United States Court of Appeals for the Federal Circuit

IN RE COMPLAINT NO. 86 

Before MICHEL, Chief Judge. 

ORDER 

AND SUPPORTING MEMORANDUM

 A complaint of judicial misconduct was received by the court on March 5, 2008. 

The complaint is directed to conduct of a judge who is a member of this court. The 

judge sat by designation as a member of a panel in another court of appeals. That 

panel, in an order, affirmed a district court's disposition of Complainant's case. 

Complainant states that he first submitted the complaint of judicial misconduct to the 

other court of appeals but the complaint was rejected because it involved a judge 

outside of the regional circuit. 

 A summary of each of the Complainant's assertions and the court's disposition 

with respect to each allegation in the complaint follows. 

 (1) Complainant states that "Evidences [sic] support Plaintiff's contentions 

that the Court's administration of this case has been given special considerations 

beyond the parameters of established Court Rules of the [regional circuit]." This 

statement does not allege misconduct by the judge. It is not supported by any 

evidence, such as evidence showing that the judge did anything in the case that would 

be considered misconduct. No specific act is cited as contrary to any circuit rule; nor is 

any specific rule cited as being violated. This assertion lacks requisite specificity and 

sufficient evidence to raise an inference that misconduct occurred, and that portion of 

the complaint is dismissed pursuant to 28 U.S.C. § 352(b)(1)(A)(iii). To the extent that 

Complainant might be challenging, without support, procedures applied to his case, that 
portion of the complaint is also dismissed pursuant to 28 U.S.C. § 352(b)(1)(A)(ii) 

because it is directly related to a procedural determination in Complainant's appeal. 

 (2) "[The judge] by virtue of him assuming the position as presiding Judge 

over this case, failed in his responsibility to uphold ABA Rules of reporting the 

misconduct of Court Officers. (Whether [the judge] exceeded the boundaries of his 

authority, at the [regional circuit], is a question for this Court)" [italics in original]. 

Elsewhere in his complaint, Complainant refers to the order issued by the three-judge 

panel in his appeal, contrasts statements in the order with his discussion of evidence, 

and then states that "[the judge] did not respond to these breaches in the law." Clearly, 

Complainant's assertions are directly related to the merits of the panel's determinations 

in his appeal, and this portion of the complaint is therefore dismissed pursuant to 28 

U.S.C. § 352(b)(1)(A)(ii). To the extent that Complainant alleges that the judge 

"exceeded his authority," the Complainant does not further explain that allegation, 

provide any specific facts, or cite any evidence that would raise an inference that 

misconduct occurred. Thus, that portion of the complaint is also dismissed pursuant to 

28 U.S.C. § 352(b)(1)(A)(iii). 

 (3) "Issues of Judicial Misconduct contained in [two documents attached to 

the complaint] will reflect to this Court that aside from the apparent unlawful influence of 

[the judge] upon the Courts, he also acted in tandem with both [the trial judge and 

counsel for the defendant] in order shield [sic] and protect [the defendant], against 

Plaintiff's claims of discrimination." Complainant was the plaintiff-appellant in the appeal 

complained about. The two documents attached to the complaint describe certain 

evidence and assert activities by the defendant's counsel. This portion of the complaint 

challenges merits determinations and is therefore dismissed pursuant to 28 U.S.C. 

Complaint No. 86 2
§ 352(b)(1)(A)(ii). In one sentence in one of the attachments, the Complainant states 

that "[t]here had to have been impermissible ex parte communications between Counsel 

and the Courts." No specific communication is cited. No witness or participant is cited. 

This is in fact nothing but a bare assertion. It represents nothing other than 

Complainant's speculation or unsupported belief that there was some sort of conspiracy 

in the assignment of the judge to the panel that decided his appeal. Thus, 

Complainant's assertion that there were ex parte communications that involved the 

judge is dismissed pursuant to 28 U.S.C. § 352(b)(1)(A)(iii) as lacking specific factual 

allegations and sufficient evidence to raise an inference that misconduct occurred. 

 (4) "[The judge] knowingly and willfully . . . did violate the Rules of Chapter 

1(b), of the Judicial Counsel [sic] Rule, governing to wit: (1) Conduct prejudicial to the 

effective and expeditious administration of the business of the Courts, (2) use of the 

Judge's office to obtain special treatment for friends and relatives, (3) improperly 

engaging in discussion with lawyers or parties to cases in the absence of 

representatives of opposing parties and (4) other abuses of judicial office which 

reflected non-adherence to the Constitution of the United States." This broad assertion 

is related to Complainant's belief that "segments of material evidences that were 

included within the briefs that Plaintiff submitted to the Appeals Court" were 

"discriminately ignored by [the judge]." Apparently, Complainant believes that because 

the reviewing court did not accept his arguments or find convincing his evidence 

described in court papers, there must have been misconduct. There is no evidence to 

support Complainant's assertion, which is only a speculative belief that Complainant 

holds. Thus, this portion of the complaint is dismissed pursuant to 28 U.S.C. § 

352(b)(1)(A)(iii). Further, to the extent Complainant is challenging the court's weighing 

Complaint No. 86 3
of the evidence, his assertion is directly related to the merits of the court's order in his 

appeal. Thus, this portion of his complaint is also dismissed pursuant to 28 U.S.C. § 

352(b)(1)(A)(ii). 

