Guide to Judiciary Policy

Vol. 2: Ethics and Judicial Conduct

Pt. E: Judicial Conduct and Disability Act and Related Materials

Ch. 3: Rules for Judicial-Conduct and Judicial-Disability 

Proceedings

§ 310 Overview

§ 320 Rules for Judicial-Conduct and Judicial-Disability Proceedings

Preface

ARTICLE I. GENERAL PROVISIONS

1. Scope and Covered Judges

2. Construction and Effect

3. General Definitions

ARTICLE II. MISCONDUCT AND DISABILITY

4. Misconduct and Disability Definitions

ARTICLE III. INITIATION OF COMPLAINT

5. Identification of Complaint

6. Filing of Complaint

7. Where to Initiate Complaint

8. Action by Circuit Clerk

9. Time for Filing or Identifying Complaint

10. Abuse of Complaint Procedure

ARTICLE IV. REVIEW OF COMPLAINT BY CHIEF JUDGE

11. Chief Judge’s Review

ARTICLE V. INVESTIGATION AND REPORT BY SPECIAL COMMITTEE

12. Special Committee’s Composition

13. Conduct of Special-Committee Investigation

14. Conduct of Special-Committee Hearings

15. Subject Judge’s Rights

16. Complainant’s Rights in Investigation

17. Special-Committee Report

ARTICLE VI. REVIEW BY JUDICIAL COUNCIL

18. Petition for Review of Chief-Judge Disposition Under Rule 11(c), (d), 

or (e)
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 2

19. Judicial-Council Disposition of Petition for Review

20. Judicial-Council Action Following Appointment of Special Committee

ARTICLE VII. REVIEW BY COMMITTEE ON JUDICIAL CONDUCT AND 

DISABILITY

21. Committee on Judicial Conduct and Disability

22. Procedures for Review

ARTICLE VIII. MISCELLANEOUS RULES

23. Confidentiality

24. Public Availability of Decisions

25. Disqualification

26. Transfer to Another Judicial Council

27. Withdrawal of Complaint or Petition for Review

28. Availability of Rules and Forms

29. Effective Date

Appendix to the Rules: Form AO 310 (Complaint of Judicial Misconduct or 

Disability)

§ 310 Overview

Section 320 of this chapter reproduces the Rules for Judicial-Conduct and 

Judicial-Disability Proceedings. They were adopted on March 11, 2008, and took effect 

on April 10, 2008. They were amended on September 17, 2015, and again on March 

12, 2019.

§ 320 Rules for Judicial-Conduct and Judicial-Disability 

Proceedings

Preface

These Rules were promulgated by the Judicial Conference of the United States, after 

public comment, pursuant to 28 U.S.C. §§ 331 and 358, to establish standards and 

procedures for addressing complaints filed by complainants or identified by chief judges 

under the Judicial Conduct and Disability Act, 28 U.S.C. §§ 351–364.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 3

ARTICLE I. GENERAL PROVISIONS

1. Scope and Covered Judges

(a) Scope. These Rules govern proceedings under the Judicial Conduct 

and Disability Act (Act), 28 U.S.C. §§ 351–364, to determine whether a 

covered judge has engaged in conduct prejudicial to the effective 

and expeditious administration of the business of the courts or is 

unable to discharge the duties of office because of mental or 

physical disability.

(b) Covered Judge. A covered judge is defined under the Act and is 

limited to judges of United States courts of appeals, judges of United 

States district courts, judges of United States bankruptcy courts, 

United States magistrate judges, and judges of the courts specified 

in 28 U.S.C. § 363. 

COMMENTARY ON RULE 1

In September 2006, the Judicial Conduct and Disability Act Study Committee

(“Breyer Committee”), appointed in 2004 by Chief Justice Rehnquist, presented a report

(“Breyer Committee Report”), 239 F.R.D. 116 (Sept. 2006), to Chief Justice Roberts that 

evaluated implementation of the Judicial Conduct and Disability Act of 1980, 28 U.S.C. 

§§ 351–364. The Breyer Committee had been formed in response to criticism from the 

public and Congress regarding the effectiveness of the Act’s implementation. The 

Executive Committee of the Judicial Conference directed its Committee on Judicial 

Conduct and Disability to consider the Breyer Committee’s recommendations and to 

report on their implementation to the Conference.

The Breyer Committee found that it could not evaluate implementation of the Act 

without establishing interpretive standards, Breyer Committee Report, 239 F.R.D. at 

132, and that a major problem faced by chief judges in implementing the Act was the 

lack of authoritative interpretive standards. Id. at 212–15. The Breyer Committee then 

established standards to guide its evaluation, some of which were new formulations and 

some of which were taken from the “Illustrative Rules Governing Complaints of Judicial 

Misconduct and Disability,” discussed below. The principal standards used by the 

Breyer Committee are in Appendix E of its Report. Id. at 238.

Based on the Breyer Committee’s findings, the Committee on Judicial Conduct 

and Disability concluded that there was a need for the Judicial Conference to exercise 

its power under Section 358 of the Act to fashion standards guiding the various officers 

and bodies that must exercise responsibility under the Act. To that end, the Committee 

on Judicial Conduct and Disability proposed rules based largely on Appendix E of the 

Breyer Committee Report and the Illustrative Rules.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 4

The Illustrative Rules were originally prepared in 1986 by the Special Committee 

of the Conference of Chief Judges of the United States Courts of Appeals, and were 

subsequently revised and amended, most recently in 2000, by the predecessor to the 

Committee on Judicial Conduct and Disability. The Illustrative Rules were adopted, with 

minor variations, by circuit judicial councils, to govern complaints under the Judicial 

Conduct and Disability Act.

After being submitted for public comment pursuant to 28 U.S.C. § 358(c), the 

Judicial Conference promulgated the present Rules on March 11, 2008. They were 

amended on September 17, 2015, and again on March 12, 2019.

The definition of a covered judge tracks the Judicial Conduct and Disability Act. 

See 28 U.S.C. § 351(d)(1) (defining the term “judge” as “a circuit judge, district judge, 

bankruptcy judge, or magistrate judge”). As long as the subject of a complaint retains 

the judicial office and remains a covered judge as defined in Rule 1(b), a complaint

must be addressed. Id.; 28 U.S.C. §§ 371(b); 372(a).

Rules 8(c) and (d) address the procedures for processing a complaint involving 

allegations against a person not covered by the Act, such as other court personnel, or 

against both a covered judge and a noncovered person. Court employees seeking to 

report, or file a claim related to, misconduct or the denial of rights granted under their 

Employment Dispute Resolution (EDR) plan by other court personnel may wish to 

consult the Model EDR Plan and the EDR plan for the relevant court, among other 

resources. See Guide to Judiciary Policy, vol. 12, appx. 2B.

2. Construction and Effect

(a) Generally. These Rules are mandatory; they supersede any 

conflicting judicial-council rules. Judicial councils may promulgate 

additional rules to implement the Act as long as those rules do not 

conflict with these Rules.

(b) Exception. A Rule will not apply if, when performing duties 

authorized by the Act, a chief judge, a special committee, a judicial 

council, the Committee on Judicial Conduct and Disability, or the 

Judicial Conference expressly finds that exceptional circumstances 

render application of that Rule in a particular proceeding manifestly 

unjust or contrary to the purposes of the Act or these Rules.

COMMENTARY ON RULE 2

Unlike the Illustrative Rules, these Rules provide mandatory and nationally 

uniform provisions governing the substantive and procedural aspects of misconduct and 

disability proceedings under the Act. The mandatory nature of these Rules is 

authorized by 28 U.S.C. § 358(a) and (c). Judicial councils retain the power to 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 5

promulgate rules consistent with these Rules. For example, a local rule may authorize 

the electronic distribution of materials pursuant to Rule 8(b).

Rule 2(b) recognizes that unforeseen and exceptional circumstances may call for 

a different approach in particular cases.

3. General Definitions

The following general definitions apply to these Rules. Cognizable misconduct 

and disability are defined in Rule 4.

(a) Chief Judge. “Chief judge” means the chief judge of a United States 

court of appeals, of the United States Court of International Trade, or 

of the United States Court of Federal Claims.

(b) Circuit Clerk. “Circuit clerk” means a clerk of a United States court 

of appeals, the clerk of the United States Court of International 

Trade, the clerk of the United States Court of Federal Claims, or the 

circuit executive of the United States Court of Appeals for the 

Federal Circuit.

(c) Complaint. A “complaint” is:

(1) a document that, in accordance with Rule 6, is filed by, or on 

behalf of, any person, including a document filed by an

organization; or

(2) information from any source, other than a document described 

in (c)(1), that gives a chief judge probable cause to believe that 

a covered judge, as defined in Rule 1(b), has engaged in 

misconduct or may have a disability, whether or not the 

information is framed as or is intended to be an allegation of 

misconduct or disability.

(d) Court of Appeals, District Court, and District Judge. “Court of 

appeals,” “district court,” and “district judge,” where appropriate, 

include the United States Court of Federal Claims, the United States 

Court of International Trade, and the judges thereof.

(e) Judicial Council and Circuit. “Judicial council” and “circuit,” where 

appropriate, include any courts designated in 28 U.S.C. § 363.

(f) Judicial Employee. “Judicial Employee” includes judicial assistants, 

law clerks, and other court employees, including unpaid staff, such 

as interns, externs, and other volunteer employees. 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 6

(g) Magistrate Judge. “Magistrate judge,” where appropriate, includes a 

special master appointed by the Court of Federal Claims under 

42 U.S.C. § 300aa-12(c).

(h) Subject Judge. “Subject judge” means a covered judge, as

described in Rule 1(b), who is the subject of a complaint.

COMMENTARY ON RULE 3

Rule 3 is derived and adapted from the Breyer Committee Report and the 

Illustrative Rules.

Unless otherwise specified or the context otherwise indicates, the term 

“complaint” is used in these Rules to refer both to complaints identified by a chief judge 

under Rule 5 and to complaints filed by a complainant under Rule 6.

Under the Act, a “complaint” may be filed by “any person” or “identified” by a 

chief judge. See 28 U.S.C. § 351(a), (b). Under Rule 3(c)(1), a complaint may be 

submitted by, or on behalf of, any person, including a document filed by an organization. 

Traditional standing requirements do not apply. Individuals or organizations may file a 

complaint even if they have not been directly injured or aggrieved.

Generally, the word “complaint” brings to mind the commencement of an 

adversary proceeding in which the contending parties are left to present the evidence 

and legal arguments, and judges play the role of an essentially passive arbiter. The 

Act, however, establishes an administrative, inquisitorial process. For example, even 

absent a complaint filed by a complainant under Rule 6, chief judges are expected in 

some circumstances to trigger the process — “identify a complaint,” see 28 U.S.C. 

§ 351(b) and Rule 5 — and conduct an investigation without becoming a party. See 28 

U.S.C. § 352(a); Breyer Committee Report, 239 F.R.D. at 214; Illustrative Rule 2(j). 

Where the complainant reveals information of misconduct or disability but does not 

claim it as such, the chief judge is not limited to the “four corners of the complaint” and 

should proceed under Rule 5 to determine whether identification of a complaint is 

appropriate. See Breyer Committee Report, 239 F.R.D. at 183–84.

An allegation of misconduct or disability filed under Rule 6 is a “complaint,” and 

the Rule so provides in subsection (c)(1). However, both the nature of the process and 

the use of the term “identify” suggest that the word “complaint” covers more than a 

document formally triggering the process. The process relies on chief judges 

considering known information and triggering the process when appropriate. 

“Identifying” a “complaint,” therefore, is best understood as the chief judge’s concluding 

that information known to the judge constitutes probable cause to believe that 

misconduct occurred or a disability exists, whether or not the information is framed as, 

or intended to be, an accusation. This definition is codified in subsection (c)(2).
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 7

The remaining subsections of Rule 3 provide technical definitions clarifying the 

application of the Rules.

ARTICLE II. MISCONDUCT AND DISABILITY

4. Misconduct and Disability Definitions

(a) Misconduct Generally. Cognizable Misconduct is conduct prejudicial 

to the effective and expeditious administration of the business of the 

courts. Cognizable misconduct includes, but is not limited to, the 

following:

(1) Violation of Specific Standards of Judicial Conduct. 

Cognizable misconduct includes:

(A) using the judge’s office to obtain special treatment for 

friends or relatives;

(B) accepting bribes, gifts, or other personal favors related 

to the judicial office;

(C) engaging in improper ex parte communications with 

parties or counsel for one side in a case;

(D) engaging in partisan political activity or making 

inappropriately partisan statements;

(E) soliciting funds for organizations; or

(F) violating rules or standards pertaining to restrictions on 

outside income or knowingly violating requirements for 

financial disclosure.

(2) Abusive or Harassing Behavior. Cognizable misconduct 

includes:

(A) engaging in unwanted, offensive, or abusive sexual 

conduct, including sexual harassment or assault;

(B) treating litigants, attorneys, judicial employees, or 

others in a demonstrably egregious and hostile manner; 

or

(C) creating a hostile work environment for judicial 

employees.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 8

(3) Discrimination. Cognizable misconduct includes intentional 

discrimination on the basis of race, color, sex, gender, gender 

identity, pregnancy, sexual orientation, religion, national 

origin, age, or disability;

(4) Retaliation. Cognizable misconduct includes retaliating 

against complainants, witnesses, judicial employees, or others 

for participating in this complaint process, or for reporting or 

disclosing judicial misconduct or disability;

(5) Interference or Failure to Comply with the Complaint Process. 

Cognizable misconduct includes refusing, without good cause 

shown, to cooperate in the investigation of a complaint or 

enforcement of a decision rendered under these Rules; or

(6) Failure to Report or Disclose. Cognizable misconduct 

includes failing to call to the attention of the relevant chief 

district judge or chief circuit judge any reliable information 

reasonably likely to constitute judicial misconduct or 

disability.

A judge who receives such reliable information shall respect a 

request for confidentiality but shall nonetheless disclose the 

information to the relevant chief district judge or chief circuit 

judge, who shall also treat the information as confidential. 

Certain reliable information may be protected from disclosure 

by statute or rule. A judge’s assurance of confidentiality must

yield when there is reliable information of misconduct or 

disability that threatens the safety or security of any person or 

that is serious or egregious such that it threatens the integrity 

and proper functioning of the judiciary. 

