:

• litigants constituted 51% (1,988 of 3,912) of the complainants;

• prisoners account for an additional 41% (1,588) (most prisoners who file 

complaints are also litigants, but AO Form 372 codes prisoners and litigants 

separately);

• complaints by court officials were especially rare, averaging only one per 

year;

• complaints by other public officials were also rare—the figure is somewhat 

distorted by the single complaint that was submitted by 15 House members 

(which we discuss in Chapter 4 as case C-17); and

• “other persons,” who constituted approximately 6% (229) of the complainants, 

are usually relatives of litigants or prisoners, or unrelated persons (including 

nonprofit organizations) with an interest in a particular case. 

0

200

400

600

800

1000

1200

1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005

Year

Complaints Terminated

Figure 2. Complaints Terminated by Year, 1982–2005
23

Chapter 2: Complaints Terminated; Source, Nature, and Object; Types of Dispositions, 2001–2005

Judges complained against 

During the five-year period, complaints named judges more than 5,000 times. (This 

refers not to 5,000 individual judges but to the number of times a judge was named 

in the complaints.) Considerably fewer individuals served as judges during those five 

years, which means that some judges were named more than once. District judges 

were approximately 56% (2,887 of 5,176) of the judges named. Appellate judges 

were named about 24% (1,262) of the time, with magistrate judges and bankruptcy 

judges named less often. 

The data cannot provide the number of individual judges complained about 

because the AO records do not identify judges by name. It appears unlikely, however, 

that each federal judge serving in the period received at least one complaint, or that 

a few judges received them all. Rarely did two unrelated complaints in our 593-case 

sample name the same judge. 

Table 2. Types of Complainants

 Court Public Other

 Total* Litigant Prisoner† Attorney official official persons

Total 3,912 1,988 1,588 81 5 21 229

1st 123 69 45 4 1 — 4

2d 403 266 97 5 — 16 19

3d 284 123 92 8 — 1 60

4th 437 262 155 3 — — 17

5th 476 153 304 9 — — 10

6th 365 163 163 7 — 2 30

7th 152 76 67 2 — 1 6

8th 324 90 217 9 — — 8

9th 637 392 191 13 1 — 40

10th 203 100 96 4 — — 3

11th 373 193 138 13 — — 29

D.C. 116 88 23 3 — 1 1

Fed. 5 5 — — — — —

CIT 2 1 — — 1 — —

CFC 12 7 — 1 2 — 2

* A complaint may be filed by more than one complainant and by more than one type of complainant.

† Most prisoners’ complaints related to their earlier civil or criminal litigation and might have been more 

accurately classified as a complaint by a former litigant. 
24

Implementation of the Judicial Conduct and Disability Act ~ September 2006

Naming more than one judge in a complaint occurred in approximately 12% of 

the terminated complaints. Complaints against multiple appellate judges were most 

common, occurring in 30% of the complaints that named an appellate judge. Such 

complaints often named the entire panel in response to an unsuccessful appeal, and 

on occasion named the trial judge(s) in the case. Table 4 shows that nationally, each 

appellate judge received annually an average of 1.58 complaints. When we control for 

number of judges, appellate judges were named at a rate almost twice that of district 

judges. Approximately 2% of the complaints named more than five judges. 

Table 3. Types of Judges Named in the Complaints

 Total instances

 of judges Appellate District Magistrate Bankruptcy

 being named judges judges judges judges

Total 5,176 1,262 2,887 850 177

1st 187 59 99 16 13

2d 383 76 236 63 8

3d 225 31 136 37 21

4th 494 125 287 73 9

5th 470 101 234 125 10

6th 477 84 318 62 13

7th 195 36 139 13 7

8th 668 133 353 166 16

9th 1,205 379 617 156 53

10th 262 56 151* 45 10

11th 371 65 201 89 16

D.C. 214 104 104 5 1

Fed. 13 13 — — —

CIT 2 — 2 — —

CFC 10 — 10 — —

* A complaint filed in the Tenth Circuit named a judge serving on the Court of International Trade 

along with three judges from the Tenth Circuit. That Court of International Trade judge is coded as a 

Tenth Circuit district court judge since the complaint was considered by the Tenth Circuit.
25

Chapter 2: Complaints Terminated; Source, Nature, and Object; Types of Dispositions, 2001–2005

Allegations

Table 5 indicates that misconduct allegations far outweighed disability allegations. 

Of the 5,227 allegations, only 190 (3.6%) were for conduct related to mental or 

physical disability. Among all allegations, by far the most common were charges of 

prejudice or bias (28.4%) and abuse of judicial power (23.4%), together constituting 

52% (2,733 of 5,277) of all allegations. The “other” category constitutes 17% (933) 

of the allegations. 

Table 4. Annual Rate of Complaints for Different Types of Judges*

 Appellate District Magistrate Bankruptcy

 judges judges judges judges

All circuits 1.58 0.86 0.33 0.11

1st 1.97 0.71 0.19 0.20

2d 1.27 0.86 0.28 0.07

3d 0.52 0.49 0.22 0.21

4th 1.92 1.13 0.36 0.08

5th 1.35 0.58 0.39 0.08

6th 1.40 1.04 0.30 0.07

7th 0.65 0.60 0.09 0.05

8th 2.96 1.68 0.81 0.18

9th 2.92 1.15 0.32 0.16

10th 0.93 0.84 0.20 0.10

11th 1.18 0.60 0.29 0.09

D.C. 2.31 1.39 0.33 0.20

Fed. 0.22 — — —

CIT — 0.04 — —

CFC — 0.13 — —

* Computed by dividing by five the total number of times each type of judge was named in a complaint and dividing this figure by the number of non-senior judges of that type in service on September 30, 2003. This table differs from Table 1 in that this table focuses on the number of times judges 

are named in the complaints, not the number of complaints.
26 

Implementation of the Judicial Conduct and Disability Act ~ September 2006

Table 5. Types of Allegations

Abuse of Undue

Total Prejudice/ judicial Bribery decisional Incompetence/ Conflict of Mental Physical

allegations* bias power corruption delay neglect interest disability Demeanor disability Other

Total 5,277 1,497 1,236 364 364 320 244 160 129 30 9331st 206 81 40 13 17 20 14 7 7 2 52d 632 169 123 29 43 32 45 36 29 3 1233d 431 74 17 22 30 22 36 16 7 2 2054th 394 93 162 25 18 25 13 15 9 3 315th 616 136 96 21 41 13 17 13 9 2 2686th 363 221 29 26 14 19 12 11 1 — 307th 169 48 39 1 23 1 3 3 7 — 448th 493 120 170 55 51 47 13 8 12 2 159th 1,091 237 283 150 80 82 52 38 34 12 12310th 260 83 68

4 21 3 18 2 3 — 58

11th 452 126 187 18 22 53 13 8 9 3 13D.C. 139 96 14

— 3 2 8 1 1 — 14

Fed. 8 5 3 —

—

—

—

—

—

—

—

CIT 3 1 1 — 1 —

—

—

—

—

—

CFC 20 7 4

—

— 1 — 2 1 1 4

* A complaint may allege multiple grounds of misconduct; 33% of the complaints included more than one allegation.
27

Chapter 2: Complaints Terminated; Source, Nature, and Object; Types of Dispositions, 2001–2005

Action taken by the chief judge 

Section 352(a) of the Act tells chief judges to review complaints “expeditiously.” The 

commentary to Illustrative Rule 4 says that “it would be a rare case in which more 

than sixty days is permitted to elapse from the filing of the complaint to the chief 

judge’s action on it.” Table 6 shows that, nationwide, 38% of the complaints consumed 

more than 60 days to disposition. Individual circuits’ processing times vary greatly. 

In the Seventh Circuit, half of the complaints were resolved within eight days, and 

in the Fifth Circuit, half within 13 days. By contrast, in the Second Circuit, half the 

complaints were resolved within 150 days, and 2% were resolved within 60 days. 

These figures include, as to dismissed complaints, only those in which the complainant did not petition the judicial council to review the chief judge dismissal 

order under section 352(c). Complainants sought review of 44% of the chief judge 

orders, and in those cases the AO data do not include the date the complaint was 

terminated by the chief judge. But there is no reason to believe those dismissals differ 

from unappealed dismissals as to the time from filing to chief judge order. 

Table 6. Time to Disposition by Chief Judge

 Complaints (with no Days to resolve Percent consuming

 petitions to council) 50% of complaints more than 60 days

All circuits 2,034 45 38%

1st 38 74 60%

2d 202 150 98%

3d 96 25 12%

4th 170 24 3%

5th 196 13 2%

6th 181 45 35%

7th 116 8 6%

8th 206 62 54%

9th 390 48 19%

10th 90 29 10%

11th 283 109 78%

D.C. 55 26 9%

Fed. 5 56 60%

CIT 2 164 100%

CFC 6 226 83%
28 

Implementation of the Judicial Conduct and Disability Act ~ September 2006

Table 7 shows the reasons chief judges gave in their orders dismissing complaints 

or concluding proceedings; orders frequently give more than one reason. Reasons 

included:

• allegations directly related to the merits of a judicial decision (52%, or 2,668 

of 5,141 reasons offered);

• “frivolousness,” i.e., the complaint lacked adequate factual specification in 

support of the allegations, or a limited factual inquiry by the chief judge 

revealed that the allegations could not be proven (36%, or 1,835 of 5,141 

reasons offered)—“frivolous” and “merits-related” were often mentioned 

together in a dismissal; 

• complaint not in conformity with the statute (11%, or 564 of 5,141 reasons 

offered), such as misconduct charges against someone other than a judge; 

and

• appropriate corrective action had already been taken, or action was no longer 

necessary because of intervening events (approximately 1%, or 74 of 5,141 

reasons offered).

Table 7. Reasons Given in Chief Judge Dismissal Orders

 Total Directly Appropriate Action no longer

 reasons for Nonconformity related to corrective necessary due to

 disposition* with statute merits Frivolous action taken intervening events

 Total 5,141 564 2,668 1,835 32 42

1st 254 53 90 108 1 2

2d 665 152 281 227 3 2

3d 419 20 214 180 3 2

4th 464 60 253 148 — 3

5th 608 9 390 202 3 4

6th 370 61 243 62 3 1

7th 170 17 93 57 2 1

8th 450 87 182 165 8 8

9th 921 40 412 461 7 1

10th 210 9 165 35 1 —

11th 440 8 269 145 1 17

D.C. 152 45 62 44 — 1

Fed. 5 — 5 — — —

CIT 1 — 1 — — —

CFC 12 3 8 1 — —

* Chief judges often cite multiple reasons for the disposition. Table S-22 of Judicial Business of the United States Courts

records only one basis for the disposition by the chief judge. 
29

Chapter 2: Complaints Terminated; Source, Nature, and Object; Types of Dispositions, 2001–2005

Judicial council actions; special committee appointments 

The complainant petitioned the judicial council to review the chief judge’s order in 

44% (1,592 of 3,627) of the dismissed or concluded complaints. According to the 

data submitted to the AO (the data, as we note below, appear mistaken in part), the 

councils in each instance either denied the petition or, pursuant to a few circuits’ 

practice, granted the petition and then dismissed it on the merits. 

Table 8 shows the dispositions of matters in which the chief judge did not dismiss the complaint or conclude the proceeding. The table is based on the AO 372 

forms the circuits submitted to the AO for 2001–2005; the 593 actual case files our 

staff examined for terminations in 2001–2003; and 11 case files they examined for 

terminations in 2004–2005 (11 high-visibility cases). 

According to these data, chief judges appointed nine special committees to investigate 15 complaints filed against nine judges. The judicial councils:

• dismissed six complaints filed against five judges;

• imposed public censure on two judges (involving a total of seven complaints) 

and private censure on one judge (involving one complaint); and

• imposed “other discipline” on one judge (according to AO data; the case file 

is sealed).

Table 8. Special Committees and Council Action

 2001–2003 2004–2005 2001–2005

 Circuit data Files Total Circuit data Total

Special committees 

Appointed 1 5 6 3 9

Complaints investigated 8 7 15

Council actions as to the 

nine judges complained against 

Complaints dismissed 3 2* 5

Imposed public censure 1† 1* 2

Imposed private censure 1 1

Imposed “other discipline”‡ 1‡ 1‡

* According to circuit-supplied data, the judicial council dismissed all seven complaints considered by the three 

special committees appointed in 2004 and 2005. However, our investigation of 11 high-visibility cases after 2003, 

reported in Chapter 4, included one special committee investigation of five related complaints, in response to 

which the council issued a public censure (case C-17 in Chapter 4).

† Two related complaints combined in one special committee investigation and council action.

‡ Sealed record.
30 

Implementation of the Judicial Conduct and Disability Act ~ September 2006

According to data submitted to the AO, in no instance during this five-year period 

did the councils exercise their authority to direct the chief judge to take action against 

a magistrate judge, certify a judge as disabled, or request voluntary retirement.

Errors in the circuit-reported data

Cross-checking 593 of the over 2,000 AO-372 forms for 2001–2003 dispositions 

against the actual case files revealed some errors in the data the circuits submitted to 

the AO. (As noted, our staff examined 593 actual case files for 2001–2003, but only 

11 files for 2004–2005; had they examined a larger number of 2004–2005 files, they 

may have found more errors.)

We do not question the overall picture presented by the circuit-submitted data 

but are concerned about the apparent underreporting of matters not dismissed by 

the chief judge. More specifically:

• As noted above, the 593 files revealed six special investigative committee 

appointments in 2001–2003, but the circuit data reported only one of them. 

Table 11 of the 2003 Judicial Business of the United States Courts reports the 

work of all six committees only because AO staff identified them through a 

supplemental telephone survey. 

• The circuit-submitted data include no instance where a council, rather than 

deny a petition to review a chief judge’s dismissal, instead sent the matter 

back to the chief judge for appointment of a special committee. The case files, 

however, reveal one such council action (discussed as case C-3 in Chapter 

4).

• The circuit-submitted data reveal no instances in which the council ordered 

a suspension in the assignment of new cases. However, the case files reveal 

that in one instance of public censure (discussed as case C-16 in Chapter 4), 

the council also imposed a minimum of six months leave of absence, which 

would have suspended the assignment of new cases. 

• Court personnel sometimes misclassified complaining litigants and 

prisoners as “other persons.” Also, the forms identify attorneys as filing only 

2% (81) of the complaints from 2001–2005, but the 593 case files for 2001–

2003 reveal several attorney complainants whom the corresponding forms 

misclassified as “other persons,” probably because they did not participate 

in the underlying case. Thus, the total population of complaints includes 

at least slightly more attorney complainants than indicated in the circuitprovided data. 

• Examination of the case files reveals, as Barr and Willging found in 1993,18

that circuit staff’s coding of allegations often varied among the circuits. 

Some use the “other” designation to include narrower issues that are related 

to the existing categories shown above in Table 5.

These discrepancies undergird our seventh recommendation in Chapter 6.
31

Chapter 3

How the Judicial Branch Administers the Act—Process

This chapter describes the processes and procedures the regional circuits use for 

implementing the Act. (We have not included the three national courts in these 

descriptions because they receive very few complaints and their structural arrangements are different from those of the regional circuits.)

Key findings:

1. Many courts do not use their websites to provide the public with information 

about the Act and about how to file a complaint.

2. In most circuits, staff in the clerk’s office or in the circuit executive’s office analyze complaints and present them to the chief circuit judge, often with a draft 

order.

3. Chief judges report that, consistent with the Act, they reserve for themselves 

decisions whether to undertake further inquiries about complaint allegations, 

e.g., seeking a response from the judge, speaking to witnesses, or other inquiries 

that go beyond simple inspection of routine documents.

4. In the 593-case sample (i.e., the sample that overrepresents complaints most 

likely to allege conduct that the Act covers):

• chief judge orders were ordinarily consistent with the statutory requirement 

that they state reasons and with Judicial Conference policy that they restate 

the complaint’s allegations; and

• in about half the instances chief judges undertook limited inquiries—the 

most common limited inquiry took the form of an examination of the record 

in the underlying court case.

Providing information about the Act

Before describing circuit-level procedures for resolving complaints, we answer a 

broader question: What do federal courts do to make individuals aware of the Act, 

what it covers and does not cover (e.g., the merits of judicial decisions), and how to 

file a complaint? We did not have the resources to study the degree to which courts 

use all the means available to them to make this information available, e.g., through 

notices posted in the clerk’s office and speeches to bar or civic groups. We therefore 
32 

Implementation of the Judicial Conduct and Disability Act ~ September 2006

determined to assess the availability of information on the courts’ websites. In 2002, 

the Judicial Conference (on the recommendation of its Review Committee and two 

members of Congress) urged “every federal court to include a prominent link on its 

website to its circuit’s forms for filing complaints of judicial misconduct or disability 

and its circuit’s rules governing the complaint procedure.”19

Our research staff examined all court of appeals and district court websites; they 

spot-checked bankruptcy court websites sufficiently to justify the impression that 

patterns in the bankruptcy courts would be similar to those observed in the district 

courts.

This research entailed three questions:

• Did the website include information about the complaint process, and, if so, 

what information? 

• Was the information available on the homepage, or did a user have to open 

some other place on the website to get the information, and, if so, what was 

the title or designation of that link? 

• How many “clicks” were required to get to the information? 

The main research was performed in the spring of 2005; spot checks in the spring 

of 2006 suggest only a few changes from the situation observed in 2005.

Courts of appeals

At the time of the research, all 13 courts of appeals websites included information 

about the Act. The information in each instance was the judicial council’s rules 

governing complaint filing and processing and the form for filing (or a statement 

that no form was necessary but identifying the information necessary to include in 

a complaint); a few websites included a brief explanatory preface to the rules. 

• Three websites had the information about the Act on the homepage, under 

titles such as “Judicial Misconduct.”

• Eight required one click beyond the homepage.

• Two required at least two clicks. 

The link on the homepage typically was “Rules and Procedures” or some variation.

District courts

A person who wanted to file a complaint against a district judge would turn to the 

respective court of appeals website only if he or she were familiar with the Act’s filing 

requirements. One not familiar with the Act would turn naturally to the website of 

the district of the subject judge. That no doubt is why in 1994 the Judicial Conference 

urged each district court to include in its local rules a reference to the Act and the 

circuit’s rules,20 and, as noted, in 2002 the Conference urged each court to prominently 

display on its webpage links to the complaint form and to the circuit rules.21
33

Chapter 3: How the Judicial Branch Administers the Act—Process

Our research staff could find no information about the complaint procedure 

on 53 of the 94 district websites examined in 2005. Of the 41 sites that had some 

information at the time of the research:

• four had the information on the homepage itself; 

• a majority required one click to get the information;

• 15 had the information in their local rules;

• 12 had the information under “General Information” or some variation; 

other links were “Forms,” “FAQs,” “Judges,” and “Links”; and

• 28 had links to the circuit’s rules and complaint form; 13 told the user to 

obtain the information by calling, writing, or visiting the office of the circuit 

clerk or executive, or, in a few instances, the district clerk’s office.

Sites that included complaint information in their local rules typically provided 

the user no onscreen cue that the rules had the information. The user would have to 

surmise that the “Local Rules” would provide information on filing a complaint, then 

open the local rules, then surmise that the civil rules, not the criminal rules, had the 

information (in almost all districts), and then scroll through the rules or their table 

of contents looking for a heading such as “Judicial Complaints,” which were typically 

located in the 80s (e.g., local civil rule 83). 

In any event, it appears that providing easy website access to information about 

filing complaints does not result in a higher rate of complaints filed. Our research staff 

compared data on website information availability with the number of complaints 

(adjusted for the number of judges) and found no consistent statistically significant 

relationship. 

Appendix H includes two websites that provide ready access to information that 

would assist persons seeking to learn about the complaint process.

Initial analysis of the complaint

We turn now to describe how the circuits process complaints once filed. These descriptions are based on staff interviews and follow-up inquiries in the spring of 2006.

In two regional circuits, the complaint goes directly to the chief judge’s chambers. 

In the other ten circuits, a staff person outside the chief judge’s chambers is responsible for at least some initial review of the complaint and, in most cases, preparation 

of a draft order or a memorandum analyzing the complaint, or both. That task falls 

to the

• circuit executive’s office in five circuits;

• clerk’s office in three circuits;

• staff attorney’s office in one circuit; and

• appellate conference attorney’s office in one circuit. 
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Implementation of the Judicial Conduct and Disability Act ~ September 2006

At least four circuits provide for some review of this staff-prepared material before 

it goes to the chief judge, usually by another staff person in the same office.

Submission to the chief judge

In five of the ten circuits in which the complaint does not go directly to the chief 

judge’s chambers, the chief judge receives, along with the complaint, a draft order and 

supporting memoranda. In the other five, the chief judge receives the complaint, the 

draft order and analysis, and, if appropriate, supporting material that the staff finds 

relevant and readily available in the public record, such as docket sheets. 

Chief judges told us that the staff typically alerts them to unusual complaints. 

One said in an interview, for example, that the chief deputy “might alert me that 

there’s something tricky,” giving as an example one of the high-visibility complaints 

we discuss in Chapter 4. “In such cases,” the chief judge continued, “we may want an 

answer from the respondent judge.” 

Chief judge orders

In finalizing the disposition order, chief judges report that they may revise the staffprepared orders to some degree. One former chief judge said the staff person “would 

send me a proposed disposition. I would do light editing on [the] draft, and that was 

that. For those few cases that were not insubstantial, I would do the further work, 

[the staff person] was not involved. Then I would get help from a law clerk if there 

were legal questions.”

One particular issue is whether the chief judge, in orders dismissing or concluding a complaint, has

• “stat[ed] his or her reasons” (section 352(b) of the Act); and

• “set forth the allegations of the complaint and the reasons for the disposition,” 

as recommended by the Judicial Conference.22

The AO-372 forms that circuits provide the AO do not indicate how often chief 

judge dismissal orders comply with these provisions. However, as explained in 

Chapter 4, our staff reviewed the case files of a sample of 593 cases drawn from all 

terminations in 2001 through 2003. These files provide information about procedural 

characteristics of the complaint dispositions that the AO forms do not provide. As 

explained in Chapter 4, the sample complaints are more likely than a sample of complaints drawn totally at random to allege conduct that is the focus of the Act. One 

cannot assume that the percentages below would necessarily obtain in an analysis of 

all terminations.

With that caveat, the chief judge orders that terminated the complaints in the 

593-case sample almost always restated an allegation from the complaint (92% of 

the orders) and offered reasons that supported the disposition (86% of the orders). 

These compliance levels are quite similar to those found in the 2002 study of a sample 

of complaints drawn completely at random, as shown in Table 9.
35

Chapter 3: How the Judicial Branch Administers the Act—Process

The reasons offered in the 593-case sample usually involved citation to the 

council’s rules for processing complaints (67% of the orders) or to a previous order 

of the circuit council (24% of the orders). They rarely cited the Code of Conduct for 

United States Judges (4% of the orders) or advisory opinions issued by the Codes 

of Conduct Committee of the Judicial Conference of the United States (2% of the 

orders). 

In Committee interviews, chief judges emphasized the importance of both these 

elements (restatement of allegations and the reason for the disposition) of their 

orders. For example, “[t]he complainant has a reasonable expectation of a reasoned 

resolution, so we don’t do boilerplate.” “The complainant should know from our 

public order that I did read the complaint, even if complainant doesn’t like my disposition.” Another said, “I try to be careful and forthcoming in the dismissal orders. 

Not just ‘You lose,’ but to explain politely, even to a complainant who is using the 

wrong procedure, why the complaint doesn’t work. This is necessary to accord the 

process some dignity.” 

Limited inquiries 

Section 352(a) authorizes the chief judge to “conduct a limited inquiry for the purpose 

of determining (1) whether appropriate corrective action has been or can be taken 

without the necessity for a formal investigation; and (2) whether the facts stated in 

the complaint are either plainly untrue or are incapable of being established through 

investigation.” Section 352(a) says a limited inquiry can include the chief judge’s seeking a response from the subject judge and can include the chief judge or his or her 

staff designees communicating orally or in writing with the judge, the complainant, 

or other witnesses, and examining relevant documents.

The circuits are fairly consistent as to when inquiries go beyond the face of the 

complaint. In all circuits, staff in or outside the chief judge’s chambers have the authority to attach the docket sheets, and perhaps transcripts, in the underlying case if 

they believe those materials will aid the chief judge in evaluating the complaint and 

proposed disposition. (Personnel in three circuits emphasized that the chief judge’s 

approval is necessary before staff may order a transcript produced at government 

Table 9. Percentage of Orders Restating Allegations 

and Giving Reasons, 2002 and 2004

 2002 random sample23 2004 stratified sample

Restated allegations 89% 92%

Stated reasons 88% 86%
36 

Implementation of the Judicial Conduct and Disability Act ~ September 2006

expense.) And, of course, the chief judge may always call for transcripts or docket 

sheets in cases where the staff did not provide them. Three circuits reported that 

staff may make minor inquiries of the subject judge or a witness without consulting 

with the chief judge. For example, one staff member said in an interview that if a 

complaint alleged a pattern of delay but the judge’s statistics indicated none, the staff 

member might ask the judge about it. 

In all circuits, though, it is for the chief judge alone to decide whether to undertake 

a more extensive inquiry, one that would involve contacting the subject judge or a 

witness about any nontrivial factual allegation, or, as the statute provides, seeking a 

written response from the judge. As one chief judge put it in a Committee interview, 

“[o]ccasionally staff will call and say, this complaint is unusual, can we do additional 

investigation? . . . Staff won’t generally do any investigation beyond looking at the 

public record unless I first give the go-ahead.” Inquiries of the subject judge or witnesses are not the only kind of inquiries. One former chief judge said, “[o]ccasionally, 

I feel my own lack of trial experience. So sometimes I need to talk to someone whose 

judgment I trust. Often I go to a particular long-time circuit judge who was once 

a district judge as well.” Another said, “I also consult with an executive committee 

consisting of the former chief judge, a senior judge with extensive experience with 

code of conduct matters, and an active court of appeals judge.” 

Circuit data submitted to the Administrative Office do not indicate how often 

limited inquiries occur, but our staff obtained that information from the case files 

of our modified random sample of 593 cases. The files in 302 of the 593 cases in 

the sample include some form of limited inquiry because they contain information 

beyond the complaint itself. Of those 302 limited inquiries:

• the most common was obtaining the record in the underlying case (87% of 

the 302 files, including several circuits that routinely include the underlying 

record in the information provided the chief judge);

• in 11%, the files show that the chief judge asked the subject judge for a 

written response; and

• in 23% percent, the chief judge made some other form of limited inquiry, 

such as examining previous allegations of misconduct, discussing alleged 

incidents with other judges and attorneys, or examining the subject judge’s 

workload when charges included undue delay in responding to a motion. 

Table 10 shows these various types of inquiries as a percentage of all inquiries and 

of all cases in the sample. The total percentages exceed 100 because one complaint 

may have occasioned more than one type of inquiry.
37

Chapter 3: How the Judicial Branch Administers the Act—Process

Again, these percentages might differ in a randomly drawn sample of complaints.

Monitoring petitions for review

Finally, most circuits provide for monitoring of the complaint through the judicial 

council petition process. In eight circuits, that task falls to the same office that prepares 

the initial write-up of the complaint. (One chief judge said in a Committee interview, 

“I always read the petitions for review of my dismissal orders. I want to make sure I 

didn’t blow the facts [when] I’m writing detailed orders.”) 

Table 10. Types of Limited Inquiries in 593-Case Sample, 2001–2003

 Complaint files % of all complaints % of 593-case 

 revealing limited inquiry with limited inquiries sample

Complaints with 302 51%

limited inquiries

Examined underlying 264 87% 46%

record in case

Sought written response 34 11% 6%

from judge

Other form of limited inquiry 68 23% 11%

39

Chapter 4

How the Judicial Branch Administers the Act—Results

This assessment of how chief circuit judges and judicial councils terminated complaints is based on our analysis of three separate groups of actual terminations. 

Key findings:

1. Overall, terminations that are not consistent with our understanding of the Act’s 

requirements are rare, amounting to about 2% to 3% of all terminations.

2. Chief circuit judges’ rate of problematic dispositions is consistent with the rate 

reported in 1993 (for the period 1980–1991) by the National Commission on 

Judicial Discipline and Removal, despite the substantial increase since 1991 in 

the per-judge caseload of circuit judges (including chief judges) as well as in the 

number of complaints with which chief circuit judges must deal.

3. The rate of problematic dispositions is significantly higher, about 29%, for 

complaints that have come to public attention. The higher rate may reflect the 

greater complexity of such cases and less familiarity with their proper handling as 

a result of their infrequent occurrence. The high rate in such cases is of particular 

concern because it could lead the public to question the Act’s effectiveness, and 

it may discourage the filing of legitimate complaints.

4. Most of the dispositions labeled “problematic” were problematic for procedural 

reasons, in particular the chief judge’s failure to undertake an adequate inquiry 

into the complaint before dismissing it. We did not attempt to determine whether 

appropriate handling would have changed the substantive outcome. 

We assessed three groups of dispositions:

• a sample of 593 complaints terminated from 2001–2003 that overrepresented 

complaints most likely to allege behavior covered by the Act (see “593-case 

sample” in this chapter);

• a separate sample of 100 termination from 2001–2003, drawn at random 

(see “100-case sample” in this chapter); and

• 17 “high-visibility” complaints terminated from 2001–2005 (see “Disposition 

of high-visibility complaints” in this chapter).

The section titled “Comparison of assessments, comments” summarizes and 

compares the three assessments and offers conclusions.
40 

Implementation of the Judicial Conduct and Disability Act ~ September 2006

Overall considerations

Time frames—Our first two samples came from 2,108 terminations, in fiscal years 

2001–2003, that circuits reported to the Administrative Office by September 30, 

2003 (the last full year prior to our May 2004 appointment). (The circuits reported 

77 additional 2003 terminations after September 30, too late to be included in our 

database.)

We began the assessment of high-visibility complaints in October 2005 and thus 

were able to draw from the 2001–2005 pool of terminations. 

Confidentiality of files, redaction of information—Section 360(b) of the Act requires 

that any written order of a judicial council or the Judicial Conference imposing some 

form of sanction be available to the public through the clerk’s office. By its silence, the 

statute also permits the circuits to release chief judge and judicial council dismissal 

orders. Following Illustrative Rule 17(b), circuits make council orders imposing discipline and dismissal orders (which do not include judges’ or complainants’ names) 

available for public inspection in the court of appeals clerk’s office and at the Federal 

Judicial Center. 

Beyond those orders, section 360(a) bars “any person in any proceeding” from 

disclosing “papers, documents, and records of proceedings related to investigations 

conducted under” the Act. Illustrative Rule 16(h), however, suggests that judicial 

councils authorize disclosure of such material if the disclosure is “justified by special 

circumstances and . . . not prohibited by” section 360. Rule 16(h) would authorize 

disclosure to “Judiciary researchers” studying the Act’s operation, if the study has 

been approved by the Judicial Conference or its Review Committee. Most circuits 

have adopted these provisions. A letter dated August 16, 2004, to our chairman from 

Judge William Bauer, then-chair of the Review Committee, provided the approval 

identified in Rule 16(h), whereupon Justice Breyer wrote on August 26 to each circuit 

and national court chief judge requesting access to complaint files. All chief judges 

responded affirmatively save for one specific instance of a highly specialized complaint 

disposition.

Our descriptions of the cases quote from the chief judges’ and councils’ orders, 

which are public, and, if they have been made public, other documents (such as subject 

judges’ responses to complaints). We have not quoted from nonpublic documents 

other than passages quoted in public documents. Where it would be impossible to 

describe the matter at hand based solely on the public order, we have paraphrased 

other documents, typically at a higher level of factual generality.

Rule 16(h) calls for “appropriate steps . . . to shield the identities of the judge 

complained against, the complainant, and witnesses from public disclosure.” We 

identify no judges, complainants, witnesses, or circuits by name, even in cases where 

the subject judge waived the Act’s confidentiality provisions or in highly publicized 

cases where many readers will know the subject judge’s identity.
41

Chapter 4: How the Judicial Branch Administers the Act—Results

Committee Standards—Key to our assessment of the terminations are our “Standards 

for Assessing Compliance with the Act.” We adopted them because the Act’s provisions often speak generally, and we believed it important to have a common point 

of reference as to the Act’s meaning. The Standards are based on language in the 

Act, language in the Illustrative Rules and their commentary, and understandings of 

the Act revealed in over 20 years of the Act’s application. Thus, to say a chief judge’s 

disposition is “problematic” under Committee Standard 7 means that the disposition 

is inconsistent with our understanding of section 352(b)(2) of the Act (chief judge 

may conclude the proceedings on a finding that “appropriate corrective action has 

been taken”) as revealed in the meaning of its words and elaborated by the Illustrative Rules and commentary, and interpreted by chief judges. 

We approved the Standards in August 2004 and revised them slightly in June 

2005 and March 2006, as their application to actual cases revealed the need for some 

adjustment to ensure they captured our understanding of the Act’s requirements. We 

summarize the Standards (and describe the adjustments we made) in our discussion 

of the terminations. The full text is at Appendix E.

593-case sample

This section describes our review of a sample of 593 complaint dispositions drawn 

from 2,108 complaints terminated during statistical years 2001–2003 (October 1, 

2000, through September 30, 2003). This phase of our research extended from July 

2004 through January 2006.

Drawing the sample—The sample included, first, all complaints that were most likely 

to involve allegations that come within the Act’s reach, and then a random sample 

of the remaining complaints. The sample components are shown in Table 11 with a 

comparison to the full population.
42 

Implementation of the Judicial Conduct and Disability Act ~ September 2006

Table 12 shows that the stratification resulted in proportions of filers and dispositions different from the population of all 2001–2003 complaints.

Table 11. Complaints in 593-Case Sample

 Sample Population

Complaint type Number Percentage Number Percentage

All complaints that involved some action 38 6.4% 38 1.8%

other than dismissal or denial of further 

review by the chief judge or the judicial 

council

All remaining complaints filed by attorneys, 41 6.9% 41 1.9%

court officials, and other public officials

All remaining complaints that chief judges 139 23.4% 139 6.6%

dismissed as not in conformity with the 

statute without stating other reasons

A 33% random sample of the remaining 181 30.5% 597 28.3%

complaints that chief judges dismissed as 

(1) frivolous or (2) not in conformity with 

the statute and frivolous and/or merits-related

A 15% random sample of remaining 194 32.7% 1,293 61.3%

complaints dismissed by the chief judge as 

merits-related (perhaps among other reasons) 

or with no reason given 

TOTAL 593 100% 2,108 100%

 (rounded) (rounded)

Table 12. Filers and Dispositions in Sample and Population

Sample Population

Complaints by attorneys 7% 2%

Complaints by prisoners 37% 44%

Complaints found not in conformity w/Act 24% 15%

Complaints found frivolous 39% 48%

Complaints found merits-related 31% 69%
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Chapter 4: How the Judicial Branch Administers the Act—Results

Table 13 shows that the individual circuits and courts were represented in the 

sample in proportions very similar to those in the entire population of 2001–2003 

terminations.

Of the complaints in the sample, 87% arose in the context of an underlying case. 

Less than 1% involved administrative actions related to court staff or extrajudicial 

conduct. None concerned behavior prior to appointment as a judge. Twelve percent 

were difficult to classify, and a few were very hard to understand.

Method of review—After drawing the sample and identifying the 593 terminated 

complaints, at least two members of the research staff, starting in September 2004, 

reviewed case files in the circuit headquarters, completing a coding form for each, 

which did not include the name of the judge. The researchers’ task was to assess 

whether each termination was consistent with the Act, as interpreted by the Committee-approved Standards. 

To be sure the researchers were applying the Standards as we expected, in January 2005 we reviewed 53 of their assessments drawn from the roughly 300 they had 

assessed to that point—a random sample of 40 terminations they regarded as “nonTable 13. Distribution of Complaints in the Sample, by Circuit

 Sample Population

Circuits Complaints Percent Complaints Percent

All 593 100% 2,108 100%

1st 16 3% 58 3%

2d 67 11% 210 10%

3d 33 6% 140 7%

4th 53 9% 191 9%

5th 57 10% 278 13%

6th 71 12% 227 11%

7th 28 5% 98 5%

8th 61 10% 185 9%

9th 97 16% 340 16%

10th 31 5% 119 6%

11th 42 7% 187 9%

D.C. 33 6% 64 3%

Fed.* 2 <1% 2 <1%

CIT* 0 0 2 <1%

CFC 2 <1% 7 <1%

* As drawn, the sample did not include the two complaints from the Court of Appeals 

for the Federal Circuit; we added them so as to include each court covered by the Act. 