 (5) "In this case, Plaintiff believes nepotism was an issue as Black Letter Law

was redefined, granting unlawful favor to [the defendant]." This assertion is directly 

related to a determination on the merits in Complainant's case, although couched as a 

"nepotism" assertion. Thus, this portion of the complaint is dismissed pursuant to 28 

U.S.C. § 352(b)(1)(A)(ii). Further, no specific act is cited and no witness or document 

was identified. Because there is no evidence, only Complainant's belief, to support his 

assertion of nepotism, this portion of the complaint is also dismissed pursuant to 28 

U.S.C. § 352(b)(1)(A)(iii). Complainant does not state that he heard or saw the judge 

do anything (or that anyone else did anything) that might suggest there was "nepotism." 

No evidence was cited that defendant and the judge are related. If they are not, then by 

definition nepotism cannot exist. 

 (6) "[The judge's] efforts in protecting [the defendant] lead [sic] him to 

purposefully overlook factual material. . . . This ruling is a blatant act of prejudice and a 

move towards retaliation against Plaintiff for his efforts in challenging the illegal and 

unconstitutional actions of the Court." As this assertion is directly related to a 

determination on the merits in Complainant's case, this portion of the complaint is 

dismissed pursuant to 28 U.S.C. § 352(b)(1)(A)(ii). To the extent that the assertion 

might suggest that the judge was biased, there is no support for such an assertion, 

except for Complainant's belief that, because he did not prevail, the judge must have 

been biased. Complainant does not state that he or anyone else heard or saw anything 

that would suggest the judge was biased. Again, no witness or document is identified. 

Complaint No. 86 4
Complainant's bare assertion of bias is not supported by any evidence, much less 

evidence sufficient to raise an inference that misconduct occurred, and thus this portion 

of the complaint is dismissed pursuant to 28 U.S.C. § 352(b)(1)(A)(iii). 

 (7) Complainant lists various items in evidence that he believes were 

overlooked by the court. The assertion that evidence was overlooked is directly related 

to the merits of the court's ruling and is dismissed pursuant to 28 U.S.C. 

§ 352(b)(1)(A)(ii). 

 (8) "[The judge] in this case witnessed numerous acts of misconduct 

committed by the lower court and also the Misconduct of Defense Counsel, yet failed to 

call for sanctions . . . ." This assertion lacks sufficient evidence to raise an inference 

that misconduct occurred. As with all of Complainant's other unsupported assertions, 

the only evidence provided is Complainant's summary of evidence or arguments that he 

states he presented to the court and assertions that counsel for the defense behaved 

improperly. There is no evidence, only Complainant's surmise, to support any of these 

charges of misconduct against the judge. Thus, this portion of the complaint is 

dismissed pursuant to 28 U.S.C. § 352(b)(1)(A)(iii). To the extent the Complainant 

suggests that the judge erred by not sanctioning counsel for the defense, such a 

suggestion is directly related to the merits of the court's determinations and thus this 

portion of the complaint is dismissed pursuant to 28 U.S.C. § 352(b)(1)(A)(ii). 

 (9) Complainant states that the judge "allowed social and perhaps family 

relationship to influence judicial conduct. [The judge] failed to diligently discharge his 

administrative responsibilities, exposed the legal profession and the courts to obloquy 

and violated standards of professional responsibility that illegally confiscated from 

Plaintiff his Civil Rights and Constitutional Rights as a citizen. The Courts [sic] actions 

Complaint No. 86 5
Complaint No. 86 6

were discriminatory." Complainant does not adequately explain how the judge might 

have allowed social or family relationships to influence his determinations, how the 

judge's actions were discriminatory, or how any of the other assertions constituted 

misconduct. The only explanation that is presented by the Complainant is the 

Complainant's belief that the judge improperly ruled against the Complainant on the 

merits of his appeal. To the extent that Complainant implies that the ethnicity of the 

judge created bias, no support is provided, no act specified, no witness or document is 

identified. Thus, the insinuation is not capable of being proven or disproven by 

investigation. Certainly, bias cannot be automatically raised just from similar ethnicity of 

a judge and a party. Because no facts are alleged in the complaint to warrant an 

investigation or raise an inference that misconduct occurred in this regard, this portion 

of the complaint is dismissed pursuant to 28 U.S.C. § 352(b)(i)(A)(iii). 

 Accordingly, 

IT IS ORDERED THAT: 

The complaint is dismissed pursuant to 28 U.S.C. § 352(b)(1)(A)(ii) and 28 

U.S.C. § 352(b)(1)(A)(iii). 

 April 3, 2008 /s/ Paul R. Michel 

 Date Paul R. Michel 

 Chief Judge 

 The complainant may petition the court for review of this order. Such a petition 

for review must be received in the clerk's office within 30 days of the date of the clerk's 

letter transmitting this order.