A person reporting information of misconduct or disability 

must be informed at the outset of a judge’s responsibility to 

disclose such information to the relevant chief district judge or 

chief circuit judge.

Reliable information reasonably likely to constitute judicial 

misconduct or disability related to a chief circuit judge should 

be called to the attention of the next most-senior active circuit 

judge. Such information related to a chief district judge 

should be called to the attention of the chief circuit judge.

(7) Conduct Outside the Performance of Official Duties. 

Cognizable misconduct includes conduct occurring outside 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 9

the performance of official duties if the conduct is reasonably 

likely to have a prejudicial effect on the administration of the 

business of the courts, including a substantial and widespread

lowering of public confidence in the courts among reasonable 

people.

(b) Conduct Not Constituting Cognizable Misconduct.

(1) Allegations Related to the Merits of a Decision or Procedural 

Ruling. Cognizable misconduct does not include an 

allegation that calls into question the correctness of a judge’s 

ruling, including a failure to recuse.

If the decision or ruling is alleged to be the result of an 

improper motive, e.g., a bribe, ex parte contact, racial or ethnic 

bias, or improper conduct in rendering a decision or ruling, 

such as personally derogatory remarks irrelevant to the 

issues, the complaint is not cognizable to the extent that it

calls into question the merits of the decision.

(2) Allegations About Delay. Cognizable misconduct does not 

include an allegation about delay in rendering a decision or 

ruling, unless the allegation concerns an improper motive in 

delaying a particular decision or habitual delay in a significant 

number of unrelated cases.

(c) Disability. Disability is a temporary or permanent impairment, 

physical or mental, rendering a judge unable to discharge the duties 

of the particular judicial office. Examples of disability include 

substance abuse, the inability to stay awake during court 

proceedings, or impairment of cognitive abilities that renders the 

judge unable to function effectively.

COMMENTARY ON RULE 4

The phrase “prejudicial to the effective and expeditious administration of the 

business of the courts” is not subject to precise definition, and subsection (a) therefore 

provides some specific examples. 28 U.S.C. § 351(a). The Code of Conduct for United 

States Judges sets forth behavioral guidelines for judges. While the Code’s Canons are

instructive, ultimately the responsibility for determining what constitutes cognizable 

misconduct is determined by the Act and these Rules, as interpreted and applied by 

judicial councils, subject to review and limitations prescribed by the Act and these 

Rules. See also Rule 24 (Public Availability of Decisions).

Even where specific, mandatory rules exist — for example, governing the receipt 

of gifts by judges, outside earned income, and financial disclosure obligations — the 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 10

distinction between the misconduct statute and these specific, mandatory rules must be 

borne in mind. For example, an inadvertent, minor violation of any one of these rules,

promptly remedied when called to the attention of the judge, might still be a violation but 

might not rise to the level of misconduct under the Act. By contrast, a pattern of such 

violations of the Code might well rise to the level of misconduct. 

Rule 4(a)(2)(A) provides expressly that unwanted, offensive, or abusive sexual conduct 

by a judge, including sexual harassment or assault, constitutes cognizable misconduct. 

The Rule recognizes that anyone can be a victim of unwanted, offensive, or abusive 

sexual conduct, regardless of their sex and of the sex of the judge engaging in the 

misconduct.

Under Rule 4(a)(4), a judge’s efforts to retaliate against any person for reporting 

or disclosing misconduct, or otherwise participating in the complaint process constitute

cognizable misconduct. The Rule makes the prohibition against retaliation explicit in the 

interest of promoting public confidence in the complaint process.

Rules 4(a)(2), (3), and (4) reflect the judiciary’s commitment to maintaining a 

work environment in which all judicial employees are treated with dignity, fairness, and 

respect, and are free from harassment, discrimination, and retaliation. See Code of 

Conduct for United States Judges, Canon 3A(3) cmt. (“The duty to be respectful 

includes the responsibility to avoid comment or behavior that could reasonably be 

interpreted as harassment, prejudice or bias.”). 

Rule 4(a)(5) provides that a judge’s refusal, without good cause shown, to 

cooperate in the investigation of a complaint or enforcement of a decision rendered 

under these Rules constitutes cognizable misconduct. While the exercise of rights 

under the Fifth Amendment to the Constitution would constitute good cause under Rule

4(a)(5), given the fact-specific nature of the inquiry, it is not possible to otherwise 

anticipate all circumstances that might also constitute good cause. The Commentary on 

Rule 13 provides additional discussion regarding Rule 4(a)(5). The Rules contemplate 

that judicial councils will not consider commencing proceedings under Rule 4(a)(5) 

except as necessary after other means to acquire the information or enforce a decision 

have been tried or have proven futile.

All judges have a duty to bring to the attention of the relevant chief district judge 

or chief circuit judge reliable information reasonably likely to constitute judicial 

misconduct or disability. See Rule 4(a)(6). This duty is included within every judge’s 

obligation to assist in addressing allegations of misconduct or disability and to take 

appropriate action as necessary. Public confidence in the integrity and impartiality of 

the judiciary is promoted when judges take appropriate action based on reliable 

information of likely misconduct. Appropriate action depends on the circumstances, but 

the overarching goal of such action should be to prevent harm to those affected by the 

misconduct and to prevent recurrence. See Code of Conduct for United States Judges, 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 11

Canon 3B(6) & cmt. These Rules incorporate those principles while allowing for 

appropriate, expeditious, fair, and effective resolutions of all such complaints. 

The formal procedures outlined in these Rules are intended to address serious 

issues of judicial misconduct and disability. By statute and rule, the chief circuit judge 

administers the misconduct and disability complaint process, including the authority to 

investigate an allegation and, if warranted, to identify a formal complaint. See Rule 5. 

Disclosures made to or otherwise brought to the attention of the appropriate chief 

district judge of reliable information of misconduct or disability that threatens the safety 

or security of any person or that is serious or egregious such that it threatens the 

integrity and proper functioning of the judiciary warrant communication to and 

consultation with the chief circuit judge in light of the chief circuit judge’s statutory 

responsibility for overseeing any required final action.

In practice, however, not all allegations of misconduct or disability will warrant 

resort to the formal procedures outlined in these Rules because they appear likely to 

yield to effective, prompt resolution through informal corrective action. In such cases, 

allegations may initially be addressed to the chief district judge or the chief circuit judge 

to determine whether informal corrective action will suffice and to initiate such steps as 

promptly as is reasonable under the circumstances. 

A person who seeks to report information of misconduct or disability on a 

confidential or anonymous basis may proceed through various alternative avenues 

within the judiciary, including the Office of Judicial Integrity and/or comparable offices 

within the circuits.

Rule 4(a)(7) reflects that an allegation can meet the statutory standard for 

misconduct even though the judge’s alleged conduct did not occur in the course of the 

performance of official duties. Furthermore, some conduct specified in Rule 4(a)(1) 

through 4(a)(6), or not specified within these Rules, might constitute misconduct 

occurring outside the performance of official duties. The Code of Conduct for United 

States Judges expressly covers a wide range of extra-official activities, and some of 

these activities may constitute misconduct under the Act and these Rules. For 

example, allegations that a judge solicited funds for a charity or other organization or 

participated in a partisan political event are cognizable under the Act even though they 

did not occur in the course of the performance of the judge’s official duties.

Rule 4(b)(1) tracks the Act, 28 U.S.C. § 352(b)(1)(A)(ii), in excluding from the 

definition of misconduct allegations “[d]irectly related to the merits of a decision or 

procedural ruling.” This exclusion preserves the independence of judges in the exercise 

of judicial authority by ensuring that the complaint procedure is not used to collaterally

call into question the substance of a judge’s decision or procedural ruling. Any 

allegation that calls into question the correctness of an official decision or procedural 

ruling of a judge — without more — is merits-related. The phrase “decision or 

procedural ruling” is not limited to rulings issued in deciding Article III cases or 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 12

controversies. Thus, a complaint challenging the correctness of a chief judge’s 

determination to dismiss a prior misconduct complaint would be properly dismissed as 

merits-related — in other words, 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 Article III litigation. Similarly, an allegation that a judge 

incorrectly declined to approve a Criminal Justice Act voucher is merits-related under 

this standard.

Conversely, an allegation that a judge conspired with a prosecutor to make a 

particular ruling is not merits-related, even though it “relates” to a ruling in a colloquial 

sense. Such an allegation attacks the propriety of conspiring with the prosecutor and 

goes beyond a challenge to the correctness — “the merits” — of the ruling itself. An 

allegation that a judge ruled against the complainant because the complainant is a 

member of a particular racial or ethnic group, or because the judge dislikes the 

complainant personally, is also not merits-related. Such an allegation attacks the 

propriety of arriving at rulings with an illicit or improper motive. Similarly, an allegation 

that a judge used an inappropriate term to refer to a class of people is not merits-related 

even if 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 treated litigants, attorneys, judicial 

employees, or others in a demonstrably egregious and hostile manner is also not 

merits-related. 

The existence of an appellate remedy is usually irrelevant to whether an 

allegation is merits-related. 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 an incorrect ruling is merits-related even though the 

complainant has no recourse from that ruling. 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 (for example, vacating a ruling that resulted from an 

improper ex parte communication). However, there may be occasions when appellate 

and misconduct proceedings overlap, and consideration and disposition of a complaint 

under these Rules may be properly deferred by the chief judge until the appellate 

proceedings are concluded to avoid inconsistent decisions.

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 non-frivolous 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 — for example, a statement that a claim is legally or factually “frivolous” — then 

the judge’s choice of language is presumptively merits-related and excluded, absent 

evidence apart from the ruling itself suggesting an improper motive. If, on the other 

hand, the challenged language does not seem relevant on its face, then an additional 

inquiry under Rule 11(b) is necessary.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 13

With regard to Rule 4(b)(2), a complaint of delay in a single case is excluded as 

merits-related. Such an allegation may be said to challenge the correctness of an 

official action of the judge, i.e., assigning a low priority to deciding the particular case. 

But, an allegation of a habitual pattern of delay in a significant number of unrelated 

cases, or an allegation of deliberate delay in a single case arising out of an improper 

motive, is not merits-related.

Rule 4(c) relates to disability and provides only the most general definition, 

recognizing that a fact-specific approach is the only one available. A mental disability 

could involve cognitive impairment or any psychiatric or psychological condition that 

renders the judge unable to discharge the duties of office. Such duties may include 

those that are administrative. If, for example, the judge is a chief judge, the judicial 

council, fulfilling its obligation under 28 U.S.C. § 332(d)(1) to make “necessary and 

appropriate orders for the effective and expeditious administration of justice,” may find, 

under 28 U.S.C. § 45(d) or § 136(e), that the judge is “temporarily unable to perform” his 

or her chief-judge duties. In that event, an appropriate remedy could involve, under 

Rule 20(b)(1)(D)(vii), temporary reassignment of chief-judge duties to the next judge 

statutorily eligible to perform them.

Confidentiality as referenced elsewhere in these Rules is directed toward 

protecting the fairness and thoroughness of the process by which a complaint is filed or 

initiated, investigated (in specific circumstances), and ultimately resolved, as specified 

under these Rules. Nothing in these Rules concerning the confidentiality of the 

complaint process or the Code of Conduct for Judicial Employees concerning use or 

disclosure of confidential information received in the course of official duties prevents 

judicial employees from reporting or disclosing misconduct or disability. See Rule 23(c).

ARTICLE III. INITIATION OF COMPLAINT

5. Identification of Complaint

(a) Identification. When a chief judge has information constituting 

reasonable grounds for inquiry into whether a covered judge has 

engaged in misconduct or has a disability, the chief judge may

conduct an inquiry, as he or she deems appropriate, into the 

accuracy of the information even if no related complaint has been 

filed. A chief judge who finds probable cause to believe that 

misconduct has occurred or that a disability exists may seek an 

informal resolution that he or she finds satisfactory. If no informal 

resolution is achieved or is feasible, the chief judge may identify a 

complaint and, by written order stating the reasons, begin the review 

provided in Rule 11. If the evidence of misconduct is clear and 

convincing and no informal resolution is achieved or is feasible, the 

chief judge must identify a complaint. A chief judge must not decline 

to identify a complaint merely because the person making the 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 14

allegation has not filed a complaint under Rule 6. This Rule is 

subject to Rule 7.

(b) Submission Not Fully Complying with Rule 6. A legible submission 

in substantial but not full compliance with Rule 6 must be considered 

as possible grounds for the identification of a complaint under Rule 

5(a).

COMMENTARY ON RULE 5

This Rule is adapted from the Breyer Committee Report, 239 F.R.D. at 245–46.

The Act authorizes a chief judge, by written order stating reasons, to identify a 

complaint and thereby dispense with the filing of a written complaint. See 28 U.S.C. 

§ 351(b). Under Rule 5, when a chief judge becomes aware of information constituting 

reasonable grounds to inquire into possible misconduct or disability on the part of a 

covered judge, and no formal complaint has been filed, the chief judge has the power in 

his or her discretion to begin an appropriate inquiry. A chief judge’s decision whether to 

informally seek a resolution and/or to identify a complaint is guided by the results of that 

inquiry. If the chief judge concludes that there is probable cause to believe that 

misconduct has occurred or a disability exists, the chief judge may seek an informal 

resolution, if feasible, and if failing in that, may identify a complaint. Discretion is 

accorded largely for the reasons police officers and prosecutors have discretion in 

making arrests or bringing charges. The matter may be trivial and isolated, based on 

marginal evidence, or otherwise highly unlikely to lead to a misconduct or disability 

finding. On the other hand, if the inquiry leads the chief judge to conclude that there is 

clear and convincing evidence of misconduct or a disability, and no satisfactory informal 

resolution has been achieved or is feasible, the chief judge is required to identify a 

complaint.

An informal resolution is one agreed to by the subject judge and found 

satisfactory by the chief judge. Because an informal resolution under Rule 5 reached 

before a complaint is filed under Rule 6 will generally cause a subsequent Rule 6 

complaint alleging the identical matter to be concluded, see Rule 11(d), the chief judge 

must be sure that the resolution is fully appropriate before endorsing it. In doing so, the 

chief judge must balance the seriousness of the matter against the particular judge’s 

alacrity in addressing the issue. The availability of this procedure should encourage 

attempts at swift remedial action before a formal complaint is filed.