One complaint in the sample as initially drawn came from the Court of International 

Trade, but the record in that matter had been sealed. 
44

Implementation of the Judicial Conduct and Disability Act ~ September 2006

problematic” and all 13 they regarded as problematic. We met on January 14, 2005, 

to establish how we would review the case files in our individual offices. Appendix I 

includes a sample of the form we used in this review. A fourth member of our staff, 

the one not involved in conducting the field research, analyzed our responses and 

reported by memorandum of February 28, 2005, that we agreed in full as to the 

“nonproblematic” terminations and agreed unanimously or by substantial majorities 

as to the problematic terminations.

In October 2005, the research staff provided us their final assessment of all 593 

terminations, their analyses of the 25 terminations they found to be problematic, and 

files of those 25 terminations, redacted to obscure the complainant, subject judge, 

witnesses, and the circuit (and thus the chief judge who acted on the complaint). 

We met on October 5, 2005, to establish how we would review these files in 

our offices, using forms (see Appendix I) with four options for each of the 25 terminations: (1) inconsistent with our Standards, (2) consistent with our Standards, 

(3) inconsistent but nonproblematic nevertheless, and (4) a recusal option (based 

on familiarity with the case). We did not review terminations that the researchers 

assessed as nonproblematic because our January 2005 review agreed unanimously 

with them as to nonproblematic terminations. 

We received the analysis of our review (again, prepared by the staff member who 

had not taken part in the field research) on December 19, 2005, and met in Washington, D.C., on January 12, 2006, to go over each case individually.

Problematic dispositions in the full sample—A majority of the Committee members 

(i.e., those not recused) agreed with the researchers as to 20 of the 25 problematic 

dispositions. The 20 dispositions we saw as problematic were 3.4% of the 593 terminations in the sample.

To say a chief judge’s disposition was “problematic” is not to say that the 

complaint’s allegations were true. Most of the terminations were problematic for 

procedural reasons, mainly because the chief judge failed to undertake an adequate 

inquiry into the allegation before dismissing it. Furthermore, we applied our Standards strictly, producing, for example, the result in case A-9, an allegation by a prison 

inmate that the circuit judges who ruled against him had themselves assigned out of 

the normal rotation so they could falsify information in his habeas appeal. Although 

this allegation, part of a larger attack on the outcome of his case, was almost surely 

false, we found the dismissal problematic because the chief judge did not have staff 

check the case file to be certain. 

We speculate below that in many of the problematic terminations the further 

inquiry would still have justified dismissal. Some of the problematic terminations 

involved the chief judge’s failure to appoint a special committee to investigate facts 

that were reasonably in dispute. We are not in a position to judge whether such a 

committee would have found facts indicating misconduct.
45

Chapter 4: How the Judicial Branch Administers the Act—Results

Of the 20 dispositions we found problematic:

• 11 involved dismissals in which the sole problem was the chief judge’s failure 

to undertake an adequate limited inquiry before dismissing the complaint, 

usually as “frivolous”;

• two involved dismissals in which the main or sole problem was the chief 

judge’s mistakenly regarding the complained-of behavior as “directly related 

to the merits of a decision or procedural ruling”; 

• one involved a dismissal in which the chief judge mistakenly characterized 

the complaint as “not in conformity with section 351(a),” i.e., not alleging 

“conduct prejudicial to the effective and expeditious administration of the 

business of the courts [or inability] to discharge all the duties of office by 

reason of mental or physical disability”; 

• two were problematic solely because of misapplication of the “corrective 

action” provision;

• four were problematic equally because of an inadequate limited inquiry 

and one other matter: improperly finding corrective action in two cases, 

improperly dismissing for merits-relatedness in another, and improperly 

finding nonconformity in another; and

• none involved a failure to dismiss a complaint that should have been 

dismissed.

Below we describe each of these 20 terminations. Within each of the categories, 

we start with the cases on which we were unanimous. We then discuss the five terminations over which we disagreed with the research staff.

Inadequate limited inquiries

Section 352(a) authorizes the chief judge to “conduct a limited inquiry” to determine 

whether appropriate corrective action has been or could be taken or whether the facts 

in the complaint are either “plainly untrue” or incapable of being established through 

investigation. A chief judge who encounters matters “reasonably in dispute” should 

not make findings of fact but rather appoint a special investigative committee to do 

so. Section 352(a) authorizes the chief judge or staff to communicate orally with the 

subject judge, complainant, or witnesses and examine relevant documents in the case, 

and authorizes the chief judge to seek a written response from the judge. 

Whether there was an adequate inquiry usually involved complaints dismissed 

as “frivolous.” In evaluating the dismissal of a complaint as frivolous, i.e., as lacking 

in supporting factual substantiation, the central question is: Does the complaint allege enough to call for a limited inquiry rather than a simple dismissal as frivolous? 

Most of the dismissals we discuss below are, like the allegation of a manipulated 

appellate panel assignment above, problematic not because a limited inquiry would 

have suggested facts sufficient to merit appointment of a special committee. They are 
46 

Implementation of the Judicial Conduct and Disability Act ~ September 2006

problematic rather in light of Illustrative Rule 4’s commentary’s assumption that the 

chief judge will contact a third party if the “complainant alleges an impropriety and 

asserts that he knows of it because it was observed and reported to him by a person 

who is identified.” Doing so helps identify the small number of complaints that may 

merit further investigation, and, even for the much larger number of complaints that 

turn out to be meritless, it helps make clear that the judicial branch takes complaints 

seriously.

Thus

• our Standard 4 says that there should be a limited inquiry if a “complaint 

. . . that is not inherently incredible and is not subject to dismissal on other 

grounds . . . assert[s] that the complaint’s allegation is supported by the 

transcript or by a named witness” or “sets forth allegations that are capable 

of being verified by looking at identifiable transcripts or questioning 

identifiable witnesses”; and 

• our Standard 5 deals with a limited inquiry that goes no further than 

questioning the subject judge. The Act permits dismissal “[w]hen a limited 

inquiry . . . demonstrates that the allegations in the complaint lack any 

factual foundation or are conclusively refuted by objective evidence” (section 

352(b)(1)(B)). Standard 5 says that “an allegation is not ‘conclusively refuted 

by objective evidence’ simply because the judge complained against denies 

it.”

In 271 of the 593 complaints, chief judges dismissed the complaint as frivolous. 

In 93, that was the sole ground for dismissal. We believe 11 of these 93 dismissals 

were problematic for a failure to conduct an adequate limited inquiry. These 11 

constitute 4% of the 271 terminations and 1.8% of the full sample. We discuss these 

11 terminations below, starting with the cases on which all nonrecused Committee 

members agreed. Later we discuss four other terminations that were problematic 

because of both the inquiries and other aspects. 

A-1	 Failure to inquire about a complaint that material on a court’s publicly

available website suggested a judge’s racial insensitivity and lack of

impartiality

Facts and complaint—Complainant (who was not a litigant) alleged that material on what the chief judge’s order called the district court’s “intranet directory of 

judges and employees” contained, for the subject judge, historical imagery that was 

the subject of national controversy at the time of the complaint and that, according 

to the complainant, created an “appearance of impropriety” by suggesting that the 

judge honored racist movements in the nation’s past and thus that the judge was 

racially biased. 
47

Chapter 4: How the Judicial Branch Administers the Act—Results

Chief judge order—The chief judge dismissed the complaint for failure to allege 

misconduct within the statutory standard: “The complaint . . . provides no basis 

from which to conclude that the pictures on the web page have an adverse effect on 

the decision-making process. The web page is a non-public site accessible only by 

employees of the federal courts, and complainant’s assertion that the web page creates an appearance of impropriety is equally unsupportable.”

The chief judge sought no response from the subject judge because this circuit 

does not provide the complaint to the judge if it can be quickly dismissed on its face. 

Upon dismissal, the subject judge receives the complaint and the dismissal order. So 

the judge did not know of the complaint until receiving the order. (All other circuits 

give the subject judge the complaint when it is filed, as required by section 351(c), 

directing the circuit clerk to forward complaints to the chief judge and the subject 

judge “simultaneously.”)

Assessment—Dismissal of the complaint is inconsistent with Committee Standard 

4. The chief judge’s order found that the “assertion that the web page creates an appearance of impropriety is . . . unsupportable,” but it states no reason for that finding, only that the “web page is a non-public site accessible only to [federal court] 

employees.” The complaint acknowledged that the webpage was viewable only from 

within the court and the staff verified that the site was not accessible through the 

Internet. The chief judge, though, could have asked the complainant how he saw the 

internal website and, if called for by the response, asked the court staff how truly 

“nonpublic” the website was.

The complaint’s principal allegation, however, was that the imagery on the 

website—imagery that, it noted, was the focus at the time of civil rights protests in 

several states—created “an appearance of impropriety” (regardless of whether the 

website was public or not, material on a nonpublic website could still offend court 

personnel). The chief judge evidently saw printouts of the imagery attached to the 

complaint, but the chief judge provided no reasons for concluding that the assertion of an “appearance of impropriety” was “unsupportable,” and made no inquiry 

of the subject judge about the allegation. However, as explained below, the subject 

judge evidently saw merit in the assertion, because, once he learned of the website, 

he ordered the imagery removed. 

Complainant petitioned the judicial council to review the chief judge’s order. 

Complainant’s petition explained that he had viewed the internal website on the public 

computers in the clerk’s office. The subject judge, who learned of the complaint only 

when he received the dismissal order and petition for review, filed a response, saying 

that he had been unaware of the website material, which related in part to an ancestor of the judge and which clerk’s office personnel had posted without the judge’s 

knowledge. The judge said he had contacted the clerk’s office and the material had 

been removed. A limited inquiry would have enabled the subject judge to respond 

and take action before the chief judge ruled and permitted the chief judge to con-
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clude the proceedings based on corrective action or intervening events as provided 

in section 352(b)(2). 

A-2 Failure to investigate allegation that a magistrate judge had signed a blank 

arrest warrant 

Facts and complaint—A prisoner complained that a magistrate judge signed a blank 

warrant for the prisoner’s arrest. He said an FBI agent showed him the blank warrant 

during the arrest and told him it was valid because a judge signed it. Complainant said 

that his alleged offense was added to the warrant before it was presented in court. 

Chief judge order—The chief judge dismissed the complaint as “conclusory and 

frivolous” in a form order that neither restated the allegation nor explained further 

the reasons for dismissal. This circuit no longer issues form dismissal orders.

Assessment—The dismissal is inconsistent with our Standard 4. Dismissal would be 

appropriate if both the subject judge and the agent denied the allegation.

A-3 Failure to investigate allegation of a judge’s bias against minority attorneys

Facts and complaint—A litigant complained that a bankruptcy judge conspired 

to defraud him. Among the complaint’s nearly 50 allegations were two involving 

race: (1) that the judge ran a check of the bar status of any minority attorneys in 

complainant’s Chapter 11 case but did not check the status of complainant’s first 

attorney, who was white (and had been disbarred some years before); and (2) that 

when the litigant sought to replace this disbarred attorney with a minority attorney, 

the judge denied the request until that attorney found a Chapter 11-competent cocounsel. The judge allegedly said that she knew of no Chapter 11-competent minority 

attorneys and gave complainant a list of white attorneys.

Chief judge order—The chief judge properly dismissed the conspiracy allegations, 

but didn’t mention the racial allegations. Neither did the judicial council’s conclusory affirmance, although complainant repeated those allegations in his petition for 

review. 

Assessment—The dismissal is inconsistent with our Standard 4. Transcripts may have 

captured the alleged interchange, or witnesses may have recalled it. If not, the chief 

judge could have asked the judge to respond.

A-4 Failure to investigate adequately a complaint that a judge ordered a 

transcript altered

Facts and complaint—A prisoner litigant complained that a district judge was responsible for two alterations in the litigant’s Rule 11 hearing transcript: (1) deleting the 
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Chapter 4: How the Judicial Branch Administers the Act—Results

reading in open court of the “stipulation of facts” complainant had signed as part of 

his plea bargain, and (2) deleting the judge’s alleged statement that complainant could 

raise at sentencing his problems with the criminal justice system. The complainant 

said he needed these parts of the record to appeal the judge’s denial of his petition 

seeking review of his conviction under 28 U.S.C. § 2255.

The complainant offered no specific evidence that the judge was responsible for 

any significant omissions, but he said that only the judge could have ordered the 

court reporter both to alter the transcript and still swear to its accuracy. Asked by the 

chief judge to respond, the judge said that, as was his practice, “the stipulation was 

not read into the record at the plea [hearing], and so it was not appropriate for it to 

appear in the transcript.” He said the prosecutor paraphrased the stipulation. The 

prosecutor’s paraphrase did appear in the transcript. The complainant implied that 

the paraphrase included the stipulated facts that he said had been deleted from the 

signed stipulation that was read at the hearing. The transcript, however, shows that 

at the plea hearing he assented to the prosecutor’s paraphrase, and the complaint 

does not allege that that portion of the transcript was doctored.

Chief judge order—The chief judge quoted at length from the judge’s response, 

then dismissed the complaint without further discussion, citing what is now section 

352(b)(1)(A)(i), permitting dismissal of a complaint that does not allege misconduct 

or disability that is the subject of the Act. 

Assessment—The dismissal is inconsistent with our Standard 5 (“an allegation is not 

‘conclusively refuted by objective evidence’ simply because the judge complained 

against denies it”). Complainant said that the stipulation of facts was read at the 

hearing; the judge said that it was not. To resolve this factual dispute, the chief judge 

could have asked, or could have had staff ask, counsel and the court reporter what 

was said. Also, the judge’s response does not mention the allegation that the transcript omitted the judge’s telling complainant that he could raise at sentencing his 

problems with the criminal justice system. The complaint’s inconsistencies regarding 

the stipulation of facts undercut its credibility, but not enough to obviate the need 

for a more extensive inquiry.

A-5 Failure to inquire into allegations of ex parte communications

Facts and complaint—A prison inmate complained that the judge handling his 

bankruptcy case had an ex parte contact with an assistant U.S. attorney (AUSA) 

who was prosecuting a criminal case against complainant. The complaint said that 

because the AUSA was privy to information not available to the judge, any ex parte 

exchange of information between them would be unethical and possibly prejudicial 

to complainant’s bankruptcy case. 
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Chief judge order—The chief judge dismissed the complaint: “complainant has not 

alleged that the contact between the bankruptcy judge and the AUSA was a communication which touched on the merits of complainant’s bankruptcy case.”

Assessment—The dismissal is inconsistent with our Standard 4. Although the complaint did not explicitly allege that the communication touched on the merits of the 

bankruptcy case, it implied that it did, and thus alleged a potentially cognizable act 

and identified two witnesses, the AUSA and the judge. Neither the chief judge nor 

staff contacted them.

A limited inquiry would have revealed that the contact was about that case but 

was proper. The complainant’s subsequent petition for review of the dismissal order 

explained that the judge referred a matter arising from the bankruptcy proceedings 

to the AUSA for possible criminal prosecution. 

A-6 Failure to inquire about claims of a judge’s bias toward a litigant

Facts and complaint—A litigant filed a complaint against the judge who presided 

over his long-closed criminal case. He had sought the return of government-seized 

property and alleged that his attorney told him that the judge, angry because the 

sentence he imposed on complainant had been partially reversed, said he would bar 

the complainant from a status conference on the motion for return of the property, 

didn’t like complainant, would not see him, and would have given him more prison 

time if he could. As for complainant’s unreturned property, the judge allegedly said, 

“Tough.” Complainant contended that the judge had injected personal animus into 

the case.

Chief judge order—The chief judge dismissed the complaint, in part on the proper 

ground that its objections to the judge’s rulings were merits-related. But the chief 

judge went on to state, “To the extent that Complainant alleges improper animus, 

the allegations are totally conclusory, contain no suggestion of corroboration in the 

record, and do not appear to have any basis in fact. Hence, the complaint is legally 

frivolous . . . .”

Assessment—The dismissal is inconsistent with our Standard 4. The allegations are 

not “totally conclusory”; they point to specific comments allegedly made by the judge 

to the attorney, who allegedly would support the allegations. If the attorney contradicted the allegations, the chief judge’s limited inquiry could end there. 

A-7 Failure to inquire into claims a judge exhibited bias against a litigant and 

favoritism toward state government defendants

Facts and complaint—A public interest organization complained that the magistrate 

judge, in the organization’s case against a state government, ridiculed its attorney, 

threatened him with sanctions, accused him of lying about settlement negotiations, 
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retaliated against him for refusing to settle, and granted an ex parte stay of proceedings. The complaint alleged that the judge tried to cover up his misconduct by directing the clerk not to docket complainant’s recusal motion. The complaint contended 

that the judge showed bias for the state and against complainant and its client and 

that local attorneys said that the judge, formerly a government attorney, favored the 

government in settlement negotiations.

Chief judge order—The chief judge dismissed parts of the complaint on meritsrelated and nonconformity grounds. With regard to the allegations of bias toward 

the state and against complainant, including the allegation that the judge vindictively directed the clerk’s office not to docket the recusal motion, the chief judge 

said, “Complainant’s unsupported allegations of unfairness and vindictiveness are 

dismissed as frivolous.”

Assessment—The dismissal is inconsistent with our Standard 4. The complaint’s 

allegations could have been investigated by resort to the record and transcripts and 

by questioning clerk’s office personnel, the complainant’s attorney, and other attorneys referenced in the complaint. This disposition did not note the complaint’s 

assertion that unnamed attorneys shared complainant’s perception of the judge’s 

favoritism toward state defendants. That assertion makes it problematic to say that 

the complaint’s allegations of favoritism and bias were entirely “unsupported” and 

“frivolous.” If appropriate in light of what an inquiry of the record and transcripts 

revealed, the chief judge could have asked complainant to identify persons who would 

support the allegations of favoritism, even though the charge, jumbled up with the 

merits of the judge’s various rulings in state defendant cases, would be very difficult 

to prove.

A-8	 Failure to inquire adequately about claims that judges lied about sources of

information in a grievance proceeding and may have engaged in improper

ex parte conduct

Facts and complaint—An attorney filed similar complaints against four judges on 

a court’s grievance committee, which, following his state disbarment, had imposed 

reciprocal discipline and ordered his federal district court disbarment.

Complainant alleged that the judges’ order referred to “information concerning 

correspondence sent by complainant to various . . . state officials.” Complainant said 

he repeatedly queried the judges about the source of this information, whereupon 

they issued an order explaining that he himself had submitted it in a document he 

filed with them.

His section 351 complaint denied that his filing contained this information. He 

also alleged that some of the information in the judges’ order related to events that 

occurred after he submitted the document that the judges said contained the state 

bar information. He alleged that the judges violated the Code of Conduct by making 
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a false statement regarding the information’s source and that this false statement created a reasonable suspicion that the judges obtained the information through some 

ex parte contact with state bar officials. Complainant did not allege such conduct 

directly.

Chief judge order—The chief judge dismissed the complaint: “There is no indication 

on the record before us that the Judges deceived the Complainant with respect to the 

source of the information . . . , other than the complainant’s conclusory allegations.” 

The chief judge did not address the potential issue of ex parte contacts, and whether 

prohibitions on ex parte contacts applicable to ordinary litigation also governed the 

disciplinary proceeding. In any event, the chief judge addressed only the complaint’s 

allegations of the judges’ deceit, and found these allegations conclusory.

The complaint file contains no evidence of any inquiry other than the inclusion 

of the docket sheets from the underlying matter, apparently routine practice in this 

circuit. 

Assessment—The dismissal is inconsistent with our Standard 4. The complainant 

alleged enough to call for a broader limited inquiry: it identified a document, the 

disputed filing. Such a broader inquiry might entail reviewing the complainant’s 

disputed filing that he said did not contain the state bar information; investigating 

the allegation that information referred to by the judges occurred after complainant’s 

filing; and requesting a response from the judges. A broader limited inquiry by judge 

or staff may have demonstrated that complainant’s allegations were baseless. 

A-9 Failure to inquire about a claim of improper appellate panel manipulation

Facts and complaint—A prisoner litigant complained that three circuit judges who 

ruled against him “had themselves assigned out of rotation to falsify information” 

in his habeas appeal. 

Chief judge order—The chief judge summarily dismissed this allegation: “[T]he complaint is meritless to the extent that it asserts that the subject judges ‘had themselves 

assigned out of rotation’ . . . . There are well-established case processing arrangements 

at the Court of Appeals to ensure against judges picking their cases.”

Assessment—The dismissal is inconsistent with our Standard 4. The file in complainant’s case or the court staff responsible for assigning judges to panels would 

almost certainly verify what the chief judge assumed to be true—that no exception 

had been made in complainant’s case—but the chief judge undertook or ordered 

no inquiry to confirm the assumption. The same chief judge undertook such an 

inquiry in two other matters in the 593-complaint sample that raised similar allegations about district judges. His dismissal order in one of those matters said that 

“the record reflects that complainant’s cases were assigned according to the district 

court’s normal procedures.” 
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A-10 Failure to inquire beyond the judge’s denial of a complaint that he let 

someone impersonate him on the bench

Facts and complaint—A prisoner litigant alleged that in a hearing in his case, the 

judge allowed a young man, probably his intern, to conduct the proceedings while 

sitting, robed, on the bench. The complaint alleged that both the assistant U.S. attorney (AUSA) and the federal defender had the tape of the proceedings, and that 

the voice on the tape would not be the judge’s.

The chief judge, “out of an abundance of caution,” asked the judge to respond. 

He unequivocally denied it and added that at the time of the hearing, he had no intern and his law clerk was an older woman. He said that his secretary and the AUSA 

would verify the falsity of this allegation.

Chief judge order—The chief judge dismissed the allegation as “frivolous on its 

face,” especially in view of the judge’s unequivocal denial. The chief judge made no 

inquiry of the AUSA, the federal defender, or the secretary, and made no attempt to 

see—or to have the staff see—whether the tape existed, and, if so, verify that it was 

the judge’s voice. 

Assessment—The allegation, albeit bizarre, is not so outlandish as to be what our 

Standard 4 calls “inherently incredible,” and thus the dismissal is inconsistent with 

our Standard 5 (“an allegation is not ‘conclusively refuted by objective evidence’ 

simply because the judge complained against denies it”). The complaint identified 

two lawyers who allegedly witnessed the incident and had a tape recording of it, but 

the chief judge inquired no further than the subject judge. 

A-11 Failure to investigate a claim of improper ex parte contact

Facts and complaint—A pro se prisoner complained that a magistrate judge had an 

improper ex parte contact with the defense counsel in his civil rights action against 

prison officials. According to the complaint, the judge, in a telephone conference, 

instructed both parties to submit settlement offers to her. Complainant submitted an 

offer. The complainant alleges that defense counsel later told him that the defendant 

did not submit an offer because the judge told him complainant’s offer was “in the 

millions,” too high to trigger further discussion. Complainant alleged that when he 

wrote to the judge to complain about the ex parte communication, she acknowledged 

talking with the defense counsel but stated this was an accepted mediation practice. 

But, she said, she had not communicated complainant’s confidential offer. 

The chief judge requested the judge’s response. She said she did not instruct either side to submit offers, but rather invited the plaintiff (only) to file an offer with 

her. She said that in mediating prisoner settlements, she invites the plaintiff to file 

an offer, and if it is reasonable (many are not) she communicates it to defendants 
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as a starting point for discussions. Complainant’s response insisted that the judge 

instructed both parties to file offers.

Chief judge order—The chief judge’s dismissal order noted that Code of Conduct 

Canon 3A(4), prohibiting ex parte contacts, has an exception for settlement efforts 

“with the consent of the parties.” The order said the judge engaged in no improper 

ex parte contact. “Settlement negotiations are voluntary, on the part of both the 

parties and the judge.” 

Assessment—The dismissal is inconsistent with our Standard 5. The chief judge did 

not question the lawyer about what the judge said in the telephone conference. Although settlement negotiations are voluntary, complainant said that this settlement 

effort was not voluntary on his part. Complainant also at least implicitly denied 

consenting to the judge’s ex parte discussion of the complainant’s settlement offer 

with defendant’s counsel. The chief judge did not discuss this factual inconsistency. 

The order stated that complainant and the judge “agree that the judge invited complainant to submit a written settlement demand.” The file suggests that complainant, 

not an attorney, simply misunderstood the details of what the judge said, but further 

inquiry was necessary before reaching that conclusion.

Dismissals based on a direct relationship to the merits of a decision or 

procedural ruling

The merits-relatedness ground for dismissal seeks to insulate judges from sanctions 

for their decisions and thus protect independent decision making. The Act tells chief 

judges to dismiss complaints that are “directly related to the merits of a decision or 

procedural ruling” (section 352(b)(1)(A)(ii)). Illustrative Rule 1(b) says that conduct 

covered by the Act “does not include making wrong decisions—even very wrong 

decisions—in cases.” 

Our Standard 2 says “[t]he . . . complaint procedure cannot be a means for 

collateral attack on the substance of a judge’s rulings. The interest protected is the 

independence of the judge in . . . deciding . . . cases or controversies.” But it adds: “an 

allegation . . . that the judge ruled against the complainant because the complainant 

was Asian, or because the judge doesn’t like the complainant personally, is not merits-related. What the allegation attacks is the propriety of arriving at rulings with an 

illicit or improper motive [and] thus goes beyond a mere attack on the correctness 

of the ruling itself.”

An often-misunderstood aspect of merits-relatedness involves the availability of 

a judicial remedy for the conduct complained of. Under our Standard 2, as a general 

matter, “whether or not an allegation is merits-related has nothing to do with whether 

or not the complainant has an adequate appellate remedy.” The “merits-related ground 

for dismissal exists to protect judges’ independence in making rulings, not to protect 

or promote the appellate process. . . . [A]n allegation that is otherwise cognizable 
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under the Act should not be dismissed merely because an appellate remedy appears 

to exist . . . .” 

In 327 of the 593 complaints, chief judges dismissed the complaint on the ground 

that it was directly related to the merits of a judicial decision or procedural ruling. 

In 141 complaints, that was the sole ground for dismissal. We believe that three chief 

judge actions (2%) were problematic. We discuss two of them here and one (case 

A-19) in the section called “Dispositions with two problematic elements.”

A-12 Improperly finding as merits-related a complaint that a judge ordered the 

clerk not to accept a motion for his recusal

Facts and complaint—An individual complained that a district judge ordered the clerk 

not to accept papers the complainant filed in relation to a case in which he claimed 

that his bank records had been made available to law enforcement officials without 

telling him. Complainant said he tried to move to recuse the judge from the case and 

to seek relief from the orders affecting his bank accounts, but the clerk refused to file 

his motions. The complainant was not a party to the litigation.

Chief judge order—The chief judge speculated that ordering the clerk not to file 

papers “remains within the realm of case related decisions since it may have been 

made, correctly or not, in response to the sensitive posture of the proceedings and 

because it remains subject to normal appellate review.” The chief judge said that a 

not-to-file order “is reviewable through normal appellate processes such as the filing 

of a petition for a writ of mandamus, as is the [district judge’s] failure to disqualify 

himself.” He added, “I am not prepared to say that judicial misconduct would never 

occur if a judge has, in fact, directed a clerk not to perform the ministerial duties 

required in regard to filing papers.”

Assessment—An order not to accept papers for filing, issued independently of any 

case or controversy, might not be directly related to the merits. If so, dismissing the 

complaint was inconsistent with our Standard 2 (a merits-related dismissal protects 

“the independence of the judge in deciding Article III cases or controversies”). The 

chief judge’s order did not connect the rejection of papers to any order, ruling, or 

other judicial activity. His speculation—that directing the clerk not to perform the 

ministerial act of filing papers could be misconduct—appears to concede a failure to 

show a direct relationship to the merits of a decision or procedural ruling. 

A-13 Improperly finding merits-related a complaint that a judge and defendant 

engaged in improper ex parte conduct

Facts and complaint—A lawyer who represented herself in a suit against her former 

employer alleged ex parte contact between the defendant and the judge. She said 

that the defendant stated in a filing that it had provided the judge a lengthy docu-
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ment with all its discovery responses, but that she was not provided a copy of the 

document, had never seen it, and could not find it in the court’s public file or docket. 

Accordingly, she said that the document was an ex parte communication that the 

judge should not have accepted.

Chief judge order—The chief judge dismissed this allegation on the ground that a 

judicial remedy was available and the attorney–complainant was seeking that remedy, 

having filed a motion to strike the document. Further, the complaint gave “no evidence 

. . . as to when or how these [ex parte] communications allegedly occurred.”

Assessment—Dismissal of the complaint is inconsistent with our Standard 2. There 

was no showing that the alleged receipt of the document had any relationship to the 

merits of a decision or procedural ruling. The remedy, if merited, in the case-related 

proceeding would be for the court to strike the document from the file; but striking the 

document would not address the allegation of ex parte communication in accepting 

the document. In the misconduct proceeding, the remedies, if merited, would be a 

council reprimand or the judge’s acknowledging misconduct and taking appropriate 

corrective action. However, the chief judge made no inquiry into whether the judge 

received such a document and, if so, whether the circumstances and reasons for the 

judge’s acceptance of it made such acceptance an ex parte contact. 

Dismissal for nonconformity with the statutory standard of misconduct

One of the three statutory grounds for dismissing a complaint is “not in conformity 

with section 351(a)” (section 352(b)(1)(A)(i)). In other words, a complaint may be 

dismissed if its allegations, even if true, do not constitute conduct “prejudicial to the 

effective and expeditious administration of the business of the courts.” 

This language does not appear susceptible to precise definition outside the context of particular fact situations. Accordingly, our Standard suggests reference to the 

Code of Conduct for U.S. Judges and prior interpretations of the provision in chief 

judge public orders. Standard 3 says that the question is “whether a reasonable observer would see a significant possibility that the allegation did meet the statutory 

standard.”

In 208 of the 593 complaints, chief judges dismissed the complaint as not in 

conformity with the statute. In 109 matters, that was the sole ground for dismissal. 

We believe that two of the chief judge actions (1%) are problematic. We discuss one 

of them below and the other (case A-20) in “Dispositions with two problematic elements.”
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A-14 Improperly dismissing a complaint on the grounds that an appellate 

affirmance of the underlying litigation put the judge’s courtroom 

behavior beyond the Act’s reach

Facts and complaint—Two attorneys complained that the district judge who presided 

over an employment discrimination suit in which they represented the plaintiffs used 

intemperate language and facial gestures disparaging the attorneys, was dismissive 

of the female attorney, showed a lack of respect for her and for female witnesses, 

and frequently voiced disapproval and impatience toward complainants and their 

witnesses.

At the close of plaintiffs’ evidence the judge granted judgment as a matter of law 

for defendants. Plaintiffs appealed and the attorneys then filed this misconduct complaint, which the chief judge held in abeyance pending resolution of the appeal.

The court of appeals affirmed the judgment and said the judge’s conduct did 

not affect its merits, but the court criticized the conduct nevertheless. For example: 

“[A]t various times the judge made remarks on the record, some in the presence of 

the jury, using language that would charitably be called salty, and that many would 

consider vulgar, particularly in a courtroom. We consider this type of language to be 

unbefitting a federal judge.”

The chief judge then asked the judge to respond to the complaint. The judge, for 

the most part, did not dispute the allegations about his conduct; instead, he explained 

the provocation for it. He acknowledged use of coarse language and “a lack of patience 

and a tendency toward sarcasm,” and explained his low opinion of complainants’ 

legal ability.

Chief judge order—Several paragraphs of the chief judge’s order read like a reprimand (e.g., the “judge’s language and conduct . . . have tarnished . . . the image of 

the federal judiciary”). The chief judge nevertheless concluded that “in light of the 

affirmance of the judge’s dismissal of the underlying lawsuit, the judge’s conduct was 

not prejudicial to the effective and expeditious administration of the business of the 

courts within the meaning of [28 U.S.C. § 351(a)].”

Assessment—That the plaintiffs’ case was weak is irrelevant to whether the judge’s language and deprecating comments constituted misconduct. Dismissal of the complaint 

is inconsistent with our Standard 3 (“discourtesy transcends the expected roughand-tumble of litigation and moves into the sphere of cognizable misconduct . . . if 

a reasonable observer would regard it as prejudicial to the effective and expeditious 

administration of the business of the courts”). Conduct that was questionable enough 

to deserve the court’s and chief judge’s harsh criticism merited a special committee 

to determine if it met the statutory standard for misconduct. Moreover, the special 

committee and judicial council stages need not entail inordinate time and burden, at 

least for a matter (like this one) with little or no factual dispute. And a censure from 
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the judicial council would carry greater weight than one from the chief judge alone, 

and indicate that any sanction reflects more than one judge’s views. 

Concluding the proceedings based on appropriate corrective action

Section 352(b)(2) authorizes the chief judge to “conclude the proceedings” on a finding “that appropriate corrective action has been taken or that action on the complaint 

is no longer necessary because of intervening events.” Our Standard 7 says:

• Corrective action is “appropriate” when it remedies “the problem raised by 

the complaint[;] . . . the emphasis is on correction of the judicial conduct 

that was the subject of the complaint.” Thus, “changing a procedural or court 

rule a judge has allegedly violated will not ordinarily be sufficient to remedy 

judicial conduct that was alleged to be in violation of a preexisting rule,” and, 

by the same token, a “remedial action directed by the chief judge or by an 

appellate court without the participation of the subject judge in formulating 

the directive or by agreeing to comply with it does not constitute corrective 

action under the statute.” 

• As to conduct producing a specific harm to an individual, “corrective action 

should include steps taken by that judge to acknowledge and redress the 

harm, if possible, such as by an apology, recusal from a case, or a pledge to 

refrain from similar conduct in the future.” Also, the object of the misconduct 

should be “meaningfully apprised of the nature of the corrective action in the 

chief judge’s order, in a direct communication from the judge complained 

against, or otherwise.” 

• “[V]oluntary corrective action should be proportionate to any plausible 

allegations of misconduct in the complaint” and its form should “be 

proportionate to any sanctions that a judicial council might impose after 

investigation . . . such as a private or public reprimand or a change in case 

assignments.” 

Our sample included all complaints that chief judges or councils concluded based 

on corrective action. Chief judges concluded the proceedings in 17 of those complaints, and judicial councils did so in four complaints, three of which were against 

the same judge and were combined into a single proceeding. 

We found four chief judge or council actions to be problematic. We discuss two 

of them below; two others are referenced in the section on “Dispositions with two 

problematic elements” (cases A-17 and A-18) and discussed as cases C-4 and C-5. 
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A-15 Finding corrective action in an apology that did not cover all the alleged 

misconduct

Facts and complaint—A chief judge identified a complaint based on information that 

alleged an improper ex parte meeting between a district judge and an attorney. The 

attorney informed opposing attorneys of the alleged meeting; one of the opposing 

attorneys delivered a letter to the judge recounting the allegations and asking him to 

recuse. The information further alleged that the judge asked the attorneys to destroy 

the correspondence that had transpired. 

Judicial council order—The chief judge appointed a special committee. The judicial 

council noted that the subject judge had recognized an error, that the incident had 

not disadvantaged the parties, and that the judge had recused from the case. The 

council admonished the judge for any improper ex parte conduct and dismissed the 

complaint. 

Assessment—With respect to the ex parte meeting, the steps the judge took appear 

to satisfy Standard 7’s call for the judge “to acknowledge and redress the harm.” The 

recusal and admonition served as the equivalent of an apology and provide the primary basis for concluding the proceeding. Also at issue, however, but not mentioned 

in the order, was whether the judge’s alleged request to destroy the correspondence 

was misconduct. As such, the order may have failed to satisfy our Standard 7’s requirement that the action “remedy the problem raised in the complaint.” 

A-16 Failure to notify complainant of a corrective action

Facts and complaint—An attorney complained that a district judge was mentally 

and physically disabled, citing information from public and private sources about 

his frailty and disorientation. Records not in the file verify that the judge took senior 

status before the chief judge concluded the complaint.