When a chief judge identifies a complaint, a written order stating the reasons for 

the identification must be provided; this begins the process articulated in Rule 11. Rule 

11 provides that once a chief judge has identified a complaint, the chief judge, subject to 

the disqualification provisions of Rule 25, will perform, with respect to that complaint, all 

functions assigned to the chief judge for the determination of complaints filed by a 

complainant.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 15

In high-visibility situations, it may be desirable for a chief judge to identify a 

complaint without first seeking an informal resolution (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.

A chief judge’s decision not to identify a complaint under Rule 5 is not appealable 

and is subject to Rule 4(b)(1), which excludes merits-related complaints from the 

definition of misconduct.

A chief judge may not 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.

Subsection (a) concludes by stating that this Rule is “subject to Rule 7.” This is 

intended to establish that only (i) the chief judge of the home circuit of a potential 

subject judge, or (ii) the chief judge of a circuit in which misconduct is alleged to have 

occurred in the course of official business while the potential subject judge was sitting 

by designation, shall have the power or a duty under this Rule to identify a complaint.

Subsection (b) provides that submissions that do not comply with the 

requirements of Rule 6(d) must be considered under Rule 5(a). For instance, if a 

complaint has been filed but the form submitted is unsigned, or the truth of the 

statements therein are not verified in writing under penalty of perjury, then a chief judge 

must nevertheless consider the allegations as known information and as a possible 

basis for the identification of a complaint under the process described in Rule 5(a).

6. Filing of Complaint

(a) Form. A complainant may use the form reproduced in the Appendix 

to these Rules or a form designated by the rules of the judicial 

council in the circuit in which the complaint is filed. A complaint 

form is also available on each court of appeals’ website or may be 

obtained from the circuit clerk or any district court or bankruptcy 

court within the circuit. A form is not necessary to file a complaint, 

but the complaint must be written and must include the information 

described in (b).

(b) Brief Statement of Facts. A complaint must contain a concise 

statement that details the specific facts on which the claim of 

misconduct or disability is based. The statement of facts should 

include a description of:

(1) what happened;

(2) when and where the relevant events happened;
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 16

(3) any information that would help an investigator check the 

facts; and

(4) for an allegation of disability, any additional facts that form the 

basis of that allegation.

(c) Legibility. A complaint should be typewritten if possible. If not 

typewritten, it must be legible. An illegible complaint will be returned 

to the complainant with a request to resubmit it in legible form. If a 

resubmitted complaint is still illegible, it will not be accepted for 

filing.

(d) Complainant’s Address and Signature; Verification. The complainant 

must provide a contact address and sign the complaint. The truth of 

the statements made in the complaint must be verified in writing 

under penalty of perjury. If any of these requirements are not met, 

the submission will be accepted, but it will be reviewed under only 

Rule 5(b).

(e) Number of Copies; Envelope Marking. The complainant shall 

provide the number of copies of the complaint required by local rule. 

Each copy should be in an envelope marked “Complaint of 

Misconduct” or “Complaint of Disability.” The envelope must not 

show the name of any subject judge.

COMMENTARY ON RULE 6

The Rule is adapted from the Illustrative Rules and is largely self-explanatory. 

As discussed in the Commentary on Rule 4 and in Rule 23(c), confidentiality as 

referenced elsewhere in these Rules does not prevent judicial employees from reporting 

or disclosing misconduct or disability.

7. Where to Initiate Complaint

(a) Where to File. Except as provided in (b),

(1) a complaint against a judge of a United States court of 

appeals, a United States district court, a United States 

bankruptcy court, or a United States magistrate judge must be 

filed with the circuit clerk in the jurisdiction in which the 

subject judge holds office.

(2) a complaint against a judge of the United States Court of 

International Trade or the United States Court of Federal 

Claims must be filed with the respective clerk of that court.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 17

(3) a complaint against a judge of the United States Court of 

Appeals for the Federal Circuit must be filed with the circuit 

executive of that court.

(b) Misconduct in Another Circuit; Transfer. If a complaint alleges 

misconduct in the course of official business while the subject judge 

was sitting on a court by designation under 28 U.S.C. §§ 291–293 and 

294(d), the complaint may be filed or identified with the circuit clerk 

of that circuit or of the subject judge’s home circuit. The proceeding 

will continue in the circuit of the first-filed or first-identified 

complaint. The judicial council of the circuit where the complaint 

was first filed or first identified may transfer the complaint to the 

subject judge’s home circuit or to the circuit where the alleged 

misconduct occurred, as the case may be.

COMMENTARY ON RULE 7

Title 28 U.S.C. § 351 states that complaints are to be filed with “the clerk of the 

court of appeals for the circuit.” However, in many circuits, this role is filled by circuit 

executives. Accordingly, the term “circuit clerk,” as defined in Rule 3(b) and used 

throughout these Rules, applies to circuit executives.

Section 351 uses the term “the circuit” in a way that suggests that either the 

home circuit of the subject judge or the circuit in which misconduct is alleged to have 

occurred is the proper venue for complaints. With an exception for judges sitting by 

designation, the Rule requires the filing or identification of a misconduct or disability 

complaint in the circuit in which the judge holds office, largely based on the 

administrative perspective of the Act. Given the Act’s emphasis on the future conduct of 

the business of the courts, the circuit in which the judge holds office is the appropriate 

forum because that circuit is likely best able to influence a judge’s future behavior in 

constructive ways.

However, when judges sit by designation, the non-home circuit has a strong 

interest in redressing misconduct in the course of official business, and where 

allegations also involve a member of the bar — ex parte contact between an attorney 

and a judge, for example — it may often be desirable to have the judicial and bar 

misconduct proceedings take place in the same venue. Rule 7(b), therefore, allows 

transfer to, or filing or identification of a complaint in, the non-home circuit. The 

proceeding may be transferred by the judicial council of the filing or identified circuit to 

the other circuit.

8. Action by Circuit Clerk

(a) Receipt of Complaint. Upon receiving a complaint against a judge 

filed under Rule 6 or identified under Rule 5, the circuit clerk must 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 18

open a file, assign a docket number according to a uniform 

numbering scheme promulgated by the Committee on Judicial 

Conduct and Disability, and acknowledge the complaint’s receipt.

(b) Distribution of Copies. The circuit clerk must promptly send copies 

of a complaint filed under Rule 6 to the chief judge or, where the 

chief judge is disqualified from considering a complaint, to the judge 

authorized to act as chief judge under Rule 25(f), and copies of 

complaints filed under Rule 6 or identified under Rule 5 to each 

subject judge. The circuit clerk must retain the original complaint. 

Any further distribution should be as provided by local rule.

(c) Complaint Against Noncovered Person. If the circuit clerk receives a 

complaint about a person not holding an office described in Rule 

1(b), the clerk must not accept the complaint under these Rules.

(d) Complaint Against Judge and Another Noncovered Person. If the 

circuit clerk receives a complaint about a judge described in Rule 

1(b) and a person not holding an office described in Rule 1(b), the 

clerk must accept the complaint under these Rules only with regard 

to the judge and must so inform the complainant.

COMMENTARY ON RULE 8

This Rule is adapted from the Illustrative Rules and is largely self-explanatory.

The uniform docketing scheme described in subsection (a) should take into 

account potential problems associated with a complaint that names multiple judges. 

One solution may be to provide separate docket numbers for each subject judge. 

Separate docket numbers would help avoid difficulties in tracking cases, particularly if a 

complaint is dismissed with respect to some, but not all of the named judges.

Complaints against noncovered persons are not to be accepted for processing 

under these Rules but may, of course, be accepted under other circuit rules or 

procedures for grievances.

9. Time for Filing or Identifying Complaint

A complaint may be filed or identified at any time. If the passage of time has 

made an accurate and fair investigation of a complaint impracticable, the 

complaint must be dismissed under Rule 11(c)(1)(E).

COMMENTARY ON RULE 9

This Rule is adapted from the Act, 28 U.S.C. §§ 351, 352(b)(1)(A)(iii), and the 

Illustrative Rules.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 19

10. Abuse of Complaint Procedure

(a) Abusive Complaints. A complainant who has filed repetitive, 

harassing, or frivolous complaints, or has otherwise abused the 

complaint procedure, may be restricted from filing further 

complaints. After giving the complainant an opportunity to show 

cause in writing why his or her right to file further complaints should 

not be limited, the judicial council may prohibit, restrict, or impose 

conditions on the complainant’s use of the complaint procedure. 

Upon written request of the complainant, the judicial council may 

revise or withdraw any prohibition, restriction, or condition 

previously imposed.

(b) Orchestrated Complaints. When many essentially identical 

complaints from different complainants are received and appear to 

be part of an orchestrated campaign, the chief judge may 

recommend that the judicial council issue a written order instructing 

the circuit clerk to accept only a certain number of such complaints 

for filing and to refuse to accept additional complaints. The circuit 

clerk must send a copy of any such order to anyone whose 

complaint was not accepted.

COMMENTARY ON RULE 10

This Rule is adapted from the Illustrative Rules.

Rule 10(a) provides a mechanism for a judicial council to restrict the filing of 

further complaints by a single complainant who has abused the complaint procedure. In 

some instances, however, the complaint procedure may be abused in a manner for 

which the remedy provided in Rule 10(a) may not be appropriate. For example, some 

circuits have been inundated with submissions of dozens or hundreds of essentially 

identical complaints against the same judge or judges, all submitted by different 

complainants. In many of these instances, persons with grievances against a particular 

judge or judges used the Internet or other technology to orchestrate mass 

complaint-filing campaigns against them. If each complaint submitted as part of such a 

campaign were accepted for filing and processed according to these Rules, there would 

be a serious drain on court resources without any benefit to the adjudication of the 

underlying merits.

A judicial council may, therefore, respond to such mass filings under Rule 10(b) 

by declining to accept repetitive complaints for filing, regardless of the fact that the 

complaints are nominally submitted by different complainants. When the first complaint 

or complaints have been dismissed on the merits, and when further, essentially identical 

submissions follow, the judicial council may issue a second order noting that these are 

identical or repetitive complaints, directing the circuit clerk not to accept these 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 20

complaints or any further such complaints for filing, and directing the clerk to send each 

putative complainant copies of both orders.

ARTICLE IV. REVIEW OF COMPLAINT BY CHIEF JUDGE

11. Chief Judge’s Review

(a) Purpose of Chief Judge’s Review. When a complaint is identified by 

the chief judge or is filed, the chief judge must review it unless the 

chief judge is disqualified under Rule 25, in which case the mostsenior active circuit judge not disqualified will review the complaint. 

If a complaint contains information constituting evidence of 

misconduct or disability, but the complainant does not claim it as 

such, the chief judge must treat the complaint as if it did allege 

misconduct or disability and give notice to the subject judge. After 

reviewing a complaint, the chief judge must determine whether it 

should be:

(1) dismissed;

(2) concluded on the ground that voluntary corrective action has 

been taken;

(3) concluded because intervening events have made action on 

the complaint no longer necessary; or

(4) referred to a special committee.

(b) Chief Judge’s Inquiry. In determining what action to take under Rule 

11(a), the chief judge may conduct a limited inquiry. The chief judge, 

or a designee, may communicate orally or in writing with the 

complainant, the subject judge, and any others who may have 

knowledge of the matter, and may obtain and review transcripts and 

other relevant documents. In conducting the inquiry, the chief judge 

must not determine any reasonably disputed issue. Any such 

determination must be left to a special committee appointed under 

Rule 11(f) and to the judicial council that considers the committee’s 

report.

(c) Dismissal.

(1) Permissible grounds. A complaint may be dismissed in whole 

or in part to the extent that the chief judge concludes that the 

complaint:
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 21

(A) alleges conduct that, even if true, is not prejudicial to 

the effective and expeditious administration of the 

business of the courts and does not indicate a mental or 

physical disability resulting in the inability to discharge 

the duties of judicial office;

(B) is directly related to the merits of a decision or 

procedural ruling;

(C) is frivolous;

(D) is based on allegations lacking sufficient evidence to 

raise an inference that misconduct has occurred or that 

a disability exists;

(E) is based on allegations that are incapable of being 

established through investigation;

(F) has been filed in the wrong circuit under Rule 7; or

(G) is otherwise not appropriate for consideration under the 

Act.

(2) Impermissible grounds. A complaint must not be dismissed 

solely because it repeats allegations of a previously dismissed 

complaint if it also contains material information not 

previously considered and does not constitute harassment of 

the subject judge.

(d) Corrective Action. The chief judge may conclude a complaint 

proceeding in whole or in part if:

(1) an informal resolution under Rule 5 satisfactory to the chief 

judge was reached before the complaint was filed under Rule 

6; or

(2) the chief judge determines that the subject judge has taken 

appropriate voluntary corrective action that acknowledges and 

remedies the problems raised by the complaint.

(e) Intervening Events. The chief judge may conclude a complaint 

proceeding in whole or in part upon determining that intervening 

events render some or all of the allegations moot or make remedial 

action impossible as to the subject judge.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 22

(f) Appointment of Special Committee. If some or all of a complaint is 

not dismissed or concluded, the chief judge must promptly appoint a 

special committee to investigate the complaint or any relevant 

portion of it and to make recommendations to the judicial council. 

Before appointing a special committee, the chief judge must invite 

the subject judge to respond to the complaint either orally or in 

writing if the judge was not given an opportunity during the limited 

inquiry. In the chief judge’s discretion, separate complaints may be

joined and assigned to a single special committee. Similarly, a 

single complaint about more than one judge may be severed and 

more than one special committee appointed.

(g) Notice of Chief Judge’s Action; Petition for Review.

(1) When chief judge appoints special committee. If the chief 

judge appoints a special committee, the chief judge must 

notify the complainant and the subject judge that the matter 

has been referred to a committee, notify the complainant of a 

complainant’s rights under Rule 16, and identify the members 

of the committee. A copy of the order appointing the special 

committee must be sent to the Committee on Judicial Conduct 

and Disability.

(2) When chief judge disposes of complaint without appointing 

special committee. If the chief judge disposes of a complaint 

under Rule 11(c), (d), or (e), the chief judge must prepare a 

supporting memorandum that sets forth the reasons for the 

disposition. If the complaint was initiated by identification 

under Rule 5, the memorandum must so indicate. Except as 

authorized by 28 U.S.C. § 360, the memorandum must not 

include the name of the complainant or of the subject judge. 