Chief judge order—The chief judge concluded the complaint with an order quoted 

here in full: “[T]he proceeding may be concluded if appropriate corrective action has 

been taken or action on the complaint is no longer necessary because of intervening 

events. I find that this proceeding should be concluded under this subsection.” In 

most matters the chief judge informs the complainant and the public of the corrective action in a memorandum attached to a public order. That memorandum would 

have been sent to the complainant and made available to the public in the clerk’s 

office and at the Federal Judicial Center. Nothing in the file revealed the form of the 

corrective action, or what communications may have occurred between the judge 

and the chief judge or staff. (This is the only corrective action disposition from 2001 

to 2003 where the chief judge’s order and memorandum did not document the corrective actions taken.)
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Assessment—Our Standard 7 says “[o]rdinarily . . . the complainant or other individual [should be] meaningfully apprised of the nature of the corrective action 

in the chief judge’s order, in a direct communication from the judge complained 

against, or otherwise.” The researchers’ conversation with the chief judge revealed 

considerable attention to correcting the apparent disability and to limiting the judge’s 

caseload once he took senior status. Failure to apprise the public about these matters 

appears to have been motivated by the chief judge’s desire to respect the privacy of 

the subject judge.

Dispositions with two problematic elements

Four of the 20 terminations were equally problematic for two reasons. All four involved inadequate limited inquiries and perhaps improper failure to appoint a special 

committee. Two also involved improperly finding corrective action; one involved 

improperly finding the complaint to be merits-related; and one involved improperly 

finding the complaint to allege behavior outside the scope of the Act.

A-17 (1) Problematic failure to inquire into a complaint that a judge failed to 

timely acknowledge a misdeed and (2) improperly finding the judge’s 

apology to be corrective action

Full discussion of this case is under C-4, on high-visibility complaints.

A-18 (1) Problematic failure to conduct an inquiry to determine whether a 

judge contested allegations of improper procedural manipulation and 

(2) improperly finding corrective action in steps taken by the court, steps 

that did not directly involve action by the judge against whom allegations 

were made

Full discussion of this case is under C-5, on high-visibility complaints.

A-19 (1) Failure to inquire into allegations of ex parte contact and 

(2) improperly finding merits-related a complaint alleging bias in affording 

hearings to some but not all parties

Facts and complaint—Several town residents complained of improper ex parte contact by the judge in their suit against a state water control board. They alleged that 

the judge consulted with defendant’s attorney, but not theirs, before denying their 

motion for a preliminary injunction and dismissing the case. One complaint alleged 

that the judge’s ruling was known to the control board’s attorney seven days before 

the group’s attorney received notice. Another said the ruling was communicated to 

a town meeting four days before the judge actually granted the motion to dismiss; 

another complaint specified the name and occupation of the leader of that meeting 
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and the town in which it was held. Complainants contended that these circumstances 

suggest the judge’s improper ex parte contact with the board’s counsel and favoritism toward the board.

Chief judge order—The chief judge examined the docket sheet and determined that 

docketing of the order and mailing the notice occurred after the town meeting. The 

chief judge dismissed the complaint, stating in part: 

Complainants did not provide supporting documents for their contentions. 

Rather, their assertions are based on statements made and relayed at various 

town meetings and in private conversations. A review of the docket sheet 

identifies that on September 19, the judge ruled on the motion to dismiss, 

rendering plaintiffs’ preliminary injunction moot. Notice was sent to all 

parties on the 20th and again by fax on the 21st. Moreover, the allegations 

pertaining to improper ex parte communications and bias in favor of the 

defendants are conclusory, and consist of inferences drawn from hearsay 

and gossip.

In addition to dismissing the complaint as unsupported, the chief judge stated:

These complaints relate to the judge’s decision in the case, including 

the decision to deny hearings on certain matters. A complaint will be 

dismissed if it is directly related to the merits of a judge’s ruling or decision 

in the underlying case . . . . The charges related to the judge’s decisions are, 

therefore, dismissed.

Assessment

Limited inquiry—Dismissal on the grounds that the complaint was unsupported, 

with no further inquiry, is inconsistent with our Standard 4. The complaint alleged 

that the town meeting participants were told of the judge’s rulings days before the 

official docketing of the judge’s order. The chief judge noted that “a discrepancy exists 

as to the exact dates” but did not inquire into it. That the docket shows that official 

notice was sent to both parties contemporaneously does not resolve allegations about 

what was said at the town meeting days earlier. The chief judge could have, as first 

steps, requested a response from the subject judge, and/or communicated with the 

water control board’s counsel.

Merits-related dismissal—Dismissal of the complaint as merits-related is inconsistent with Committee Standard 2 (complaints that go “beyond a mere attack on the 

correctness . . . of the ruling itself” are not necessarily merits-related). A decision to 

deny hearings to all parties is merits-related, but the complaints here alleged that the 

judge may have given some type of hearing to the defendants but not to the plaintiffs, 

or somehow informed the defendants of rulings before informing plaintiffs. 
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A-20 (1) improperly finding that the complaint alleged behavior outside the 

scope of the Act and (2) failure to conduct a limited inquiry of complaints 

that judge exhibited racial bias against a court employee

Facts and complaint—A former pretrial services officer complained that a magistrate 

judge “banned” her from his courtroom because he doubted her credibility and said 

he did not wish to work with her. These problems were tied up with the pretrial 

services office’s decision to reassign her and then terminate her, which produced 

her resignation. Complainant, an Hispanic/Native American, contended that white 

pretrial services officers made errors similar to hers, but that the judge was not similarly harsh in his treatment of those officers. The complaint alleged that the judge’s 

dissimilar treatment of the two situations showed racial bias.

Chief judge order—The chief judge dismissed the complaint as follows:

Although complainant submitted numerous exhibits, they do not present 

any objectively verifiable proof of the judge’s racial bias or other alleged 

improper conduct. Conclusory charges that are wholly unsupported, as 

here, will be dismissed . . . . In any event, the Misconduct Rules are not 

designed to redress court personnel matters. Complainant can pursue this 

matter through her agency’s EDR [employee dispute resolution] or other 

administrative procedures.

Assessment

Nonconformity—Dismissal of the complaint on the ground that alleged judicial 

misconduct comes within the ambit of judicial branch adverse action remedies 

and thus does not constitute misconduct under the statute is inconsistent with our 

Standard 3. Complainant was the pretrial services office’s employee, not the judge’s, 

and could use what the order called “her agency’s EDR . . . procedures” to bring a 

complaint against the office, but, we presume, not against the judge. A reasonable 

observer would conclude that allegations of racial bias by judges in dealing with 

court officials, if true, involve conduct covered by the Act. If the evidence showed 

that the judge discriminated based on race, such action would constitute misconduct 

regardless of whether the employee had an administrative remedy against the pretrial 

services office. 

Limited inquiry—Assuming as we do that the allegation was cognizable under the 

Act, its dismissal is inconsistent with Committee Standard 4. The complaint identified at least one witness, the magistrate judge, and the complaint alleged a particular 

example of disparate treatment of similarly situated employees. Limited inquiry into 

the alleged disparate treatment could have included asking the judge to respond, and 

perhaps inspecting personnel records. If the judge explained why he deemed the two 

situations to be different, and other information revealed by a limited inquiry was 

consistent with the judge’s explanation, dismissal would be proper.
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Dispositions determined not to be problematic

We agreed with the research staff as to 20 of the 25 terminations that they found 

problematic. A majority of Committee members concluded that the other five dispositions may have been inconsistent with our Standards but still were proper, revealing 

a need to adjust the Standards. In three terminations, the question was whether the 

chief judge undertook an adequate limited inquiry before dismissing the complaint as 

frivolous or plainly untrue. In two, the question was whether the chief judge should 

have dismissed as merits-related a complaint about a judge’s statement in a judicial 

opinion without inquiring into the motives behind the statement.

Complaints dismissed as frivolous or untrue

A-21 Bribery allegation

A prisoner suing the prison physician alleged that the physician told him that he had 

bribed the judge. The chief judge examined the record, found the judge’s rulings to 

be clearly based on the evidence, and noted that the inmate had filed over 50 pro 

se lawsuits and that this was his second section 351 complaint against the subject 

judge, whom the litigant had previously called “biased, senile, [forgetful], confused 

or drunk.”

Arguably, under a strict reading of our pre-amended Standard 4, the chief judge 

should have inquired of the doctor, because the complaint was not “inherently incredible” and the doctor was a “named witness.” We concluded, however, that although 

the complaint was not “inherently incredible,” it was so obviously untrue as to merit 

no further inquiry.

A-22 Various allegations of misbehavior 

A prison litigant’s section 351 complaint accused a judge of improper ex parte contacts, accepting bribes, and misuse of office; the litigant offered no supporting facts 

but said that the record in the underlying case “explains everything.” The chief judge’s 

staff reviewed only the docket sheet in the case, and the chief judge dismissed the 

complaint because it “offers no support for [the] assertions . . . [T]hese allegations 

appear to be no more than inferences the complainant has drawn from the fact that 

the judge dismissed his” case. 

Arguably, under a strict reading of our pre-amended Standard 4, the chief judge 

or staff should have reviewed the motions and pleadings because the complaint was 

not “inherently incredible” and the complaint identified documents, his case filings. 

We concluded, however, that the failure to offer any support for the allegations (other 

than trying to incorporate his case filings by reference into his complaint) relieves 

the chief judge of the obligation to inquire into them.
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A-23 Drunk driving allegation

A prisoner litigant complained that a district judge had been arrested, charged, and 

convicted for drunk driving. The chief judge dismissed the allegation that the judge 

had been convicted of drunk driving because the chief judge’s “preliminary investigation [found] the allegation to be factually false and plainly untrue. The judge, while 

charged, was never convicted, and the charge itself was dismissed some time ago.”

Arguably, under a strict reading of our pre-amended Standard 4—given that this 

complaint “was not inherently incredible and [set] forth allegations that are capable 

of being verified by looking at identifiable transcripts or questioning identifiable 

witnesses”—the order should have explained what the “preliminary investigation” 

revealed to justify the finding that the allegation of drunk driving was “plainly untrue.” We concluded, however, that the plain untruth of the allegation of conviction

for drunk driving justified dismissal of that allegation. Given the earlier state court 

dismissal of the charge of drunk driving, and because the complaint put forth no facts 

about the judge’s underlying conduct itself (apart from the dismissed DWI charge), 

we concluded that the allegations were insufficient to support a complaint.

Complaints dismissed as merits-related without a limited inquiry into the 

motives behind the judge’s statement that was the object of the complaint

A-24 Allegation of improper motive in an opinion

Plaintiff’s attorneys in a tort action that did not appear to have any racial aspect 

filed a recusal motion after entities associated with the defendant organization and 

its attorney gave the judge public awards. The judge denied the motion in a written 

opinion, calling it a “race-based” tactic to remove her because of dissatisfaction with 

her ruling on an earlier motion. The attorneys then filed a complaint under the Act 

alleging that the judge’s “groundless accusation of racism,” enshrined in legal databases, “irreparably and severely damaged” each attorney’s “personal and professional 

reputation.” The chief judge dismissed the complaint as merits-related, saying that 

the remedies for alleged damage to the lawyers’ professional reputations and for bias 

were available through a petition for mandamus and the “normal appeal process.” 

Arguably, under a strict reading of our pre-amended Standard 2, the chief judge 

should have questioned the judge about the motives behind her statement, because 

a complaint that “attacks . . . the propriety of arriving at rulings with an illicit or improper motive . . . goes beyond a mere attack on the correctness [the merits] of the 

ruling itself” and “an allegation that is otherwise cognizable under the Act should 

not be dismissed merely because an appellate remedy appears to exist . . . .” 

We concluded, however, that the need to protect judges’ independence in deciding 

what to say in an opinion means that if a judge’s language in an opinion was relevant 

to the case at issue, as it was here, the chief judge may presume the judge’s choice of 

language was merits-related.
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A-25 Allegation of improper motive in an opinion 

A lawyer in a law firm not involved in the underlying case complained that a judge’s 

dissenting opinion included a statement about the firm that was unsupported and 

that relied on manipulated facts. The statement came in a footnote to the dissent’s 

argument that a state regulation, which the majority upheld, was ineffective. The chief 

judge dismissed the complaint as merits-related. The chief judge said he expressed 

no opinion on the statement’s accuracy and quoted the circuit’s rule for processing 

complaints that said the complaint process must protect judicial decisions, even if 

wrong.

Arguably, under a strict reading of our pre-amended Standard 2, the chief judge 

should have questioned the judge about the motives behind the statement because a 

complaint that “attacks . . . the propriety of arriving at rulings with an illicit or improper motive . . . goes beyond a mere attack on the correctness [the merits] of the 

ruling itself,” and the complaint alleged that the statement was an illicit or improper 

attack on the law firm and was unrelated to the merits of the dissent. As with case 

A-24, we drew a different conclusion: the need to protect judges’ independence in 

deciding what to say in an opinion means that if a judge’s language in an opinion was 

relevant to the case at issue, as it was here, the chief judge may presume the judge’s 

choice of language was merits-related.

Amendments to our Standards 

Our pre-amended Standards 2 and 4, when applied to these actual cases, could be 

read to require limited inquiries more extensive than are necessary under the Act. 

We thus amended the Standards to reflect our experience. 

As to limited inquiries into complaints that seem frivolous or unsupported, we 

added what is now the final paragraph to Standard 4. That paragraph begins “An 

allegation may be dismissed as inherently incredible even if it is not literally impossible for the allegation to be true,” and then elaborates. 

As to whether complaints about statements in opinions are merits-related if the 

complaint alleges they reflect improper or illicit motives, we added what is now the 

final paragraph of Standard 2. It includes this statement: “If the judge’s language was 

relevant to the case at hand, then the chief judge may presume the judge’s choice 

of language was merits-related” and elaborated. We said this Standard is necessary 

“[b]ecause of the special need to protect judges’ independence in deciding what to 

say in an opinion or ruling.” 
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100-case sample

From January to March 2005, we reviewed a separate sample of 100 cases drawn 

purely at random from the 2,081 complaints terminated in 2001–2003. Unlike in 

the stratified 593-complaint sample, characteristics of this sample track the total 

population of terminations, with accommodation for sampling error.

Table 14 shows that the proportions of filers and dispositions in the randomly 

drawn sample are very similar to the population of all 2001–2003 complaints.

Table 15 shows that the individual circuits and courts were also represented in 

the sample in proportions similar to those in the entire population of 2001–2003 

terminations.

Table 14. Filers and Dispositions in 100-Case Sample

Sample Population

Complaints by attorneys 3% 2%

Complaints by prisoners 42% 41%

Complaints found not in conformity w/Act 14% 15%

Complaints found frivolous 49% 48%

Complaints found merits-related 68% 69%

Table 15. Distribution of Complaints in the 100-Case Sample, by Circuit

100-case sample Population

Circuits Number (and %) Percent Number

All 100 (%) 100% 2,108

1st 5 (%) 3% 58

2d 10 (%) 10% 210

3d 6 (%) 7% 140

4th 11 (%) 9% 191

5th 9 (%) 13% 278

6th 16 (%) 11% 227

7th 5 (%) 5% 98

8th 8 (%) 9% 185

9th 15 (%) 16% 340

10th 3 (%) 6% 119

11th 8 (%) 9% 187

D.C. 4 (%) 3% 64

Fed. 0 <1% 2

CIT 0 <1% 2

CFC 0 <1% 7
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At our January 14, 2005, meeting, we established procedures for reviewing these 

cases. Each Committee member completed a form on 15 or 16 separate case files (see 

Appendix I); there was no separate staff review. We determined to review collectively 

any dispositions that a Committee member identified as problematic. 

The tabulation we received on March 24 reported that out of the 100 terminations, members identified three as problematic. We were able to review all three in 

the course of reviewing the 25 researcher-assessed problematic terminations in the 

593-case sample. We found:

• two of the three also appeared in that sample—the research staff 

independently assessed them as problematic (cases A-4 and A-14 above), 

so they were among the terminations submitted to us in October 2005; we 

agreed that both were problematic; and

• the third termination in the 100-case sample deemed problematic by 

a Committee member did not appear in the 593-case sample, but for 

convenience we reviewed it in conjunction with our review of the 25 cases; a 

majority of the Committee determined the disposition was not problematic 

under our Standards.

Therefore, as to the two samples, we assessed as problematic 3.4% of the terminations in the 593-case sample, drawn to overrepresent complaints most likely to allege 

behavior covered by the act, and 2% of the terminations in a pure random sample.

Dispositions of high-visibility complaints

At our October 5, 2005, meeting, we determined to examine, apart from the 593- and 

100-case samples, dispositions of complaints that have brought public and legislative attention to the Act. We refer to them here as “high-visibility” complaints. We 

undertook this phase of our work from October 2005 to March 2006.

Identifying high-visibility complaints—To assemble our high-visibility cases for 

analysis, we first identified five such cases in the 593-case sample of 2001–2003 dispositions, based on our collective knowledge of activities in the judicial realm and 

news articles in the complaint files. It is highly unlikely that there were any highvisibility complaints among the 1,515 cases that were not included in our 593-case 

sample. Our sampling criteria would pick up cases likely to be of general interest. 

It included all cases filed by attorneys, public officials, and court employees, and all 

cases terminated by some method other than dismissal. 

To identify high-visibility complaints terminated after September 30, 2003, the 

research staff searched all newspapers in the Lexis/Nexis and Westlaw legal and general 

news databases, which include national and selected local newspapers and legal-related 

publications. The research staff’s search criteria included “judicial misconduct” and 

“federal judge” in various combinations, along with a host of specific terms such as 
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“abuse,” “disable,” “recuse,” “reprimand,” and variant word forms. The search covered 

January 1, 2003, to August 15, 2005. This span would catch complaints that received 

attention in 2003 even if they were closed after September 30, and most complaints, 

whenever they were initiated, likely to have been closed by our January 2006 cut-off 

date. (By “closed,” we mean a case in which the deadline has passed to appeal the 

chief judge’s section 352 order or the council’s section 354 order.) 

The staff classified a complaint as “high visibility” if the Westlaw or Lexis databases yielded at least one article about it and if the article indicated a complaint had 

been filed. These criteria identified 11 post-2003 complaints. Most of the complaints 

have had some national visibility, at least within judicial circles; a few received only 

regional or local attention and qualified as “high visibility” only because of the “at 

least one article” rule. (In all cases but one, the complainant was an attorney, a public 

official, or a court employee; the exception, case C-9, has the weakest claim of the 17 

on being “high visibility.”)

The staff of the House Judiciary Committee made its complaint files available to 

our researchers. (Those files include cases forwarded to it by its counterpart Senate 

Committee.) The files contained no high-visibility complaints not already identified.

By mail ballot, we agreed that our list of high-visibility complaints would comprise:

• two complaints terminated in 2001–2003, both of which we had already 

assessed as problematic;

• three complaints terminated in 2001–2003 that the staff had not assessed as 

problematic and thus had not been presented to us for review (upon review, 

we agreed with the staff as to all three);

• 11 complaints terminated after 2003; and

• one matter that had not produced a complaint but was the subject of extended 

criticism by some legislators, and concerning which the chief circuit judge 

had declined to identify a complaint in December 2002.

It is likely that there were news articles in 2004–2005 about judicial behavior that 

produced complaints but that did not appear in the two databases our staff canvassed, 

but we are confident that the 17 we identified include all the matters in this period 

that generated significant national legislative and public attention and probably all 

that generated significant regional attention.

Method of review—For the 11 terminated complaints that the staff had not already 

researched, they used the same method of in-circuit file review as with the 593-case 

sample; separate document review was necessary for the final matter in the list above. 

Their January 25, 2006, report and accompanying files covered those 12 matters 

plus the three from 2001–2003 they had not assessed as problematic. They assessed 

three of those 15 to be problematic. We reviewed all 15 matters, using the form in 
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Appendix I. A March 15, 2006, tabulation, again by the staff member who did not 

participate in the field research, reported agreement as to all 15. 

Therefore, we found five of the 17 high-visibility terminations to be problematic, 

including two assessed as such during our review of the 25 cases discussed earlier in 

this chapter.

Below we assess all 17 high-visibility cases, not just the five problematic terminations. Within each category, we discuss the nonproblematic dispositions first.

Dispositions in which the primary point of interest is the adequacy of the 

investigation (including the lack thereof) by the chief judge or the judicial 

council 

C-1 Complaint against two district judges concerning an employee grievance, 

properly dismissed by the chief judge and judicial council 

Facts and complaint—The probation office terminated an officer because her FBI 

background check uncovered serious credit problems and because she was married 

to a felony probationer and tried to hide her marriage from the probation office. She 

appealed the termination through the court’s adverse action grievance procedure. 

After several exchanges, revealing more negative information, the chief district judge 

terminated her on the chief judge’s authority. The employee invoked the adverse 

action procedures again. A judge chaired an ad hoc committee that upheld the termination.

The officer then filed her section 351 complaint alleging that the two judges had 

abused their authority and denied her due process and that the chief district judge 

should have recused because the judge’s secretary was the chief probation officer’s 

sister-in-law. The matter received some local press coverage in a metropolitan area.

Chief judge order and judicial council order—The chief circuit judge dismissed the 

complaint on the ground that the complaint and exhibits contained no evidence to 

suggest that the two judges had abused their authority, or that the chief district judge 

acted with a conflict of interest. There was no hint of any procedural irregularity. The 

judicial council affirmed the chief judge’s dismissal of the complaint. 

Assessment—The chief circuit judge’s dismissing the complaint was not problematic. 

Nothing in the file suggested any abuse of authority by the chief district judge that 

would call for any limited inquiry beyond that done. The chief district judge had the 

authority to terminate the officer and the second judge simply upheld that action. The 

chief circuit judge did not explain the basis for finding no conflict of interest arising 

from the secretary’s relationship to the chief probation officer, but the finding seems 

clearly correct. Even in litigation, if a judge’s secretary is related to a party or counsel, 

the judge can simply isolate the secretary from the case and not recuse.
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C-2 Nonproblematic dismissal of a complaint against a circuit judge for 

membership on a board of a judicial education organization 

Facts and complaint—An organization filed separate complaints in four circuits, each 

alleging that a judge violated the Code of Conduct by serving on the board of directors 

of the Foundation for Research on Economics and the Environment (FREE). Three 

judges resigned from the board; we discuss these complaints at C-12-13-14. Here we 

discuss the disposition of the complaint against the judge who did not resign.

The complaint said that FREE espouses a clear political stand on environmental 

issues—what FREE calls “rejection of top-down, command and control environmentalism”—and that FREE tries to advance its views by inviting judges to all-expensepaid seminars to influence their views of environmental cases. The complaint alleged 

that:

• service on FREE’s board ran afoul of the Codes of Conduct Committee’s 

published opinion advising judges not to serve on boards of non-profits 

if doing so would appear to endorse the views of the non-profits on issues 

likely to come before the judge in litigation;

• the judge’s service called into question the judge’s impartiality because, 

although FREE does not litigate environmental cases, some of its corporate 

donors, or their donees, do; and

• a number of well-known critics of environmental laws, including litigators 

and corporate executives, also serve on FREE’s board, so the judge’s service 

creates the impression that these persons are in a position of special influence 

with the judge.

The judge filed a response to the complaint, apparently without being requested 

to do so. 

Chief judge order—Through intercircuit assignment procedures, another chief circuit 

judge served as acting chief judge for this complaint. He conducted what he called 

“a somewhat expansive initial inquiry” about FREE and its seminars, then dismissed 

the complaint because his inquiry “demonstrate[d] that the ‘allegations . . . lack[ed] 

any factual foundation or [were] conclusively refuted by objective evidence’ 28 U.S.C. 

§ 352(b)1)(B).” Service on FREE’s board did not reasonably create an appearance 

that the judge was advancing a policy agenda because:

• FREE does not take positions on political and social issues;

• highly respected observers consider FREE seminars to present a diverse 

range of viewpoints and to be of the “‘highest intellectual quality’”; and 

• the Second Circuit’s court of appeals, after surveying views about the 

seminars’ alleged bias, said the matter of bias “‘depends so heavily on each 

individual’s view’” as to make impossible “‘a search for a consensus as to 

what is a balanced presentation.’” 
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The chief judge also found that FREE’s seminars themselves are paid for entirely 

by “deadmen’s” foundations, not by corporations or frequent litigants, and that no 

corporate entity donated more than a small percentage of FREE’s overall income. 

That certain corporate donors engage in environmental litigation therefore had no 

ethical implications, nor did service on a board with other influential members of 

the community. Otherwise, judges would be unable to serve on the board of any 

educational organization.

Assessment—Our task is not to second-guess a chief judge’s factual conclusions, 

absent clear error. Here, the chief judge’s factual conclusions are reasonable applications of the Act. It is true that the chief judge quotes FREE publications that could 

be read to undercut the finding that FREE does not take positions on political and 

social issues, e.g.:

While our seminars are explicitly pro-environment, they explain why 

ecological values are not the only important ones. We stress that trade-offs 

among competing values are inescapable.

This would seem to advocate a position on issues of political and social controversy. But that only suggests that service on FREE’s board may possibly raise ethical 

issues, not that it constitutes misconduct under the Act. The order notes that “individual judges may differ on the appropriateness of serving on FREE’s board” and 

points out that “this is a decision for each judge to make, applying the standards of 

the Canons” of the Code of Conduct for United States Judges. 

C-3 Nonproblematic judicial council dismissal of a complaint against a chief 

district judge

Facts and complaint—A public interest organization not a party to any of the litigation complained that a chief district judge assigned two cases involving President 

Clinton to Clinton appointees, believing that the appointees would be disposed to 

render decisions favorable to the administration, and that these assignments were 

misapplication of a (since rescinded) local rule authorizing the chief district judge 

to make nonrandom assignments of cases likely to be “protracted.” 

Based on the judge’s response, the acting chief circuit judge dismissed the complaint as unsupported, finding that the judge had assigned the cases to promote 

efficient case management. The chief judge cited the subject judge’s reliance on the 

local rule as a basis for dismissal but noted that the “lack of objective standards to 

govern the rule’s use makes possible both actual and perceived abuses, and the subject 

judge notes that perhaps ‘our special assignment system needs to be reexamined.’” 

While a petition for review was pending before the council, a House Judiciary 

Committee member submitted a letter to the clerk of the court of appeals alleging 

additional improper case assignments, bringing to nine the number of cases at issue. 
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The Office of the Independent Counsel had brought two, and the Justice Department’s 

Campaign Finance Task Force had brought seven. 

Chief judge and judicial council order—Although the chief circuit judge found 

the original complaint to be unsupported, he appointed a special committee after 

the judicial council, on remand, suggested such a committee to investigate the first 

complaint (the one originally dismissed) and the second complaint from the House 

member. 

The committee hired as counsel a former U.S. attorney appointed by a Republican 

President. Counsel interviewed 60 witnesses (judges, court clerks, the chief district 

judge’s law clerks, prosecutors, and defense attorneys), reviewed court records, subpoenaed documents, and examined grand jury proceedings. His 136-page report 

concluded that there was not even a preponderance of evidence, much less clear and 

convincing evidence, to support a claim that the subject judge engaged in “conduct 

creating an appearance of impropriety.” The special committee and the council adopted that finding. The council dismissed the two complaints as “conclusively refuted 

by objective evidence,” 28 U.S.C. § 352(b)(1)(B). 

Assessment—Some aspects of the chief circuit judge’s initial findings may have merited further inquiry—why, for example, did the subject judge not reassign the two 

cases to judges with the lowest criminal caseloads rather than, as she said she did, 

to the judges with the second and third lowest criminal caseloads at the time of the 

assignment? On the other hand, the two judges had the lowest criminal caseloads 

within several months of the assignments, a matter the chief district judge might 

have known would occur when making the assignments. 

Finding, as did the chief circuit judge, that the facts rebutted any reasonable inference of impropriety may have conceivably violated section 352(a)’s admonition 

that chief judges not make factual findings about matters reasonably in dispute. The 

special committee appointment, however, was clearly consistent with that admonition. The committee’s hiring counsel whose judgment was likely to be respected by 

all counterbalanced the complaint’s underlying charge of partisan favoritism. The 

thoroughness of the examination along with counsel’s credentials gave the appearance and reality of a rigorous test, and justified the dismissal.

Days before remanding the matter to the chief circuit judge, the circuit council 

abrogated the local rule that authorized the chief district judge to assign protracted 

cases. The council had before it the chief circuit judge’s dismissal order, which recommended reexamination of the local rule, and the Judicial Conference’s action a 

year earlier rescinding a decades-old resolution recommending such rules. 
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C-4 (1) Problematic failure to inquire into a complaint that a judge failed to 

timely acknowledge a misdeed and (2) improperly finding the judge’s 

apology to be corrective action (also case A-17 above) 

Facts and complaint—(The subject judge waived his confidentiality rights under 

the statute.) Two members of Congress filed this complaint in May 2002 against a 

circuit judge whom the Chief Justice had assigned to the Special Division of the D.C. 

Circuit, which appointed and oversaw independent counsels. The complaint involved 

the judge’s revealing to the press, on the eve of Vice President Gore’s nomination for 

President in 2000, that the Whitewater independent counsel had impaneled a grand 

jury to investigate President Clinton. The judge’s comment came in response to a 

press inquiry as to why he voted to continue the independent counsel’s probe when 

he had voted a year earlier to terminate it. Because news accounts did not reveal the 

source, the Vice President’s supporters charged publicly that the independent counsel, 

or perhaps one of the other special division judges (both Republican appointees), 

had disclosed the information in an effort to embarrass Gore and the Democratic 

party. (The subject judge was a Democratic appointee.)

The judge issued a statement late in the afternoon of the day after the leak was 

reported, saying that he “inadvertently referred to the existence of a newly empanelled 

grand jury as another reason for the continuance of [the independent counsel’s] office,” that his disclosure “has led to considerable controversy, based on its timing,” 

and that “the timing resulted solely from the press inquiry.” He offered “apologies to 

all concerned.” 

The complaint alleges, however, that the judge “may have sought to conceal from 

the independent counsel and the other judges . . . his responsibility for the disclosure,” 

stating that after the media published the leaked information, the judge delayed for 

more than 24 hours in revealing that he was its source. 

In support of this allegation (one of several in the complaint), the complaint 

recounts a 90-minute conference call on the day after the leak, at the end of which 

the judge revealed he was the source and then issued the statement quoted above. 

Participants in the call were the judge, the other two special division judges, and the 

independent counsel. In it, the other two judges agreed that there must be an investigation into the leak. The subject judge allegedly said an investigation was unnecessary 

and minimized the leak’s importance. As the conference call proceeded, the judge allegedly did not admit that he had disclosed the grand jury information, an admission 

that would have rendered the conversation moot. The independent counsel said an 

investigation of the leak might be a time-consuming waste of his office’s resources. 

The complaint alleged that the other two judges said that they believed there must 

be an investigation, and if the subject judge did not agree, he could dissent. Then the 

judge allegedly said he was the source. 

By contrast, the judge (in a letter to a legislator two months after the incident) 

said he realized the morning after the leak that the charges against the independent 
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counsel were “terribly unfair,” that he intended to admit publicly that he disclosed 

the grand jury information, that he would not do so until he informed the other two 

judges, and that other participants’ schedules precluded having the conference call 

until the afternoon, but that he opposed an investigation because it would be hypocritical “to vote to investigate his own leak.” He said “his ‘only motive in making the 

admission was concern that [the independent counsel] was being unfairly accused’ 

and thus his admission ‘was entirely gratuitous, spontaneous, and unforced by any 

other person.’” 

Chief judge order—The order of the acting chief judge of the judge’s home circuit 

restated and responded to each allegation of the complaint. He dismissed the allegation alleging delay in confessing as follows: “The fact that [the judge] did not say this 

at the outset of the conversation cannot reasonably be regarded as a delay of such 

magnitude as to constitute an ethical violation. The complaint does not indicate what 

ethical rule or principle the delay might have violated.” He concluded the proceedings, saying that although the disclosure 

was unfortunate, [the judge] apologized for the flap that ensued as well as seeking [sic] to mitigate its impact by prompt admission that he was the source . . . 

[T]he statute authorizes me to conclude a proceeding if I find that “appropriate 

corrective action has been taken or that action on the complaint is no longer 

necessary because of intervening events.” This statutory language could have 

been drafted with this matter in mind. [The judge’s] apology is corrective action 

and [several] intervening events . . . make it clear that no further investigation 

is necessary[, including] the complaint itself and its exhibits . . . . 

Assessment

Limited inquiry—The dismissal is inconsistent with our Standard 4 (limited 

inquiry called for if a “complaint . . . that is not inherently incredible . . . assert[s] 

that [its] allegation is supported by . . . a named witness”). The complaint alleged, 

with factual support, that the judge failed to admit that he disclosed the grand jury 

impaneling until it became clear that there would be an investigation. The chief 

judge could have made some appropriate inquiry of the conference call participants 

before dismissing the allegation. It is immaterial how long the judge waited before 

admitting in the conference call that he disclosed the information if, as the complaint 

alleges, he acknowledged it only when he realized that the other judges might launch 

an investigation. Also, the call occurred the day after the grand jury information 

became public, so the judge already had delayed a day in acknowledging that he was 

the information’s source. 

The exhibits in the file and alluded to in the order, of course, include the judge’s 

version of these events, which is sharply at odds with the complaint.
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Corrective action—Concluding the complaint on the basis of corrective action 

is inconsistent with several elements of Committee Standard 7 (“corrective action is 

appropriate when it serves to remedy the problem raised in the complaint”; “the emphasis is on correction of the judicial conduct that was the subject of the complaint”; 

“[v]oluntary corrective action should be proportionate to any plausible allegations 

of misconduct in the complaint”). The judge apologized for the disclosure but not 

the arguably more serious allegation that he tried to avoid acknowledging it. 

Concluding this proceeding based on corrective action bypassed the appointment 

of a special committee and thus an official judicial branch investigation into troublesome publicly aired allegations, leaving the public with no authoritative conclusion 

from the circuit council as to whether misconduct occurred and, if so, how it should 

be corrected. 

C-5 (1) Problematic failure to conduct an inquiry to determine whether a 

judge contested allegations of improper procedural manipulation and 

(2) improperly finding corrective action in steps taken by the court that 

did not directly involve action by the judge against whom allegations were 

made (also case A-18 above)

Facts and complaint—A public interest organization (not a party to the underlying litigation) complained that a chief circuit judge tried to affect the outcome of 

two cases: a capital habeas case, by failing to circulate petitions for a stay in a timely 

fashion; and a university admissions/affirmative action case by delaying a vote on 

petitions for an en banc hearing until two judges who might have been expected 

to have opposed the chief judge’s view of the case took senior status and became 

ineligible to vote on the petition for, or sit on, the en banc. The conduct had been 

the subject of separate concurring and dissenting opinions in F.3d, which received 

national news attention. 

Chief judge order and judicial council review—The memorandum of the acting chief 

judge (hereinafter “chief judge”) set out four sets of facts “relied upon by the complainant.” The memorandum noted that the complaint drew those facts from dissents 

in the cases, and that concurring opinions objected to aspects of the dissents. But it 

said that the particular facts in the memorandum “have not been disputed.” The chief 

judge did not seek a response from the subject judge and ruled that the complaint 

could not be dismissed under the statute because those “undisputed” facts “‘raise an 

inference that misconduct has occurred.’” The four sets of facts said to be undisputed 

are copied below essentially verbatim from the supporting memorandum:

1. The judge in question failed to give notice or seek votes from all the active 

members of the court regarding the sua sponte en banc motion for a 30-day 

stay in [the capital case]. 
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2. The judge did not circulate the October 30, 2001, motion to stay the 

evidentiary hearing in [the capital case] until after the hearing had begun 

on November 5, 2001, and provided no justification for this untimely 

distribution.

3. The judge did not circulate the May 14, 2001, [university admissions case] 

en banc petition until October 15, 2001, a date which fell after [two court of 

appeals judges] took senior status and were therefore ineligible to participate 

in the en banc proceeding.

4. The judge inserted himself into the three-judge [university admissions case]

panel—an action which is contrary to the random draw rule prescribed 

by . . . Cir. I.O.P. 34(b)(2). See [university admissions case], . . . ( . . . , J., 

concurring).

The chief judge concluded the proceedings based on corrective action and intervening events. The corrective action that the chief judge identified was:

a comprehensive review of the court’s internal procedures, and how those 

procedures are implemented. In meetings and correspondence, this court 

has clarified and is continuing to address its procedures governing [Cir. 

I.O.P.] 34(b)(2) “must panel” cases, motions review, en banc petitions, and 

emergency or “last minute” capital appeals, and by doing so the court has 

greatly reduced the potential for future incidents.

Furthermore, “the imminent operation of 28 U.S.C. § 45(a)(3)(A) [limiting the 

term of the chief judge to seven years] makes additional action unnecessary.” 

Complainant petitioned for judicial council review on the grounds that the corrective action did not address the misconduct alleged in the complaint. The subject 

judge also petitioned the council to review the chief judge’s findings and to dismiss 

the complaint as meritless. The council affirmed the conclusion of the proceedings 

based on the corrective action found by the chief judge, but said it “makes no findings of fact concerning the allegations of the complaint and expresses no opinion 

with respect to its content.”

Assessment

Limited inquiry—The disposition is inconsistent with section 352(a)’s admonition that the “chief judge shall not undertake to make findings of facts about any 

matter that is reasonably in dispute.” Here the chief judge found adverse facts to be 

undisputed and said those facts created an “inference of misconduct” without asking 

the subject judge if he disputed them. The result was a finding of misconduct and a 

public reprimand without a hearing. In fact, the subject judge’s petition for council 

review of the chief judge’s order disputed all four sets of facts that the order declared 

“undisputed.”
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The chief judge’s approach also appears inconsistent with the spirit of Rule 4(e) 

of the circuit council’s “Rules Governing Complaints of Judicial Misconduct or Disability.” The rule, which closely tracks Illustrative Rule 4(e), provides that “ordinarily 

a special committee will not be activated until the judge complained about has been 

invited to respond to the complaint and has been allowed a reasonable time to do 

so.” Here, the chief judge did not appoint a special committee. But the purpose of 

the rule is to accord the subject judge an opportunity to be heard before the chief 

judge takes steps that could lead to a (council) finding of misconduct.

The dissents and concurrences in the university admissions case clearly reveal 

disputes about the facts that the chief judge said were undisputed. True, some of the 

events occurred in the sequence and on the days cited in the chief judge’s memorandum. For example, it was undisputed that the judge did not circulate the May 14 en 

banc petition in the university admissions case until October 15. What was disputed 

is when the judge or panel received the petition from the clerk’s office, and whether 

court rules and operating procedures authorized the judge or panel to refer it to the 

entire court before briefing was completed. Had the chief judge requested a response 

from the judge, this and other factual disputes would have become apparent, as they 

did in the judge’s petition for review.

Finding the facts to be undisputed circumvented the appointment of a special 

committee, which is the statutory method for pinning down elusive facts and presenting them to the judicial council to determine whether misconduct occurred and 

whether appropriate corrective action had been taken. The council’s saying that it 

“makes no findings of fact concerning the allegations of the complaint and expresses 

no opinion with respect to its content” seems to respond to the subject judge’s argument, in his petition, that the chief judge had no authority to enter findings of fact 

about matters in dispute. 

Corrective action—The finding of corrective action is inconsistent in several ways 

with our Standard 7, which “emphasi[zes] correction of the judicial conduct that was 

the subject of the complaint” and states that corrective action “means voluntary action 

taken by” the subject judge. “Accordingly, changing a procedural or court rule a judge 

has allegedly violated will not ordinarily be sufficient.” Furthermore, “[a] remedial 

action directed by the chief judge or by an appellate court without the participation 

of the subject judge in formulating the directive or by agreeing to comply with it 

does not constitute corrective action.”

Here, the allegation was not that the judge improperly wrote a rule of procedure 

but that he manipulated preexisting rules. Our Standard 7 says a rule change “will not 

ordinarily be sufficient to remedy judicial conduct that was alleged to be in violation 

of a preexisting rule.” Furthermore, the posited corrective action did not involve the 

judge’s voluntary action to correct his alleged misconduct. He did not participate in 

formulating the corrective action except perhaps as a member of the court in drafting or reviewing any rule change. 
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Also, concluding the complaint in part on the grounds that the subject judge’s 

seven-year term as chief judge was about to expire is inconsistent with our Standard 

8 (“Ordinarily, stepping down from an administrative post such as chief judge . . . 

does not . . . render unnecessary any further action on a complaint . . . . As long as 

the subject of the complaint performs judicial duties, a complaint alleging judicial 

misconduct should be treated on its merits.”). A number of chief judges and judicial 

councils have ruled that leaving the bench renders a misconduct complaint moot 

because there is no forward-looking purpose to examining the conduct of someone 

who will no longer exercise judicial duties. Former chief judges who continue to 

exercise judicial duties, however, have frequent opportunities to interpret and apply 

rules designed to protect litigants and the public from abuses of judicial power. 

This incident may reflect an understandable desire to avoid appointing a special committee in a contentious matter that divided the court’s and circuit’s judges. 

Alternatives were available, however. The chief judge or judicial council could have 

explored transferring the complaint to another circuit, as was done at the chief judge 

level in other cases discussed in this report. Also, section 354(b)(2)(B) authorizes 

the judicial council to transmit a proceeding directly to the Judicial Conference if 

it determines that a matter “is not amenable to resolution by the judicial council.” 

The public would have benefited from an investigation and resolution of this highly 

visible controversy.

C-6 Improper failure to conduct a limited inquiry of ex parte contact and 

improper public comments, no petition for review

Facts and complaint—A state legislator complained that a district judge—assigned 

to oversee a regional utility following a consent decree—engaged in conduct that 

created an appearance of impropriety and that violated several provisions of the 

American Bar Association’s Model Code of Judicial Conduct. 

The complaint alleged that the judge:

• shortly after receiving an ex parte written request from a state official, issued 

an order strengthening the authority of a regional advisory body that the 

judge had created, after the governor vetoed legislation that would have 

shifted control of the utility from the city to suburban governments;

• announced the order at a press conference with city officials and said he was 

willing to issue further orders as necessary; and

• had made earlier public statements to the press criticizing the vetoed 

legislation.

The complaint requested no sanctions against the judge, only his removal from 

the case.

Chief judge order—The chief judge dismissed the complaint for nonconformity with 

the statute. Citing Rule 1(e) of the circuit’s Rules Governing Complaints of Judicial 
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Misconduct or Disability (identical to Illustrative Rule 1(e) on this point), the chief 

judge ruled that “the complaint procedure may not be used to have a judge disqualified from sitting on a particular case.”

The order also noted the complaint’s assertion that receipt of the state official’s 

letter and participation in the press conference “violated several provisions of the 

Model Code of Judicial Conduct.” The chief judge responded that federal judges are 

not subject to that code but rather to the Code of Conduct for United States Judges 

and that “[s]everal of the provisions of the Model Code relied on by the complainant 

do not exist in the Code of Conduct for United States Judges.” He did not discuss 

the applicability of the Code of Conduct for United States Judges to any specific allegation of the complaint. The order noted that complainant seeks only “removal 

of the judge from the case” and “specifically states in his complaint that he seeks no 

discipline against the judge.”

Assessment—The dismissal of the request to remove the judge from the case is consistent with our Standard 2, which says that an “allegation that a judge should have 

recused is indeed merits-related.” The chief judge dismissed the complaint based on 

nonconformity with the statute; he could also have dismissed it as merits-related. 

The chief judge did not confront the allegation’s facts and documentary support 

that suggested the subject judge’s conduct arguably violated provisions of the Code of 

Conduct for United States Judges concerning ex parte contacts and public comment 

about pending litigation. Complainant attached

• the letter that he said the state official sent the judge, asking him to convene 

the advisory board—further inquiry might resolve whether the judge shared 

the letter with all parties; and

• news articles quoting the judge on the legal effect of proposed legislation 

and its conflict with his order—those media reports could be inaccurate, but 

further inquiry might resolve the question of whether the judge’s conduct 

violated the Code’s admonition “to avoid public comment on the merits” of 

pending actions.

That the complaint sought no discipline of the subject judge is apparently the 

reason the chief judge did not inquire about, or appoint a committee to investigate, 

the ex parte contact and public comment allegations. However, that the complainant sought no discipline is irrelevant to the need for an inquiry. The Act directs the 

complainant to state the facts on which the complaint is based, authorizes the chief 

judge to accept a corrective action remedy, and authorizes the council to apply any 

remedy under the statute (without any regard to what remedy, if any, the complainant may wish).
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C-7 Complaint against a district judge inadequately investigated and 

improperly dismissed by chief judge, review petition improperly dismissed 

by judicial council 

Note—At issue in this complaint are two actions of a district judge involving the 

bankruptcy case of a probationer whom he was supervising: his withdrawal of the 

reference in her bankruptcy proceedings (a case not assigned to him), and enjoining 

a state court order evicting her from a house owned by the creditors. The court of appeals vacated both actions in 2002. In February 2003, an attorney involved in neither 

case filed this complaint. Later that year, the chief judge dismissed the complaint, but 

the council remanded it for further investigation. The chief judge again dismissed 

it in late 2004; in September 2005, the council affirmed the dismissal, over three 

dissents. Complainant attempted to appeal the judicial council order to the Judicial 

Conference. In April 2006, the Judicial Conference Review Committee decided, 3–2, 

that it had statutory authority only to review judicial council orders resulting from a 

special committee investigation. We understand that the chief judge, after the Review 

Committee’s decision, appointed a special committee, but our assessment is limited 

to the proceedings up to and including the council’s September 2005 order.

Facts and complaint—Complainant is an attorney with no connection to the underlying litigation and who apparently based his complaint on information in public 

accounts and legal materials. He and the district judge have a long history of public 

antagonism dating back to the judge’s imposing sanctions against him in a civil case, 

an action the court of appeals reversed and remanded to a different judge. 

Here, complainant alleged that the judge took two actions to assist a probationer 

whom the judge was supervising: 

• withdrawing the reference in her case from a bankruptcy court—sua sponte 

and without stating any reason—in a matter that had not been assigned to 

him (or any other district judge); and

• reimposing a stay that the bankruptcy court had vacated, which precluded 

creditors from enforcing a state court unlawful-detainer judgment entitling 

them to possession of premises occupied by the debtor/probationer. The 

judge twice denied the creditors’ request to lift the reimposition. According 

to the court of appeals, his only stated reason was “because I said it.” 

Probation office records indicate that the debtor, her probation officer, and 

the judge met less than a month before the judge withdrew the reference. In its 

2003 order, the council referred to information (provided by council staff) that the 

secretary of the probationer’s bankruptcy attorney had ghost-written a letter from 

the debtor/probationer to the subject judge asking for help with the eviction. The 

council’s order says, referencing the staff-provided information, that “[a]ccording 

to the secretary,” the debtor/probationer delivered the letter “‘a day or two before . . . 
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[the judge] withdrew the reference,’ and the next time they saw each other, the debtor 

told [the secretary] ‘the letter had “worked.”’” 

In response to an inquiry from the chief judge, the judge said the bankruptcy case 

“was related to my program of working with probationers to help their rehabilitation,” 

a program that he said the probation office deemed “successful.” He said that during 

one of his meetings with the debtor about her probation community service, she 

“advised [him] that there was an unlawful detainer action pending in the Municipal 

Court to evict her from the property in which she and her minor daughter were 

living that was nominally owned by . . . [the creditors] but was given to them when 

she married her then estranged husband. . . . I re-imposed the stay to allow the state 

matrimonial court to deal with her claim. From her explanation of the proceedings 

in the state court it appeared to me that her attorney had abandoned her interest so 

it could not be adequately presented to the state court.” Based on this information 

the district judge took over the bankruptcy case and issued the injunction against 

the state court proceedings.

There is nothing in the file to indicate that the other parties to the bankruptcy 

proceeding were aware of this conversation between the judge and probationer.

The judge also said that he had learned that the probationer’s presentence report 

had been, according to the chief judge’s 2004 order, “unlawfully filed and/or referred 

to” in the bankruptcy and state court proceedings and that he withdrew the reference 

to prevent further confidentiality violations.

The court of appeals had vacated both the withdrawal of the reference and the 

injunction. The court held that the “district court’s reference was withdrawn without 

the requisite showing of cause,” and “the district court abused its discretion when 

it issued an injunction . . . because it failed to provide notice as required . . . .” The 

court of appeals found that the debtor “has occupied the property for almost three 

years, resulting in a $35,000 loss of rental income” to the creditor. 

Chief judge, council, and review committee orders—There have been two rulings by 

the chief judge and two by the judicial council. In the initial 2003 ruling, the chief 

judge dismissed the complaint as directly related to the judge’s ruling or decision in 

the underlying case and also as frivolous or unsupported. In a supplemental order 

in 2004, the chief judge said that “the unlawful filing and reference to a confidential 

presentence investigation report in defendant/debtor’s bankruptcy proceedings constituted a legitimate basis for the District Judge’s initial assumption of jurisdiction in 

the bankruptcy case, sufficient to preclude a finding of judicial misconduct.” 

Both grounds for dismissal seem problematic, but given the case’s lengthy record, 

we focus mainly on the second of the chief judge and council orders.

In its first order, the council found, 6–4, that the chief judge “erred in dismissing 

the complaint as frivolous or unsubstantiated; it is plainly neither.” The council vacated 

the dismissal order and remanded the case to the chief judge for further proceedings. 

The council said it is “well-established that a judge may not exercise judicial power 
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based on secret communications from one of the parties to the dispute” and a “judge 

may not use his authority in one case to help a party in an unrelated case.” 

On remand, the chief judge apparently investigated the judge’s relationship with 

the probationer (the complaint alleged the judge intervened to “benefit an attractive 

female”) and concluded that the “suggestion of an improper personal relationship 

. . . is entirely unfounded.” The chief judge investigated the claims relating to the 

alleged ghost-written letter to the district judge asking for help and found that “no 

such letter had been transmitted to, or received by, the district judge,” and that “there 

is no basis for a finding that credible evidence exists of a letter or other ‘secret communication’ having passed between the defendant debtor and the district judge . . . 

or for finding that there was any private meeting or discussion between them at any 

time.” The chief judge again dismissed the complaint, this time without specifying a 

statutory ground. The council said it would “not upset” these “factual findings.” 

The council affirmed the dismissal in September 2005, finding that appropriate 

corrective action had been taken. The council noted that “[t]he withdrawal of the 

reference by the district judge was dealt with by the court of appeals,” which held it 

an abuse of discretion.

The council’s September 2005 order also recounts that in May it had “communicated with the district judge setting forth with specificity the nature of the inappropriate conduct that he had engaged in relating to the withdrawal of the reference 

. . . and setting forth the necessity for appropriate and sufficient corrective action 

including an acknowledgment by the district judge of his ‘improper conduct’ and ‘a 

pledge not to repeat it.’” The judge responded through counsel, who said “[u]pon 

reflection, [the judge] recognizes that if he had articulated his reasons for withdrawing 

the reference and reimposing the stay, and his underlying concerns that led to those 

actions, misunderstandings by the parties could have been prevented. As would any 

dedicated jurist, he recognizes that it was unfortunate [that misunderstandings] occurred in this situation. He does not believe any similar situations will occur in the 

future.” 

The council indicated it was “satisfied that adequate corrective action has been 

taken such that there will be no re-occurrence of any conduct that could be characterized as inappropriate.”

Three members dissented separately. Two of them concurred with the dismissal 

of the aspect of the complaint alleging an improper relationship between the judge 

and the debtor/probationer. As to the other allegations, one council member said “the 

record is insufficient,” particularly as to the bankruptcy stay and the judge’s reason for 

imposing it. Another said the chief judge and council had yet to address “persuasive 

evidence of misconduct.” As to the dismissal on corrective action grounds, he said it 

“is impossible to determine if misconduct has been corrected until the misconduct 

is precisely identified,” and the misconduct in this case “has never been corrected.” 

That misconduct, citing the circuit’s misconduct rules, appeared to be “‘improperly 

engaging in discussions . . . with parties in the absence of representatives of opposing 
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parties,’” and failure to “accord the parties a ‘full right to be heard according to the 

law,’” in violation of Canon 3(a)(4) of the Code of Conduct for United States Judges. 

Furthermore, the court of appeals’ finding that the district judge abused his discretion was “a resolution of an appellant’s legal claim, not an admonishment of a judge’s 

conduct.” And, the judge’s statement “misses the mark” because “[t]he misconduct 

was not the failure to explain, but the granting of an ex parte favor without giving 

anyone notice or a chance to respond. The district judge has never apologized for 

that.” The same council member said the council should return the matter to the chief 

judge with directions to “appoint a Special Committee,” which could hold “hearings 

where the district judge may put on a full defense.” Anything less would “deny to the 

district judge the very due process that he is accused of denying to others.” 

A third council member’s 39-page dissent discussed inferences that might be 

drawn from information uncovered during the chief judge’s and council’s limited 

investigations, concluded that serious misconduct had been established, and called 

for a public reprimand, for ordering the subject judge to compensate the bankruptcy 

creditors for the loss of rental income, and for the judge to apologize to the creditors. 

Two days after the second council order, the complainant petitioned the Judicial Conference for review of the council’s order under 28 U.S.C. § 357(a). The 

Conference’s Committee to Review Circuit Council and Disability Orders, to which 

the Conference has delegated its authority under the Act, held, on April 29, 2006, 

by a 3–2 vote, that it had no jurisdiction to review council actions other than that 

exercised pursuant to section 354. The majority of the Committee said that the Act 

is clear that the Conference may only review council actions taken pursuant to a 

report of a special investigative committee; the chief judge had not appointed such 

a committee to investigate this complaint, but instead had dismissed the complaint 

under section 352, a dismissal upheld by the council’s second (2005) order. 

Two Review Committee members said in dissent that they would return the case 

to the chief circuit judge with orders to appoint a special committee. They said that 

the chief judge and council had misapplied the Act by dismissing allegations that 

clearly were in dispute and that thus required the appointment of a special committee. The dissenters noted the rule that “labels used by subordinate tribunals do 

not conclusively determine the jurisdiction of appellate tribunals,” and said that the 

chief judge and council should not be able to use labels to frustrate the application 

of national standards that Conference review is designed to achieve. They said precluding review in this case will weaken public confidence in the judiciary’s exercise 

of its delegated authority of self-regulation.

Assessment—The chief judge and judicial council actions are inconsistent with our 

Standards in respect to the chief judge’s fact finding and the council’s finding of 

corrective action.
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Chief judge fact finding—The chief judge determined, as reported by the 2005 

council order, that the alleged ghost-written letter had not been sent to or received 

by the district judge. Such a finding is contrary to 28 U.S.C. § 352(a)’s admonition 

that the “chief judge shall not undertake to make findings of fact about any matter 

that is reasonably in dispute.” Whether there was ex parte communication appears 

to have been reasonably in dispute. In its first order, the council pointed to evidence 

from the council staff that there was such a communication. According to one of the 

dissents, the chief judge contacted the judge and debtor/probationer; they disputed 

the matter and denied that such a communication had been sent or received. The 

original information, however, was not retracted and the state of the record reveals a 

dispute. One dissent devotes nine pages to analyzing the nuances of these conflicting 

bits of information and concludes that “[a]t the very least, then, we have a conflict in 

the evidence that only an adversary hearing can resolve. And an adversary hearing can 

only be held if the Chief Judge convenes an investigative committee. . . .” The chief 

judge “is not the trier of fact. . . . Her authority is limited to determining whether 

there is credible evidence of misconduct, and she may dismiss the complaint only 

if credible evidence is entirely lacking. . . . [She] did not contact the lawyer or his 

secretary and they did not retract statements they had made to our investigator.”

Corrective action—The final council disposition is inconsistent with our Standard 

7: when conduct results in “identifiable and particularized harm to the complainant” 

or anyone else, “appropriate corrective action” should include steps by the subject 

judge “to acknowledge and redress the harm, if possible,” such as an apology, recusal, 

or pledge to refrain from similar conduct; any corrective action should, if possible, 

“serve to correct a specific harm to an individual”; corrective action will ordinarily 

be “appropriate” to conclude a complaint only when the judge complained against, 

or someone else, informs the aggrieved individual of the nature of the corrective 

action that is stated in the chief judge’s order.

The complaint alleged that the judge took actions sua sponte in a case without 

giving the litigants notice or opportunity to be heard, based on information he had 

received ex parte in another matter (the probation supervision). Those actions benefited the debtor/probationer and damaged the creditor. His response to the judicial 

council admitted that he acted ex parte to advance the rehabilitation of the probationer. The council said in its first order that those actions clearly violated norms of 

judicial conduct. 

When the council asked the judge for a statement of corrective action, his attorney 

acknowledged no misconduct and treated the matter simply as a misunderstanding 

based in part on the judge’s failure to explain his reasons fully. The judge offered no 

meaningful apology, provided no redress in the form of words or otherwise to the 

creditor for its losses, and did not promise not to repeat such conduct but simply 

predicted it wouldn’t recur.
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The council also cited the court of appeals’ opinion as part of the corrective action, a position also inconsistent with our Standard 7 (corrective action does not 

include a remedial action directed by an appellate court without the subject judge’s 

“participation . . . in formulating the directive or . . . agreeing to comply”). The Act is 

clear that only the council can impose a formal remedy or sanction in response to a 

complaint. Thus, the council’s citation of the ruling in the underlying case does not 

support a finding of corrective action. Two of the dissents elaborated. One pointed 

out that an appellate holding of abuse of discretion is a legal conclusion connoting 

“mere error—not wrongdoing. . . . Merely reversing an erroneous judgment that is 

the product of the misconduct does not undo the misconduct.” Another said that the 

appellate finding that the judge “abused his discretion is a resolution of an appellant’s 

legal claim, not an admonishment of a judge’s conduct. Indeed, [the appellate case] 

never addressed in any way the misconduct issue before us.”

Need for special committee appointment—We believe that appointment of a special 

committee was called for in the first instance, as the council’s first order suggested 

but did not direct. Both chief judge dismissals of the complaint appear inconsistent 

with the Act, as does the judicial council’s second order. 

Chapter 6 includes recommendations for steps the judicial branch can and should 

take within its current statutory authority to avoid situations similar to this and other 

problematic terminations.

C-8 Problematic failure by a chief judge to identify and investigate a complaint 

against a district judge

Facts—A chief circuit judge wrote a letter to the director of the Administrative Office of the U.S. Courts, responding to a phone call from the director in which the 

director reported that the chief counsel to the House Judiciary Committee and to 

one of its subcommittees suggested to the director that the chief judge review House 

Report 107-769 “with an eye [quoting here from the chief judge’s letter] toward 

instituting judicial misconduct proceedings against [a district judge] . . . .” No one 

filed a complaint in the matter, but the Act says a chief circuit judge, “on the basis of 

information available to the chief judge . . . , may, by written order stating reasons 

therefor, identify a complaint . . . and thereby dispense with the filing of a written 

complaint” (section 351(b)).

The House Report alleged that the district judge had

• lied, or at least been seriously misleading, in Committee testimony and later 

supplementations;

• illegally departed downward from the sentencing guidelines in drug cases, 

implying that he had done so in bad-faith disregard of the applicable law; 

and 
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• improperly closed a sentencing proceeding and sealed transcripts of other 

sentencing proceedings, perhaps to hide his allegedly illegal acts.

Chief judge letter—The chief circuit judge’s letter to the AO director gave three main 

reasons why he declined to identify a complaint. 

First, he found that the judge’s alleged false testimony could not constitute misconduct under the Act because he did not testify as 

part of his official duties as a United States District Judge, nor was it “the 

business of the courts” that he was about that day. He was a volunteer, 

invited by members of the Committee to provide his personal views on 

a piece of pending legislation about which he professed to possess some 

knowledge, albeit acquired during his service as an Article III judge. He 

made it clear to the Subcommittee that he was not representing the courts 

or the Judicial Conference.

Second, the court of appeals, in one of the cases at issue, had taken “sufficient 

corrective action” by ruling that the judge had abused his discretion—“embarrassingly 

harsh words of public criticism for any trial judge to hear and read.” The other case 

was on appeal and the chief judge was reluctant to preempt the matter by instituting 

disciplinary hearings. 

Third, the Judiciary Subcommittee had requested additional information from 

the district judge about the alleged closed sentencing hearings and sealed transcripts, 

and it was advisable to await the judge’s response to that request. The chief judge also 

noted that the full Committee had requested a report by what was then the General 

Accounting Office on all drug cases in which the judge had departed downward; the 

chief judge doubted the wisdom of this legislative intervention but saw no point in 

conducting a duplicative investigation.

Assessment

Improper finding of nonconformity—The chief judge’s first reason for not identifying a complaint is inconsistent with our Standard 3 (conduct off the bench can 

be “conduct prejudicial the effective and expeditious administration of the business 

of the courts” (section 351(a))). The statute’s legislative history makes clear that the 

Code of Conduct for United States Judges gives substance to that phrase. The Code 

expressly bars judges from fundraising for a charity, which makes it problematic to 

conclude that lying to Congress (if that happened) would not be misconduct under 

the statute because the judge was not testifying on behalf of the courts. Moreover, the 

Judiciary Committee no doubt invited him to testify as a federal judge about matters 

that are at the heart of his judicial duties, something very different from appearing, 

say, as a homeowner before a local zoning board.

Improperly finding corrective action—The chief judge’s second reason for not 

identifying a complaint is inconsistent with our Standard 7 (“‘[C]orrective action’ 

. . . means voluntary action taken by the judge complained against. A remedial ac-
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tion directed by . . . an appellate court without the participation of the subject judge 

in formulating the directive or by agreeing to comply with it does not constitute 

corrective action.”). However, this inconsistency with the Committee Standards was 

harmless because the allegation of improper sentencing departures, if raised in a 

formal complaint, could be dismissed as merits-related and as unsupported. 

Deferring to legislative investigations of closed hearings and sealed transcripts—The 

chief judge said that the judge’s motives for closing a sentencing hearing or sealing 

sentencing transcripts could be cognizable under the Act, but that investigating 

them would unnecessarily duplicate the House Subcommittee and GAO investigations. Deferring to a congressional investigation of alleged misconduct, outside the 

impeachment process, is arguably in tension with the Act’s fundamental policy that 

the judiciary should police itself so as to avoid the separation-of-powers concerns 

raised by congressional investigation. We recognize, however, the difficult spot this 

aspect of the complaint created for the chief judge and assume that it represents a 

rare exception to normal procedure.

In any event, the House Report’s allegations about the judge’s motives in closing hearings or sealing transcripts, had they been raised in a section 351 complaint, 

would properly have been dismissed as merits-related and unsupported. For example, 

the Report alleges that the judge sealed a sentencing hearing in the face of a general 

statutory requirement to sentence in open court. The Report acknowledges that there 

may be many legitimate reasons for a judge to seal a proceeding, but speculates that 

“this case may be one in which [the judge] granted yet another departure below the 

guideline range, which he sought to conceal from the public and from the Subcommittee by unlawfully sealing the transcript.” Absent evidence that there actually was 

an unlawful departure in that case, and given the judge’s openness in testifying voluntarily before the House Committee on the very issue of departures, this speculation 

would not constitute an adequate factual basis to require further inquiry. 

Failure to identify complaint—As the chief judge stressed in his letter, the Act 

leaves the decision to identify a complaint to the chief judge’s uncabined discretion. 

The chief judge appears to have declined to identify a complaint in this case mainly 

because he believed he would dismiss the complaint, once it was properly before him, 

on the grounds of nonconformity and corrective action. However, a chief judge’s 

decision to identify a complaint is separate from that chief judge’s later decision to 

dismiss or conclude that complaint or appoint a special committee. Illustrative Rule 

2(j) says that once a chief judge identifies a complaint, he or she “will perform all 

functions assigned to the chief judge” for determining the complaint’s disposition. 

We think the better course would have been for the chief judge, in this very public 

matter, to identify a complaint, undertake whatever limited inquiry was necessary, 

and dismiss any elements that merited dismissal. 

Our Standards as originally drafted did not deal with identification of complaints, 

but this case caused us to amend them by adding Standard 9. Standard 9 recognizes 
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that there are many good reasons for not identifying a complaint, but says a chief 

judge should not decline to do so solely because the chief judge believes that he or 

she would ultimately dismiss it. The more public and high-visibility the matter, the 

more desirable it will be for the chief judge to identify a complaint (and then, if warranted, dismiss or conclude it without appointment of a special committee) in order 

to assure the public that the allegations have not been ignored. 

Dispositions in which the primary point of interest is the chief judge’s 

merits-related dismissal

C-9 Complaint against a district judge properly dismissed, review petition 

dismissed

Facts and complaint—A litigant complained that, in his lawsuit against local prosecutors, the judge showed bias, “acted as counsel for defendants,” and improperly 

dismissed portions of the lawsuit. The complaint said that the defendants were “high 

ranking [local] officials that [the judge] has had prior affiliation with,” and that the 

judge’s misconduct occurred while complainant’s recusal motion was pending. The local press covered the lawsuit and some Internet postings discussed the complaint.

Chief judge order—The chief judge dismissed the complaint as merits-related, and 

also as frivolous for lack of any factual substantiation for the allegations of bias and 

improper demeanor. 

Assessment—The chief judge’s dismissal is consistent with Committee Standard 2 on 

merits-relatedness. This appears to be a typical complaint that assumes bias because 

the judge ruled against the complainant. The file shows that the chief judge’s staff 

reviewed the transcript of the hearing mentioned in the complaint and advised the 

chief judge that the transcript contained no indication of any bias, irregularity, or 

improper demeanor.

C-10 Complaint against a district judge properly dismissed, review petition 

dismissed

Facts and complaint—These facts come primarily from the complaint, which complainant filed on its website; the chief judge’s public order; the court file, which circuit 

personnel redacted heavily before providing it to the Committee staff; and, in a few 

instances, from apparently objective information in news articles.

Two public interest organizations, not parties to the litigation, complained that 

a district judge ruled in a case whose outcome could substantially affect his financial 

interests. The case was a state government suit, with the intervention of at least one 

environmental group, challenging a United States Forest Service rule that would 

prohibit road construction on 58 million acres of federal land across the country. 
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Complainants alleged that the judge’s oil and gas stocks and royalties would be affected by his ruling, and they submitted copies of the judge’s financial disclosure 

forms to document his interests.

None of the parties or interveners asked the judge to recuse. Complainants invoked the complaint process three weeks after the judge enjoined enforcement of 

the rule. 

The judge’s response to the complaint said that his annual financial disclosure 

reports had long disclosed all of his stock and royalty interests, that those interests 

were not parties to the litigation, and that whether his decision would benefit any 

of them depended on numerous factors over which he had no control. He asserted 

that the complaint was directly related to the merits of his decision, and, based on 

precedents he cited, there was no statutory conflict of interest or the appearance of 

such. 

Chief judge order—The chief judge said the complainant, in effect, asked the council 

to find “that the . . . judge should have recused himself from the case . . . and then to 

punish him for failing to do so.” The chief judge dismissed the complaint as directly 

related to the merits of the judge’s implicit decision not to recuse. “Whether to recuse 

is a case-specific decision,” and “the only valid avenue available for examining alleged 

partiality lies within the context of a particular case.” A nonparty may encourage such 

an examination by “contacting the parties and providing them the information that 

complainants believe supports their claim that the respondent judge should have 

recused himself.” Otherwise, anyone could file a complaint under the Act, “even if 

the judge’s decision had been challenged and affirmed on mandamus or appeal—and 

ignore the existing appellate procedure for correcting district court errors.” 

Assessment—The chief judge’s dismissal is consistent with our Standard 2, based on 

Illustrative Rule 1(e) (an “allegation that a judge should have recused is indeed meritsrelated”). Standard 2 says the only circumstance in which the Act might be applied 

in a recusal matter is when “the judge knew he should recuse but deliberately failed 

to do so for illicit purposes,” something for which the complaint alleged no facts.

The complainant’s petition for review, which the council dismissed without 

opinion, challenged the chief judge’s order because the judge’s failure to inform the 

parties of his holdings “effectively prevented the parties from filing a timely recusal 

motion and preserving the issue on appeal.” But the judge said he had disclosed his 

holdings for many years. Complainants offered no evidence to rebut that claim or 

to indicate that the judge tried to hide his holdings. Complainants relied solely on 

the absence of a specific disclosure of the holdings to the litigants in this case.

They also asserted that the chief judge’s order thwarted the congressional goal of 

providing a remedy to what section 351(a) calls “[a]ny person” who files a complaint, 

and that the “directly related to the merits of a decision” language applies only when 

litigants attempt to relitigate a matter settled in the course of litigation. We believe, 

however, that the chief judge’s interpretation of the merits-related language is well 

settled. 
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C-11 Complaint against a district judge properly dismissed, no petition for 

review

Facts and complaint—(The underlying litigation is still active; our summary is 

based solely on the section 351 complaint presented in the matter and deals solely 

with that and not with any legal issues pending or resolved in the litigation after 

the resolution of the complaint in May 2004.) A law professor complained that a 

district judge abused his power in two cases by “gratuitous and unsupported public 

vilification of numerous government employees.” (The complainant appended his 

law review article, Judge . . .’s Reign of Terror at the Department of Interior.) The judge 

responded extensively to the complaint and made that response part of the public 

record in the matter. 

The complaint mainly attacked the judge’s conduct in a then-eight-year-old challenge to the Department of the Interior’s accounting for funds it holds in trust for 

Native Americans. Several appeals had upheld the judge’s substantive rulings but not 

his treatment of some contempt proceedings as civil rather than criminal. The other 

case challenged the operation of a working group of President Clinton’s healthcare 

task force. Complainant alleged that the judge

• held five individuals in contempt in the Department of the Interior case 

without any basis and without required procedural safeguards;

• threatened to issue “citations against scores of individuals” to force them 

into positions with which he agrees;

• ordered the Department “to disconnect all of its computers from the Internet 

. . . at enormous cost to the government and with no adequate basis in law or 

fact”; and

• characterized named government attorneys’ statements in the task force case 

as “dishonest,” “outrageous,” “reprehensible,” and manifestations of a “coverup.” Complainant asserted these statements were unjustified and baseless.

Chief judge order—The chief judge dismissed the complaint, finding that most of 

the allegations challenged the merits of the judge’s orders. As to the alleged threats 

against the attorneys, the chief judge, after reviewing the judge’s response, dismissed 

them as unsupported and related to the merits of contempt proceedings. Noting that 

the complaint referred only to “an anecdote related by an unnamed source,” the chief 

judge ruled that “unsubstantiated assertions of wrong-doing . . . are clearly insufficient” because they can “neither be refuted by the subject judge nor substantiated 

through investigation.” 

Assessment—The treatment of the anecdote from the anonymous source is consistent with our Standard 4’s insistence on allegations supported by the transcript or 

by named or identifiable witnesses. 
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The dismissal is consistent with Committee Standard 2, concerning merits-related 

allegations. The judge used strong language to describe the behavior of attorneys 

and other officials. The allegations about the Department of the Interior case failed 

to examine the context in which the contempt proceedings and the alleged threats 

occurred. Our Standard 3 recognizes that the “rough and tumble” of litigation may 

require a strong hand to control strategic litigation behavior. Punishing this judicial 

conduct could inhibit other judges’ efforts to apply the rule of law in an unruly case 

and thus encroach on the judicial independence needed to manage such litigation. 

The specifics of the healthcare task force case also illustrate the relation of that language to the merits. The judge characterized an attorney’s declaration as “dishonest” 

and the government’s arguments and other behavior as a “cover-up.” The judge did so 

while ruling whether to award attorneys’ fees because the government’s position was 

“not substantially justified.” The statements were an integral part of the judge’s legal 

rulings and showed no evidence of being motivated by illicit or personal concerns. 

He named the individuals responsible for the statements but did not engage in ad 

hominem attributions or manifest any personal or political bias.

Dispositions in which the primary point of interest is the chief judge’s 

or council’s concluding the proceedings because of corrective action or 

intervening events

C-12-13-14 Three complaints, in three circuits, against three judges properly 

concluded by chief judges, no petitions for review

Facts and complaint—The organization that filed the complaint discussed at C-2 

filed nearly identical complaints in three other circuits alleging that two circuit judges 

and one district judge had violated the Code of Conduct for United States Judges 

by serving on the FREE board. The three judges resigned from the board while the 

complaints were pending.

Chief judge order—Each of the three chief judges concluded the complaint, one on 

the twin bases that the judge had taken appropriate corrective action and that intervening events had rendered the complaint moot, and the other two on the single 

basis that intervening events had rendered the complaint moot. (In one circuit, all 

the circuit judges recused and the matter was transferred by intercircuit assignment 

procedures to the chief judge of another circuit.) 

Assessment—The chief judges’ dismissals are consistent with Committee Standard 

7 on voluntary corrective action and Standard 8 on proceedings concluded based 

on intervening events. Clearly the judges’ resignations from the board constituted 

appropriate corrective action and/or mooted the complaints. One can imagine hypothetical situations in which resignation might not constitute sufficient corrective 
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action (e.g., a judge’s accepting and then resigning a post on a political party steering 

committee), but that was not the case here. 