The order and memoranda incorporated by reference in the 

order must be promptly sent to the complainant, the subject 

judge, and the Committee on Judicial Conduct and Disability.

(3) Right to petition for review. If the chief judge disposes of a 

complaint under Rule 11(c), (d), or (e), the complainant and the 

subject judge must be notified of the right to petition the 

judicial council for review of the disposition, as provided in 

Rule 18. If the chief judge so disposes of a complaint that was 

identified under Rule 5 or filed by its subject judge, the chief 

judge must transmit the order and memoranda incorporated 

by reference in the order to the judicial council for review in 

accordance with Rule 19. In the event of such a transmission, 

the subject judge may make a written submission to the 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 23

judicial council but will have no further right of review except 

as allowed under Rule 21(b)(1)(B). When a disposition is to be 

reviewed by the judicial council, the chief judge must promptly 

transmit all materials obtained in connection with the inquiry 

under Rule 11(b) to the circuit clerk for transmittal to the 

council.

(h) Public Availability of Chief Judge’s Decision. The chief judge’s 

decision must be made public to the extent, at the time, and in the 

manner provided in Rule 24.

COMMENTARY ON RULE 11

This Rule describes complaint-review actions available either to the chief judge 

or, where that judge is the subject judge or is otherwise disqualified under Rule 25, such 

as where the complaint is filed against the chief judge, to the judge designated under 

Rule 25(f) to perform the chief judge’s duties under these Rules. Subsection (a) of this 

Rule provides that where a complaint has been filed under Rule 6, the ordinary 

doctrines of waiver do not apply. The chief judge must identify as a complaint any 

misconduct or disability issues raised by the factual allegations of the complaint even if 

the complainant makes no such claim with regard to those issues. For example, an 

allegation limited to misconduct in fact-finding that mentions periods during a trial when 

the judge was asleep must be treated as a complaint regarding disability. A formal 

order giving notice of the expanded scope of the proceeding must be given to the 

subject judge.

Subsection (b) describes the nature of the chief judge’s inquiry. It is based 

largely on the Breyer Committee Report, 239 F.R.D. at 243–45. The Act states that 

dismissal is appropriate “when a limited inquiry . . . demonstrates that the allegations in 

the complaint lack any factual foundation or are conclusively refuted by objective 

evidence.” 28 U.S.C. § 352(b)(1)(B). At the same time, however, Section 352(a) states 

that “[t]he chief judge shall not undertake to make findings of fact about any matter that 

is reasonably in dispute.” These two statutory standards should be read together so 

that a matter is not “reasonably” in dispute if a limited inquiry shows that the allegations 

do not constitute misconduct or disability, that they lack any reliable factual foundation, 

or that they are conclusively refuted by objective evidence.

In conducting a limited inquiry under subsection (b), the chief judge must avoid 

determinations of reasonably disputed issues, including reasonably disputed issues as 

to whether the facts alleged constitute misconduct or disability, which are ordinarily left 

to the judicial council and its special committee. An allegation of fact is ordinarily not 

“refuted” simply because the subject judge denies it. The limited inquiry must reveal 

something more in the way of refutation before it is appropriate to dismiss a complaint 

that is otherwise cognizable. If it is the complainant's word against the subject judge’s—

in other words, there is simply no other significant evidence of what happened or of the 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 24

complainant’s unreliability — then there must be a special-committee investigation. 

Such a credibility issue is a matter “reasonably in dispute” within the meaning of the Act.

However, dismissal following a limited inquiry may occur when a complaint refers 

to transcripts or to witnesses and the chief judge determines that the transcripts and 

witnesses all support the subject judge. Breyer Committee Report, 239 F.R.D. at 243. 

For example, consider a complaint alleging that the subject judge said X, and the 

complaint mentions, or it is independently clear, that five people may have heard what 

the judge said. Id. The chief judge is told by the subject judge and one witness that the 

judge did not say X, and the chief judge dismisses the complaint without questioning the 

other four possible witnesses. Id. In this example, the matter remains reasonably in 

dispute. If all five witnesses say the subject judge did not say X, dismissal is 

appropriate, but if potential witnesses who are reasonably accessible have not been 

questioned, then the matter remains reasonably in dispute. Id.

Similarly, under subsection (c)(1)(A), if it is clear that the conduct or disability 

alleged, even if true, is not cognizable under these Rules, the complaint should be 

dismissed. If that issue is reasonably in dispute, however, dismissal under subsection 

(c)(1)(A) is inappropriate.

Essentially, the standard articulated in subsection (b) is that used to decide 

motions for summary judgment pursuant to Fed. R. Civ. P. 56. Genuine issues of 

material fact are not resolved at the summary judgment stage. A material fact is one 

that “might affect the outcome of the suit under the governing law,” and a dispute is 

“genuine” if “the evidence is such that a reasonable jury could return a verdict for the 

nonmoving party.” Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Similarly, the 

chief judge may not resolve a genuine issue concerning a material fact or the existence 

of misconduct or a disability when conducting a limited inquiry pursuant to subsection 

(b).

Subsection (c) describes the grounds on which a complaint may be dismissed. 

These are adapted from the Act, 28 U.S.C. § 352(b), and the Breyer Committee Report, 

239 F.R.D. at 239–45. Subsection (c)(1)(A) permits dismissal of an allegation that, 

even if true, does not constitute misconduct or disability under the statutory standard. 

The proper standards are set out in Rule 4 and discussed in the Commentary on that 

Rule. Subsection (c)(1)(B) permits dismissal of complaints related to the merits of a 

decision by a subject judge; this standard is also governed by Rule 4 and its 

accompanying Commentary.

Subsections (c)(1)(C)–(E) implement the statute by allowing dismissal of 

complaints that are “frivolous, lacking sufficient evidence to raise an inference that 

misconduct has occurred, or containing allegations which are incapable of being 

established through investigation.” 28 U.S.C. § 352(b)(1)(A)(iii).
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 25

Dismissal of a complaint as “frivolous” under Rule 11(c)(1)(C) will generally occur 

without any inquiry beyond the face of the complaint. For instance, when the 

allegations are facially incredible or so lacking in indicia of reliability that no further 

inquiry is warranted, dismissal under this subsection is appropriate.

A complaint warranting dismissal under Rule 11(c)(1)(D) is illustrated by the 

following example. Consider a complainant who alleges an impropriety and asserts that 

he knows of it because it was observed and reported to him by a person who is 

identified. The subject judge denies that the event occurred. When contacted, the 

source also denies it. In such a case, the chief judge’s proper course of action may turn 

on whether the source had any role in the allegedly improper conduct. If the complaint 

was based on a lawyer’s statement that he or she had an improper ex parte contact with 

a judge, the lawyer’s denial of the impropriety might not be taken as wholly persuasive, 

and it would be appropriate to conclude that a real factual issue is raised. On the other 

hand, if the complaint quoted a disinterested third party and that disinterested party 

denied that the statement had been made, there would be no value in opening a formal 

investigation. In such a case, it would be appropriate to dismiss the complaint under 

Rule 11(c)(1)(D).

Rule 11(c)(1)(E) is intended, among other things, to cover situations when no 

evidence is offered or identified, or when the only identified source is unavailable. 

Breyer Committee Report, 239 F.R.D. at 243. For example, a complaint alleges that an 

unnamed attorney told the complainant that the subject judge did X. Id. The subject 

judge denies it. The chief judge requests that the complainant (who does not purport to 

have observed the subject judge do X) identify the unnamed witness, or that the 

unnamed witness come forward so that the chief judge can learn the unnamed 

witness’s account. Id. 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. Id. 

at 243–44. The allegation is then properly dismissed as containing allegations that are 

incapable of being established through investigation. Id.

If, however, the situation involves a reasonable dispute over credibility, the 

matter should proceed. For example, the complainant alleges an impropriety and 

alleges that he or she observed it and that there were no other witnesses; the subject 

judge denies that the event occurred. Unless the complainant’s allegations are facially 

incredible or so lacking indicia of reliability as to warrant dismissal under Rule 

11(c)(1)(C), a special committee must be appointed because there is a material factual 

question that is reasonably in dispute.

Dismissal is also appropriate when a complaint is filed so long after an alleged 

event that memory loss, death, or changes to unknown residences prevent a proper 

investigation.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 26

Subsection (c)(2) indicates that the investigative nature of the process prevents 

the application of claim preclusion principles where new and material evidence 

becomes available. However, it also recognizes that at some point a renewed 

investigation may constitute harassment of the subject judge and should not be 

undertaken, depending of course on the seriousness of the issues and the weight of the 

new evidence.

Rule 11(d) implements the Act’s provision for dismissal if voluntary appropriate 

corrective action has been taken. It is largely adapted from the Breyer Committee 

Report, 239 F.R.D. at 244–45. The Act authorizes the chief judge to conclude the

complaint proceedings if “appropriate corrective action has been taken.” 28 U.S.C. 

§ 352(b)(2). Under the Rule, action taken after a complaint is filed is “appropriate” when 

it acknowledges and remedies the problem raised by the complaint. Breyer Committee 

Report, 239 F.R.D. at 244. Because the Act deals with the conduct of judges, the 

emphasis is on correction of the judicial conduct that was the subject of the complaint. 

Id. Terminating a complaint based on corrective action is premised on the implicit 

understanding that voluntary self-correction or redress of misconduct or a disability may 

be preferable to sanctions. Id. The chief judge may 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. Id. Moreover, when corrective 

action is taken under Rule 5 satisfactory to the chief judge before a complaint is filed, 

that informal resolution will be sufficient to conclude a subsequent complaint based on 

identical conduct.

“Corrective action” must be voluntary action taken by the subject judge. Breyer 

Committee Report, 239 F.R.D. at 244. 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 without the subject judge’s subsequent agreement to such action does not 

constitute the requisite voluntary corrective action. Id. 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 under 28 U.S.C. 

§ 354(a)(2). Id. Compliance with a previous judicial-council order may serve as 

corrective action allowing conclusion of a later complaint about the same behavior. Id.

Where a subject 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. Id. 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 harm can 

reasonably be remedied. Id. In some cases, corrective action may not be “appropriate”

to justify conclusion of a complaint unless the complainant or other individual harmed is 

meaningfully apprised of the nature of the corrective action in the chief judge’s order, in 

a direct communication from the subject judge, or otherwise. Id.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 27

Voluntary corrective action should be proportionate to any plausible allegations of 

misconduct in a complaint. The form of corrective action should also be proportionate 

to any sanctions that the judicial council might impose under Rule 20(b), such as a 

private or public reprimand or a change in case assignments. Breyer Committee 

Report, 239 F.R.D at 244–45. In other words, minor corrective action will not suffice to 

dispose of a serious matter. Id.

Rule 11(e) implements Section 352(b)(2) of the Act, which permits the chief 

judge to “conclude the proceeding,” if “action on the complaint is no longer necessary 

because of intervening events,” such as a resignation from judicial office. Ordinarily, 

stepping down from an administrative post such as chief judge, judicial-council member, 

or court-committee chair does not constitute an event rendering unnecessary any 

further action on a complaint alleging judicial misconduct. Breyer Committee Report, 

239 F.R.D. at 245. As long as the subject of a complaint retains the judicial office and 

remains a covered judge as defined in Rule 1(b), a complaint must be addressed. Id.; 

28 U.S.C. §§ 371(b); 372(a).

Concluding a complaint proceeding, by either the judicial council of the subject 

judge or the judicial council to which a complaint proceeding has been transferred,

precludes remedial action under the Act and these Rules as to the subject judge. But

the Judicial Conference and the judicial council of the subject judge have ample 

authority to assess potential institutional issues related to the complaint as part of their 

respective responsibilities to promote “the expeditious conduct of court business,” 28 

U.S.C. § 331, and to “make all necessary and appropriate orders for the effective 

administration of justice within [each] circuit.” Id. at § 332(d)(1). Such an assessment 

might include an analysis of what conditions may have enabled misconduct or 

prevented its discovery, and what precautionary or curative steps could be undertaken 

to prevent its recurrence. The judicial council may request that the Committee on 

Judicial Conduct and Disability transmit its order to relevant Congressional entities.

If a complaint is not disposed of pursuant to Rule 11(c), (d), or (e), a special 

committee must be appointed. Rule 11(f) states that a subject judge must be invited to

respond to the complaint before a special committee is appointed, if no earlier response 

was invited.

Subject judges receive copies of complaints at the same time that they are 

referred to the chief judge, and they are free to volunteer responses to them. Under 

Rule 11(b), the chief judge may request a response if it is thought necessary. However, 

many complaints are clear candidates for dismissal even if their allegations are 

accepted as true, and there is no need for the subject judge to devote time to a defense.

The Act requires that the order dismissing a complaint or concluding a

proceeding contain a statement of reasons and that a copy of the order be sent to the 

complainant. 28 U.S.C. § 352(b). Rule 24, dealing with availability of information to the 

public, contemplates that the order will be made public, usually without disclosing the 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 28

names of the complainant or the subject judge. If desired for administrative purposes, 

more identifying information can be included in a non-public version of the order.

When a complaint is disposed of by the chief judge, the statutory purposes are 

best served by providing the complainant with a full, particularized, but concise 

explanation, giving reasons for the conclusions reached. See also Commentary on 

Rule 24 (dealing with public availability).

Rule 11(g) provides that the complainant and the subject judge must be notified, 

in the case of a disposition by the chief judge, of the right to petition the judicial council 

for review. Because an identified complaint has no “complainant” to petition for review, 

the chief judge’s dispositive order on such a complaint will be transmitted to the judicial 

council for review. The same will apply where a complaint was filed by its subject judge. 

A copy of the chief judge’s order, and memoranda incorporated by reference in the 

order, disposing of a complaint must be sent by the circuit clerk to the Committee on 

Judicial Conduct and Disability.

ARTICLE V. INVESTIGATION AND REPORT BY SPECIAL COMMITTEE

12. Special Committee’s Composition

(a) Membership. Except as provided in (e), a special committee 

appointed under Rule 11(f) must consist of the chief judge and equal 

numbers of circuit and district judges. These judges may include 

senior judges. If a complaint is about a district judge, bankruptcy 

judge, or magistrate judge, then, when possible, the district-judge 

members of the special committee must be from districts other than 

the district of the subject judge. For the courts named in 28 U.S.C. 

§ 363, the special committee must be selected from the judges 

serving on the subject judge's court.