C-15 Chief judge properly identified a complaint against a district judge and 

properly concluded it based on corrective action, no petition for review

Facts and complaint—The chief judge identified a complaint based on “[i]nformal 

telephone complaints received by the Circuit Executive’s Office and extensive newspaper coverage.” The complaint alleged that the subject judge wrote to a judge on the 

same court about that judge’s sentencing of a former assistant U.S. attorney. The letter 

“described the defendant’s contributions to combating organized crime” during the 

subject judge’s tenure as U.S. Attorney and “explicitly asked [the sentencing judge] 

to consider the defendant’s contributions in determining . . . sentence.” 

The subject judge’s response to the chief judge acknowledged “a clear violation 

of [Code of Conduct for United States Judges] Canon 2B [for which] I am exceedingly sorry and sincerely apologize to the Judicial Council and to my fellow judges 

. . . .” The response waived the Act’s confidentiality provisions and requested that all 

materials relating to the complaint be made public.

Chief judge order—The chief judge concluded the complaint on the basis of corrective 

action. He found that the judge’s sentencing letter violated Canon 2B and appeared 

to constitute misconduct under the statutory standard—especially because “the letter was written to a judge of [the judge’s] own court and that it was sent on official 

stationery.” The chief judge noted that the judge had publicly withdrawn his letter, 

had agreed that his conduct was unethical, had sincerely apologized, and had made 

the materials public. The chief judge observed, “[s]uch publication, in my view, will 

achieve as much benefit as would be achieved by a formal investigation and will do 

so far more rapidly.” Thus the chief judge directed that the complaint, the judge’s 

response, and the chief judge’s order “be filed and made public without redaction.”

Assessment—The chief judge’s order is consistent with Committee Standard 7 (corrective action is “voluntary self-correction of misconduct”). The corrective action 

was action taken by the judge himself, was commensurate with the violation, was 

tailored to provide whatever benefit was possible to persons directly affected by the 

violation, and was swiftly made public. This is a model for the effective administration of the Act.

C-16 Complaint against a district judge properly concluded by judicial council 

order, no petition for Judicial Conference review

Facts and complaint—(These facts are drawn from the judicial council’s public order 

and apparently reliable wire service and local newspaper reports.) State and federal 

prosecutors, federal public defenders, and private attorneys complained that a district 
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judge abused them orally and in one case physically, stemming from his obsession 

with attorney conduct and ethics. The chief judge appointed a seven-member special 

committee.

The committee eventually scheduled a formal hearing, at which various persons, 

including the state’s governor, appeared to testify. At that point, the judge admitted 

the truth of the allegations and agreed to go on administrative leave for at least six 

months, during which he would undergo behavioral counseling, and to waive any 

doctor–patient privilege so that his doctor could consult with the special committee’s 

expert. 

Judicial council order—The council adopted the committee’s settlement recommendation, including barring the judge from cases involving a number of the attorneys for 

three years (and in one case, forever). The public order recited the settlement terms 

and announced that the judge had admitted the allegations of abusive behavior. Six 

months following the council order, the judge applied to resume full judicial service. 

The committee refused but agreed to reinstate him six months later. Newspaper accounts some months later said that the judge was receiving “glowing” reviews from 

the bar. 

Assessment—The judicial council’s order is consistent with our Standard 8 

(“[v]oluntary corrective action should be proportionate to any plausible allegations 

of misconduct in the complaint”). This would appear to be a deft resolution of a 

difficult problem, giving full effect to the statutory policies of reforming judicial 

misconduct, maintaining public confidence in the judiciary, and preserving judges’ 

independence.

C-17 Complaint against a circuit judge properly concluded by judicial council 

order based on corrective action and public reprimand, no petition for 

Judicial Conference review

Facts and complaint—A circuit judge, at an American Constitution Society forum, 

compared the means by which President Bush attained the presidency in 2000 to 

how Mussolini and Hitler had assumed power, and stated that American democracy 

should reassert itself by defeating President Bush in 2004. A few days later, after a 

wave of press accounts and criticism, the judge released a public letter to the chief 

judge acknowledging impropriety and apologizing. The chief judge released a public 

memorandum to all circuit judges, forwarding the letter, admonishing the judge for 

his misconduct, and warning all judges to avoid similar conduct. 

Thereafter, five complaints were filed under the Act. One, by 15 members of 

Congress, complained about the remarks and also alleged that it was improper for 

the judge to speak at the event at all, because the Society is “partisan” and “left-leaning.” An attorney, a litigant, and two others filed the other complaints. All alleged 

that the judge had improperly compared President Bush to Mussolini and Hitler; 
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two alleged that he had improperly called for the President’s defeat; one alleged that 

he demonstrated his unfitness by publicly disagreeing with Bush v. Gore; one alleged 

that the judge’s wife publicly stated at an anti-Bush rally that she was there “on behalf 

of herself and her husband.”

The chief judge recused from handling the formal complaints. The acting chief 

judge appointed a special committee, thereby not concluding the matter based on 

corrective action (the judge’s apology). Following the special committee’s report to 

the council, the council issued a published memorandum and order.

Judicial council order—The council found that comparing President Bush to Mussolini and Hitler and calling for his defeat was a “clear and serious” violation of Canon 

7 of the Code of Conduct for United States Judges and “that all of the purposes of 

the judicial misconduct provisions are fully served by” the judge’s public apology, 

the chief judge’s public admonitory memorandum, “and the Judicial Council’s concurrence with the admonition in the Memorandum. . . . These actions constitute a 

sufficient sanction and appropriate corrective action.”

The council dismissed:

• the allegation that criticizing Bush v. Gore showed incompetence: “reasonable 

people disagree over the soundness of the opinions in that case”;

• the allegation about the judge’s wife for lack of factual support—she said 

she had no recollection of stating she was speaking for her husband, and the 

judge said that he never authorized her to state that she was speaking for 

him, and that he had long counseled her to the contrary; and

• the allegation that it was improper for the judge to speak at an American 

Constitution Society event—Code of Conduct Committee advisory opinions 

say that a judge may not engage in political activity but may speak at an event 

sponsored by a group that has an identifiable political or legal orientation. 

Assessment—The council’s order with respect to the judge’s remarks is consistent 

with our Standard 7 (“corrective action should be proportionate to any plausible 

allegations of misconduct in the complaint”). This was serious misconduct, in a matter receiving national press coverage. The chief judge’s public admonition occurred 

outside the formal complaint process and was not tantamount to a public reprimand 

by the circuit council. The acting chief judge realized this, as seen in his appointment of a special committee. The council’s concurring in the chief judge’s informal 

reprimand, as part of the formal statutory process, added considerable moral and 

legal force to the reprimand. 

Standard 7 says “corrective action should be proportionate to any plausible allegations of misconduct in the complaint. . . . [A] slight correction will not suffice 

to dispose of a weighty allegation.” Much misconduct is mild enough that a public 

apology from the judge constitutes adequate corrective action, but some misconduct 

is serious enough that an apology alone is insufficient. The public needs to see some 
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form of “discipline” meted out by the judicial council. The council’s statement that 

it joined in the chief judge’s earlier admonition to the judge met this need.

The council’s dismissals of the two subsidiary allegations are consistent with our 

Standard 5, which calls for dismissal of allegations if investigation shows they lack 

any factual foundation or are conclusively refuted by objective evidence. 

Comparison of assessments, comments

Table 16 summarizes, in the first three rows, our assessments of three different sets 

of complaint dispositions. The last row shows the number of problematic dispositions identified in the 1991–1992 study of the Act’s administration in eight circuits, 

conducted for the National Commission on Judicial Discipline and Removal.

Table 16, earlier research on the Act’s administration, and our assessments reported 

in this chapter prompt several observations.

No significant change in problematic dispositions over time 

The slight difference in the proportion of problematic dispositions in 2001–2003 and 

1980–1991 does not mean that judicial branch implementation of the Act has grown 

more problematic. That is so for several reasons:

• The difference in estimates of problematic cases between the two studies does 

not meet conventional standards of statistical significance. This is true when 

comparing our overall proportion of problematic complaints (20 of 593) to 

the 1993 finding (14 of 469) (p = .40) and when restricting the comparison 

to the eight circuits studied in 1993 (406 of our 593 terminations came from 

those eight circuits; 14 were problematic) (p = .29). In other words, the small 

Table 16. Problematic Dispositions in Complaints Committee Examined, 

and Those Examined in the 1993 Study

Dispositions

Dispositions In sample Problematic %

Modified random sample 593 20 3.4%

from all terminations, 2001–2003 

Pure random sample from 100 2 2.0%

all terminations, 2001–2003 

High-visibility cases, 2001–2006 17 5 29.4%

Modified random sample from 469 12 2.6%

all terminations, in eight circuits, 1980–199124 
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difference in the rate of problematic terminations in 1993 and in our study 

may well be the result of chance differences in sampling rather than a change 

in incidence over time.

• The earlier study used a similar but not identical sampling strategy.

• Labeling dispositions as problematic or not involves close calls. Had we, 

or the authors of the earlier study, decided against identifying one or two 

hard cases as problematic, it would have produced different percentages of 

problematic dispositions.

Chief judges apparently continue to terminate complaints largely free of problems 

despite a substantial overall increase in the work demanded of them. In Table 17:

• the first row displays the percentage of problematic dispositions in the major 

samples of cases in the two periods, an apparently negligible increase;

• the second row shows that the average circuit judge judicial caseload in the 

two periods has increased by 55%; and

• the third row shows a 214% increase in the annual average number of 

complaints filed under the 1980 Act from 1982–1991 and the annual average 

filed from 2001–2003. 

Chief circuit judges, whether or not they take a reduced caseload, are likely facing more appeals than their counterparts in the 1980s, and are surely facing a major 

increase in complaints under the Act. And, of course, Table 17 does not capture the 

increases in other aspects of chief judges’ administrative responsibilities.

As we discuss in Chapter 6, this positive finding involves filed complaints. A separate question is whether chief judges are identifying complaints adequately in order 

to take cognizance of allegations of misconduct and disability that do not produce 

filed complaints.

Comparatively high proportion of problematic dispositions of high-visibility 

cases is cause for concern 

We assessed 29.4% of the dispositions in high-visibility cases as problematic (five of 

17). If we exclude two of the 17 that were high visibility only by our “one news story” 

rule—C-1 (dismissed probation officer) and C-9 (litigant suing local prosecutors)—

Table 17. Measures of Circuit Judge Workload

1982–1991 2001–2003 % change

% of problematic dispositions25 2.6% 3.4% +0.8%

Average annual cases per judgeship26 227 351 +55%

Average annual complaints27 232 728 +214%
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Chapter 4: How the Judicial Branch Administers the Act—Results

the proportion rises to 33% (five of 15). By contrast, we assessed as problematic only 

20 (3.4%) of the dispositions in the sample of 593 largely unexceptional cases.

The explanation for this sizable difference lies in differences in the two types of 

complaints. The overwhelming majority of the 593 cases were obvious candidates 

for dismissals, even given the overselection of cases more likely to be meritorious. 

Were we able to identify and remove those unexceptional cases from the sample, the 

denominator of 593 would shrink considerably and the 20 problematic cases would 

constitute a much higher percentage, closer to the 29.4% observed in the 17 highvisibility terminations. 

Each of the 17 high-visibility cases, by contrast, is in our study because members 

of Congress took a serious interest in it or because journalists paid attention to it, or 

both. These cases aroused interest and attention because they presented the plausible 

possibility of some misconduct—not necessarily an obvious possibility, but simply a 

more plausible possibility. Complaints that are more plausible than most are infrequent, and moreover are likely to confront the chief judge or circuit council with more 

decisions than in the typical case: identify a complaint? undertake a limited inquiry? 

seek a response from the judge? appoint a special committee? regard an appellate 

reversal in the underlying litigation as corrective action? With the greater number of 

decision points and less familiarity in dealing with these types of complaints comes 

a greater possibility of a mistake.

Whatever the reasons, the fact remains that chief judges and councils made a 

greater number of mistakes, proportionately, among these more complex complaints. 

That is a source of concern for its own sake and because these cases are, for practical purposes, the public face of the judicial branch’s efforts to resolve allegations of 

judicial misconduct and disability. Perceived failure to deal with alleged misconduct 

in these publicly visible complaints may lead those with valid complaints to conclude 

that the likelihood the complaint will be investigated is too low to justify the trouble 

of filing.

Chief judge inquiries and special committee appointments 

The main cause of the problematic dispositions in both our main sample (the 593 

cases) and the high-visibility complaints is the lack of adequate chief judge inquiries 

before dismissing the complaint, and the related failure to submit clear factual discrepancies to special committees for investigation. Of the 20 problematic dispositions 

in the 593-case sample, at least 15 were problematic wholly or in large part for one 

or both of those two reasons. Of the five problematic dispositions of high-visibility 

complaints, four were problematic for these reasons (although two cases represent 

double counting—A-17/C-4 and A-18/C-5). (The fifth high-visibility problematic 

termination involved failure to identify a complaint.) Of the two problematic dispositions in the 100-case sample, one was the result of an inadequate inquiry, and one the 

result of mistakenly finding the complaint alleged behavior not covered by the Act.

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Key findings:

1. Based primarily upon our interviews, we conclude that informal efforts to resolve problems remain (as the Act’s sponsors intended) the principal means by 

which the judicial branch deals with difficult problems of judicial misconduct 

and disability.

2. The main problems that the informal efforts seek to address are decisional delay, mental and physical disability, and complaints about the judge’s temperament.

3. The 1993 Report of the National Commission on Judicial Discipline and Removal 

recommended that committees of local lawyers serve as conduits between lawyers 

and judges to communicate problems of judicial behavior. The Judicial Conference endorsed the proposal but few committees have been created. 

4. The Ninth Circuit has created a program to make counseling available at all 

times both to judges who may benefit from it and to other judges who may seek 

guidance as to how to deal with colleagues. Ninth Circuit judges report that the 

program has proved successful. 

The Judicial Conduct and Disability Act is not the only mechanism that seeks to 

remedy judicial misconduct or disability or prevent its occurrence. The operation 

of these procedures was not part of our charge and we have not analyzed them. We 

list some principal mechanisms below:

• the rarely used Constitutional provisions for impeachment and removal (13 

judicial impeachments and seven convictions)28 under what Chief Justice 

Rehnquist called the “guiding principle” that judges’ “rulings from the bench 

. . . would not be the basis for removal from office”;29

• judicial council orders issued, not under the Act, but under 28 U.S.C. 

§ 332(d)(1)’s mandate to “make all necessary and appropriate orders for the 

effective and expeditious administration of justice within [the] circuit” and 

judicial councils’ certifying disability under 28 U.S.C. § 372(b); 

• statutory mechanisms to encourage trial judges to dispose of matters 

promptly by requiring the Administrative Office of the U.S. Courts to 

publish semi-annual lists of judges with motions and bench trials pending 
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more than six months and cases not terminated within three years of filing30

(some courts of appeals have adopted procedures to encourage expedition, 

such as the requirement in the Court of Appeals for the District of Columbia 

Circuit that “a judge who has three or more assigned opinions pending from 

a term that are not in circulation to the panel by August 15 is not allowed to 

sit on any new cases until this backlog is cleared”31);

• criminal and civil actions (absent judicial immunity); 

• writs of mandamus; 

• recusals sua sponte or on motion under 28 U.S.C. §§ 144 & 455; 

• appellate reversals aimed at improper judicial conduct;

• statutory limits on judges’ (and other officials’) outside income and receipt 

of gifts, and requirements to disclose financial holdings annually; and

• the Judicial Conference’s Code of Conduct for United States Judges and the 

advisory opinions of the Conference’s Codes of Conduct Committee, which 

seek to prevent problematic behavior from occurring. 

Examining the use of these other formal mechanisms was not in our charter and 

we did not do so. 

Neither were we charged by Chief Justice Rehnquist to examine informal activity 

that deals with alleged judicial conduct and disability problems outside the confines 

of the formal complaint process. “Informal activity” connotes efforts by judges, 

especially chief judges, to deal with the behavior of a judge who may have become 

disabled, is seriously behind in his docket, or exhibits other actions or conditions 

that need to be remedied. We have not assessed the extent or effectiveness of informal activity beyond this brief chapter, which draws heavily on comments provided 

during Committee and staff interviews. 

Some mention of informal activity is appropriate, however. For one thing, the 

Act’s sponsors assumed informal action would continue to be the main means by 

which the judicial branch tries to deal with problems. Senator Dennis DeConcini, a 

major sponsor of the Act, said “the informal, collegial resolution of the great majority of meritorious disability or disciplinary matters is to be the rule rather than the 

exception. Only in rare cases will it be deemed necessary to invoke the formal statutory procedures and sanctions provided for in the act.”32

Moreover, effective informal action depends on effective implementation of the 

Act. The 1993 Report of the National Commission on Judicial Discipline and Removal

said “a major benefit of the Act’s formal process has been to enhance the attractiveness 

of informal resolutions.”33 There is, however, a link between the Act and alternative, 

informal methods to deal with allegations of problematic behavior. As one chief 

judge put it over 15 years ago, “[t]he Act [is] a bargaining chip the chief judge could 

use, hanging in the background.”34 But, to be effective, the bargaining chip needs to 

be credible. Judges who may be engaging in questionable behavior or suffering the 
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effects of a disability are more likely to be amenable to informal entreaties from colleagues if they perceive that a complaint, if filed, will get serious consideration and 

produce action appropriate to the credibility and gravity of the complaint. 

Extent of informal activity

Previous studies, as well as our own experiences and those reported by colleagues, 

testify to the extent of informal activities. The National Commission summed it up 

well: “Informal approaches remain central to the system of self-regulation within 

the judiciary.”35 This conclusion was bolstered by research for the Commission by 

Professor Charles Geyh, who asked chief circuit judges and former chief judges for 

their impressions of the frequency of use of five formal means of judicial discipline 

(including the Act) and three informal means. The responses ranked the informal 

means as the three most frequently used mechanisms; in order they were (1) activity by the chief circuit judge, (2) activity by the chief district judge, and (3) “peer 

pressure.”36 Several years prior to Geyh’s study, Circuit Executive Collins Fitzpatrick 

from the Seventh Circuit reported that his inquiries of personnel in all the circuits 

revealed nine federal judicial retirements nationwide that occurred “after a judicial 

complaint was filed or looming” as well as other changes in judicial behavior short 

of retirement, leading him to conclude that attention to “the most serious judicial 

problems [has] not been initiated with a formal complaint.”37

Our Committee’s interviews with chief judges, former chief judges, and circuit 

staff provided nothing to suggest a lessening reliance on these informal mechanisms. 

As one chief judge put it, “[t]he informal aspect is the most valuable part of the Act 

. . . , the most serious matters were not the subject of a complaint at all.” Another 

said, “[t]here have been no special committees during my time as chief judge. That 

underscores how much the formal process interacts with, but does not necessarily 

govern, the most serious cases.” Chief judges cited several reasons why they prefer 

to proceed informally. One said that rather than identify a complaint, “I would start 

with the informal process because there is a greater chance of long term corrective 

action. If the matter becomes formal, it gets more adversarial.” 

Typical objects of informal activity

Barr and Willging’s 1991–1992 study for the National Commission pointed to three 

examples of problems dealt with by informal actions. Disability allegations were the 

most frequent—“a host of physical and mental symptoms ranging from a memory 

afflicted by Alzheimer’s disease to an inability to speak as a result of a stroke.”38 Chief 

judges also recounted examples of informal actions to deal with alleged delay in 

disposing of cases, and other allegations, ranging from claims of substance abuse to 

intemperate remarks and even a judge’s feet-on-the-bench behavior while a group 

of schoolchildren were visiting his courtroom to observe a trial.39
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Our interviewees’ observations run parallel to these to the extent they mentioned 

delay, disability, and temperament. As one chief judge put it, “[t]he three primary 

problems of delay, aging, and temperament: it’s amazing how seldom they pop up in 

formal complaints. The informal process is the best way to deal with those. The really 

thorny problems are dealt with informally.” These problems, moreover, were not the 

subject, comparatively speaking, of many formal complaints. Table 5 in Chapter 2 

indicates that of the 5,277 allegations in complaints from 2001–2005, undue decisional delay constituted 6.9% of the total; mental or physical disability, 3.6%; and 

demeanor, 2.5%.

These problems stimulate various informal approaches. One chief judge said, for 

example, “[a]mong informal matters, it’s primarily delay, that’s the most frequent 

problem. With delinquent cases, we’d have the clerk call and ask the judge about it.” 

Another said, “[i]f there is some concern about delay, there’ll be a quick phone call. 

[Court official] will make that call, he has an easy manner.” 

On the other hand, said one chief judge:

I did face problems of the aging process, that’s the most difficult by far to 

deal with . . . . In most cases, the judge recognized it and got off the bench. 

But not in all cases. I talked to family members. I got them to approach 

the judge. You can’t slap a formal complaint at the end of his career on an 

83-year old judge who has rendered distinguished service. . . . I tried to 

approach that with great delicacy, through family members. 

But, added another: “If using the family is a possibility, then you want to try that, 

but that’s a mixed bag.”

Dealing with problems not likely to produce complaints 

under the Act

These informal mechanisms are essential for another reason: not all problematic 

behavior by judges would be likely to produce complaints, either filed or identified 

by chief judges. 

There are at least three types of such behavior. First, some objectionable behavior 

does not rise to the level of what 28 U.S.C. § 351(a) calls “conduct prejudicial to the 

effective and expeditious administration of the business of the courts” or a “mental 

or physical disability” that creates an inability to discharge all the duties of the office. Yet such behavior may well need attention. One chief judge said in an interview: 

“[t]here’s a substantial difference between misconduct and the kind of bad manners 

that . . . ought to be corrected, . . . for example, the judge is peremptory and sarcastic. 

That judge needs counseling, but it’s not misconduct.” Another said

[s]ometimes . . . the judge’s court mannerisms don’t contribute to a feeling 

of fairness. So the chief judge or some other judge will go talk to him. 

This generally helps. One situation we had—the judge had a [physical] 
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problem. He was an excellent judge, but the parties got the idea he wasn’t 

listening. We talked to him and explained the problem, how this appeared 

to litigants. He took steps to remedy the perception.

One chief noted

[s]ome people have abusive temperaments. . . . You pick that up on the 

grapevine, at a judicial conference, at a bar meeting. In temperament cases, 

sometimes it works if you reverse the judge in a real sharp way. This has to 

be approached very carefully. You don’t want to look as if you’re moving 

against a judge because of stylistic differences or—God knows—because 

of the judge’s views. You could easily compromise the independence of the 

courts, doing that. 

Second, some judicial conduct may be thought of as misconduct under the Act 

but is not, such as judges’ failure, typically inadvertent, to recuse in cases in which 

they may have even very minor stock ownership in one of the parties. As discussed 

regarding several terminations in Chapter 4, recusal decisions are almost always 

merits-related and not subject to the Act, but chief judges can use informal methods 

to persuade judges to maintain up-to-date conflict-of-interest lists, such as through 

the use of conflict-avoidance software.

Third, other behavior that would seem to fall within section 351(a)’s definitions 

may never produce a complaint because only the bar is aware of it, and lawyers are 

reluctant to file a formal complaint about a judge before whom they must appear 

regularly. A chief circuit judge said, for instance, 

[i]f someone on the court of appeals is losing it or is out of control, his 

colleagues see that. . . . If it’s a district judge, often the judge’s colleagues are 

the last to know, so lawyers will come to me. [But a]ttorneys and the bar 

don’t want to file complaints against judges. . . . The lawyer’s business is to 

appear before the judge. The lawyer can’t blithely file a complaint.

Possible other approaches

Bar committees—Recognizing that lawyers sometimes won’t raise problems even 

informally for fear of retaliation, the 1993 Report of the National Commission on 

Judicial Discipline and Removal recommended that each circuit council charge a 

committee or committees “broadly representative of the bar but that may also include informed lay persons” to present to the chief judge “serious complaints against 

federal judges.” Such committees, said the Commission, could, among other things, 

help identify “patterns of alleged misconduct” and “provide anonymity for a complainant concerned about retaliation if the chief judge identifies a complaint [under 

28 U.S.C. § 351(b)], and provide a deterrent against retaliation if the complainant is 

identified.”40 The Judicial Conference endorsed a more general formulation—that 

circuits and courts consider “structures or approaches . . . [that] might best serve 
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the purpose of assuring that justified complaints are brought to the attention of the 

judiciary without fear of retaliation.”41

One former chief judge told us he had recommended to his judicial council the 

creation of such a committee—“Lawyers have fear of retaliation en masse. . . . Young 

lawyers are abused, they’re afraid of retaliation. Old timers don’t care so much, they’ve 

arrived. . . . So you could have older wiser heads be on such a bar committee.” This chief 

judge’s judicial council rejected his suggestion. Circuit Executive Collins Fitzpatrick 

reported in 2005 that his informal canvass of chief judges and others suggested that 

no circuit had created such a committee.42 One chief judge, however, told us that he 

had endorsed a proposal by the head of a large city bar association in the circuit to 

create a committee that could listen to complaints from lawyers and raise appropriate 

items with the chief district judge of the judge in question, without going through 

the formal complaint process, and “the ultimate complainant can remain anonymous 

. . . . Lawyers are reluctant to do anything formally.” 

Evidently responding to the same concern, at least one district has created the 

position of ombudsman, “a lawyer in private practice appointed by the court” to act, 

according to the district’s website, as an “intermediary” between the judges of the 

district and the bar. The ombudsman, says the website, “acts on an informal basis to 

interface and address those matters lacking an institutional mechanism or forum for 

redress. All contacts with [the ombudsman] remain confidential.”

Counseling programs—One other program deserves mention, involving a way to 

provide counseling to judges and to chief judges. By way of background, there is little 

evidence in Barr and Willging’s 1991–1992 study that mental health professionals 

played much of a role in dealing with problematic behavior, either in advising chief 

judges how to deal with it or in helping the subject judges themselves. If that picture 

was accurate in the early 1990s, it may have changed somewhat. Our interviews asked 

chief judges whether they have “had occasion to consult with or employ a psychiatric/psychological expert to help with a problem of judicial conduct or disability.” 

Chief judges in five circuits responded affirmatively, but the help sought does not 

appear to have been extensive.

The Ninth Circuit judicial council, however, has established a program to provide 

such assistance to judges whenever they request it. The circuit’s Judicial Disability 

Task Force recommended in 2000 a variety of steps for the circuit to take, one of 

which resulted in the circuit’s “Private Assistance Line Service,” described by a Ninth 

Circuit judge as being “available 24 hours a day, seven days a week, to assist federal 

judges, their families, and staff with questions relating to a judge’s well being,” all on 

a confidential basis.43 This service is similar to one that has been available to California state judges for over ten years. The calls to the service are answered by “an 

independent contractor with more than 14 years experience providing assistance to 

judges and attorneys.” 
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According to the contractor, calls fall into three broad categories. Most are from 

chief judges seeking advice on how to deal with a judge or staff member whose 

behavior has been problematic or whose health threatens performance. A second 

group of calls are from senior judges or their families, seeking either information on 

dealing with chronic illness or, as to judges still able to perform useful judicial work, 

on alternative living arrangements because they can no longer live in their homes 

without assistance. A third group of calls come from judges seeking some sort of 

treatment program to help deal with a family or personal problem, such as marital 

conflict.44

The current chief judge said in an interview that the “concept is sinking in now, 

that professional help is available to our judges.”

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Chapter 6

Recommendations

This chapter presents our overall assessment of the administration of the Judicial 

Conduct and Disability Act and our recommendations to enhance that administration.

Principal findings

Our research shows that chief circuit judges and judicial councils are doing a very 

good overall job in handling complaints filed under the Act. The overall rate of problematic dispositions is quite low and has not increased measurably over more than 

a decade despite steep increases in the number of complaints filed and the overall 

workload of chief circuit judges. However, legislative and public confidence in the 

Act’s administration is jeopardized by less-effective handling of the small number 

of complaints that are in the public eye, and by chief judges’ reluctance to use their 

authority to identify complaints in order to provide public resolution of public allegations of judicial misconduct cognizable under the Act. More specifically:

• In a pure random sample of 100 complaint terminations drawn from over 

2,000 terminations in 2001 to 2003, we concluded that two terminations 

(2%) were procedurally problematic under our “Standards for Assessing 

Compliance with the Act.” 

• From the same years, in a separate, stratified sample of 593 terminations 

reviewed first by our staff, we identified 20 (3.4%) to be “problematic” 

applying the same Standards. The slightly higher proportion of problematic 

terminations is most likely because the sample overrepresented complaints 

likely to allege conduct covered by the Act.

 Most of the terminations were problematic because the chief judge failed 

to undertake an adequate inquiry into the allegation before dismissing it or 

because the chief judge did not appoint a special committee to investigate 

facts that were reasonably in dispute. We do not know if further inquiry 

or investigation would have led to a finding of misconduct, but we doubt 

it would have in most cases, based on the nature of the allegations (such 

as the claim in case A-9, noted above, that circuit judges manipulated the 

assignment system to falsify records in a prisoner’s habeas case).

• Applying our Standards to 17 complaints that attracted national or regional 

press attention in fiscal years 2001 to 2005, we assessed five (29.4%) as 
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problematic. Unlike the overwhelming majority of the complaints in the 

two samples, each of these 17 cases presented at least some possibility of 

misconduct. That is what gained them legislative or press attention. Even 

a slight possibility of misconduct makes cases more complex. Especially 

because such cases are so few and far between, chief judges and councils are 

somewhat more prone to mistakes in their disposition than in the mine run 

of cases that are properly dismissed with little or no inquiry. Four of the five 

problematic terminations resulted from the inadequacy of the chief judge’s 

limited inquiry or the failure to appoint a special committee.

These findings suggest how the administration of the Act serves two related 

purposes. Its major purpose is to provide an opportunity for any individual to file a 

misconduct or disability complaint and have it considered by the chief judge (and, in 

rare cases, the judicial council). Within that framework, the Act also permits disposition of the relatively few misconduct allegations that are in the public eye—disposition 

either through a dismissal that exonerates the accused judge or the judicial council’s 

imposition of some form of action that provides a measure of public accountability.

In this regard, three aspects of our findings suggest potential problems:

• The comparatively high proportion of problematic terminations of highvisibility complaints—precisely because they are in the public eye—could 

send the message to persons who believe they have a valid complaint that 

filing it will do no good because it will not be adequately investigated.

• Chief judges are making very limited use of their statutory authority to 

identify complaints under section 351(b). Our stratified sampling scheme 

was designed to include all identified complaints. It found two in the 2001–

2003 period, one of which involved public allegations of misconduct (case 

C-15). We also discussed case C-8, involving very public allegations that 

produced no filed or identified complaint. We doubt these matters represent 

the only times, in three years, that there were public allegations of judicial 

misconduct about which no one filed a complaint but that the chief judge 

could have resolved publicly by identifying a complaint. Examples of such 

claims in 2006 include press reports that judges have made statements 

clearly inconsistent with the Code of Conduct for United States Judges, and 

charges that judges have failed to report the value of financial payments 

or reimbursements received to participate in private judicial education 

programs.

 Of course, the Act does not cover all types of misconduct, and chief 

judges cannot identify complaints about behavior that does not fall under 

the statute. Complaints about judges’ failures to recuse themselves in cases 

in which they have even very minor stock holdings are almost always meritsrelated matters not subject to the Act. The judicial branch, though, is not 
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Chapter 6: Recommendations

without means of dealing with this matter, including informal actions by 

chief judges, or encouraging or mandating use of conflict-avoidance software 

to allow checking for conflicts.

• Our review of court websites, reported in Chapter 3, suggests that most 

courts have not done enough to make people aware of the Act and their 

rights under it. Our survey in 2005 revealed that over half the district courts 

have no information about the Act on their websites, and that those courts 

that present information often present it in a way that would stump most 

persons seeking to learn about how to file a complaint.

Summary of recommendations

Our recommendations fall into five groups:

• “so that the chief judge is not out there alone,” as one experienced chief 

judge put it, we recommend providing advice and information to those 

responsible for administering the Act, including a new, formally recognized, 

vigorous advisory role for the Judicial Conference Committee to Review 

Circuit Council Conduct and Disability Orders, and resources to help 

chief judges and others understand the Act’s terms and how others have 

interpreted them (Recommendations 1–4);

• promoting, on the part of potential users, knowledge of the Act and its 

appropriate use (Recommendations 5–6);

• providing accurate information for legislators, the press, the public, and the 

judicial branch about how the Act operates (Recommendations 7–10);

• clarifying the authority of the Judicial Conference to review decisions of 

its Committee to Review Circuit Council Conduct and Disability Orders 

(Recommendation 11); and

• creating programs, such as that in the Ninth Circuit, to make assistance 

available by phone for all judges of the circuit (Recommendation 12).

We include also a brief commentary that does not deal directly with the Act’s 

administration, but rather the problem of failures to recuse.

Recommendations aimed primarily at enhancing chief judges’ 

and council members’ ability to apply the Act

Here we recommend

• a formally recognized, vigorous advisory role for the Judicial Conference 

Committee to Review Circuit Council Conduct and Disability Orders 

in providing advice to chief judges and judicial councils facing difficult 

complaint situations;
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• emphasis in that advisory role on the desirability, in appropriate cases, 

of chief judges’ identifying complaints, transferring complaints to other 

circuits, and appointing special committees;

• an individual orientation program for each new chief circuit judge and 

an online “compendium,” both of which should provide guidance on the 

meaning of the Act’s provisions and how to apply them, based on our 

Standards for Assessing Compliance with the Act; and

• online availability of selected chief judge and judicial council orders.

1. The Judicial Conference should authorize the chair of its Review Committee, 

or a designee, to provide advice and counsel to chief circuit judges and judicial 

councils regarding the implementation of the Act.

The Act, in provisions codified in the fourth paragraph of 28 U.S.C. § 331 (the 

Judicial Conference’s organic statute), authorizes the Conference to appoint a 

standing committee to exercise the Conference’s statutory role in reviewing judicial 

council actions on complaints. Pursuant to that authority, the Conference created its 

Committee to Review Circuit Council Conduct and Disability Orders. Section 331 

also authorizes the Conference to “prescribe and modify rules for the exercise of the 

authority provided in chapter 16,” i.e., the Act. 

To provide help to chief judges and councils faced with difficult situations, we 

recommend that the Conference use that rule-making authority to foster, on the 

part of the Review Committee, a vigorous advisory role to address and ameliorate 

the kinds of problematic terminations that we describe in Chapter 4.

2. In dealing with chief judges and judicial councils in this more aggressive advisory 

role, Review Committee members should stress the desirability, in appropriate 

cases, of the following:

• chief judges’ using their statutory authority to identify complaints when 

accusations become public—the Conference should authorize the chair of 

the Review Committee (or a designee member of the Committee), when the 

chair becomes aware of public allegations of misconduct that have not led to 

a complaint filed under section 351(a), to consult with the chief judge of the 

circuit about the matter, and, depending on those discussions, recommend 

that the chief judge identify, or consider identifying, a complaint under 

section 351(b); 

• transferring complaints to other circuits for initial investigation by another 

chief judge and, depending on that investigation, appointment of a special 

committee to report to the judicial council (in Recommendation 3, below, 

we elaborate on factors relevant to a transfer decision); and
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Chapter 6: Recommendations

• consultation with the Review Committee chair on appointment of special 

committees—the Conference should make clear that chief judges or judicial 

council members or both can alert the chair of the Review Committee 

to complaints in which the chief judge or some council members believe 

appointment of a special committee may be warranted, for whatever advice, 

with whatever emphasis, the chair believes appropriate for the situation. The 

chair (or a designated Committee member) would approach disagreements 

as one familiar with the Act but removed from specific tensions that may be 

causing disagreements within the specific circuit. Consultation with such a 

source might have avoided several of the problematic terminations discussed 

in Chapter 4 by encouraging chief judges to appoint, or councils to order the 

appointment of, special committees.

We do not believe the Review Committee’s involvement in encouraging the identification of a complaint or the appointment of a special committee would create a 

conflict of interest were the matter at hand to come before the Committee in a petition 

to review a council action. Conflict-of-interest rules that govern judges in judicial 

proceedings need not govern judges’ actions when they act, as here, in administrative 

capacities. Administrators regularly make decisions in particular matters and then 

revisit those matters as they progress through the organization. 

Furthermore, in neither the identification of a complaint nor the appointment of 

a special committee would the Review Committee chair (or designee) be commenting 

on the specific matter that would come before the Committee if the complainant or 

subject judge petitioned the Conference to review a council order issued under section 354. The matter that would come before the Committee in that situation would 

not be the propriety of identifying a complaint or appointing a special committee, 

but rather the soundness of a judicial council order based on a special committee 

investigation. And if, despite this fact, there were still concern over a conflict of interest, the Review Committee chair could recuse from considering a petition to review 

a council’s section 354 order. 

Indeed, the Conference may wish to rely on the recusal option to empower the 

chair to provide advice to chief judges and councils on a broader array of matters, 

including the substance of section 354 orders. Judges now seek advice from the 

Committee’s AO staff but may in some cases prefer to get the advice of the Review 

Committee chair, who could recuse in the unlikely event the subject of the advice 

came before the Committee in a petition.
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3. The Review Committee, with the assistance of the Federal Judicial Center, should 

create and maintain two resources to help chief circuit judges, judicial council 

members, and circuit staff—especially those new to these positions—understand 

the Act and how to apply it: an individual in-court orientation program for new 

chief judges and a compendium available to all.

New chief circuit judges receive no systematic orientation to their responsibilities under the Act. They may learn something of these responsibilities from their 

predecessor chief judge and the circuit staff that assists in processing complaints, but 

this on-the-job training is likely to be uneven across the circuits. The Administrative 

Office provides each new chief judge an orientation program in Washington, D.C., 

but the program’s agenda is crowded and allows little time if any to cover duties under 

the Judicial Conduct Act. There are not enough new chief judges in any one year to 

make a group orientation seminar feasible. Annual meetings of all chief judges are 

likewise difficult to arrange. 

The time of the Judicial Conference’s semi-annual meeting is the only period in 

which all chief circuit judges meet together. The Federal Judicial Center has conducted 

seminars dealing with the Act in conjunction with these meetings. Those seminars 

have been valuable and should continue. However, the judges’ schedules have made 

it difficult to convene such seminars more often than every four years. (Chief district 

and chief bankruptcy judges, although they do not receive complaints under the Act, 

still confront real and alleged misconduct or disability. The Center is able to hold 

its conferences for those chief judges annually, and they often include sessions on 

informal efforts to resolve problems.)

Furthermore, just as chief circuit judges receive no specific orientation to the 

Act, they lack any reference source to which they may turn when they encounter 

an unfamiliar problem. Several experienced chief circuit judges elaborated on this 

need during our interviews. One called for “a set of examples to guide judges and 

councils . . . . It [would be] helpful to have the options spelled out someplace, so the 

chief judge is not out there alone.” Another said:

I think the Act works well. Its failings come from inadequate education about 

how it ought to be administered, and inadequate materials and backup 

for a busy, beleaguered chief judge . . . . What we need is a compendiumlike gloss on the . . . statute, going from analyses of the statute’s general 

language to applications of the statute to particular fact-situations. . . . [It] 

could treat general concepts like “merits-relatedness,” to teach chief judges 

to understand the ambiguities, how the statute works. Then you could treat 

specific recurring problems and how they fit under the statute, like how to 

deal with delay. 

Such a resource would be of value not only to chief judges, but also to judicial 

council members and to circuit staff.
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Accordingly, we recommend a two-pronged program to provide initial and 

continuing assistance to chief circuit judges and to provide a resource for council 

members and circuit staff.

Individual in-court orientation program for each new chief judge—We recommend 

that:

• the Review Committee advise each new chief circuit judge that a team 

consisting of an experienced current or former chief judge and one or two 

members of the Administrative Office General Counsel’s Office who staff 

the Review Committee will travel to the circuit to participate, with the chief 

judge and members of the circuit staff that help to process complaints, in a 

short seminar on the Act and its administration;

• the Federal Judicial Center work with the Committee and its AO staff to 

design a common curriculum for this in-court program, to help promote 

uniformity in the topics covered, and to help ensure appropriate curriculum 

elements, such as hypothetical scenarios; the program curriculum should be 

coordinated with the elements of the online compendium, discussed below; 

and

• the basis for the seminar curriculum should be our Standards for Assessing 

Compliance with the Act (Appendix E), subject to Judicial Conference 

review and approval; those Standards explain the reasons underlying the 

Act’s provisions, as interpreted in the Illustrative Rules and chief judge and 

council orders, and explain how the provisions apply to specific allegations.

One might ask, “Why bring an experienced chief judge from outside the circuit 

rather than have the former chief judge of the circuit participate in the seminar?” We 

see the seminar not only as a dedicated training session for the new chief judge, but 

also an opportunity for periodic reassessment of circuit practices and policies—a 

chance either to reaffirm current practices or consider new ones. A chief judge from 

outside the circuit is in a good position to foster that reassessment by providing a 

possibly different perspective. We can envision situations, however, in which the 

outgoing chief judge would be a valuable participant in the seminar along with the 

outside chief judge.

The goal here should be to provide each new chief judge with a framework for 

understanding what the Act requires of him or her and for assessing the circuit’s 

current procedures for implementing the Act. That assessment would benefit from 

seminar participation by the circuit staff that assist in complaint processing. 

Preparation and maintenance of an online “compendium” with suggested approaches 

and procedures, as well as guidance as to the Act’s terms—The basis of the compendium, like the basis for the in-court program, should be our Standards for Assessing 

Compliance with the Act. 
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The online compendium should also include links to

• relevant provisions of the Illustrative Rules and commentary; 

• chief judge and judicial council orders made publicly available as provided 

in our Recommendation 4, below; 

• relevant provisions and commentary of the Code of Conduct for United 

States Judges and advisory opinions of the Codes of Conduct Committee; 

and 

• scholarly commentary on the Act and its administration.

We see this orientation program and the compendium as projects for the Judicial 

Conference Review Committee, and the Federal Judicial Center can provide valuable assistance because of its experience in designing education programs for judges. 

Creating an online resource is of little value unless it is kept current, which requires 

some investment of time. We believe for this project that the potential payoff is clearly 

worth the time investment.

Matters that the orientation program and compendium should cover—The items 

below are not an exhaustive list of topics; they are the matters most associated with 

the problematic dispositions we encountered in our review of the two samples of 

terminations and the terminations of high-visibility cases.

Limited inquiries—The main cause of the problematic dispositions in our 593-case 

sample and the high-visibility complaints was the failure of chief judges to conduct 

adequate inquiries before dismissing the complaint. And one of the two terminations found problematic in the 100-case sample was for that reason. Chief judges are 

often understandably reluctant to ask judges to respond to complaints that, while 

not inherently incredible, have an extremely low probability of being true, especially 

when the record in the underlying case reveals no problems. Seeking a response not 

only invades the time of a busy judge, but also may make the judge feel demeaned 

and disrespected. Having the circuit-level staff find and question witnesses or review 

transcripts is also time-consuming. Nevertheless, the costs in time and effort of 

preliminarily examining allegations in complaints that are not inherently incredible is offset by the benefits of demonstrating that the judicial system responds to 

complaints. And a judge who understands that the chief judge’s purpose is to reassure interested observers about the integrity of the process will be less likely to feel 

insulted. The orientation program and compendium should counsel chief judges in 

such situations to make clear to the subject judge his or her purpose in requesting a 

response to a complaint. 

The meaning of statutory terms—The orientation program and compendium 

should explain the settled meaning of such statutory terms as “directly related to the 

merits of a decision or procedural ruling,” “not in conformity with section 351(a),” 

and “appropriate corrective action.” Confusion over these three concepts, and others, 
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was particularly evident in the problematic terminations of high-visibility cases we 

examined.

These terms do not explain themselves. As one chief judge told us: 

Some of the statutory terms can be misleading. At the outset of my term as 

chief judge, I made a time investment to learn this. Some chief judges don’t 

have that time. We desperately need back-up materials. For example, there 

is the “merits-related” language. You have to think about what it means, it 

isn’t clear. If the allegation is that a judge issued a ruling in exchange for a 

bribe, is that allegation really “related” to the merits of the judge’s ruling? 

You have to educate judges about that. They’re not going to pick it up by 

osmosis.

Appointing special committees—The orientation program and compendium 

should stress two points about the special investigative committees authorized by 

28 U.S.C. § 353:

• Chief judges and special committees have distinct roles. The chief judge’s 

role is to determine whether there is any support—usually witnesses or 

information in the record—for the allegations in the complaint. A special 

committee’s role is to explore fully the evidence that supports and that refutes 

the allegations, to resolve conflicts of evidence and credibility of witnesses, 

and to propose findings of fact and recommend conclusions to the judicial 

council.

• Judicial councils’ authority to “make all necessary and appropriate orders for 

the effective and expeditious administration of justice within its circuit”45

includes ordering chief judges to appoint special committees.

When to identify a complaint—Section 351(b)’s authorizing chief judges to identify 

complaints was at issue in three matters reviewed in Chapter 5:

• in case A-15, the chief judge identified a complaint about ex parte contact 

with an attorney, a matter that received no press coverage;

• in case C-15, the chief judge identified a complaint based on “extensive 

newspaper coverage” about a judge who tried to influence a colleague’s 

sentencing decision; and

• in case C-8, staff for legislators whose criticism of a judge had received 

national publicity asked the chief judge to identify a complaint against the 

judge. The chief judge apparently declined to do so because he thought he 

would dismiss the allegations that would form the complaint. We concluded 

that in this instance, the better course would have been to identify the 

complaint and then, if a limited inquiry indicated dismissal, to state the 

reasons for the dismissal in a public order.
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If chief judges receive information that appears to contain some potential evidentiary support of misconduct or disability, no doubt the preferred course in almost 

all situations is to pursue informal resolution. The more public and high-visibility 

the unfiled allegations are, however, the more desirable it will be for the chief judge 

to identify a complaint in order to assure the public that the judicial branch has not 

ignored the allegations and, more broadly, that it is prepared to deal with substantive 

allegations. And a public resolution of publicly aired allegations is also in the subject 

judge’s interest if the allegations are untrue.

Identifying complaints based on non-public information is also appropriate in 

some circumstances, e.g., the matter at issue in case A-15, or a complaint that calls 

for rigorous fact-finding.

Transferring a case to a judge or judges in another circuit or to the Judicial Conference—Our staff has identified eight instances since 1980 in which the Chief Justice 

designated a circuit judge to handle a complaint in another circuit pursuant to the 

intercircuit assignment statute.46 Those eight include two of Chapter 4’s high-visibility cases (case C-2 and one of the cases labeled C-12-13-14); in at least one of those 

two, all the home circuit judges disqualified themselves from serving as acting chief 

judge. None of the eight involved intercircuit transfers of judges to serve as special 

committee or council members. 

Transfers should not be a regular occurrence, but some complaints might be better 

handled by judges outside the circuit. We can see reasons for and against doing so.

Complaints that a circuit might wish to transfer to another circuit include:

• a supported, nonfrivolous complaint against all the active judges of the court 

of appeals or against the chief judge alone, if all other active judges have 

recused themselves—in either case, no appellate judge would be available 

to perform the chief judge’s duties under the Act (we say “a supported, 

nonfrivolous” complaint because, as commentary in the Illustrative Rules 

recognizes, many multiple-judge complaints are meritless; for those, it is 

proper for judges to invoke a rule of necessity and dismiss the complaint47); 

• a complaint, especially a high-visibility complaint, whose local disposition 

might create a threat to public confidence in the process—the view that 

judges will go easy on colleagues with whom they dine or socialize;

• a complaint filed in a circuit beset by internal tension tied to the alleged 

conduct that prompted the complaint; and

• a complaint that challenges the conduct of a judge but also calls into question 

the policies or governance of the entire court of appeals.

Factors counseling against transfer include:

• outside judges’ relative ignorance of local circumstances and personalities 

might make them less able to gauge what corrective action would be effective 

and appropriate;
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• judges in other circuits may be in a poor position to persuade a judge whom 

they do not know well to take the action they believe is necessary and will 

be less able than judges of the home circuit to monitor a resolution they 

have imposed (the Act’s concept of local judges dealing with their colleagues 

apparently motivated the Judicial Conference’s 1997 disapproval of a bill to 

require that all complaints be referred to another circuit48);

• judges from another circuit may not produce the tougher outcomes that 

transfer proponents anticipate because such judges may be disinclined to 

go through the emotionally draining work of imposing tough sanctions on 

judges not of their own circuit; and

• transfers may increase time and expense if there is the need to ship files, 

arrange witnesses, and handle other matters from a distance.

We leave to others the mechanics of how to effect transfers. Illustrative Rule 18(g) 

(“Judicial council action where multiple judges are disqualified”), adopted by eight 

circuit councils, says nothing about intercircuit assignments, but the commentary 

says “the council might ask the judicial council of another circuit to consider the 

petition or might ask the Chief Justice to assign the matter to either the judicial 

council of another circuit or the Judicial Conference Review Committee”49 (emphasis added). Under this view, if a circuit council concluded that it could not handle a 

serious complaint, it could simply ask the chief judge and council of another circuit 

to handle the matter. 

Finally, the compendium should remind councils that 28 U.S.C. § 354(b)(1) 

authorizes them to refer any complaint to the Judicial Conference for resolution; 

the Conference would then refer the complaint to its Committee to Review Circuit 

Council Conduct and Disability Orders.

4. The Judicial Conference should ask its Review Committee to make available on 

www.uscourts.gov illustrative past and future chief judge dismissal orders and 

judicial council orders, appropriately redacted, in order to inform chief judges, 

judicial council members, and interested members of the media and the public 

of how chief judges and councils have terminated complaints and why. Circuit 

staff should be encouraged to send orders promptly to be considered for public 

availability. 

The Act requires the circuits to make available in the respective court of appeals 

clerk’s office any written order of a judicial council or the Judicial Conference imposing some form of sanction. Illustrative Rule 17 (“Public Availability of Decisions”), 

adopted by 11 circuit councils and in substantial form by another, recommends that 

each circuit make those orders, as well as chief judge and council dismissal orders, 

available for public inspection in its clerk’s office and by deposit at the Federal Judi-
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cial Center. The rule specifies the limited circumstances in which the orders should 

disclose the name of the subject judge.

Physical availability of hard copies of the orders in these two sites, however, is 

different from general accessibility of orders in published form. This problem has 

been recognized for some time. 

• In 1993, the National Commission on Judicial Discipline and Removal 

recommended that the “Judicial Conference devise and monitor a system 

for the dissemination of information about complaint dispositions to judges 

and others, with the goals of developing a body of interpretive precedents 

and enhancing judicial and public education about judicial discipline and 

judicial ethics.”50

• In 1994, the Conference “[a]greed to urge all circuits and courts covered 

by the Act to submit to the West Publishing Company, for publication in 

Federal Reporter 3d, and to Lexis all orders issued pursuant to [the Act] that 

are deemed by the issuing circuit or court to have significant precedential 

value to other circuits and courts covered by the Act.”51

• The 2000 revision of the Illustrative Rules’ commentary said that without 

access to other judges’ public orders, judges applying the Act will be “making 

decisions about issues under the statute quite unaware of how the same or 

similar issues have been treated in other circuits and without the benefit that 

flows from scholarly critique.”52

• In 2002, the Conference voted to “[e]ncourage chief judges and judicial 

councils to submit non-routine public orders disposing of complaints 

of judicial misconduct or disability for publication by on-line and print 

services,” a recommendation that came at the suggestion of two members of 

Congress.53

Posting such orders on the judicial branch’s public website would not only benefit 

judges directly, it would also encourage scholarly commentary and analysis of the 

orders.

The federal judiciary’s main website (www.uscourts.gov) already contains public 

advisory opinions of the Codes of Conduct Committee. Like the public advisory 

opinions, the public orders can be edited to delete or sanitize information that might 

reveal the identity of the subject judge or that is not essential to understanding an 

order’s holding. The orders’ helpfulness will be enhanced if they are published in 

broad categories keyed to the Act’s provisions, and even more so with brief headnotes. 

(To be clear, we are not recommending publication of special investigative committee reports to judicial councils, which are confidential under the statute and often 

contain sensitive information.)

For this publication program to work, those responsible for it—we assume the 

Conference’s Review Committee and its Administrative Office staff—need to receive 
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all orders promptly from the circuits, designating as appropriate those that the Conference calls “non-routine public orders” for possible posting. Illustrative Rule 17 

and almost all circuit council rules recommend that those orders be sent to a central 

repository (now the Federal Judicial Center). We understand that not all circuits do 

so promptly, and we recommend that circuit councils take steps to encourage them 

to do so. 

The Administrative Office and the Federal Judicial Center might consider whether 

the better repository for such orders is the Office of the General Counsel in the Administrative Office, which staffs the Review Committee. If appropriate, those two 

agencies might suggest a change to the Illustrative Rules.

Recommendations to encourage public and bar knowledge of 

the Act and its appropriate use

Here we recommend that the judicial councils take steps to promote implementation 

of two long-standing Judicial Conference recommendations:

• courts should consider local bar committees that could serve as conduits 

between members of the bar and chief judges concerning potential 

complaints; and

• each federal court website should prominently display links to its circuit 

rules and its approved form for filing complaints under the Act.

5. The councils should ask courts in the circuit to encourage the creation of committees of local lawyers whose senior members can serve as intermediaries 

between individual lawyers and the formal complaint process.

As discussed in Chapter 5, the National Commission on Judicial Discipline and 

Removal suggested such committees as a means of encouraging attorneys to come 

forward with allegations about judicial behavior that they may be reluctant to raise 

in formal complaints—or even present informally to the chief judge—for fear of 

retaliation from the subject judge if their identity were revealed.54 The Judicial 

Conference endorsed this suggestion in general in 1994—urging circuits and courts 

covered by the Act to consider “whether and what committee(s) or other structures 

or approaches, at the district or circuit level, might best serve the purpose of assuring 

that justified complaints are brought to the attention of the judiciary without fear of 

retaliation”55—but, as far as we can determine, the suggestion has been implemented 

in any form in only one circuit. We recommend all circuits reconsider the idea.

The National Commission recommended the appointment of nonlawyers to 

such committees, which may provide additional perspectives and avoid having the 

committees appear to those outside the legal system as mechanisms established 

principally to protect those inside the system. 
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	 As noted in Chapter 5, there may be other ways to establish intermediaries between the bar and the court, such as the ombudsman created by one district court.

6.	 Judicial councils should require all courts covered by the Act to provide information about filing a complaint on the homepage of the court website and take

other steps to publicize the Act.

	 Concern over public awareness of the Act is long-standing. The National Commission reported in 1993 that its surveys “demonstrate both widespread ignorance

about theAct in virtually every respondent group and awidely shared perception that

some meritorious complaints are never filed.”56 TheCommission recommendedwhat

the technology of the timewould allow, including circuit councils’putting theirrules

for filing judicial complaints in United States Code Annotated and district courts’

referencing the council rules in their local rules.In 1994, the Judicial Conference endorsed those recommendations.57 It also endorsed theCommission recommendation

that councils consider other ways to educate the bar and the public about the Act.58

	 The Internet has become an educational medium since the mid-1990s, and in 2002

the Conference urged each court to “include a prominent link on its website to the

circuit’s form for filing complaints . . . and its circuit’s rules governing the complaint

procedure.”59

	 As discussed in Chapter 3, at the time our staff surveyed court websites, all 13

courts of appeals websitesincluded thisinformation, but only three websites had the

information on the homepage. Our research staff could find no information about

the complaint procedure on 53 of the 94 district court websites they examined in

2005. Of the 41 sites that had some information, only four had it on the homepage.

On many of these 41 websites, the information was buried in the local rules and the

information provided was sometimes simply an instruction on where to obtain a

physical copy of the rules and form. The situation is apparently similar in the bankruptcy courts.(One might also learn about the Act from a notice in the clerk’s office,

if the person had convenient accessto that office, or might ask personnel in the office.

Clerk’s office personnel, however, are very busy, and might not have consistent and

accurate information to provide in response to such inquiries.)

	 We believe every court covered by the Act should comply with the Conference’s

2002 recommendation to display the form and circuit rules “prominently” on its

website—that is, with a link on the homepage (see Appendix H). We suggest the

website include a plain-language explanation of the Act, emphasizing that it is not

available to challenge judicial decisions. For example:

	 Congress has created a procedure that permits any person to file a

complaint in the courts about the behavior of federal judges—but not

about the decisions federal judges make in deciding cases. Below is a link

to the rules that explain what may be complained about, who may be

complained about, where to file a complaint, and how the complaint will

be processed.
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There is also a link to the form you must use.

Almost all complaints in recent years have been dismissed because they 

do not follow the law about such complaints. The law says that complaints 

about judges’ decisions and complaints with no evidence to support them 

must be dismissed.

If you are a litigant in a case and believe the judge made a wrong 

decision—even a very wrong decision—you may not use this procedure to 

complain about the decision. An attorney can explain the rights you have 

as a litigant to seek review of a judicial decision. 

This admonition may discourage at least some improper complaints.

We appreciate the concern that advertising the Act’s availability may burden chief 

judges and their staffs with more merits-related and frivolous filings than they receive 

now. However, as noted in Chapter 3, we found no statistically significant relationship 

between the level of filings and the absence or obscurity of website information about 

the Act. One might thus ask, if available information does not encourage filings, why 

post it? The response is that the judicial branch has a responsibility to inform the 

public about its operations, including the availability of this complaint procedure. 

Furthermore, greater availability of information may indeed cause the filing of some 

meritorious complaints that today go unfiled because would-be complainants are 

unaware that the complaint mechanism exists or are unable to learn how to use it.

Finally, the Administrative Office should place on www.uscourts.gov a notice of 

the Act’s existence and direct users to the individual court websites.

Recommendations to promote accurate understanding by 

legislators, press, public, and judges of how the Act is (and 

should be) administered

Recommendations here deal with two related needs: 

• the need, by legislators, the press, the public, and judges, for accurate 

quantitative information about the Act’s administration; and 

• the need for information about the Act on the part of judges not engaged in 

its administration.

7. Circuit councils, through their circuit executives or the clerks of court, should 

take steps to ensure the submission of timely and accurate information about 

complaint filings and terminations.

Chapter 2 listed the errors that our staff uncovered in the data that circuit personnel reported to the Administrative Office. Circuits must improve the accuracy and 

precision of this information so the AO can provide to Congress, the courts, and the 

public generally an accurate picture of activity under the Act. A key indicator of Act 
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implementation is special committee appointments. As noted, data reported to the 

AO for 2001–2003 show one such appointment, while in fact there were apparently 

at least five. Table 11 of Judicial Business of the United States Courts (2003) reports 

the circuits’ actions60 only because AO staff telephoned the circuits to check.

8. The Administrative Office should refine two aspects of its annual report on the 

Act’s administration.

Judicial Business of the United States Courts includes two tables in response to the 

Act’s mandate to the Administrative Office to include in its annual report a summary 

of complaints filed each year, the nature of the complaints, and their disposition.61

Tables 11 and S-22 (see Appendix G) respond to this mandate, by and large very effectively. We have two suggestions:

• The annual report should tally the number of special committees appointed 

each year. Table 11 reports, among other things, council actions for the 

three most recent years in response to special committee reports, but the 

table does not report the number of committees appointed each year. 

The number of committees is important information by itself, indicating 

as it does the number of times each year that chief judges did not simply 

terminate the process on their own. Furthermore, reporting the number of 

complaints councils acted on without indicating the number of committees 

can be misleading. Reporting, as does Table 11 for 2005 (see Appendix G), 

that councils dismissed five complaints “After Report of Special Investigative 

Committee” could mean that committees were appointed to investigate five 

allegations filed against one judge, or against five judges, or some number in 

between.

• Judicial Business should also conform its reports of council actions in the 

two tables. Table 11 distinguishes between the council denials of petitions 

to review chief judge dismissal orders (262 in the 2005 report) and council 

dismissals of complaints after receiving the report of a special committee (five 

in the 2005 report). Table S-22 lumps these two types of dismissals together 

under “Action by the Judicial Council,” viz., “Dismissed the Complaint—

267” (see Appendix G). That could lead one unfamiliar with the Act who 

consulted only the detailed table to believe that the councils take substantive 

action on many more complaints than they do. 

9. The Judicial Conference Review Committee should consider periodic monitoring of the Act’s administration.

Chief Justice Rehnquist appointed our Committee because, as he put it, “[t]here 

has been some recent criticism from Congress about the way in which the Judicial 

Conduct and Disability Act of 1980 is being implemented, and I decided that the 
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Chapter 6: Recommendations

best way to see if there are any real problems is to have a committee look into it.” We 

believe the public and judicial branch would be well-served if the judicial branch 

monitored the Act’s administration on a regular basis. We are not prepared to specify 

how frequently the monitoring should occur, but we doubt that a full-blown replication of our research would be necessary each time. This was a labor-intensive process 

for us, for our staff, and for the judges and supporting personnel in the circuits. More 

modest periodic samplings of dispositions to detect problematic areas would suffice, 

absent well-founded suspicion of serious problems in the Act’s administration. 

10. The Federal Judicial Center should seek to ensure that all judges understand the 

Act and how it operates.

Our first set of recommendations concerned assistance for chief circuit judges 

and judicial council members, those mainly responsible for administering the Act. 

We suspect, however, that most federal judges are unfamiliar with the Act and learn 

of it only if they become the object of a complaint. 

The Federal Judicial Center should include a brief overview of the Act’s provisions 

in its orientation materials for new judges. The compendium proposed in our first 

recommendation can provide additional information for judges who wish to learn 

more.

Clarifying the authority of the Conference vis-à-vis its Review 

Committee

11. The Judicial Conference should make clear that it has authority to review its 

Review Committee’s decisions on appeals by complainants and judges from 

judicial council orders. 

This question arose in connection with the Review Committee’s decision described in case C-7, and it would be well to settle it. The Act is not clear on this point, 

and there is no guidance in the legislative history. Also unclear are the Conference’s 

rules for processing petitions to review council actions and certificates of possible 

impeachable offenses,62 issued pursuant to 28 U.S.C. §§ 331 & 360. Rule 9 of the 

rules for processing review of council orders provides that the Committee, “[u]nless 

otherwise directed by the Executive Committee of the Judicial Conference . . . shall 

assume the consideration and disposition of all petitions for review.” The rules for 

processing council certificates of possible impeachable conduct, by contrast, clearly 

anticipate that the Review Committee or an ad hoc committee will file a report and 

recommendations with the Conference.
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Programs to make counseling available to all judges in all 

circuits

12. The councils and the Judicial Conference should consider programs, as discussed 

in Chapter 5, to make help available by phone (or otherwise) for chief judges 

confronting problematic behavior and judges who may be disabled or have other 

problems affecting their work.

We described in Chapter 5 the Ninth Circuit program whereby an independent 

contractor with experience in assisting judges and lawyers is available by phone to 

speak with judges of the circuit who may be suffering the debilitations of advanced 

years or physical or emotional problems and to chief judges and others who must 

deal with such situations. This program can benefit not only chief circuit judges, but 

also chief trial judges, who, more than other trial judges, must deal with colleagues 

with difficulties.

Such a service is not a substitute for the remedial measures that may be imposed 

under the Act, but rather means to foster informal resolution of problems. Furthermore, counseling with persons skilled in recognizing and dealing with behavioral 

problems is likely to get to the genuine sources of problematic behavior rather than 

deal only with its symptoms. Judges ordinarily do not have the training to recognize 

and deal with psychological and physical causes of problematic behavior, and, in fact, 

some judges who attempt to do so beyond their expertise may make things worse. 

The service provided by the Ninth Circuit, as we understand it, is a promising additional means of assisting judges and thus, ultimately, those who use the courts.

The Conference might consider making a national service available to assist judges 

in circuits that decline to create one of their own.

Additional commentary

This report’s “Foreword and Executive Summary” referred to other matters of judicial ethics that do not fall within our charge to examine how the judicial branch has 

administered the Judicial Conduct and Disability Act. Committees of the Judicial 

Conference are considering some of these matters, including the importance of judges’ 

maintaining up-to-date lists of their financial holdings to help them know when they 

must recuse in cases to avoid conflicts of interest, as statutes mandate. We have commented also in Chapter 5 on steps chief circuit judges may take in such matters. 

Our Committee Standards reflect the well-established view that a decision whether 

to recuse is ordinarily merits-related. Standard 2 says:

A mere allegation that a judge should have recused is merits-related; the 

proper recourse is for a party to file a motion to recuse. The very different 

allegation that the judge failed to recuse for illicit reasons—i.e., not that the 

judge erred in not recusing, but that the judge knew he should recuse but 
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Chapter 6: Recommendations

deliberately failed to do so for illicit purposes—is not merits-related. Such 

allegations are almost always dismissed for lack of factual substantiation.

Although recusal decisions are almost always merits-related and thus not covered 

by the Act, litigants (and sometimes others) nevertheless file complaints alleging 

improper failure to recuse, and chief judges must act on the complaints even if only 

to dismiss them. Two of the high-visibility complaints discussed in Chapter 4 sought 

judges’ recusals, one for alleged ex parte contacts and the other because some of the 

judge’s investments allegedly would be affected by his ruling in a case. The chief judge 

dismissed the complaint in case C-6 for nonconformity but could have instead, or as 

well, dismissed it as merits-related. The chief judge properly dismissed the complaint 

in case C-10 as merits-related. Those dismissals were consistent with our Standards 

(although in case C-6, further investigation of the alleged ex parte contacts was probably warranted).

To reduce this unnecessary burden, we encourage the Judicial Conference to 

consider mandating use of conflict-avoidance software and other steps to reduce 

potential conflicts of interest and complaints over failures to recuse. 

The body of our report notes other steps courts have taken to try to reduce other 

judicial behavior that produces either complaints under the Act or are presented to 

chief circuit judges informally, such as local rules designed to avoid circuit judges’ 

delay in producing opinions assigned to them.

Summary of recommendations concerning the administration 

of the Act

Table 18, on the following page, summarizes our recommendations, sorted by the 

object of the recommendation.
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Table 18. Summary of Committee Recommendations

Enhancing chief judges’ and council members’ ability to apply the Act. Recommendations to:

Judicial Conference Judicial Councils AO and FJC

Authorize the chair of the Review Committee 

to discuss with chief judges the possibility of 

identifying complaints for public allegations of 

misconduct; and to respond to requests for advice from chief judges and councils on whether 

to appoint special committees (pp. 110–11).

Direct the Review Committee to develop 

(1) an in-court orientation program for new 

chief judges and (2) a compendium on the Act 

(pp. 112–17).

Direct the Review Committee to post selected 

chief judge and judicial council orders on www.

uscourts.gov (pp. 117–18).

FJC education design assistance to Review Committee 

and AO staff (p. 113).

Consider if AO should become national repository for 

submitted orders (p. 119).

Encourage prompt submission of “non-routine” 

orders (pp. 118–19).

Make a “private assistance” telephone line available to all judges. Recommendations to:

 Judicial Conference Judicial Councils AO and FJC

Encourage public and bar knowledge of the Act and its appropriate use. Recommendations to:

 Judicial Conference Judicial Councils AO and FJC

Suggest consideration of local committees of senior lawyers 

to serve as conduits between the bar and chief judges concerning possible misconduct or disability matters (p. 119).

Suggest and order if necessary compliance with 2002 Judicial Conference recommendation that each court website 

prominently provide circuit rules and forms (pp. 120–21).

AO should add notice on 

www.uscourts.gov about 

individual court website 

information (p. 121).

Provide accurate information about the Act’s administration. Recommendations to:

Judicial Conference Judicial Councils AO and FJC

Consider ordering periodic replications of this study (pp. 122–23).

Make the compendium proposed 

in Recommendation 1 available to 

all judges online (p. 123).

Insist that circuit personnel submit 

accurate information to the AO about 

complaints (pp. 121–22).

AO should consider a revision 

to Tables 11 & S-22 (p. 122).

FJC should provide information about the Act in its judicial orientations (p. 123).

Clarify the Conference’s authority vis-à-vis its Review Committee. Recommendations to:

 Judicial Conference Judicial Councils AO and FJC

Clarify the Conference’s authority to 

review decisions of its Review Committee 

(p. 123).

Consider establishing a national service similar to that established in the Ninth Circuit 

for judges in circuits that do not replicate the 

program (p. 124).

Consider adopting and adapting the 

Ninth Circuit’s program to provide 

ready availability of “private assistance” advice to judges (p. 124).
127

Endnotes

1. P.L. 96-458, 94 Stat. 2035 (1980), originally codified at 28 U.S.C. §§ 372(c) et seq., 

recodified in 2002, P.L. 107-273, Justice Department Reauthorization Act of 2002, Title 

I, Subtitle C, 116 Stat. 1758 at 1848 (2000), as Chapter 16 of 28 U.S.C. §§ 351 et seq. (see 

Appendix D).

2. P.L. 101-650, 104 Stat. 5122 (1990).

3. Report of the National Commission on Judicial Discipline and Removal (1993).

4. Id. at 124.

5. Barr and Willging, Decentralized Self-Regulation, Accountability, and Judicial 

Independence Under the Federal Judicial Conduct and Disability Act of 1980, 142 U. Pa. L. 

Rev. 25, 43 (1993) (published in substantially similar form as Administration of the Federal 

Judicial Conduct and Disability Act of 1980, in 1 Research Papers of the National Commission 

on Judicial Discipline and Removal 477 (1993)).

6. Geyh, Informal Methods of Judicial Discipline, 142 U. Pa. L. Rev. 243, 313 (1994) 

(published in substantially similar form as Means of Judicial Discipline Other than Those 

Prescribed by the Judicial Discipline Statute, 28 U.S.C. Section 372(c), in 1 Research Papers 

of the National Commission on Judicial Discipline and Removal 713 (1993)).

7. Marcus, Who Should Regulate Federal Judges, and How?, 1 Research Papers of the 

National Commission on Judicial Discipline and Removal 363 (1993).

8. Barr and Willging, Statement of Allegations and Reasons in Chief Judge Dismissal 

Orders Under the Judicial Conduct and Disability Act of 1980, 1 (Federal Judicial Center 

2002).

9. E.g., Reiger, The Judicial Council Reform and Judicial Conduct and Disability Act: Will 

Judges Judge Judges?, 37 Emory L. J. 45 (1988); Comment, Judicial Misconduct and Politics 

in the Federal System: A Proposal for Revising the Judicial Councils Act, 75 Cal. L. Rev. 1071 

(1987); M. Volcansek, Judicial Impeachment, None Called for Justice (1993) (especially at 

83–87).

10. Fitzpatrick, Misconduct and Disability of Federal Judges: The Unreported Informal 

Responses, 71(5) Judicature 282 (1986); Fitzpatrick, Building a Better Bench: Informally 

Addressing Instances of Judicial Misconduct, 44(1) Judges’ Journal 16 (Winter 2005).

11. See Burbank, The Act’s History, in Procedural Rulemaking under the Judicial 

Councils Reform and Judicial Conduct and Disability Act of 1980, 131 U. Pa. L. Rev. 283, at 

291–309 (1982).

12. P.L. 101-650, Judicial Improvements Act of 1990, Title V, 104 Stat. 5089 at 5122 

(1990).

13. The Act had been codified at 28 U.S.C. 372(c) and is now 28 U.S.C. §§ 351–364.

14. Codified at 28 U.S.C. § 604(h)(2).

15. See Barr and Willging, Decentralized Self-Regulation, supra note 5, at 43.

16. P.L. 104-134, 110 Stat. 1321, April 26, 1996.
128 

Implementation of the Judicial Conduct and Disability Act ~ September 2006

17. See 28 U.S.C. § 1915(b)(1).

18. See Barr and Willging, Decentralized Self-Regulation, supra note 5, at 50.

19. Report of the Proceedings of the Judicial Conference of the United States, Sept. 

2002, at 58.

20. Report of the Proceedings of the Judicial Conference of the United States, Mar. 

1994, at 29.

21. Report of the Proceedings of the Judicial Conference of the United States, Sept. 

2002, at 58.

22. Report of the Proceedings of the Judicial Conference of the United States, Mar. 

1994, at 30.

23. Barr and Willging, Statement of Allegations, supra note 8, at 1–2. 

24. Barr and Willging, Decentralized Self-Regulation, supra note 5, at 31 & 79.

25. Table 16, supra p. 95, rows 1 & 4.

26. Administrative Office of the U.S. Courts, 1980 Annual Report of the Director, at 

124; Judicial Business of the United States Courts (1991) at 81; Judicial Business of the 

United States Courts (2003), at 14 (excludes Court of Appeals for the Federal Circuit).

27. Barr and Willging, Decentralized Self-Regulation, supra note 5, at 43.

28. “Impeachments of Judges” found under “Judges of the U.S. Courts” at 

www.fjc.gov/history/home.nsf. 

29. Symposium on the Future of the Federal Courts, 46 Am. U. L. Rev. 263, 273 (1996) 

(keynote address of Chief Justice William H. Rehnquist).