(b) Presiding Officer. When appointing the special committee, the chief 

judge may serve as the presiding officer or else must designate a 

committee member as the presiding officer.

(c) Bankruptcy Judge or Magistrate Judge as Adviser. If the subject 

judge is a bankruptcy judge or magistrate judge, he or she may, 

within 14 days after being notified of the special committee’s 

appointment, ask the chief judge to designate as a committee 

adviser another bankruptcy judge or magistrate judge, as the case 

may be. The chief judge must grant such a request but may 

otherwise use discretion in naming the adviser. Unless the adviser 

is a Court of Federal Claims special master appointed under 42 

U.S.C. § 300aa-12(c), the adviser must be from a district other than 

the district of the subject bankruptcy judge or subject magistrate 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 29

judge. The adviser cannot vote but has the other privileges of a 

special-committee member.

(d) Provision of Documents. The chief judge must certify to each other 

member of the special committee and to any adviser copies of the 

complaint and statement of facts, in whole or relevant part, and any 

other relevant documents on file.

(e) Continuing Qualification of Special-Committee Member. A member 

of a special committee may continue to serve on the committee even 

though the member relinquishes the position of chief judge, active 

circuit judge, or active district judge, as the case may be, but only if 

the member continues to hold office under Article III, Section 1, of 

the Constitution of the United States, or under 28 U.S.C. § 171.

(f) Inability of Special-Committee Member to Complete Service. If a 

member of a special committee can no longer serve because of 

death, disability, disqualification, resignation, retirement from office, 

or other reason, the chief judge must decide whether to appoint a 

replacement member, either a circuit or district judge as needed 

under (a). No special committee appointed under these Rules may 

function with only a single member, and the votes of a two-member 

committee must be unanimous.

(g) Voting. All actions by a special committee must be by vote of a 

majority of all members of the committee.

COMMENTARY ON RULE 12

This Rule is adapted from the Act and the Illustrative Rules.

Rule 12 leaves the size of a special committee flexible, to be determined on a 

case-by-case basis. The question the size of a special committee is one that should be 

weighed with care in view of the potential for consuming the members’ time; a large 

committee should be appointed only if there is a special reason to do so. Rule 12(a) 

acknowledges the common practice of including senior judges in the membership of a 

special committee.

Although the Act requires that the chief judge be a member of each special 

committee, 28 U.S.C. § 353(a)(1), it does not require that the chief judge preside. 

Accordingly, Rule 12(b) provides that if the chief judge does not preside, he or she must 

designate another member of the special committee as the presiding officer.

Rule 12(c) provides that the chief judge must appoint a bankruptcy judge or 

magistrate judge as an adviser to a special committee at the request of a bankruptcy or 

magistrate subject judge. Subsection (c) also provides that the adviser will have all the 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 30

privileges of a member of the special committee except a vote. The adviser, therefore, 

may participate in all deliberations of the special committee, question witnesses at 

hearings, and write a separate statement to accompany the committee’s report to the 

judicial council.

Rule 12(e) provides that a member of a special committee who remains an 

Article III judge may continue to serve on the committee even though the member’s 

status otherwise changes. Thus, a special committee that originally consisted of the 

chief judge and an equal number of circuit and district judges, as required by the law, 

may continue to function even though changes of status alter that composition. This 

provision reflects the belief that stability of membership will contribute to the quality of 

the work of such committees.

Stability of membership is also the principal concern animating Rule 12(f), which 

deals with the case in which a special committee loses a member before its work is 

complete. The Rule permits the chief judge to determine whether a replacement 

member should be appointed. Generally, appointment of a replacement member is 

desirable in these situations unless the special committee has conducted evidentiary 

hearings before the vacancy occurs. However, cases may arise in which a special 

committee is in the late stages of its work, and in which it would be difficult for a new 

member to play a meaningful role. The Rule also preserves the collegial character of 

the special-committee process by prohibiting a single surviving member from serving as 

a committee and by providing that a committee of two surviving members will, in 

essence, operate under a unanimity rule.

Rule 12(g) provides that actions of a special committee must be by vote of a 

majority of all the members. All the members of a special committee should participate 

in committee decisions. In that circumstance, it seems reasonable to require that 

special-committee decisions be made by a majority of the membership, rather than a 

majority of some smaller quorum.

13. Conduct of Special-Committee Investigation

(a) Extent and Methods of Special-Committee Investigation. A special 

committee should determine the appropriate extent and methods of 

its investigation in light of the allegations in the complaint and the 

committee’s preliminary inquiry. In investigating the alleged 

misconduct or disability, the special committee should take steps to 

determine the full scope of the potential misconduct or disability, 

including whether a pattern of misconduct or a broader disability 

exists. The investigation may include use of appropriate experts or 

other professionals. If, in the course of the investigation, the special 

committee has cause to believe that the subject judge may have 

engaged in misconduct or has a disability that is beyond the specific 

pending complaint, the committee must refer the new matter to the 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 31

chief judge for a determination of whether action under Rule 5 or 

Rule 11 is necessary before the committee’s investigation is 

expanded to include the new matter.

(b) Criminal Conduct. If the special committee’s investigation concerns 

conduct that may be a crime, the committee must consult with the 

appropriate prosecutorial authorities to the extent permitted by the 

Act to avoid compromising any criminal investigation. The special 

committee has final authority over the timing and extent of its 

investigation and the formulation of its recommendations.

(c) Staff. The special committee may arrange for staff assistance to 

conduct the investigation. It may use existing staff of the judiciary or 

may hire special staff through the Director of the Administrative 

Office of the United States Courts.

(d) Delegation of Subpoena Power; Contempt. The chief judge may 

delegate the authority to exercise the subpoena powers of the 

special committee. The judicial council or special committee may 

institute a contempt proceeding under 28 U.S.C. § 332(d) against 

anyone who fails to comply with a subpoena.

COMMENTARY ON RULE 13

This Rule is adapted from the Illustrative Rules.

Rule 13, as well as Rules 14, 15, and 16, are concerned with the way in which 

the special committee carries out its mission. They reflect the view that the special 

committee has two roles that are separated in ordinary litigation. First, the special 

committee has an investigative role of the kind that is characteristically left to executive 

branch agencies or discovery by civil litigants. 28 U.S.C. § 353(c). Second, it has a 

formalized fact-finding and recommendation-of-disposition role that is characteristically 

left to juries, judges, or arbitrators. Id. Rule 13 generally governs the investigative 

stage. Even though the same body has responsibility for both roles under the Act, it is 

important to distinguish between them in order to ensure that appropriate rights are 

afforded at appropriate times to the subject judge.

Rule 13(a) includes a provision making clear that the special committee may 

choose to consult appropriate experts or other professionals if it determines that such a 

consultation is warranted. If, for example, the special committee has cause to believe 

that the subject judge may be unable to discharge all of the duties of office by reason of 

mental or physical disability, the committee could ask the subject judge to respond to 

inquiries and, if necessary, request the judge to undergo a medical or psychological 

examination. In advance of any such examination, the special committee may enter 

into an agreement with the subject judge as to the scope and use that may be made of 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 32

the examination results. In addition or in the alternative, the special committee may ask 

to review existing records, including medical records.

The extent of the subject judge’s cooperation in the investigation may be taken 

into account in the consideration of the underlying complaint. If, for example, the 

subject judge impedes reasonable efforts to confirm or disconfirm the presence of a 

disability, the special committee may still consider whether the conduct alleged in the 

complaint and confirmed in the investigation constitutes disability. The same would be 

true of a complaint alleging misconduct.

The special committee may also consider whether such a judge might be in 

violation of his or her duty to cooperate in an investigation under these Rules, a duty 

rooted not only in the Act’s definition of misconduct but also in the Code of Conduct for 

United States Judges, which emphasizes the need to maintain public confidence in the 

judiciary, see Canon 2(A) and Canon 1 cmt., and requires judges to “facilitate the 

performance of the administrative responsibilities of other judges and court personnel,” 

Canon 3(B)(1). If the special committee finds a breach of the duty to cooperate and 

believes that the breach may amount to misconduct under Rule 4(a)(5), it should 

determine, under the final sentence of Rule 13(a), whether that possibility should be 

referred to the chief judge for consideration of action under Rule 5 or Rule 11. See also 

Commentary on Rule 4.

One of the difficult questions that can arise is the relationship between 

proceedings under the Act and criminal investigations. Rule 13(b) assigns responsibility 

for coordination to the special committee in cases in which criminal conduct is 

suspected, but gives the committee the authority to determine the appropriate pace of 

its activity in light of any criminal investigation.

Title 28 U.S.C. § 356(a) provides that a special committee will have full subpoena 

powers as provided in 28 U.S.C. § 332(d). Section 332(d)(1) provides that subpoenas 

will be issued on behalf of a judicial council by the circuit clerk “at the direction of the 

chief judge of the circuit or his designee.” Rule 13(d) contemplates that, where the chief 

judge designates someone else as presiding officer of the special committee, the 

presiding officer also be delegated the authority to direct the circuit clerk to issue 

subpoenas related to committee proceedings. That is not intended to imply, however, 

that the decision to use the subpoena power is exercisable by the presiding officer 

alone. See Rule 12(g).

14. Conduct of Special-Committee Hearings

(a) Purpose of Hearings. The special committee may hold hearings to 

take testimony and receive other evidence, to hear argument, or 

both. If the special committee is investigating allegations against 

more than one judge, it may hold joint or separate hearings.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 33

(b) Special-Committee Evidence. Subject to Rule 15, the special 

committee must obtain material, nonredundant evidence in the form 

it considers appropriate. In the special committee’s discretion, 

evidence may be obtained by committee members, staff, or both. 

Witnesses offering testimonial evidence may include the 

complainant and the subject judge.

(c) Counsel for Witnesses. The subject judge has the right to counsel. 

The special committee has discretion to decide whether other 

witnesses may have counsel present when they testify.

(d) Witness Fees. Witness fees must be paid as provided in 28 U.S.C. 

§ 1821.

(e) Oath. All testimony taken at a hearing must be given under oath or 

affirmation.

(f) Rules of Evidence. The Federal Rules of Evidence do not apply to 

special-committee hearings.

(g) Record and Transcript. A record and transcript must be made of all 

hearings.

COMMENTARY ON RULE 14

This Rule is adapted from the Act, 28 U.S.C. § 353, and the Illustrative Rules.

Rule 14 is concerned with the conduct of fact-finding hearings. 

Special-committee hearings will normally be held only after the investigative work has 

been completed and the committee has concluded that there is sufficient evidence to 

warrant a formal fact-finding proceeding. Special-committee proceedings are primarily 

inquisitorial rather than adversarial. Accordingly, the Federal Rules of Evidence do not 

apply to such hearings. Inevitably, a hearing will have something of an adversary 

character. Nevertheless, that tendency should be moderated to the extent possible. 

Even though a proceeding will commonly have investigative and hearing stages, 

special-committee members should not regard themselves as prosecutors one day and 

judges the next. Their duty — and that of their staff — is at all times to be impartial 

seekers of the truth.

Rule 14(b) contemplates that material evidence will be obtained by the special 

committee and presented in the form of affidavits, live testimony, etc. Staff or others 

who are organizing the hearings should regard it as their role to present evidence 

representing the entire picture. With respect to testimonial evidence, the subject judge 

should normally be called as a special-committee witness. Cases may arise in which 

the subject judge will not testify voluntarily. In such cases, subpoena powers are 

available, subject to the normal testimonial privileges. Although Rule 15(c) recognizes 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 34

the subject judge’s statutory right to call witnesses on his or her own behalf, exercise of 

this right should not usually be necessary.

15. Subject Judge’s Rights

(a) Notice.

(1) Generally. The subject judge must receive written notice of:

(A) the appointment of a special committee under Rule 

11(f);

(B) the expansion of the scope of an investigation under 

Rule 13(a);

(C) any hearing under Rule 14, including its purposes, the 

names of any witnesses the special committee intends 

to call, and the text of any statements that have been 

taken from those witnesses.

(2) Suggestion of additional witnesses. The subject judge may 

suggest additional witnesses to the special committee.

(b) Special-Committee Report. The subject judge must be sent a copy of 

the special committee's report when it is filed with the judicial 

council.

(c) Presentation of Evidence. At any hearing held under Rule 14, the 

subject judge has the right to present evidence, to compel the 

attendance of witnesses, and to compel the production of 

documents. At the request of the subject judge, the chief judge or 

the judge’s designee must direct the circuit clerk to issue a 

subpoena to a witness under 28 U.S.C. § 332(d)(1). The subject 

judge must be given the opportunity to cross-examine 

special-committee witnesses, in person or by counsel.

(d) Presentation of Argument. The subject judge may submit written 

argument to the special committee and must be given a reasonable 

opportunity to present oral argument at an appropriate stage of the 

investigation.

(e) Attendance at Hearings. The subject judge has the right to attend 

any hearing held under Rule 14 and to receive copies of the 

transcript, of any documents introduced, and of any written 

arguments submitted by the complainant to the special committee.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 35

(f) Representation by Counsel. The subject judge may choose to be 

represented by counsel in the exercise of any right enumerated in 

this Rule. As provided in Rule 20(e), the United States may bear the 

costs of the representation.

COMMENTARY ON RULE 15

This Rule is adapted from the Act and the Illustrative Rules.

The Act states that these Rules must contain provisions requiring that “the judge 

whose conduct is the subject of a complaint . . . 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.” 28 U.S.C. § 358(b)(2). To implement this provision, Rule 15(e) gives the 

subject judge the right to attend any hearing held for the purpose of receiving evidence 

of record or hearing argument under Rule 14.

The Act does not require that the subject judge be permitted to attend all 

proceedings of the special committee. Accordingly, the Rules do not give a right to 

attend other proceedings — for example, meetings at which the special committee is 

engaged in investigative activity, such as interviewing persons to learn whether they 

ought to be called as witnesses or examining for relevance purposes documents 

delivered pursuant to a subpoena duces tecum, or meetings in which the committee is 

deliberating on the evidence or its recommendations.

16. Complainant’s Rights in Investigation

(a) Notice. The complainant must receive written notice of the 

investigation as provided in Rule 11(g)(1). When the special 

committee’s report to the judicial council is filed, the complainant 

must be notified of the filing. The judicial council may, in its 

discretion, provide a copy of the report of a special committee to the 

complainant.