30. “Enhancement of judicial information dissemination,” 28 U.S.C. § 476.

31. Edwards, The Effects of Collegiality on Judicial Decision Making, 151 U. Pa. L. Rev. 

1639, 1665 (2003).

32. 126 Cong. Rec. 28,092 (1980) (as quoted in Illustrative Rules Governing Complaints 

of Judicial Misconduct and Disability 61–62 (Administrative Office of the U.S. Courts, 

2000)).

33. Report of the National Commission on Judicial Discipline and Removal (1993), at 

113.

34. Quoted in Barr and Willging, Decentralized Self-Regulation, supra note 5, at n.293.

35. Report of the National Commission on Judicial Discipline and Removal (1993), at 

113.

36. Geyh, Informal Methods, supra note 6, at 313.

37. Fitzpatrick, Misconduct and Disability, supra note 10, at 283.

38. Barr and Willging, Decentralized Self-Regulation, supra note 5, at 139–40.

39. Id. at 140–43.

40. Report of the National Commission on Judicial Discipline and Removal (1993), at 

101.

41. Report of the Proceedings of the Judicial Conference of the United States, Mar. 

1994, at 29.

42. Fitzpatrick, Building a Better Bench, supra note 10, at 44(1).
129

Endnotes

43. Graber, Judicial Wellness Committee Focuses on Judges Health and Well Being, Ninth 

Circuit Annual Report, Apr. 2002.

44. Fogel, Confidential Hotline Addresses Unique Needs of Federal Judges, in GOOD 

HEALTH (publication of the Judicial Wellness Committee of the Ninth Circuit Judicial 

Council), Spring 2004.

45. 28 U.S.C. § 332(d)(1).

46. 28 U.S.C. § 291(a).

47. Rule 18 (“Disqualification”), Illustrative Rules Governing Complaints of Judicial 

Misconduct and Disability, commentary at 59 (Administrative Office of the U.S. Courts, 

2000).

48. Report of the Proceedings of the Judicial Conference of the United States, Sept. 

1997, at 81–82.

49. Rule 18 (“Disqualification”), Illustrative Rules Governing Complaints of Judicial 

Misconduct and Disability, commentary at 75–78 (Administrative Office of the U.S. Courts, 

2000). 

50. Report of the National Commission on Judicial Discipline and Removal 109 

(1993).

51. Report of the Proceedings of the Judicial Conference of the United States, Mar. 

1994, at 28.

52. Rule 17 (“Public Availability of Decisions”), Illustrative Rules Governing Complaints 

of Judicial Misconduct and Disability, commentary at 30–33 (Administrative Office of the 

U.S. Courts, 2000).

53. Report of the Proceedings of the Judicial Conference of the United States, Sept. 

2002, at 58.

54. Report of the National Commission on Judicial Discipline and Removal (1993), at 

101.

55. Report of the Proceedings of the Judicial Conference of the United States, Mar. 

1994, at 29.

56. Report of the National Commission on Judicial Discipline and Removal (1993), at 

99–100.

57. Report of the Proceedings of the Judicial Conference of the United States, Mar. 

1994, at 29.

58. Id.

59. Report of the Proceedings of the Judicial Conference of the United States, Sept. 

2002, at 58.

60. Judicial Business of the United States Courts (2003), at 29. 

61. As codified at 28 U.S.C. § 604(h)(2).

62. “Rules of the Judicial Conference . . . for the Processing of Petitions for Review of 

Circuit Council Orders, . . .” (as revised, Sept. 20, 1989) and “Rules . . .for the Processing 

of Certificates from Judicial Councils that a Judicial Officer Might Have Engaged in 

Impeachable Conduct,” (as revised, Sept. 23–24, 1991), in Guide to Judicial Policies and 

Procedures, vol. III, sec. C, Ch. 2.

131

Appendix A

Announcement of Committee Appointment

Chief Justice Appoints Committee to Evaluate Judicial Discipline System

[May 25, 2004]

Chief Justice William H. Rehnquist has appointed Justice Stephen Breyer to chair a committee that will evaluate how the federal judicial system is dealing with judicial misbehavior 

and disability. “There has been some recent criticism from Congress about the way in which 

the Judicial Conduct and Disability Act of 1980 is being implemented, and I decided that 

the best way to see if there are any real problems is to have a committee look into it,” the 

Chief Justice explained. In addition to Justice Breyer, Judge J. Harvie Wilkinson, former 

chief judge of the U.S. Court of Appeals for the Fourth Circuit, Judge Pasco M. Bowman, 

former chief judge of the U.S. Court of Appeals for the Eighth Circuit, Judge D. Brock 

Hornby, former chief judge of the U.S. District Court for the District of Maine, Judge Sarah 

Evans Barker, former chief judge of the U.S. District Court for the Southern District of 

Indiana, and Sally M. Rider, the administrative assistant to the Chief Justice, will serve on 

the committee. 

The committee will report directly to the Chief Justice and will be assisted by staff from 

the Administrative Office of the U.S. Courts and the Federal Judicial Center. The committee’s first meeting will be in June in Washington. The last comprehensive look into the judicial discipline system was performed by the National Commission on Judicial Discipline 

and Removal, which issued its report in 1993.

133

Appendix B

Committee Members

Stephen G. Breyer has been an associate justice on the United States Supreme Court since 

1994. He served on the U.S. Court of Appeals for the First Circuit from 1980 until his appointment to the Supreme Court and from 1990 until then was chief judge of the circuit, 

and thus a member of the U.S. Judicial Conference and chairman of the circuit judicial 

council.

Justice Breyer clerked for Justice Arthur Goldberg during the October Term, 1964, 

was on the Harvard Law School faculty from 1967 until 1994, was special counsel to the 

Senate Judiciary Committee’s Administrative Practices Subcommittee and chief counsel to 

the full committee, and was one of the initial members of the United States Sentencing 

Commission. He is a graduate of Stanford University, Magdalen College, Oxford, and the 

Harvard Law School. 

Sarah E. Barker has been a U.S. district judge for the Southern District of Indiana since 1984, 

and was chief judge from 1994 until 2000. She was a member of the Judicial Conference 

of the United States from 1988 to 1991 and during that time served on the Conference’s 

Executive Committee. She also served on the circuit’s judicial council. 

She served previously as a legislative assistant to U.S. Representative Gilbert Gude 

and then to Senator Charles Percy, and then as special counsel to the Senate Government 

Operations Committee’s permanent subcommittee on investigations. She was U.S. attorney 

for the Southern District of Indiana from 1981 until 1984, having served previously as assistant U.S. attorney in that office. She also practiced law in Indianapolis. She is a graduate 

of Indiana University and American University’s Washington College of Law.

Pasco M. Bowman is a senior judge on the U.S. Court of Appeals for the Eighth Circuit, 

to which he was appointed in 1983. He served as chief judge and thus as chairman of the 

circuit judicial council and as a member of the Judicial Conference of the United States in 

1998 and 1999. 

Judge Bowman practiced law in New York City from 1958 until 1964, when he joined 

the faculty of the University of Georgia Law School. Subsequently, he was dean and professor of law at Wake Forest University, a visiting professor at the University of Virginia Law 

School, and dean and professor of law at the University of Missouri, Kansas City School of 

Law. He is a graduate of Bridgewater College, the New York University School of Law, and 

holds an LL.M. from the law school of the University of Virginia. 

D. Brock Hornby has been a U.S. district judge for the District of Maine since 1990 and was 

chief district judge from 1996 to 2003. He was a member of the Judicial Conference of the 

United States from 2001 to 2004 and during that time served on the Conference’s Executive 

Committee. He also served on the circuit’s judicial council. 
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134

He was a U.S. magistrate judge in the District of Maine and then an associate justice of 

the Maine Supreme Judicial Court. Judge Hornby clerked for Judge John Minor Wisdom 

on the U.S. Court of Appeals for the Fifth Circuit, was an associate professor of law at 

the University of Virginia, and practiced law in Portland, Maine. He is a graduate of the 

University of Western Ontario and the Harvard Law School. 

Sally M. Rider is the administrative assistant to Chief Justice John G. Roberts, Jr., and served 

in that position for Chief Justice William H. Rehnquist from 2000 to his death in 2005. 

She was staff counsel to the House Committee on Interior and Insular Affairs from 

1986 to 1987. She then was a trial attorney in the Justice Department’s Civil Division, an 

assistant U.S. attorney in the District of Columbia and later deputy chief of that U.S. attorney office’s civil division, and an attorney at the State Department. Later this year she 

will become director of the William H. Rehnquist Center on the Constitutional Structures 

of Government, a nonpartisan national research center being established in Tucson by the 

University of Arizona to honor the Chief Justice’s legacy. Rider is a graduate of the University 

of Arizona and its College of Law.

J. Harvie Wilkinson III has been a judge on the U.S. Court of Appeals for the Fourth Circuit 

since 1984. He served as chief judge, and thus as chairman of the circuit judicial council and 

a member of the Judicial Conference of the United States from 1996 to 2003. 

Judge Wilkinson was a law clerk for Justice Lewis F. Powell from 1972 to 1973 and was 

then an associate professor at the University of Virginia Law School. He was the editorial 

page editor for the Norfolk Virginian-Pilot from 1978 to 1981, then served as deputy assistant 

attorney general for the U.S. Justice Department’s Civil Rights Division. Immediately prior 

to his judicial appointment, he was a professor at the University of Virginia Law School. He 

is a graduate of Yale University and the University of Virginia Law School. 
135

Appendix C

Key Staff

Jeffrey N. Barr, Joe S. Cecil, and Thomas E. Willging were the project’s field investigators 

and prepared the initial descriptions of the terminations that form the basis of Chapter 4. 

They conducted the preliminary assessments of complaint files in the circuit headquarters 

for the stratified sample’s 593 terminations, and Barr and Willging later conducted the preliminary assessments of the terminations of the post-2003 “high-visibility” complaints. The 

Committee’s independent review of these preliminary assessments constitute a major portion of the report’s findings. While in the circuits, they also conducted extensive interviews 

with current and former chief circuit judges and circuit executives and other staff who assist 

in processing complaints. Those interviews, along with Committee members’ interviews of 

chief circuit judges, provide the basis for Chapters 3 and 5. In addition to the field work on 

the 593-case sample, Cecil was principally responsible for drawing the samples and for the 

quantitative analysis of all activity under the Act reported in Chapter 2.

Barr has been an attorney at the Administrative Office of the U.S. Courts since 1995. 

From 1995 to 2004, he was principal staff to the Judicial Conference Committee to Review 

Circuit Council Conduct and Disability Orders. From 1985 to 1995 he was a staff attorney 

for the U.S. Court of Appeals for the First Circuit, where judicial conduct matters was one 

of his principal responsibilities. He attended Yale College and Harvard Law School.

Barr and Willging coauthored Decentralized Self-Regulation, Accountability, and Judicial 

Independence Under the Federal Judicial Conduct and Disability Act of 1980 (1993), based 

on their research for the National Commission on Judicial Discipline and Removal, and 

Statement of Allegations and Reasons in Chief Judge Dismissal Orders Under the Judicial 

Conduct and Disability Act of 1980 (2002), a follow-up study requested by the House 

Judiciary Subcommittee on Courts, the Internet, and Intellectual Property (full citations 

for both reports are in notes 5 and 8 of our report).

Cecil and Willging have been senior research associates at the Federal Judicial Center 

since the 1980s. Cecil directs the Center’s Program on Scientific and Technical Evidence and 

is principal editor of the Reference Manual on Scientific Evidence. His other major research 

areas include civil and appellate procedure, jury competence in complex civil litigation, and 

claim construction in patent litigation. He received his J.D. and a Ph.D. in psychology from 

Northwestern University.

Willging’s other principal research area is complex civil litigation, especially class actions, as reflected in his major contributions to the Center’s Manual for Complex Litigation, 

Fourth (2004). He holds B.A. and J.D. degrees from Catholic University in Washington, 

D.C., and an LL.M. from Harvard University Law School. 

Angelia N. Levy, a Federal Judicial Center research assistant, was principally responsible for 

the management of the confidential complaint files and other project materials provided 

to Committee members for the assessments reported in Chapter 4. She has provided re-
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136

search and editorial assistance on other Center research and was the project coordinator for 

the Manual for Complex Litigation, Fourth. She holds a B.A. in Communications from the 

University of Pittsburgh.

Russell R. Wheeler served as overall staff coordinator and oversaw the preparation of various Committee documents. He left the Center in 2005 but has continued his work in support of the Committee. He was a reporter for the Judicial Conference’s Federal Courts Study 

Committee, a consultant to its Long Range Planning Committee, and provided research for 

the statutory Commission on Structural Alternatives for the Federal Courts of Appeals. 

He is a graduate of Augustana College and the University of Chicago (Ph.D., political science). 

George Cort, David Guth, and Nicholle Stahl-Reisdorff of the Center provided additional 

research support for aspects of the Committee’s work. Geoff Erwin of the Center edited and 

formatted several internal Committee reports as well as this final report.
137

Appendix D

Judicial Conduct and Disability Act

(Chapter 16, Title 28, United States Code)

CHAPTER 16—COMPLAINTS AGAINST 

JUDGES AND JUDICIAL DISCIPLINE

Sec.

351. Complaints; judge defined.

352. Review of complaint by chief judge.

353. Special committees.

354. Action by judicial council.

355. Action by Judicial Conference.

356. Subpoena power.

357. Review of orders and actions.

358. Rules.

359. Restrictions.

360. Disclosure of information.

361. Reimbursement of expenses.

362. Other provisions and rules not affected.

363. Court of Federal Claims, Court of International Trade, Court of Appeals for the 

Federal Circuit.

364. Effect of felony conviction.

§ 351. Complaints; judge defined

(a) Filing of Complaint by Any Person.—Any person alleging that a judge has engaged in conduct prejudicial to the effective and expeditious administration of the business 

of the courts, or alleging that such judge is unable to discharge all the duties of office by 

reason of mental or physical disability, may file with the clerk of the court of appeals for 

the circuit a written complaint containing a brief statement of the facts constituting such 

conduct.

(b) Identifying Complaint by Chief Judge.—In the interests of the effective and 

expeditious administration of the business of the courts and on the basis of information 

available to the chief judge of the circuit, the chief judge may, by written order stating reasons therefor, identify a complaint for purposes of this chapter and thereby dispense with 

filing of a written complaint.

(c) Transmittal of Complaint.—Upon receipt of a complaint filed under subsection 

(a), the clerk shall promptly transmit the complaint to the chief judge of the circuit, or, if 

the conduct complained of is that of the chief judge, to that circuit judge in regular active service next senior in date of commission (hereafter, for purposes of this chapter only, 

included in the term “chief judge”). The clerk shall simultaneously transmit a copy of the 
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138

complaint to the judge whose conduct is the subject of the complaint. The clerk shall also 

transmit a copy of any complaint identified under subsection (b) to the judge whose conduct is the subject of the complaint.

(d) Definitions.—In this chapter—

(1) the term “judge” means a circuit judge, district judge, bankruptcy judge, or magistrate judge; and

(2) the term “complainant” means the person filing a complaint under subsection 

(a) of this section.

§ 352. Review of complaint by chief judge

(a) Expeditious Review; Limited Inquiry.—The chief judge shall expeditiously review any complaint received under section 351(a) or identified under section 351(b). In 

determining what action to take, the chief judge may conduct a limited inquiry for the 

purpose of determining—

(1) whether appropriate corrective action has been or can be taken without the necessity for a formal investigation; and

(2) whether the facts stated in the complaint are either plainly untrue or are incapable of being established through investigation.

For this purpose, the chief judge may request the judge whose conduct is complained 

of to file a written response to the complaint. Such response shall not be made available to 

the complainant unless authorized by the judge filing the response. The chief judge or his 

or her designee may also communicate orally or in writing with the complainant, the judge 

whose conduct is complained of, and any other person who may have knowledge of the 

matter, and may review any transcripts or other relevant documents. The chief judge shall 

not undertake to make findings of fact about any matter that is reasonably in dispute.

(b) Action by Chief Judge Following Review.—After expeditiously reviewing a 

complaint under subsection (a), the chief judge, by written order stating his or her reasons, 

may—

(1) dismiss the complaint—

(A) if the chief judge finds the complaint to be—

(i) not in conformity with section 351(a);

(ii) directly related to the merits of a decision or procedural ruling; or

(iii) frivolous, lacking sufficient evidence to raise an inference that misconduct has occurred, or containing allegations which are incapable of being established through investigation; or

(B) when a limited inquiry conducted under subsection (a) demonstrates that 

the allegations in the complaint lack any factual foundation or are conclusively refuted by objective evidence; or

(2) conclude the proceeding if the chief judge finds that appropriate corrective action has been taken or that action on the complaint is no longer necessary because of 

intervening events.
139

Appendix D

The chief judge shall transmit copies of the written order to the complainant and to the 

judge whose conduct is the subject of the complaint.

(c) Review of Orders of Chief Judge.—A complainant or judge aggrieved by a final 

order of the chief judge under this section may petition the judicial council of the circuit 

for review thereof. The denial of a petition for review of the chief judge’s order shall be final 

and conclusive and shall not be judicially reviewable on appeal or otherwise.

(d) Referral of Petitions for Review to Panels of the Judicial Council.—Each 

judicial council may, pursuant to rules prescribed under section 358, refer a petition for 

review filed under subsection (c) to a panel of no fewer than 5 members of the council, at 

least 2 of whom shall be district judges. 

§ 353. Special committees

(a) Appointment.—If the chief judge does not enter an order under section 352(b), the 

chief judge shall promptly—

(1) appoint himself or herself and equal numbers of circuit and district judges of 

the circuit to a special committee to investigate the facts and allegations contained in the 

complaint;

(2) certify the complaint and any other documents pertaining thereto to each member of such committee; and

(3) provide written notice to the complainant and the judge whose conduct is the 

subject of the complaint of the action taken under this subsection.

(b) Change in Status or Death of Judges.—A judge appointed to a special committee under subsection (a) may continue to serve on that committee after becoming a senior 

judge or, in the case of the chief judge of the circuit, after his or her term as chief judge 

terminates under subsection (a)(3) or (c) of section 45. If a judge appointed to a committee 

under subsection (a) dies, or retires from office under section 371(a), while serving on the 

committee, the chief judge of the circuit may appoint another circuit or district judge, as 

the case may be, to the committee.

(c) Investigation by Special Committee.—Each committee appointed under subsection (a) shall conduct an investigation as extensive as it considers necessary, and shall 

expeditiously file a comprehensive written report thereon with the judicial council of the 

circuit. Such report shall present both the findings of the investigation and the committee’s 

recommendations for necessary and appropriate action by the judicial council of the circuit. 

§ 354. Action by judicial council

(a) Actions Upon Receipt of Report.—

(1) Actions.—The judicial council of a circuit, upon receipt of a report filed under 

section 353(c)—

(A) may conduct any additional investigation which it considers to be necessary;

(B) may dismiss the complaint; and
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140

(C) if the complaint is not dismissed, shall take such action as is appropriate 

to assure the effective and expeditious administration of the business of the courts 

within the circuit.

(2) Description of possible actions if complaint not dismissed.—

(A) In general.—Action by the judicial council under paragraph (1)(C) may 

include—

(i) ordering that, on a temporary basis for a time certain, no further cases be 

assigned to the judge whose conduct is the subject of a complaint;

(ii) censuring or reprimanding such judge by means of private communication; and

(iii) censuring or reprimanding such judge by means of public announcement.

(B) For article iii judges.—If the conduct of a judge appointed to hold office 

during good behavior is the subject of the complaint, action by the judicial council 

under paragraph (1)(C) may include—

(i) certifying disability of the judge pursuant to the procedures and standards 

provided under section 372(b); and

(ii) requesting that the judge voluntarily retire, with the provision that the 

length of service requirements under section 371 of this title shall not apply.

(C) For magistrate judges.—If the conduct of a magistrate judge is the subject of the complaint, action by the judicial council under paragraph (1)(C) may 

include directing the chief judge of the district of the magistrate judge to take such 

action as the judicial council considers appropriate.

(3) Limitations on judicial council regarding removals.—

(A) Article iii judges.—Under no circumstances may the judicial council order removal from office of any judge appointed to hold office during good behavior.

(B) Magistrate and bankruptcy judges.—Any removal of a magistrate judge 

under this subsection shall be in accordance with section 631 and any removal of a 

bankruptcy judge shall be in accordance with section 152.

(4) Notice of action to judge.—The judicial council shall immediately provide 

written notice to the complainant and to the judge whose conduct is the subject of the 

complaint of the action taken under this subsection.

(b) Referral to Judicial Conference.—

(1) In general.—In addition to the authority granted under subsection (a), the 

judicial council may, in its discretion, refer any complaint under section 351, together 

with the record of any associated proceedings and its recommendations for appropriate 

action, to the Judicial Conference of the United States.

(2) Special circumstances.—In any case in which the judicial council determines, 

on the basis of a complaint and an investigation under this chapter, or on the basis of 

information otherwise available to the judicial council, that a judge appointed to hold 

office during good behavior may have engaged in conduct—
141

Appendix D

(A) which might constitute one or more grounds for impeachment under article 

II of the Constitution, or

(B) which, in the interest of justice, is not amenable to resolution by the judicial 

council,

the judicial council shall promptly certify such determination, together with any complaint and a record of any associated proceedings, to the Judicial Conference of the United 

States.

(3) Notice to complainant and judge.—A judicial council acting under authority of this subsection shall, unless contrary to the interests of justice, immediately submit 

written notice to the complainant and to the judge whose conduct is the subject of the 

action taken under this subsection.

§ 355. Action by Judicial Conference

(a) In General.—Upon referral or certification of any matter under section 354(b), the 

Judicial Conference, after consideration of the prior proceedings and such additional investigation as it considers appropriate, shall by majority vote take such action, as described in 

section 354(a)(1)(C) and (2), as it considers appropriate.

(b) If Impeachment Warranted.—

(1) In general.—If the Judicial Conference concurs in the determination of the judicial council, or makes its own determination, that consideration of impeachment may 

be warranted, it shall so certify and transmit the determination and the record of proceedings to the House of Representatives for whatever action the House of Representatives 

considers to be necessary. Upon receipt of the determination and record of proceedings 

in the House of Representatives, the Clerk of the House of Representatives shall make 

available to the public the determination and any reasons for the determination.

(2) In case of felony conviction.—If a judge has been convicted of a felony under 

State or Federal law and has exhausted all means of obtaining direct review of the conviction, or the time for seeking further direct review of the conviction has passed and no 

such review has been sought, the Judicial Conference may, by majority vote and without 

referral or certification under section 354 (b), transmit to the House of Representatives 

a determination that consideration of impeachment may be warranted, together with 

appropriate court records, for whatever action the House of Representatives considers 

to be necessary.

§ 356. Subpoena power

(a) Judicial Councils and Special Committees.—In conducting any investigation 

under this chapter, the judicial council, or a special committee appointed under section 353, 

shall have full subpoena powers as provided in section 332(d).

(b) Judicial Conference and Standing Committees.—In conducting any investigation under this chapter, the Judicial Conference, or a standing committee appointed by the 

Chief Justice under section 331, shall have full subpoena powers as provided in that section.
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142

§ 357. Review of orders and actions

(a) Review of Action of Judicial Council.—A complainant or judge aggrieved by an 

action of the judicial council under section 354 may petition the Judicial Conference of the 

United States for review thereof.

(b) Action of Judicial Conference.—The Judicial Conference, or the standing committee established under section 331, may grant a petition filed by a complainant or judge 

under subsection (a). 

(c) No Judicial Review.—Except as expressly provided in this section and section 

352(c), all orders and determinations, including denials of petitions for review, shall be 

final and conclusive and shall not be judicially reviewable on appeal or otherwise.

§ 358. Rules

(a) In General.—Each judicial council and the Judicial Conference may prescribe such 

rules for the conduct of proceedings under this chapter, including the processing of petitions for review, as each considers to be appropriate. 

(b) Required Provisions.—Rules prescribed under subsection (a) shall contain provisions requiring that—

(1) adequate prior notice of any investigation be given in writing to the judge whose 

conduct is the subject of a complaint under this chapter;

(2) the judge whose conduct is the subject of a complaint under this chapter be afforded an opportunity to appear (in person or by counsel) at proceedings conducted by 

the investigating panel, to present oral and documentary evidence, to compel the attendance of witnesses or the production of documents, to cross-examine witnesses, and to 

present argument orally or in writing; and

(3) the complainant be afforded an opportunity to appear at proceedings conducted 

by the investigating panel, if the panel concludes that the complainant could offer substantial information.

(c) Procedures.—Any rule prescribed under this section shall be made or amended 

only after giving appropriate public notice and an opportunity for comment. Any such rule 

shall be a matter of public record, and any such rule promulgated by a judicial council may 

be modified by the Judicial Conference. No rule promulgated under this section may limit 

the period of time within which a person may file a complaint under this chapter.

§ 359. Restrictions

(a) Restriction on Individuals Who Are Subject of Investigation.—No judge 

whose conduct is the subject of an investigation under this chapter shall serve upon a special committee appointed under section 353, upon a judicial council, upon the Judicial 

Conference, or upon the standing committee established under section 331, until all proceedings under this chapter relating to such investigation have been finally terminated.

(b) Amicus Curiae.—No person shall be granted the right to intervene or to appear as 

amicus curiae in any proceeding before a judicial council or the Judicial Conference under 

this chapter.
143

Appendix D

§ 360. Disclosure of information

(a) Confidentiality of Proceedings.—Except as provided in section 355, all papers, documents, and records of proceedings related to investigations conducted under this 

chapter shall be confidential and shall not be disclosed by any person in any proceeding 

except to the extent that—

(1) the judicial council of the circuit in its discretion releases a copy of a report of 

a special investigative committee under section 353(c) to the complainant whose complaint initiated the investigation by that special committee and to the judge whose conduct is the subject of the complaint;

(2) the judicial council of the circuit, the Judicial Conference of the United States, 

or the Senate or the House of Representatives by resolution, releases any such material 

which is believed necessary to an impeachment investigation or trial of a judge under 

article I of the Constitution; or

(3) such disclosure is authorized in writing by the judge who is the subject of the 

complaint and by the chief judge of the circuit, the Chief Justice, or the chairman of the 

standing committee established under section 331.

(b) Public Availability of Written Orders.—Each written order to implement 

any action under section 354(a)(1)(C), which is issued by a judicial council, the Judicial 

Conference, or the standing committee established under section 331, shall be made available to the public through the appropriate clerk’s office of the court of appeals for the 

circuit. Unless contrary to the interests of justice, each such order shall be accompanied by 

written reasons therefor.

§ 361. Reimbursement of expenses

Upon the request of a judge whose conduct is the subject of a complaint under this 

chapter, the judicial council may, if the complaint has been finally dismissed under section 354(a)(1)(B), recommend that the Director of the Administrative Office of the United 

States Courts award reimbursement, from funds appropriated to the Federal judiciary, for 

those reasonable expenses, including attorneys’ fees, incurred by that judge during the investigation which would not have been incurred but for the requirements of this chapter.

§ 362. Other provisions and rules not affected

Except as expressly provided in this chapter, nothing in this chapter shall be construed 

to affect any other provision of this title, the Federal Rules of Civil Procedure, the Federal 

Rules of Criminal Procedure, the Federal Rules of Appellate Procedure, or the Federal Rules 

of Evidence.

§ 363. Court of Federal Claims, Court of International Trade, Court of Appeals for the 

Federal Circuit

The United States Court of Federal Claims, the Court of International Trade, and the 

Court of Appeals for the Federal Circuit shall each prescribe rules, consistent with the provisions of this chapter, establishing procedures for the filing of complaints with respect to 

the conduct of any judge of such court and for the investigation and resolution of such 
Implementation of the Judicial Conduct and Disability Act ~ September 2006

144

complaints. In investigating and taking action with respect to any such complaint, each 

such court shall have the powers granted to a judicial council under this chapter.

§ 364. Effect of felony conviction

In the case of any judge or judge of a court referred to in section 363 who is convicted of 

a felony under State or Federal law and has exhausted all means of obtaining direct review 

of the conviction, or the time for seeking further direct review of the conviction has passed 

and no such review has been sought, the following shall apply:

(1) The judge shall not hear or decide cases unless the judicial council of the circuit 

(or, in the case of a judge of a court referred to in section 363, that court) determines 

otherwise.

(2) Any service as such judge or judge of a court referred to in section 363, after 

the conviction is final and all time for filing appeals thereof has expired, shall not be 

included for purposes of determining years of service under section 371(c), 377, or 178 

of this title or creditable service under subchapter III of chapter 83, or chapter 84, of 

title 5.
145

Appendix E

Committee Standards for Assessing Compliance with the Act

(as approved by the Committee in August 2004, 

with revisions approved June 2005 and March 2006)

1. “Expeditious review.” Section 352(a). 

The commentary to Illustrative Rule 4 defines this standard as follows: “In our view, it 

would be a rare case in which more than sixty days is permitted to elapse from the filing of 

the complaint to the chief judge’s action on it.” The researchers will demarcate sixty days 

as the outer limit of expeditious review and report to the Committee what percentage of 

complaints do not result in a ruling by the chief judge within sixty days. The researchers 

will be able to report to the Committee the time taken for chief judge disposition on a circuit-by-circuit basis. (Evaluating expeditious review may be possible only for complaints in 

which there is no petition for judicial council review of a chief judge’s action, because the 

AO data files contain only one termination date, which is keyed to the overall disposition 

of the complaint.)

2. “Directly related to the merits of a decision or procedural ruling.” 

Section 352(b)(1)(A)(ii).

The core policy reflected here is that the complaint procedure cannot be a means for collateral attack on the substance of a judge’s rulings. The interest protected is the independence 

of the judge in the course of deciding Article III cases and controversies. Any allegation that 

calls into question the correctness of an official action of a judge—without more—is merits 

related. 

This constitutes a broad reading of the phrase “decision or procedural ruling.” It is not 

limited to rulings issued in deciding cases per se. Thus, a complaint challenging the correctness of a judge’s determination to dismiss a prior misconduct complaint would be properly 

dismissed as merits related—i.e., as challenging the substance of the judge’s administrative determination to dismiss the complaint—even though it does not concern the judge’s 

rulings in any case. A petition for review can be filed with the circuit council. Similarly, 

an allegation that a chief judge had incorrectly declined to approve a Criminal Justice Act 

voucher is merits related under this standard. 

Thus, an allegation—however unsupported—that a judge conspired with a prosecutor 

in order to reach a particular ruling is not merits related, even though it “relates” to a ruling 

in a colloquial sense. What that allegation attacks is the propriety of conspiring with the 

prosecutor. The allegation thus goes beyond a mere attack on the correctness (“the merits”) 

of the ruling itself.

Similarly, an allegation—however unsupported—that a judge ruled against the complainant because the complainant was Asian, or because the judge doesn’t like the complainant personally, is not merits related. What the allegation attacks is the propriety of 
Implementation of the Judicial Conduct and Disability Act ~ September 2006

146

arriving at rulings with an illicit or improper motive. The allegation thus goes beyond a 

mere attack on the correctness of the ruling itself. 

Most such complaints are more properly dismissed as frivolous—i.e., lacking in factual 

substantiation. If a judge did in fact conspire with a prosecutor, or rule on the basis of a 

party’s ethnicity, that is fodder for the complaint process because it is not merits related.

The same standard applies to allegations concerning a judge’s failure to recuse. A mere 

allegation that a judge should have recused is indeed merits related; the proper recourse is 

for a party to file a motion to recuse. The very different allegation that the judge failed to 

recuse for illicit reasons—i.e., not that the judge erred in not recusing, but that the judge 

knew he should recuse but deliberately failed to do so for illicit purposes—is not merits 

related. Such allegations are almost always dismissed for lack of factual substantiation.

In the same spirit, an allegation that a judge used an inappropriate term to refer to a 

class of people is not merits related merely because the judge used it on the bench or in an 

opinion. The correctness of the judge’s rulings is not at stake. An allegation that a judge was 

rude to counsel or others while on the bench is not merits related.

As the 1993 Barr-Willging study noted at 65ff, whether or not an allegation is meritsrelated has nothing to do with whether or not the complainant has an adequate appellate 

remedy. The merits-related ground for dismissal exists to protect judges’ independence in 

making rulings, not to protect or promote the appellate process. A complaint alleging incorrect rulings is merits related even though the complainant—a non-party—has no judicial recourse. By the same token, an allegation that is otherwise cognizable under the Act 

should not be dismissed merely because an appellate remedy appears to exist (e.g., vacating 

a ruling that resulted from an improper ex parte communication).

A complaint of delay in a single case is properly dismissed as merits related. Such an 

allegation may be said to challenge the correctness of an official action of the judge, i.e., 

the official action of assigning a low priority to deciding the particular case in question. A 

judicial remedy exists in the form of a mandamus petition. But, by the same token, an allegation of an habitual pattern of delay in a number of cases, or an allegation of deliberate 

delay arising out of an illicit motive, is not merits related. 

Because of the special need to protect judges’ independence in deciding what to say in 

an opinion or ruling, a somewhat different standard applies to determine the merits-relatedness of a nonfrivolous allegation that a judge’s language in a ruling reflected an improper 

motive. If the judge’s language was relevant to the case at hand, then the chief judge may 

presume the judge’s choice of language was merits-related. Thus a chief judge may properly 

dismiss an allegation that a judge’s language that is relevant to a ruling was inserted out of 

an illicit motive, absent evidence aside from the ruling itself to suggest improper motive.

If, on the other hand, the challenged language does not seem relevant on its face, then the 

chief judge should ordinarily inquire of the judge complained against. If such an inquiry 

demonstrates that the challenged language was indeed relevant to the case at hand, then the 

chief judge may properly dismiss the allegation. 

3. “Not in conformity with section 351(a).” Section 352(b)(1)(A)(i).

This language permits dismissal of an allegation that, even if true, does not constitute misconduct under the statutory standard. 
147

Appendix E

This standard does not appear susceptible to precise definition outside the context of 

particular fact-situations. Presumably that was the intent of the Act’s drafters. 

The standard is given such coherence as it has by the Code of Conduct for U.S. Judges 

and the accumulated precedent of the circuits under the Act, insofar as those precedents 

have been revealed. One can assess dismissals under this standard by asking whether a reasonable observer would see a significant possibility that the allegation did meet the statutory standard. This is essentially the approach of the 1993 study (see, e.g., fn. 60 at 57).

Allegations of discourteous behavior by a judge may raise this problem. It cannot always 

be clear what degree of alleged discourtesy transcends the expected rough-and-tumble of 

litigation and moves into the sphere of cognizable misconduct. These appraisals have an “I 

know it when I see it” quality. Again, when in doubt—when a reasonable observer would 

think it possible (not 50+%, but 20%) that the alleged discourtesy was serious enough—the 

researchers should treat the allegation as cognizable.

Needless to say, the fact that a judge’s alleged conduct occurred off the bench and had 

nothing to do with the performance of official duties, absolutely does not mean that the allegation cannot meet the statutory standard. The Code of Conduct for U.S. Judges expressly 

covers a wide range of extra-official activities. Allegations that a judge personally participated in fundraising for a charity or attended a partisan political event—conduct having 

nothing to do with official duties—are certainly cognizable.

Nevertheless, many might argue that judges are entitled to some zone of privacy in 

extra-official activities into which their colleagues ought not venture. Perhaps the statutory 

standard of misconduct could be construed in an appropriate case to have such a concept 

implicitly built-in. Thus, for example, a chief judge might decline to investigate an allegation that a judge habitually was nasty to her husband, yelling and making a scene in public 

(as long as there was no allegation of criminal conduct such as physical abuse), even though 

this might embarrass the judiciary, on the ground that such matters do not constitute misconduct. Complaints raising such issues are so rare as to obviate the need for ground rules 

for them in advance. 

More common are complaints alleging conduct that occurred before the judge went on 

the federal bench. Whether such an allegation can constitute misconduct under the statutory standard is a question that the judiciary does not appear to have resolved conclusively. 

It would seem that at least some chief judges believe that the Act simply does not extend to 

pre-judicial conduct. A contrary view is that pre-judicial conduct can be prejudicial to the 

current administration of the business of the courts (e.g., the extreme case of a well-publicized allegation with some factual support that a judge had committed a felony while in 

private practice), so the statutory standard does not preclude allegations concerning prejudicial conduct. 