(b) Opportunity to Provide Evidence. If the complainant knows of 

relevant evidence not already before the special committee, the 

complainant may briefly explain in writing the basis of that 

knowledge and the nature of that evidence. If the special committee 

determines that the complainant has information not already known 

to the committee that would assist in the committee’s investigation, 

a representative of the committee must interview the complainant.

(c) Presentation of Argument. The complainant may submit written 

argument to the special committee. In its discretion, the special 

committee may permit the complainant to offer oral argument.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 36

(d) Representation by Counsel. A complainant may submit written 

argument through counsel and, if permitted to offer oral argument, 

may do so through counsel.

COMMENTARY ON RULE 16

This Rule is adapted from the Act and the Illustrative Rules.

In accordance with the view of the process as fundamentally administrative and 

inquisitorial, these Rules do not give the complainant the rights of a party to litigation 

and leave the complainant’s role largely to the discretion of the special committee. 

However, Rule 16(b) gives the complainant the prerogative to make a brief written 

submission showing that he or she is aware of relevant evidence not already known to 

the special committee. (Such a submission may precede any written or oral argument 

the complainant provides under Rule 16(c), or it may accompany that argument.) If the 

special committee determines, independently or from the complainant’s submission, 

that the complainant has information that would assist the committee in its investigation, 

the complainant must be interviewed by a representative of the committee. Such an 

interview may be in person or by telephone, and the representative of the special 

committee may be either a member or staff.

Rule 16 does not contemplate that the complainant will ordinarily be permitted to 

attend proceedings of the special committee except when testifying or presenting oral 

argument. A special committee may exercise its discretion to permit the complainant to 

be present at its proceedings, or to permit the complainant, individually or through 

counsel, to participate in the examination or cross-examination of witnesses.

The Act authorizes an exception to the normal confidentiality provisions where 

the judicial council in its discretion provides a copy of the report of the special 

committee to the complainant and to the subject judge. 28 U.S.C. § 360(a)(1). 

However, the Rules do not entitle the complainant to a copy of the special committee’s 

report.

17. Special-Committee Report

The special committee must file with the judicial council a comprehensive report 

of its investigation, including findings and recommendations for council action. 

The report must be accompanied by a statement of the vote by which it was 

adopted, any separate or dissenting statements of special-committee members, 

and the record of any hearings held under Rule 14. In addition to being sent to 

the subject judge under Rule 15(b), a copy of the report and any accompanying 

statements and documents must be sent to the Committee on Judicial Conduct 

and Disability.

COMMENTARY ON RULE 17
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 37

This Rule is adapted from the Illustrative Rules and is self-explanatory. The 

provision for sending a copy of the special-committee report and accompanying 

statements and documents to the Committee on Judicial Conduct and Disability was 

new at the time the Judicial Conference promulgated the Rules for Judicial-Conduct and 

Judicial-Disability Proceedings in 2008.

ARTICLE VI. REVIEW BY JUDICIAL COUNCIL

18. Petition for Review of Chief-Judge Disposition Under Rule 11(c), (d), or (e)

(a) Petition for Review. After the chief judge issues an order under Rule 

11(c), (d), or (e), the complainant or the subject judge may petition 

the judicial council of the circuit to review the order. By rules 

promulgated under 28 U.S.C. § 358, the judicial council may refer a 

petition for review filed under this Rule to a panel of no fewer than 

five members of the council, at least two of whom must be district 

judges.

(b) When to File; Form; Where to File. A petition for review must be filed 

in the office of the circuit clerk within 42 days after the date of the 

chief judge’s order. The petition for review should be in letter form, 

addressed to the circuit clerk, and in an envelope marked 

“Misconduct Petition” or “Disability Petition.” The name of the 

subject judge must not be shown on the envelope. The petition for 

review should be typewritten or otherwise legible. It should begin 

with “I hereby petition the judicial council for review of . . . ” and 

state the reasons why the petition should be granted. It must be 

signed.

(c) Receipt and Distribution of Petition. A circuit clerk who receives a 

petition for review filed in accordance with this Rule must:

(1) acknowledge its receipt and send a copy to the complainant or 

subject judge, as the case may be;

(2) promptly distribute to each member of the judicial council, or 

its relevant panel, except for any member disqualified under 

Rule 25, or make available in the manner provided by local 

rule, the following materials:

(A) copies of the complaint;

(B) all materials obtained by the chief judge in connection 

with the inquiry;

(C) the chief judge’s order disposing of the complaint;
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 38

(D) any memorandum in support of the chief judge’s order;

(E) the petition for review; and

(F) an appropriate ballot; and

(3) send the petition for review to the Committee on Judicial 

Conduct and Disability. Unless the Committee on Judicial 

Conduct and Disability requests them, the circuit clerk will not 

send copies of the materials obtained by the chief judge.

(d) Untimely Petition. The circuit clerk must refuse to accept a petition 

that is received after the time allowed in (b).

(e) Timely Petition Not in Proper Form. When the circuit clerk receives a 

petition for review filed within the time allowed but in a form that is 

improper to a degree that would substantially impair its 

consideration by the judicial council — such as a document that is 

ambiguous about whether it is intended to be a petition for review —

the circuit clerk must acknowledge its receipt, call the filer’s 

attention to the deficiencies, and give the filer the opportunity to 

correct the deficiencies within the original time allowed for filing the 

petition or within 21 days after the date on which a notice of the 

deficiencies was sent to the complainant, whichever is later. If the 

deficiencies are corrected within the time allowed, the circuit clerk 

will proceed according to paragraphs (a) and (c) of this Rule. If the 

deficiencies are not corrected, the circuit clerk must reject the 

petition.

COMMENTARY ON RULE 18

Rule 18 is adapted largely from the Illustrative Rules.

Subsection (a) permits the subject judge, as well as the complainant, to petition 

for review of the chief judge’s order dismissing a complaint under Rule 11(c), or 

concluding that appropriate corrective action or intervening events have remedied or 

mooted the problems raised by the complaint pursuant to Rule 11(d) or (e). Although 

the subject judge may ostensibly be vindicated by the dismissal or conclusion of a 

complaint, the chief judge’s order may include language disagreeable to the subject 

judge. For example, an order may dismiss a complaint, but state that the subject judge 

did in fact engage in misconduct. Accordingly, a subject judge may wish to object to the 

content of the order and is given the opportunity to petition the judicial council of the 

circuit for review.

Subsection (b) contains a time limit of 42 days to file a petition for review. It is 

important to establish a time limit on petitions for review of chief judges’ dispositions in 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 39

order to provide finality to the process. If the complaint requires an investigation, the 

investigation should proceed; if it does not, the subject judge should know that the 

matter is closed.

The standards for timely filing under the Federal Rules of Appellate Procedure 

should be applied to petitions for review. See Fed. R. App. P. 25(a)(2)(A), (C).

Rule 18(e) provides for an automatic extension of the time limit imposed under 

subsection (b) if a person files a petition that is rejected for failure to comply with formal 

requirements.

19. Judicial-Council Disposition of Petition for Review

(a) Rights of Subject Judge. At any time after a complainant files a 

petition for review, the subject judge may file a written response with 

the circuit clerk. The circuit clerk must promptly distribute copies of 

the response to each member of the judicial council or of the 

relevant panel, unless that member is disqualified under Rule 25. 

Copies must also be distributed to the chief judge, to the 

complainant, and to the Committee on Judicial Conduct and 

Disability. The subject judge must not otherwise communicate with 

individual judicial-council members about the matter. The subject 

judge must be given copies of any communications to the judicial 

council from the complainant.

(b) Judicial-Council Action. After considering a petition for review and 

the materials before it, the judicial council may:

(1) affirm the chief judge’s disposition by denying the petition;

(2) return the matter to the chief judge with directions to conduct 

a further inquiry under Rule 11(b) or to identify a complaint 

under Rule 5;

(3) return the matter to the chief judge with directions to appoint a 

special committee under Rule 11(f); or

(4) in exceptional circumstances, take other appropriate action.

(c) Notice of Judicial-Council Decision. Copies of the judicial council’s 

order, together with memoranda incorporated by reference in the 

order and separate concurring or dissenting statements, must be 

given to the complainant, the subject judge, and the Committee on 

Judicial Conduct and Disability.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 40

(d) Memorandum of Judicial-Council Decision. If the judicial council’s 

order affirms the chief judge’s disposition, a supporting 

memorandum must be prepared only if the council concludes that 

there is a need to supplement the chief judge’s explanation. A 

memorandum supporting a judicial-council order must not include 

the name of the complainant or the subject judge.

(e) Review of Judicial-Council Decision. If the judicial council’s 

decision is adverse to the petitioner, and if no member of the council 

dissented, the complainant must be notified that he or she has no 

right to seek review of the decision. If there was a dissent, the 

petitioner must be informed that he or she can file a petition for 

review under Rule 21(b).

(f) Public Availability of Judicial-Council Decision. Materials related to 

the judicial council’s decision must be made public to the extent, at 

the time, and in the manner set forth in Rule 24.

COMMENTARY ON RULE 19

This Rule is adapted largely from the Act and is self-explanatory.

The judicial council should ordinarily review the decision of the chief judge on the 

merits, treating the petition for review for all practical purposes as an appeal. The 

judicial council may respond to a petition for review by affirming the chief judge’s order, 

remanding the matter, or, in exceptional cases, taking other appropriate action.

Under Rule 19(b), after considering a petition for review and the materials before 

it, a judicial council may return a matter to the chief judge to take various actions, 

including conducting further inquiry under Rule 11(b), identifying a complaint under Rule 

5, or appointing a special committee under Rule 11(f).

A petition for review of a judicial council’s decision under this Rule may be filed in 

any matter in which one or more members of the council dissented from the order. See

Rule 21(b).

20. Judicial-Council Action Following Appointment of Special Committee

(a) Subject Judge’s Rights. Within 21 days after the filing of the report 

of a special committee, the subject judge may send a written 

response to the members of the judicial council. The subject judge 

must also be given an opportunity to present argument, personally 

or through counsel, written or oral, as determined by the judicial 

council. The subject judge must not otherwise communicate with 

judicial-council members about the matter.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 41

(b) Judicial-Council Action.

(1) Discretionary actions. Subject to the subject judge’s rights set 

forth in subsection (a), the judicial council may:

(A) dismiss the complaint because:

(i) even if the claim is true, the claimed conduct is 

not conduct prejudicial to the effective and 

expeditious administration of the business of the 

courts and does not indicate a mental or physical

disability resulting in inability to discharge the 

duties of office;

(ii) the complaint is directly related to the merits of a 

decision or procedural ruling;

(iii) the facts on which the complaint is based have 

not been established; or

(iv) the complaint is otherwise not appropriate for 

consideration under 28 U.S.C. §§ 351–364.

(B) conclude the proceeding because appropriate corrective 

action has been taken or intervening events have made 

the proceeding unnecessary.

(C) refer the complaint to the Judicial Conference with the 

judicial council’s recommendations for action.

(D) take remedial action to ensure the effective and 

expeditious administration of the business of the courts, 

including:

(i) censuring or reprimanding the subject judge, 

either by private communication or by public 

announcement;

(ii) ordering that no new cases be assigned to the 

subject judge for a limited, fixed period;

(iii) in the case of a magistrate judge, ordering the 

chief judge of the district court to take action 

specified by the council, including the initiation of 

removal proceedings under 28 U.S.C. § 631(i) or 

42 U.S.C. § 300aa-12(c)(2);
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 42

(iv) in the case of a bankruptcy judge, removing the 

judge from office under 28 U.S.C. § 152(e);

(v) in the case of a circuit or district judge, 

requesting the judge to retire voluntarily with the 

provision (if necessary) that ordinary 

length-of-service requirements be waived; 

(vi) in the case of a circuit or district judge who is 

eligible to retire but does not do so, certifying the 

disability of the judge under 28 U.S.C. § 372(b) so 

that an additional judge may be appointed; and

(vii) in the case of a circuit chief judge or district chief 

judge, finding that the judge is temporarily unable 

to perform chief-judge duties, with the result that 

those duties devolve to the next eligible judge in 

accordance with 28 U.S.C. § 45(d) or § 136(e).

(E) take any combination of actions described in (b)(1)(A)-–

(D) of this Rule that is within its power.

(2) Mandatory actions. A judicial council must refer a complaint 

to the Judicial Conference if the council determines that a 

circuit judge or district judge may have engaged in conduct 

that:

(A) might constitute ground for impeachment; or

(B) in the interest of justice, is not amenable to resolution 

by the judicial council.

(c) Inadequate Basis for Decision. If the judicial council finds that a 

special committee’s report, recommendations, and record provide an 

inadequate basis for decision, it may return the matter to the 

committee for further investigation and a new report, or it may 

conduct further investigation. If the judicial council decides to 

conduct further investigation, the subject judge must be given 

adequate prior notice in writing of that decision and of the general 

scope and purpose of the additional investigation. The judicial 

council’s conduct of the additional investigation must generally 

accord with the procedures and powers set forth in Rules 13 through 

16 for the conduct of an investigation by a special committee.

(d) Judicial-Council Vote. Judicial-council action must be taken by a 

majority of those members of the council who are not disqualified. A 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 43

decision to remove a bankruptcy judge from office requires a 

majority vote of all the members of the judicial council.

(e) Recommendation for Fee Reimbursement. If the complaint has been 

finally dismissed or concluded under (b)(1)(A) or (B) of this Rule, and 

if the subject judge so requests, the judicial council may recommend 

that the Director of the Administrative Office use funds appropriated 

to the judiciary to reimburse the judge for reasonable expenses 

incurred during the investigation, when those expenses would not 

have been incurred but for the requirements of the Act and these 

Rules. Reasonable expenses include attorneys’ fees and expenses 

related to a successful defense or prosecution of a proceeding under 

Rule 21(a) or (b).

(f) Judicial-Council Order. Judicial-council action must be by written 

order. Unless the judicial council finds that extraordinary reasons 

would make it contrary to the interests of justice, the order must be 

accompanied by a memorandum setting forth the factual 

determinations on which it is based and the reasons for the council 

action. Such a memorandum may incorporate all or part of any 

underlying special-committee report. If the complaint was initiated 

by identification under Rule 5, the memorandum must so indicate. 

The order and memoranda incorporated by reference in the order

must be provided to the complainant, the subject judge, and the 

Committee on Judicial Conduct and Disability. The complainant and 

the subject judge must be notified of any right to review of the 

judicial council's decision as provided in Rule 21(b). If the complaint 

was identified under Rule 5 or filed by its subject judge, the judicial 

council must transmit the order and memoranda incorporated by 

reference in the order to the Committee on Judicial Conduct and 

Disability for review in accordance with Rule 21. In the event of such 

a transmission, the subject judge may make a written submission to 

the Committee on Judicial Conduct and Disability but will have no 

further right of review. 

COMMENTARY ON RULE 20

This Rule is largely adapted from the Illustrative Rules.

Rule 20(a) provides that within 21 days after the filing of the report of a special 

committee, the subject judge may address a written response to all of the members of 

the judicial council. The subject judge must also be given an opportunity to present 

argument to the judicial council, personally or through counsel, or both, at the direction 

of the council. Whether that argument is written or oral would be for the judicial council 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 44

to determine. The subject judge may not otherwise communicate with judicial-council 

members about the matter.

Rule 20(b)(1)(B) allows a judicial council to conclude a proceeding where 

appropriate corrective action has been taken or intervening events have made the 

proceeding unnecessary. This provision tracks Rules 11(d) and (e), which provide for 

similar action by the chief judge. As with Rule 11(d), appropriate corrective action must 

acknowledge and remedy the problem raised by the complaint. See Breyer Committee 

Report, 239 F.R.D. at 244. And similar to Rule 11(e), although “action on the complaint 

is no longer necessary because of intervening events,” the Judicial Conference and the 

judicial council of the subject judge may nonetheless be able to take action on potential 

institutional issues related to the complaint (such as an analysis of what conditions may 

have enabled misconduct or prevented its discovery, and what precautionary or curative 

steps could be undertaken to prevent its recurrence). 28 U.S.C. § 352(b)(2).

Rule 20(b)(1)(D) recites the remedial actions enumerated in 28 

U.S.C. § 354(a)(2) while making clear that this list is not exhaustive. A judicial council 

may consider lesser remedies. Some remedies may be unique to senior judges, whose 

caseloads can be modified by agreement or through statutory designation and 

certification processes.

Under 28 U.S.C. §§ 45(d) and 136(e), which provide for succession where “a 

chief judge is temporarily unable to perform his duties as such,” the determination 

whether such an inability exists is not expressly reserved to the chief judge. Nor, 

indeed, is it assigned to any particular judge or court-governance body. Clearly, 

however, a chief judge’s inability to function as chief could implicate “the effective and 

expeditious administration of justice,” which the judicial council of the circuit must, under 

28 U.S.C. § 332(d)(1), “make all necessary and appropriate orders” to secure. For this 

reason, such reassignment is among a judicial council’s remedial options, as subsection 

(b)(1)(D)(vii) makes clear. Consistent with 28 U.S.C. §§ 45(d) and 136(e), however, any 

reassignment of chief-judge duties must not outlast the subject judge’s inability to 

perform them. Nor can such reassignment result in any extension of the subject judge’s 

term as chief judge.

Rule 20(c) provides that a judicial council may return a matter to a special 

committee to augment its findings and report of its investigation to include additional 

areas of inquiry and investigation to allow the judicial council to reach a complete and 

fully informed judgment. Rule 20(c) also provides that if the judicial council decides to 

conduct an additional investigation, the subject judge must be given adequate prior 

notice in writing of that decision and of the general scope and purpose of the additional 

investigation. The conduct of the investigation will be generally in accordance with the 

procedures set forth in Rules 13 through 16 for the conduct of an investigation by a 

special committee. However, if hearings are held, the judicial council may limit 

testimony or the presentation of evidence to avoid unnecessary repetition of testimony 

and evidence before the special committee.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 45

Rule 20(d) provides that judicial-council action must be taken by a majority of 

those members of the council who are not disqualified, except that a decision to remove 

a bankruptcy judge from office requires a majority of all the members of the council as 

required by 28 U.S.C. § 152(e). However, it is inappropriate to apply a similar rule to 

the less severe actions that a judicial council may take under the Act. If some members 

of the judicial council are disqualified in the matter, their disqualification should not be 

given the effect of a vote against council action.

With regard to Rule 20(e), the judicial council, on the request of the subject 

judge, may recommend to the Director of the Administrative Office that the subject 

judge be reimbursed for reasonable expenses incurred, including attorneys’ fees. The 

judicial council has the authority to recommend such reimbursement where, after 

investigation by a special committee, the complaint has been finally dismissed or 

concluded under subsection (b)(1)(A) or (B) of this Rule. It is contemplated that such 

reimbursement may be provided for the successful prosecution or defense of a 

proceeding under Rule 21(a) or (b), in other words, one that results in a Rule 

20(b)(1)(A) or (B) dismissal or conclusion.

Rule 20(f) requires that judicial-council action be by order and, normally, that it be 

supported with a memorandum of factual determinations and reasons. Notice of the 

action must be given to the complainant and the subject judge, and must include notice 

of any right to petition for review of the judicial council’s decision under Rule 21(b). 

Because an identified complaint has no “complainant” to petition for review, a judicial 

council’s dispositive order on an identified complaint on which a special committee has 

been appointed must be transmitted to the Committee on Judicial Conduct and 

Disability for review. The same will apply where a complaint was filed by its subject 

judge.

ARTICLE VII. REVIEW BY COMMITTEE ON JUDICIAL CONDUCT AND 

DISABILITY

21. Committee on Judicial Conduct and Disability

(a) Committee Review. The Committee on Judicial Conduct and 

Disability, consisting of seven members, considers and disposes of 

all petitions for review under (b) of this Rule, in conformity with the 

Committee’s jurisdictional statement. Its review of judicial-council 

orders is for errors of law, clear errors of fact, or abuse of discretion. 

Its disposition of petitions for review is ordinarily final. The Judicial 

Conference may, in its sole discretion, review any such Committee 

decision, but a complainant or subject judge does not have a right to 

this review.

(b) Reviewable Matters.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 46

(1) Upon petition. A complainant or subject judge may petition 

the Committee for review of a judicial-council order entered in 

accordance with:

(A) Rule 20(b)(1)(A), (B), (D), or (E); or

(B) Rule 19(b)(1) or (4) if one or more members of the 

judicial council dissented from the order.

(2) Upon Committee’s initiative. At its initiative and in its sole 

discretion, the Committee may review any judicial-council 

order entered under Rule 19(b)(1) or (4), but only to determine 

whether a special committee should be appointed. Before 

undertaking the review, the Committee must invite that judicial 

council to explain why it believes the appointment of a special 

committee is unnecessary, unless the reasons are clearly

stated in the council’s order denying the petition for review. If 

the Committee believes that it would benefit from a 

submission by the subject judge, it may issue an appropriate 

request. If the Committee determines that a special committee 

should be appointed, the Committee must issue a written 

decision giving its reasons.

(c) Committee Vote. Any member of the Committee from the same 

circuit as the subject judge is disqualified from considering or voting 

on a petition for review related to that subject judge. Committee 

decisions under (b) of this Rule must be by majority vote of the 

qualified Committee members. Those members hearing the petition 

for review should serve in that capacity until final disposition of the 

petition, whether or not their term of committee membership has 

ended. If only six members are qualified to consider a petition for 

review, the Chief Justice shall select an additional judge to join the 

qualified members to consider the petition. If four or fewer members 

are qualified to consider a petition for review, the Chief Justice shall 

select a panel of five judges, including the qualified Committee 

members, to consider it.

(d) Additional Investigation. Except in extraordinary circumstances, the 

Committee will not conduct an additional investigation. The 

Committee may return the matter to the judicial council with 

directions to undertake an additional investigation. If the Committee 

conducts an additional investigation, it will exercise the powers of 

the Judicial Conference under 28 U.S.C. § 331.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 47

(e) Oral Argument; Personal Appearance. There is ordinarily no oral 

argument or personal appearance before the Committee. In its 

discretion, the Committee may permit written submissions.

(f) Committee Decision. A Committee decision under this Rule must be 

transmitted promptly to the Judicial Conference. Other distribution 

will be by the Administrative Office at the direction of the Committee 

chair.

(g) Finality. All orders of the Judicial Conference or of the Committee 

(when the Conference does not exercise its power of review) are 

final.

COMMENTARY ON RULE 21

This Rule is largely self-explanatory.

Rule 21(a) is intended to clarify that the delegation of power to the Committee on 

Judicial Conduct and Disability to dispose of petitions for review does not preclude 

review of such dispositions by the Judicial Conference. However, there is no right to 

such review in any party.

Rules 21(b)(1)(B) and (b)(2) are intended to fill a jurisdictional gap as to review of 

a dismissal or a conclusion of a complaint under Rule 19(b)(1) or (4). Where one or 

more members of a judicial council reviewing a petition have dissented, the complainant 

or the subject judge has the right to petition for review by the Committee. Under Rule 

21(b)(2), the Committee may review such a dismissal or conclusion in its sole 

discretion, whether or not a dissent occurred, and only as to the appointment of a 

special committee. Any review under Rule 21(b)(2) will be conducted as soon as 

practicable after the dismissal or conclusion at issue. No party has a right to such 

review, and such review will be rare.

Rule 21(c) provides for review only by Committee members from circuits other 

than that of the subject judge. The Rule provides that every petition for review must be 

considered and voted on by at least five, and if possible by seven, qualified Committee 

members to avoid the possibility of tie votes. If six, or four or fewer, members are 

qualified, the Chief Justice shall appoint other judges to join the qualified members to 

consider the petition for review. To the extent possible, the judges whom the Chief 

Justice selects to join the qualified members should be drawn from among former 

members of the Committee.

Under this Rule, all Committee decisions are final in that they are unreviewable 

unless the Judicial Conference, in its discretion, decides to review a decision. 

Committee decisions, however, do not necessarily constitute final action on a complaint 

for purposes of Rule 24.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 48

22. Procedures for Review

(a) Filing Petition for Review. A petition for review of a judicial-council 

decision on a reviewable matter, as defined in Rule 21(b)(1), may be 

filed by sending a brief written statement to the Committee on 

Judicial Conduct and Disability at 

JCD_PetitionforReview@ao.uscourts.gov or to:

Judicial Conference Committee on Judicial Conduct and 

Disability

Attn: Office of the General Counsel

Administrative Office of the United States Courts

One Columbus Circle, NE

Washington, D.C. 20544

The Administrative Office will send a copy of the petition for review 

to the complainant or the subject judge, as the case may be.

(b) Form and Contents of Petition. No particular form is required. The 

petition for review must contain a short statement of the basic facts 

underlying the complaint, the history of its consideration before the 

appropriate judicial council, a copy of the council’s decision, and the 

grounds on which the petitioner seeks review. The petition for 

review must specify the date and docket number of the 

judicial-council order for which review is sought. The petitioner may 

attach any documents or correspondence arising in the course of the 

proceeding before the judicial council or its special committee. A 

petition for review should not normally exceed 20 pages plus 

necessary attachments. A petition for review must be signed by the 

petitioner or his or her attorney.

(c) Time. A petition for review must be submitted within 42 days after 

the date of the order for which review is sought.

(d) Action on Receipt of Petition. When a petition for review of a 

judicial-council decision on a reviewable matter, as defined in Rule 

21(b)(1), is submitted in accordance with this Rule, the 

Administrative Office shall acknowledge its receipt, notify the chair 

of the Committee on Judicial Conduct and Disability, and distribute 

the petition to the members of the Committee for their deliberation.

COMMENTARY ON RULE 22

Rule 22 is self-explanatory.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 49

ARTICLE VIII. MISCELLANEOUS RULES

23. Confidentiality

(a) Confidentiality Generally. Confidentiality under these Rules is 

intended to protect the fairness and thoroughness of the process by 

which a complaint is filed or initiated, investigated (in specific 

circumstances), and ultimately resolved, as specified under these 

Rules.

(b) Confidentiality in the Complaint Process.

(1) General Rule. The consideration of a complaint by a chief 

judge, a special committee, a judicial council, or the 

Committee on Judicial Conduct and Disability is confidential. 

Information about this consideration must not be publicly 

disclosed by any judge or judicial employee, or by any person 

who records or transcribes testimony except as allowed by 

these Rules. A chief judge, a judicial council, or the 

Committee on Judicial Conduct and Disability may disclose 

the existence of a proceeding under these Rules when 

necessary or appropriate to maintain public confidence in the 

judiciary’s ability to redress misconduct or disability.

(2) Files. All files related to a complaint must be separately 

maintained with appropriate security precautions to ensure 

confidentiality.

(3) Disclosure in Decisions. Except as otherwise provided in Rule 

24, written decisions of a chief judge, a judicial council, or the 

Committee on Judicial Conduct and Disability, and dissenting 

opinions or separate statements of members of a council or 

the Committee may contain information and exhibits that the 

authors consider appropriate for inclusion, and the 

information and exhibits may be made public.

(4) Availability to Judicial Conference. On request of the Judicial 

Conference or its Committee on Judicial Conduct and 

Disability, the circuit clerk must furnish any requested records 

related to a complaint. For auditing purposes, the circuit clerk 

must provide access to the Committee on Judicial Conduct 

and Disability to records of proceedings under the Act at the 

site where the records are kept.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 50

(5) Availability to District Court. If the judicial council directs the 

initiation of proceedings for removal of a magistrate judge 

under Rule 20(b)(1)(D)(iii), the circuit clerk must provide to the 

chief judge of the district court copies of the report of the 

special committee and any other documents and records that 

were before the council at the time of its decision. On request 

of the chief judge of the district court, the judicial council may 

authorize release to that chief judge of any other records 

relating to the investigation.

(6) Impeachment Proceedings. If the Judicial Conference 

determines that consideration of impeachment may be 

warranted, it must transmit the record of all relevant 

proceedings to the Speaker of the House of Representatives.

(7) Subject Judge’s Consent. If both the subject judge and the 

chief judge consent in writing, any materials from the files may 

be disclosed to any person. In any such disclosure, the chief 

judge may require that the identity of the complainant, or of 

witnesses in an investigation conducted under these Rules, 

not be revealed.