Rather than have the researchers try to resolve such an important question that the circuit councils themselves have not settled, the researchers will place any such cases (probably 

two to five) in a separate category and identify them for Committee review.

4. “Frivolous, lacking sufficient evidence to raise an inference that misconduct has 

occurred.” Section 352(b)(1)(A)(iii).

These two clauses both set out the same standard: “frivolous” means “lacking sufficient 

evidence to raise an inference that misconduct has occurred.” 
Implementation of the Judicial Conduct and Disability Act ~ September 2006

148

This second clause was added in the 2002 amendments, and it seems clear that it was 

added in order to define “frivolous.” Without that definition, a layperson’s colloquial understanding would translate “frivolous” as unimportant. Thus, readers of a public order 

dismissing as frivolous groundless claims of racial bias might mistakenly conclude that the 

judiciary did not consider racial bias an important concern.

Accordingly, these are not two separate standards that need to be analyzed separately. 

The second clause is simply a helpful elaboration of what is meant by “frivolous.”

The key question for the review of complaints dismissed under this standard will be, 

“When does a complaint allege enough to call for a limited inquiry by the chief judge under 

section 352(b)(1)(B), rather than a simple dismissal as frivolous?” There can be no hard and 

fast rule, but generally all a complaint (i.e., a complaint that is not inherently incredible and 

is not subject to dismissal on other grounds) need do is assert that the complaint’s allegation is supported by the transcript or by a named witness. Then it should be incumbent on 

the chief judge (through staff as the chief judge deems appropriate, of course) to consult 

the transcript or question the alleged witness. Indeed, a complaint need not itself identify 

a particular transcript or witness, if the complaint sets forth allegations that are capable of 

being verified by looking at identifiable transcripts or questioning identifiable witnesses. 

Depending on what the transcript or the witnesses reveal, it may be appropriate for the 

chief judge to question the judge complained against.

In the situation where a complaint raises an allegation not inherently incredible as to 

which only the judge complained against is a practicable source, then it should be incumbent on the chief judge to question the judge complained against. An example is an allegation by a court employee that on occasions when she was alone with the judge, he touched 

her inappropriately. There are no witnesses and no transcript. Even if the chief judge, from 

personal knowledge of the judge complained against, is morally certain that this allegation 

is false, the Act requires that the chief judge at least make a limited inquiry of the judge 

complained against.

An allegation may be dismissed as inherently incredible even if it is not literally impossible for the allegation to be true. An allegation is “inherently incredible” if no reasonable 

person would believe that the allegation, either on its face or in the light of other available 

evidence, could be true. For example, an allegation that a judge accepted a bribe in return 

for permitting the filing of a timely response to a civil complaint that the defendant had a 

legal right to file, may not be literally impossible, but is sufficiently incredible that, even if 

the complaint named witness to the transaction, the chief judge has no obligation to inquire of the named witness before dismissing the complaint. 

5. “When a limited inquiry . . . demonstrates that the allegations in the complaint lack 

any factual foundation or are conclusively refuted by objective evidence.” Section 

352(b)(1)(B). But—“The chief judge shall not undertake to make findings of fact about 

any matter that is reasonably in dispute.” Section 352(a).

These two statutory standards should be read to dovetail. In other words, a matter is not 

“reasonably” in dispute if a limited inquiry shows the allegations to lack any factual foundation or to be conclusively refuted by objective evidence.

The fundamental principle here is that an allegation is not “conclusively refuted by 

objective evidence” simply because the judge complained against denies it. The limited in-
149

Appendix E

quiry has to produce something more than that in the way of “refutation” before it will 

be appropriate to dismiss a complaint (that is not inherently incredible) without a special 

committee investigation. If it is literally the complainant’s word against the judge’s—there 

is simply no other significant evidence—then there must be a special committee investigation. This is because who is telling the truth is a matter reasonably in dispute (even if the 

chief judge is morally certain that the judge complained against is no liar). A straight-up 

credibility determination, in the absence of other significant evidence, is ordinarily for the 

circuit council, not the chief judge.

Dismissal following a limited inquiry typically occurs where the complaint refers to 

transcripts or to witnesses, and when the chief judge consults the transcripts and questions 

the witnesses, and they all support the judge. 

The researchers may find dismissals following limited chief judge inquiry in which it 

appears that the chief judge may have given excessive weight to the denial of the judge complained against. These should be coded as problematic. For example, the complaint alleges 

that the judge said X, and the complaint mentions, or it is independently clear, that five 

people may have heard what the judge said. The chief judge is told by the judge complained 

against and one witness that the judge did not say X, and the chief judge (who in private 

never believed for one second that the complaint had any validity) dismisses the complaint 

without ever questioning the other four possible witnesses. 

If all five witnesses say the judge did not say X, dismissal is called for. If potential witnesses, reasonably accessible, have not been questioned, then the matter remains reasonably 

in dispute.

6. “Incapable of being established through investigation.” Section 352(b)(1)(A)(iii).

Arguably, the only situation in which dismissal on this basis is appropriate is the situation 

of the unidentified or unavailable source. For example, a complaint alleges that an unnamed attorney told the complainant that the judge did X. The judge complained against 

denies it. The chief judge requests that the complainant (who does not purport to have 

observed the judge do X) identify the unnamed witness, or that the unnamed witness come 

forward so that the chief judge can evaluate the unnamed witness’s account. The complainant responds that he has spoken with the unnamed witness, that the unnamed witness is 

an attorney who practices in federal court, and that the unnamed witness is unwilling to 

be identified or to come forward. The allegation is then properly dismissed as incapable of 

being established through investigation. If the only witness to alleged misconduct refuses to 

submit to examination and cross-examination, and there is no other significant evidence, 

the matter cannot proceed.

Very few complaints are resolved on this basis, so the researchers can treat the few that 

they find on an ad hoc basis without the aid of a preset standard. Perhaps the research will 

suggest a standard.

7. “Appropriate corrective action.” Section 352(b)(2). 

The statute authorizes the chief judge to conclude the proceedings on a finding that “appropriate corrective action has been taken.” Action taken is appropriate when it serves to 

“remedy the problem raised by the complaint” (Illustrative Rule 4(d)). Because the statute 

deals with the conduct of judges, the emphasis is on correction of the judicial conduct that 
Implementation of the Judicial Conduct and Disability Act ~ September 2006

150

was the subject of the complaint. Accordingly, changing a procedural or court rule a judge 

has allegedly violated will not ordinarily be sufficient to remedy judicial conduct that was 

alleged to be in violation of a preexisting rule. 

Terminating a complaint based on corrective action is premised on the implicit understanding that voluntary self-correction of misconduct is preferable to sanctions imposed 

from without. The chief judge might facilitate this process by giving the subject judge an 

objective view of the appearance of the judicial conduct in question and by suggesting appropriate corrective measures. In the end, however, “corrective action” as the term is used in 

sec. 352(b)(2) means voluntary action taken by the judge complained against. A remedial 

action directed by the chief judge or by an appellate court without the participation of the 

subject judge in formulating the directive or by agreeing to comply with it does not constitute corrective action under the statute. Neither the chief judge nor an appellate court 

has authority under the Act to impose a formal remedy or sanction; only the judicial council can impose a formal remedy or sanction (sec. 354(a)(2)). Compliance with a previous 

council order may serve as corrective action to conclude a later complaint about the same 

behavior.

Where a judge’s conduct has resulted in identifiable, particularized harm to the complainant or another individual, appropriate corrective action should include steps taken by 

that judge to acknowledge and redress the harm, if possible, such as by an apology, recusal 

from a case, or a pledge to refrain from similar conduct in the future. While the Act is generally forward-looking, any corrective action should to the extent possible serve to correct 

a specific harm to an individual, if such a harm can reasonably be remedied. Ordinarily 

corrective action will not be “appropriate” to justify conclusion of a complaint unless the 

complainant or other individual is meaningfully apprised of the nature of the corrective 

action in the chief judge’s order, in a direct communication from the judge complained 

against, or otherwise.

Voluntary corrective action should be proportionate to any plausible allegations of 

misconduct in the complaint. The form of corrective action should also be proportionate 

to any sanctions that a judicial council might impose after investigation (see Illustrative 

Rule 14(f)), such as a private or public reprimand or a change in case assignments. In other 

words, a slight correction will not suffice to dispose of a weighty allegation.

8. “Action no longer necessary because of intervening events.” Section 352(b)(2).

The statute does not expressly call for dismissal of complaints that are untimely or moot, 

except that section 352(b)(2) permits the chief judge to “conclude the proceeding” if “action on the complaint is no longer necessary because of intervening events.” Illustrative 

Rule 4(c)(4) fills that gap by calling for “dismissal” if “the complaint is otherwise not appropriate for consideration.” The commentary to Illustrative Rule 4 explains that this ground 

for dismissal “is intended to accommodate dismissals of complaints for reasons such as 

untimeliness . . . or mootness.”

The 1993 study found no significant issues surrounding untimeliness or mootness, 

and it is unlikely that any significant issue has arisen since then. There have been complaints challenging actions taken twenty years earlier, but it has always been a simple matter to dismiss these as merits related or frivolous. Occasionally a complaint is dismissed as 

moot—because the judge complained against is no longer a judge—but this has yet to raise 
151

Appendix E

controversy. Ordinarily stepping down from an administrative post such as chief judge or 

judicial council member or court committee chair does not constitute an event that would 

render unnecessary any further action on a complaint alleging judicial misconduct. As long 

as the subject of the complaint performs judicial duties, a complaint alleging judicial misconduct should be treated on its merits.

The complaint screening form will note the few complaints dismissed because intervening events have made action unnecessary, which can be further analyzed as appropriate.

9. “On the basis of information available to the chief judge of the circuit, the chief 

judge may, by written order stating reasons therefor, identify a complaint for purposes 

of this chapter and thereby dispense with filing of a written complaint.” Section 351(b).

The commentary to Illustrative Rule 1 recognizes that this statutory language places the 

question of identifying a complaint “within the discretion of the chief judge.”

Illustrative Rule 1(j) provides that a chief judge who has identified a complaint “will not 

be considered a complainant” and need not automatically recuse from further proceedings 

on the complaint. The commentary to Illustrative Rule 1 elaborates that “the identification 

of a complaint . . . will advance the process no further than would the filing of a complaint 

by a complainant. . . . [T]he chief judge has the same options in the investigation and determination of an identified complaint that the chief judge would have had if the complaint 

had been filed.”

The chief judge should therefore keep in mind that the determination whether to identify a complaint is fundamentally different than the ultimate determination whether to 

appoint a special committee. The threshold is much lower. If an identified complaint is 

ultimately dismissed without appointment of a special committee, that does not mean that 

the complaint should not have been identified in the first place.

 To be sure, a chief judge may determine not to identify a complaint under circumstances in which information available to the chief judge makes it clear that unfiled allegations against a judge are merits-related, do not constitute misconduct under the statute, or 

are unsupported or incapable of being established through investigation, or under circumstances in which the subject judge has undertaken appropriate corrective action. A chief 

judge should not, however, decline to identify a complaint solely on the basis that allegations that appear cognizable under the statute, for which there appears to be some potential 

evidentiary support, are not deemed by the chief judge to be credible. Nor should a chief 

judge decline to identify a complaint solely on the basis that the unfiled allegations could be 

raised by one or more persons in a filed complaint, but none of these persons has opted to 

do so.

A chief judge may properly treat identifying a complaint as a last resort to be considered 

only after all informal approaches at a resolution have failed. However, the more public and 

high-visibility the unfiled allegations are, the more desirable it will be for the chief judge 

—absent an informal resolution of the matter—to identify a complaint (and then, if the 

circumstances warrant, dismiss or conclude the identified complaint without appointment 

of a special committee) in order to assure the public that the allegations have not been ignored.

153

1 Date Filed (mm/dd/yyyy) 

2 Circuit 

 

3 Complaint Number 

(yyyynnnnn)

4 Complaint Type

 Written

 On order of the Chief Judge (Go to Item 9) 

nmlkj

nmlkj

5 Person Completing Form 

(Last, First MI)

6 Telephone Number 

(999-999-9999 x9999)

FILING INFORMATION

7 Complaint(s) (Enter appropriate number of complainants)

 Prison Inmate 

 Attorney 

 Litigant 

 Officer of the Court 

 Public Official 

 Other (specify) 

8 Check if any complainant has previously filed a complaint. gfedc

9 Number and type of judicial officers complained about. (Enter appropriate number of officers)

 Circuit Judges 

 District Judges 

 Court of International Trade Judges 

 Claims Court Judges 

 Bankruptcy Judges 

 Magistrate Judges 

TERMINATION INFORMATION

10 Date Terminated 

11 Nature of Complaint (Check as many boxes as apply.)

a. Mental disability 

b. Physical disability 

c. Demeanor 

d. Abuse of judicial power 

e. Prejudice/bias

f. Conflict of interest

gfedc

gfedc

gfedc

gfedc

gfedc

gfedc

g. Bribery or corruption 

h. Undue decisional delay 

i. Incompetence/neglect 

j. Other (specify): 

gfedc

gfedc

gfedc

gfedc

12 Disposition (Check all appropriate boxes.) 

A. By Complainant: 

 Complaint withdrawn before Chief Judge acts (Check only if this terminates the entire complaint) gfedc

B. By Chief Judge (Check as many boxes as apply for each complaint.) 

Dismissal Under 372(c)(3)(A) 1. Not in conformance with statute 

2. Directly related to the merits of the case or procedural ruling 

3. Frivolous 

gfedc

gfedc

gfedc

Other Termination by Chief Judge 4. Appropriate corrective action taken under 372(c)(3)(B) 

5. Action no longer necessary because of intervening events 372(c)(3)(B) 

6. Appointed special investigative committee under 372(c)(4)(A). Indicate

 allegation(s) from item 11 above) 

gfedc

gfedc

gfedc

C. By Judicial Council after

Appendix F

AO Form 372
Implementation of the Judicial Conduct and Disability Act ~ September 2006

154

 Referral by investigative committee

 Petition for review under (372(c)(10)) - Granted

 Petition for review under (372(c)(10)) - Denied (When denied, submit report as completed)

Unless petition for review was denied, check as many of the following boxes (1-12) as apply.

No disciplinary action taken

1. Dismissed by Judicial Council

2. Complaint withdrawn (Check only if this terminates the entire complaint.)

Disciplinary action

3. Directed Chief District Judge to take action (Magistrate Judges only)

4. Certified disability

5. Requested voluntary retirement

6. Suspended assignment of new cases

7. Privately censured

8. Publicly censured

9. Other (specify) 

Referral to Judicial Conference under 372(c)(7)(A) and (B)

10. Discretionary

11. Mandatory (possibility of impeachment)

12. Mandatory (not resolvable by council) 

gfedc

gfedc

gfedc

gfedc

gfedc

gfedc

gfedc

gfedc

gfedc

gfedc

gfedc

gfedc

gfedc

gfedc

gfedc

Verify Reset

E-mail all data questions to:

Courtforms/DCA/AO/USCOURTS@USCOURTS (Lotus Notes J-Net Address)

CourtForms@AO.USCOURTS.GOV (Internet Address)

For technical questions, call the 

 Systems Deployment and Support Division (SDSD) 

(210) 301-6323 (Appeals and District Courts)

(210) 301-6321 (Bankruptcy Courts)
155

Appendix G

Tables 11 and S-22

(Judicial Business of the United States Courts (2005))

CFS

'JWFPGUIFWBDBODJFTIBEFYJTUFEGPS

NPSFUIBONPOUIT
UXPNPSFUIBOUIFOVN

CFSPGQPTJUJPOTWBDBOUGPSUIBUMPOHJO

 *OBEEJUJPOUPBDUJWFKVEHFT
TF

OJPSDJSDVJUKVEHFTQBSUJDJQBUJOHJOBQQFBMTEFDJ

TJPOTXFSFTFSWJOHUIF+VEJDJBSZPO4FQUFNCFS


oGFXFSUIBOUIFOVNCFSTFSWJOHPOFZFBS

FBSMJFS*OUIF64EJTUSJDUDPVSUT
UIFOVNCFS

PGTFOJPSKVEHFTXJUITUBGGXBT
XIJDIXBT

NPSFUIBOUIFOVNCFSSFQPSUFEBUUIFFOEPGUIF

QSFWJPVTGJTDBMZFBS5IFOVNCFSPGTFOJPSEJT

IBEKVEJDJBMFNFSHFODJFT
BKVEJDJBMFNFSHFODZ

JTEFGJOFEBTBOZWBDBODZXIFSFBEKVTUFEGJM

JOHT	JF
GJMJOHTFYDMVEJOHSFJOTUBUFEDBTFTBOE

XFJHIUJOHQSPTFBQQFBMTBTPOFUIJSEPGBDBTF


QFSQBOFMBSFJOFYDFTTPG
PSBOZWBDBODZJO

FYJTUFODFNPSFUIBONPOUITXIFSFBEKVTUFE

GJMJOHTBSFCFUXFFOUPQFSQBOFM'PSUIF

EJTUSJDUDPVSUT
XIJDIIBEKVEJDJBMFNFSHFO

DJFT
BKVEJDJBMFNFSHFODZJTEFGJOFEBTBWBDBODZ

PGBOZEVSBUJPOXIFSFXFJHIUFEGJMJOHTQFSKVEHF

TIJQBSFJOFYDFTTPGPSBOZWBDBODZMPOHFS

4ABLE

*UDICIAL#OMPLAINTS&ILED#ONCLUDEDAND0ENDING

&ISCAL9EARSAND


 
 

&ILED   

#ONCLUDED   

"Y#HIEF*UDGES   

$ISMISSED   

#ORRECTIVE!CTION4AKEN   

7ITHDRAWN   

"Y*UDICIAL#OUNCILS   

!FTER2EVIEWOF#HIEF*UDGES$ISMISSAL

$ISMISSED   

7ITHDRAWN   

!CTION4AKEN   

2EFERREDTO*UDICIAL#ONFERENCE   

!FTER2EPORTOF)NVESTIGATIVE#OMMITTEE

$ISMISSED   

7ITHDRAWN   

!CTION4AKEN   

2EFERREDTO*UDICIAL#ONFERENCE   

0ENDING   


2EVISED

0ETITIONFORREVIEWOFACHIEFJUDGESDISMISSALOFACOMPLAINT
Implementation of the Judicial Conduct and Disability Act ~ September 2006

156

72

National

Circuits Courts

Summary of Activity Total Fed DC 1st 2nd 3rd 4th 5th 6th 7th 8th 9th 10th 11th CC1 CIT2

Table S-22.Report of Complaints Filed and Action Taken Under Authority of 28 U.S.C. 351-364During the 12-Month Period Ending September 30, 2005Complaints Pending on September 30, 2004* 212 0 4 9 57 9 8 16 30 1 13 30 8 25 2 0Complaints Filed 642 1 33 19 36 58 43 99 55 15 38 122 36 85 2 0Complaint Type

Written by Complainant 642 1 33 19 36 58 43 99 55 15 38 122 36 85 2 0On Order of Chief Judges 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

Officials Complained About**

Judges

Circuit 177 1 18 1 7 4 28 10 7 6 2 80 7 6 0 0District 456 0 21 15 23 41 32 52 51 11 22 102 27 59 0 0National Courts 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

Bankruptcy Judges 31 0 0 4 0 5 1 2 3 1 2 9 2 2 0 0Magistrate Judges 135 0 1 4 6 8 9 35 5 2 13 27 7 18 0 0

Nature of Allegations**

Mental Disability 22 0 1 2 3 2 2 3 0 0 0 6 0 1 2 0Physical Disability 9 0 0 2 0 0 0 0 0 0 0 4 0 2 1 0Demeanor 20 0 0 3 0 2 0 2 0 1 2 8 1 1 0 0Abuse of Judicial Power 206 1 7 13 3 5 26 6 3 4 28 57 0 52 1 0Prejudice/Bias 275 1 12 19 43 21 9 16 40 5 15 57 15 20 2 0Conflict of Interest 49 0 2 5 5 11 2 1 3 1 2 13 3 1 0 0Bribery/Corruption 51 0 0 3 2 1 2 2 1 0 4 32 0 4 0 0Undue Decisional Delay 65 0 0 6 8 8 2 9 2 0 4 14 7 5 0 0Incompetence/Neglect 52 0 2 4 4 3 2 3 0 1 8 22 1 1 1 0Other 260 0 2 1 80 40 11 80 0 7 1 19 18 0 1 0

Complaints Concluded 667 1 22 23 91 47 48 90 47 16 45 120 33 81 3 0Action by Chief Judges

Complaint Dismissed

Not in Conformity With Statute 21 0 1 0 5 0 1 0 2 0 3 5 3 1 0 0Directly Related to Decision

or Procedural Ruling 319 1 8 8 46 18 20 30 12 6 29 57 16 65 3 0

Frivolous 41 0 1 3 1 0 4 6 3 8 5 10 0 0 0 0
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Appendix G

73

Appropriate Action Already Taken 5 0 0 0 0 1 0 1 0 0 0 2 0 1 0 0Action No Longer Necessary Because of

Intervening Events 8 0 1 0 0 1 1 0 0 0 1 0 0 4 0 0

Complaint Withdrawn 6 0 0 0 2 0 0 2 0 0 0 2 0 0 0 0Subtotal 400 1 11 11 54 20 26 39 17 14 38 76 19 71 3 0

Action by Judicial Councils

Directed Chief District Judge to

Take Action (Magistrate Judges only) 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

Certified Disability 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0Requested Voluntary Retirement 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0Ordered Temporary Suspension

of Case Assignments 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

Privately Censured 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0Publicly Censured 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0Ordered Other Appropriate Action 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0Dismissed the Complaint 267 0 11 12 37 27 22 51 30 2 7 44 14 10 0 0Withdrawn 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0Referred Complaint to Judicial

Conference 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

Subtotal 267 0 11 12 37 27 22 51 30 2 7 44 14 10 0 0

Complaints Pending on September 30, 2005 187 0 15 5 2 20 3 25 38 0 6 32 11 29 1 0

Table S-22. (September 30, 2005—Continued)

National

Circuits Courts

Summary of Activity Total Fed DC 1st 2nd 3rd 4th 5th 6th 7th 8th 9th 10th 11th CC1 CIT2

NOTE: EXCLUDES COMPLAINTS NOT ACCEPTED BY THE CIRCUITS BECAUSE THEY DUPLICATED PREVIOUS FILINGS OR WERE OTHERWISE INVALID FILINGS.1 CC = U.S. COURT OF FEDERAL CLAIMS.2 CIT = U.S. COURT OF INTERNATIONAL TRADE.* REVISED.** EACH COMPLAINT MAY INVOLVE MULTIPLE ALLEGATIONS AGAINST NUMEROUS JUDGES. NATURE OF ALLEGATIONS IS COUNTED WHEN A COMPLAINT IS CONCLUDED.

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Appendix H

Selected Court of Appeals and District Court Website Homepages
Implementation of the Judicial Conduct and Disability Act ~ September 2006

160
161

Appendix I

Forms Used for Committee Review of Terminations

The Committee undertook four separate assessments of chief judge terminations of complaints. This appendix includes samples of the forms used in those assessments.

Forms 1 and 2 were used for our early 2005 review of a portion of the researchers’ assessment of 593 terminations (drawn from all terminations in 2001–2003), described at 

pages 43–44 of the report. We undertook this assessment to be sure the researchers were 

applying our Standards as we expected. (These forms copied certain questions from the 

researchers’ coding sheets for the termination in question.)

Form 3 was used for our October 2005 review of the 25 terminations, from the 593-

termination stratified sample, that the researchers believed were problematic, described at 

pages 44–65 of the report.

Form 4 was used for our separate, January 2005, review of 100 terminations drawn at 

random from all terminations in 2001–2003, described at pages 66–67 of the report.

Form 5 was used for our January 2006 review of the researchers’ assessment of 17 “highvisibility” terminations in 2001–2005, described at pages 67–95 of the report.

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Appendix I

FORM 1

JUDICIAL CONDUCT AND DISABILITY ACT STUDY COMMITTEE

Committee Assessment Document

This document involves a complaint that the chief judge dismissed and that the 

researchers agree should have been dismissed.

Case number: 00-41

Committee reviewer: ________________________________________

Italics indicates language from the research coding form. Researcher responses, pasted 

from the filled-out coding form, are in this different typeface.

Q 3 Did the chief judge make a limited factual inquiry into the validity of the complaint?

N Y=Yes N=No U=Unknown NA=Not Applicable

Q 4 If so did the chief judge or a representative (mark as many as apply)

(a) Ask the judge for a written response

(b) Talk to the judge on the telephone

(c) Talk to the judge in person

(d) Examine the record in the related proceeding

(e) No information available

(f) Other (specify)

(g) Not applicable

Analysis of researcher-chief judge agreement—After reviewing the complaint, 

please review the researcher’s responses to Question 15 (if any) and to Question 17 and 

determine whether you agree with the researcher that the complaint merited dismissal and 

why it merited dismissal. 

Please use p. 2 to comment.

Question 15 is a catchall question. You may wish to comment on what the researcher 

perceived, or did not perceive, as worthy of additional comment regarding the case before 

you. 

Q15 Additional comments. Include here any comments regarding the complaint or the 

process of responding to it that may be of interest. For example, if the complaint 

was dismissed for the wrong reason (even though it might have been properly 

dismissed for another reason, indicate that here).

Q17 Directs the researcher, if he concluded that the claim merited dismissal--to quote 

or paraphrase the allegation that best characterizes the nature of the primary 

complaint, omitting all details that might identify the judge, the complainant, or 

a witness. Include any allegation of serious misconduct that is not covered by the 

Act (e.g. conduct not related the administration of the business of the courts that 

may be relevant to fitness for office, such as failure to file tax returns) 

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C alleged that a DJ took improper actions to have C’s prisoner petition assigned to DJ so 

that DJ could dismiss it in retaliation for two prior complaints of misconduct that C filed 

against DJ.

Jan. 2005
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Appendix I

COMMITTEE MEMBER ASSESSMENT

Case number 00-41

Please respond to the items below concerning Questions 15 and 17.

After doing so, please add any additional comments you wish to make about any other 

aspect of how the researcher answered any other question on the complaint. (Write 

“Additional comments” to distinguish them from your earlier responses.)

 o I concur in the researcher’s analyses in Questions 15 (if any) and 17.

 o I disagree with all or part of the researcher’s analyses in Questions 15 (if any) 

and 17. Please explain.

2 Jan. 2005

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Appendix I

FORM 2

JUDICIAL CONDUCT AND DISABILITY ACT STUDY COMMITTEE

Committee Assessment Document

This document involves a complaint that the chief judge dismissed but that the 

researchers believe arguably should not have been dismissed.

Case number: 00-14

Committee reviewer: ________________________________________

Analysis of researcher-chief judge disagreement. Please review the complaint file and the 

researcher’s responses on the committee assessment documents to assess the researcher’s 

disagreement with the action of the chief judge or judicial council.

Please use pp. 7ff to indicate your concurrence or disagreement with the researcher’s 

answers. With respect to Questions 21-23, please keep in mind that the researcher turns 

to those questions only if the chief judge dismissed the complaint but the researcher 

believes that at least one allegation in the complaint was arguably not frivolous and 

arguably described conduct covered by the Act and arguably was not merits related. 

Assume, for example, that the researcher answered only Question 21, finding problematic 

the chief judge’s dismissal of the complaint on the grounds that it was frivolous. You may 

believe that, frivolousness or not, the complaint alleged conduct not covered by the Act 

or conduct that was merits related. If so, you may wish to express your disagreement with 

the researcher on those matters.

There is also space for comments on any other aspects of the coding form for the case 

under assessment.

Italics indicate language from the research coding form. Researcher responses, pasted 

from the filled-out coding form, are in this different typeface.

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2 Jan. 2005
169

Appendix I

Q 3 Did the chief judge make a limited factual inquiry into the validity of the complaint?

N Y=Yes N=No U=Unknown NA=Not Applicable

Q 4 If so did the chief judge or a representative (mark as many as apply)

(a) Ask the judge for a written response

(b) Talk to the judge on the telephone

(c) Talk to the judge in person

(d) Examine the record in the related proceeding

(e) No information available

(f) Other (specify)

(g) Not applicable

Question 15 is a catchall question. You may wish to comment on what the researcher 

perceived, or did not perceive, as worthy of additional comment regarding the case 

before you. 

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3B Jan. 2005
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Appendix I

Q 21 Frivolity. In response to . . . screening question [16a] on the screening form 

you indicated that at least one allegation in the complaint presented an arguably 

nonfrivolous claim of judicial misconduct or disability that was not inherently 

incredible. If [the, or a, reason that] the chief judge [gave for] dismiss[ing] the 

complaint [was that it was] frivolous,

restate each allegation you find to be arguably nonfrivolous, using the words 

of the complaint wherever possible to present the most specific facts asserted. 

Do not identify the judge who is the subject of the complaint.

(a) State the reasons given in the order for dismissal on the grounds of 

frivolousness and the reasons why you conclude that the allegation arguably 

should not have been dismissed on that ground. State as clearly as possible the 

factual basis for the allegation and the source of information by which it might 

have been verified through a limited inquiry.

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4B Jan. 2005
173

Appendix I

Q22 Relation to merits. In response to . . . screening question[16C] on the screening 

form you indicated that at least one allegation in the complaint presented a 

claim that was arguably nonfrivolous and that did not concern a judge’s legal 

reasoning regarding the merits of a decision or procedural ruling. If [the, or 

a, reason that] the chief judge or judicial council [gave for] dismiss[ing] the 

complaint [was] on the grounds of its relationship to the merits, 

(a) state the reasons given in the order for this conclusion and the reasons 

why you conclude that the allegation arguably should not be dismissed on 

that ground. State the relationship between the judge’s conduct and the chief 

judge’s decision as clearly as possible.

The order concluded that the allegation that the subject judges “had themselves 

assigned out of rotation” was meritless because there exist “well-established case 

processing arrangements at the Court of Appeals to ensure against judges picking 

their cases.” The complaint alleged specific conduct that, if true, might amount 

to judicial misconduct. The complainant pointed to a similar published opinion by 

the same panel, implying that this case may have been assigned to that panel 

because of its similarity (which, of course, might be an acceptable practice). The 

Chief Judge’s response simply asserted that procedures exist to guard against 

judicial assignment of cases to themselves out of rotation. The court did not inquire 

into whether the case was assigned to the panel through the normal process or 

whether some other procedure was used. The matter of assignment might be raised 

on appeal, but, if true, it would relate to an administrative act, not a judicial decision. 

Note that in two later orders (01-06 and 01-07), the same CJ took the additional 

step of checking the record and finding that “the record reflects that complainant’s 

cases were assigned according to the district court’s normal procedures.”

(b) Indicate what, if any, remedy might address the allegation of misconduct. 

Be as specific as possible (e.g., remand for a new trial after appeal, 

mandamus, prohibition, recusal).

An appeal might consider the matter under the rubric of due process, but is not 

a judicial decision that calls for protection under the directly-related-to-the-merits 

standard in the Act.

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5B Jan. 2005
175

Appendix I

Q23 Nonconformity of complaint with statute. In response to . . . screening question 

[16b]on the screening form you indicated that at least one allegation in the 

complaint presented a claim that was arguably subject to the Act because it 

concerned conduct prejudicial to the effective and expeditious administration of 

the business of the courts. If [the, or a, reason that] the chief judge or judicial 

council [gave for] dismiss[ing] the complaint [was] on the grounds that it did 

not concern conduct covered by the Act, respond to [all of] the following [items] 

that apply

(a) [If the dismissal was on the grounds that the] complaint did not refer to 

conduct of a sitting circuit, district, bankruptcy, or magistrate judge[, s]pecify 

the allegation and discuss the reason for the chief judge’s [or judicial council’s] 

conclusion and the reasons you think that conclusion is arguable.

(b) [If the dismissal was on the grounds that the] complaint did not refer to 

conduct related to the administration of the business of the courts or to the 

physical or mental ability of a judge to discharge the duties of the office[, 

s]pecify the allegation and indicate the reason for the chief judge’s conclusion 

and the reasons you think that conclusion is arguable.

The order concluded that the allegation that the subject judges “had themselves 

assigned out of rotation” was meritless because there exist “well-established case 

processing arrangements at the Court of Appeals to ensure against judges picking 

their cases.” The complaint alleged specific conduct that, if true, might amount to 

judicial misconduct. The complainant pointed to a similar published opinion by the 

same panel, implying that this case may have been assigned to that panel because 

of its similarity (which, of course, might be an acceptable practice). The Chief 

Judge’s response simply asserted that procedures exist to guard against judicial 

assignment of cases to themselves out of rotation. The court did not inquire into 

whether the case was assigned to the panel through the normal process or whether 

some other procedure was used. There might be good reasons for assigning similar 

cases to the same panel of judges, but there might also be reasons that evidence 

misconduct. The chief judge concluded without inquiry that the court’s procedures 

were applied without inquiring into the specifics of the assignment of the case at 

hand.

(c) [If the dismissal was on other grounds, s]pecify the allegation and indicate 

the reason for the chief judge’s [or judicial council’s] conclusion and the 

reasons you think that conclusion is arguable. 

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Jan. 2005
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Appendix I

COMMITTEE MEMBER ASSESSMENT

Case number 00-14

Please respond to the items below concerning Questions 15 and 21-23.

After doing so, please add any additional comments you wish to make about any 

other aspect of how the researcher answered any other question on the complaint. 

(Write “Additional comments” to distinguish them from your earlier responses.)

Repeated from cover page: With respect to Questions 21-23, please keep in mind 

that the researcher turns to those questions only if the chief judge dismissed the 

complaint but the researcher believes that at least one allegation in the complaint 

was arguably not frivolous and arguably described conduct covered by the 

Act and arguably was not merits related. Assume the researcher answered only 

Question 21, finding problematic the chief judge’s dismissal of the complaint 

on the grounds that it was frivolous. You may believe that, frivolousness or not, 

the complaint alleged conduct not covered by the Act or conduct that was merits 

related. If so, you may wish to express your disagreement with the researcher on 

those matters.

 o I concur in the researcher’s analyses in Questions 15 and 21-23. 

 o I disagree with all or part of the researcher’s analyses in Questions 15 and 

21-23. Please explain.

Jan. 2005

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Appendix I

FORM 3

JUDICIAL CONDUCT AND DISABILITY ACT COMMITTEE

Committee Assessment Document

Committee Member: [SAMPLE]

Limited Inquiry Matter 2—See Report at Page 25 and Files at Tab 2

Researcher Assessment: The dismissal is inconsistent with Standard 4, which calls for an 

inquiry if “a complaint . . . that is not inherently incredible and is not subject to dismissal 

on other grounds . . . sets forth allegations that are capable of being verified by looking at 

identifiable transcripts or questioning identifiable witnesses.” The complaint identified a 

witness, the FBI agent, but the chief judge did not contact him.

___ I agree with this assessment.

___ I disagree with this assessment (please explain briefly below).

___ I agree that the dismissal is inconsistent with the Committee Standards but 

believe that the dismissal was nevertheless correct (please explain briefly 

below).

___ I abstain because I was the chief judge or a member of the judicial council or 

was otherwise involved in, or have inside information relevant to, the disposition 

of this complaint.

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

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Oct. 2005
181

Appendix I

FORM 4

COMMITTEE MEMBER ASSESSMENT

Case number 

Committee reviewer: 

 o I agree with the disposition of this complaint and with the reasons given 

for the disposition.

 o I agree with the disposition of this complaint but I disagree with the 

reasons given for the disposition. Please explain.

 o I disagree with all or part of the disposition of this complaint. Please 

explain.

Jan. 2005

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Appendix I

FORM 5

JUDICIAL CONDUCT AND DISABILITY ACT STUDY COMMITTEE

Assessment of High Visibility Dispositions

Committee Member: [SAMPLE] 

Disposition A-3 Complaint against two district judges dismissed by the chief judge, 

August 2003; review petition dismissed, May 2004)—Report page 11, 

Tab 3

Assessment: Nothing in the Committee Standards calls into question the dismissal or the 

council’s affirmance of that dismissal. The council’s reason—non-conformity under the 

statute—while questionable, was not essential to the outcome. 

____ 1. I agree with this assessment.

____ 2. I disagree with this assessment (please explain 

briefly).

____ 3. I agree that the chief judge dismissal was 

consistent with Committee Standards but find 

it problematic nevertheless (please explain 

briefly).

____ 4. I abstain because I was the chief judge 

or a member of the judicial council or 

was otherwise involved in, or have inside 

information relevant to, the disposition of 

this complaint.

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________

Jan. 2006