(8) Disclosure in Special Circumstances. The Judicial 

Conference, its Committee on Judicial Conduct and Disability, 

a judicial council, or a chief judge may authorize disclosure of 

information about the consideration of a complaint, including 

the papers, documents, and transcripts relating to the 

investigation, to the extent that disclosure is justified by 

special circumstances and is not prohibited by the Act. For 

example, disclosure may be made to judicial researchers 

engaged in the study or evaluation of experience under the Act 

and related modes of judicial discipline, but only where the 

study or evaluation has been specifically approved by the 

Judicial Conference or by the Committee on Judicial Conduct 

and Disability. Appropriate steps must be taken to protect the 

identities of the subject judge, the complainant, and witnesses 

from public disclosure. Other appropriate safeguards to 

protect against the dissemination of confidential information 

may be imposed.

(9) Disclosure of Identity by Subject Judge. Nothing in this Rule 

precludes the subject judge from acknowledging that he or 

she is the judge referred to in documents made public under 

Rule 24.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 51

(10) Assistance and Consultation. Nothing in this Rule prohibits a 

chief judge, a special committee, a judicial council, or the 

Judicial Conference or its Committee on Judicial Conduct and 

Disability, in the performance of any function authorized under 

the Act or these Rules, from seeking the help of qualified staff 

or experts or from consulting other judges who may be helpful 

regarding the performance of that function.

(c) Disclosure of Misconduct and Disability. Nothing in these Rules and 

Commentary concerning the confidentiality of the complaint 

process, or in the Code of Conduct for Judicial Employees 

concerning the use or disclosure of confidential information received 

in the course of official duties, prevents a judicial employee from 

reporting or disclosing misconduct or disability.

COMMENTARY ON RULE 23

Rule 23 was adapted from the Illustrative Rules.

The Act applies a rule of confidentiality to “papers, documents, and records of 

proceedings related to investigations conducted under this chapter” and states that they 

may not be disclosed “by any person in any proceeding,” with enumerated exceptions. 

28 U.S.C. § 360(a). Three questions arise: Who is bound by the confidentiality rule, 

what proceedings are subject to the rule, and who is within the circle of people who may 

have access to information without breaching the rule?

With regard to the first question, Rule 23(b)(1) provides that judges, employees 

of the judiciary, and those persons involved in recording proceedings and preparing 

transcripts are obliged to respect the confidentiality requirement. This of course 

includes subject judges who do not consent to identification under Rule 23(b)(9).

With regard to the second question, Rule 23(b)(1) applies the rule of 

confidentiality broadly to consideration of a complaint at any stage.

With regard to the third question, there is no barrier of confidentiality among a 

chief judge, a judicial council, the Judicial Conference, and the Committee on Judicial 

Conduct and Disability. Each may have access to any of the confidential records for 

use in their consideration of a referred matter, a petition for review, or monitoring the 

administration of the Act. A district court may have similar access if the judicial council 

orders the district court to initiate proceedings to remove a magistrate judge from office, 

and Rule 23(b)(5) so provides.

In extraordinary circumstances, a chief judge, a judicial council, or the Committee 

on Judicial Conduct and Disability may disclose the existence of a proceeding under 

these Rules. The disclosure of such information in high-visibility or controversial cases 

is to reassure the public that the judiciary is capable of redressing judicial misconduct or 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 52

disability. Moreover, the confidentiality requirement does not prevent a chief judge from 

“communicat[ing] orally or in writing with . . . [persons] who may have knowledge of the 

matter,” as part of a limited inquiry conducted by the chief judge under Rule 11(b).

Rule 23 recognizes that there must be some exceptions to the Act’s 

confidentiality requirement. For example, the Act requires that certain orders and the 

reasons for them must be made public. 28 U.S.C. § 360(b). Rule 23(b)(3) makes it 

explicit that written decisions, as well as dissenting opinions and separate statements, 

may contain references to information that would otherwise be confidential and that 

such information may be made public. However, subsection (b)(3) is subject to Rule 

24(a), which provides the general rule regarding the public availability of decisions. For 

example, the name of a subject judge cannot be made public in a decision if disclosure 

of the name is prohibited by that Rule.

The Act makes clear that there is a barrier of confidentiality between the judicial 

branch and the legislative branch. It provides that material may be disclosed to 

Congress only if it is believed necessary to an impeachment investigation or trial of a 

judge. 28 U.S.C. § 360(a)(2). Accordingly, Section 355(b) of the Act requires the 

Judicial Conference to transmit the record of a proceeding to the House of 

Representatives if the Conference believes that impeachment of a subject judge may be 

appropriate. Rule 23(b)(6) implements this requirement.

The Act provides that confidential materials may be disclosed if authorized in 

writing by the subject judge and by the chief judge. 28 U.S.C. § 360(a)(3). Rule 

23(b)(7) implements this requirement. Once the subject judge has consented to the 

disclosure of confidential materials related to a complaint, the chief judge ordinarily will 

refuse consent only to the extent necessary to protect the confidentiality interests of the 

complainant or of witnesses who have testified in investigatory proceedings or who 

have provided information in response to a limited inquiry undertaken pursuant to Rule 

11. It will generally be necessary, therefore, for the chief judge to require that the 

identities of the complainant or of such witnesses, as well as any identifying information, 

be shielded in any materials disclosed, except insofar as the chief judge has secured 

the consent of the complainant or of a particular witness to disclosure, or there is a 

demonstrated need for disclosure of the information that, in the judgment of the chief 

judge, outweighs the confidentiality interest of the complainant or of a particular witness 

(as may be the case where the complainant is delusional or where the complainant or a 

particular witness has already demonstrated a lack of concern about maintaining the 

confidentiality of the proceedings).

Rule 23(b)(8) permits disclosure of additional information in circumstances not 

enumerated. For example, disclosure may be appropriate to permit prosecution for 

perjury based on testimony given before a special committee, where a special 

committee discovers evidence of a judge’s criminal conduct, to permit disciplinary action 

by a bar association or other licensing body, or in other appropriate circumstances.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 53

Under subsection (b)(8), where a complainant or other person has publicly 

released information regarding the existence of a complaint proceeding, the Judicial 

Conference, the Committee on Judicial Conduct and Disability, a judicial council, or a 

chief judge may authorize the disclosure of information about the consideration of the 

complaint, including orders and other materials related to the complaint proceeding, in 

the interest of assuring the public that the judiciary is acting effectively and expeditiously 

in addressing the relevant complaint proceeding.

Subsection (b)(8) also permits the authorization of disclosure of information 

about the consideration of a complaint, including the papers, documents, and transcripts 

relating to the investigation, to judicial researchers engaged in the study or evaluation of 

experience under the Act and related modes of judicial discipline. The Rule envisions 

disclosure of information from the official record of a complaint proceeding to a limited 

category of persons for appropriately authorized research purposes only, and with 

appropriate safeguards to protect individual identities in any published research results. 

In authorizing disclosure, a judicial council may refuse to release particular materials 

when such release would be contrary to the interests of justice, or when those materials

constitute purely internal communications. The Rule does not envision disclosure of 

purely internal communications between judges and their colleagues and staff.

Under Rule 23(b)(10), any of the specified judges or entities performing a 

function authorized under these Rules may seek expert or staff assistance or may 

consult with other judges who may be helpful regarding performance of that function; 

the confidentiality requirement does not preclude this. A chief judge, for example, may 

properly seek the advice and assistance of another judge who the chief judge deems to 

be in the best position to communicate with the subject judge in an attempt to bring 

about corrective action. As another example, a new chief judge may wish to confer with 

a predecessor to learn how similar complaints have been handled. In consulting with 

other judges, of course, a chief judge should disclose information regarding the 

complaint only to the extent the chief judge deems necessary under the circumstances.

Rule 23(c) provides that confidentiality as referenced in these Rules and 

Commentary is directed toward protecting the fairness and thoroughness of the process 

by which a complaint is filed or initiated, investigated (in specific circumstances), and 

ultimately resolved, as specified under these Rules. Nothing in these Rules concerning 

the confidentiality of the complaint process or the Code of Conduct for Judicial 

Employees concerning use or disclosure of confidential information received in the 

course of official duties prevents judicial employees from reporting or disclosing 

misconduct or disability.

Judges should bring such matters to the attention of the relevant chief district 

judge or chief circuit judge in accordance with Rule 4(a)(6). Judges should be mindful 

of Canon 3(B)(6) of the Code of Conduct for United States Judges, which provides in 

part that a judge “should take appropriate action upon receipt of reliable information

indicating the likelihood that a judge’s conduct contravened the Code.”
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 54

24. Public Availability of Decisions

(a) General Rule; Specific Cases. When final action has been taken on a 

complaint and it is no longer subject to review as of right, all orders 

entered by the chief judge and judicial council, including memoranda 

incorporated by reference in those orders and any dissenting 

opinions or separate statements by members of the judicial council, 

must be made public, with the following exceptions:

(1) if the complaint is finally dismissed under Rule 11(c) without 

the appointment of a special committee, or if it is concluded 

under Rule 11(d) because of voluntary corrective action, the 

publicly available materials generally should not disclose the 

name of the subject judge without his or her consent.

(2) if the complaint is concluded because of intervening events, or 

dismissed at any time after a special committee is appointed, 

the judicial council must determine whether the name of the 

subject judge should be disclosed.

(3) if the complaint is finally disposed of by a privately 

communicated censure or reprimand, the publicly available 

materials must not disclose either the name of the subject 

judge or the text of the reprimand.

(4) if the complaint is finally disposed of under Rule 20(b)(1)(D) by 

any remedial action other than private censure or reprimand, 

the text of the dispositive order must be included in the 

materials made public, and the name of the subject judge must 

be disclosed.

(5) the name of the complainant must not be disclosed in 

materials made public under this Rule unless the chief judge 

or the judicial council orders disclosure.

(b) Manner of Making Public. The orders described in (a) must be made 

public by placing the orders on the court’s public website and by 

placing them in a publicly accessible file in the office of the circuit 

clerk. If the orders appear to have precedential value, the chief judge 

may cause them to be published. In addition, the Committee on 

Judicial Conduct and Disability will make available on the judiciary’s 

website, www.uscourts.gov, selected illustrative orders described in 

paragraph (a), appropriately redacted, to provide additional 

information to the public on how complaints are addressed under the 

Act.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 55

(c) Orders of Committee on Judicial Conduct and Disability. Orders of 

the Committee on Judicial Conduct and Disability constituting final 

action in a complaint proceeding arising from a particular circuit will 

be made available to the public in the office of the circuit clerk of the 

relevant court of appeals. The Committee on Judicial Conduct and

Disability will also make such orders available on the judiciary’s 

website, www.uscourts.gov. When authorized by the Committee on 

Judicial Conduct and Disability, other orders related to complaint 

proceedings will similarly be made available.

(d) Complaints Referred to Judicial Conference. If a complaint is 

referred to the Judicial Conference under Rule 20(b)(1)(C) or 20(b)(2), 

materials relating to the complaint will be made public only if ordered 

by the Judicial Conference.

COMMENTARY ON RULE 24

Rule 24 is adapted from the Illustrative Rules and the recommendations of the 

Breyer Committee.

The Act requires the circuits to make available only written orders of a judicial 

council or the Judicial Conference imposing some form of sanction. 28 U.S.C. § 360(b). 

The Judicial Conference, however, has long recognized the desirability of public 

availability of a broader range of orders and other materials. In 1994, the Judicial 

Conference “urge[d] 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.” Report of 

the Proceedings of the Judicial Conference of the United States, Mar. 1994, at 28. 

Following this recommendation, the 2000 revision of the Illustrative Rules contained a 

public availability provision very similar to Rule 24. In 2002, the Judicial Conference 

again voted to encourage the circuits “to submit non-routine public orders disposing of 

complaints of judicial misconduct or disability for publication by on-line and print 

services.” Report of the Proceedings of the Judicial Conference of the United States, 

Sept. 2002, at 58. The Breyer Committee Report further emphasized that “[p]osting 

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.” 

Breyer Committee Report, 239 F.R.D. at 216. With these considerations in mind, Rule 

24 provides for public availability of a wide range of materials.

Rule 24 provides for public availability of orders of a chief judge, a judicial 

council, and the Committee on Judicial Conduct and Disability, as well as the texts of 

memoranda incorporated by reference in those orders, together with any dissenting 

opinions or separate statements by members of the judicial council. No memoranda 

other than those incorporated by reference in those orders shall be disclosed. 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 56

However, these orders and memoranda are to be made public only when final action on 

the complaint has been taken and any right of review has been exhausted. The 

provision that decisions will be made public only after final action has been taken is 

designed in part to avoid public disclosure of the existence of pending proceedings. 

Whether the name of the subject judge is disclosed will then depend on the nature of 

the final action. If the final action is an order predicated on a finding of misconduct or 

disability (other than a privately communicated censure or reprimand) the name of the 

subject judge must be made public. If the final action is dismissal of the complaint, the 

name of the subject judge must not be disclosed. Rule 24(a)(1) provides that where a 

proceeding is concluded under Rule 11(d) by the chief judge on the basis of voluntary 

corrective action, the name of the subject judge generally should not be disclosed, 

except where the complainant or another person has disclosed the existence of a 

complaint proceeding to the public. Shielding the name of the subject judge in this 

circumstance should encourage informal disposition. 

If a complaint is dismissed as moot, or because intervening events have made 

action on the complaint unnecessary, after appointment of a special committee, Rule 

24(a)(2) allows the judicial council to determine whether the subject judge will be 

identified. In such a case, no final decision has been rendered on the merits, but it may 

be in the public interest — particularly if a judicial officer resigns in the course of an 

investigation — to make the identity of the subject judge known.

Once a special committee has been appointed, and a proceeding is concluded 

by the full judicial council on the basis of a remedial order of the council, Rule 24(a)(4) 

provides for disclosure of the name of the subject judge.

Rule 24(a)(5) provides that the identity of the complainant will be disclosed only if 

the chief judge so orders. Identifying the complainant when the subject judge is not 

identified would increase the likelihood that the identity of the subject judge would 

become publicly known, thus circumventing the policy of nondisclosure. It may not 

always be practicable to shield the complainant’s identity while making public disclosure 

of the judicial council’s order and supporting memoranda; in some circumstances, 

moreover, the complainant may consent to public identification.

Rule 24(b) makes clear that circuits must post on their external websites all 

orders required to be made public under Rule 24(a). The judiciary will seek ways to 

make decisions on complaints filed in their courts more readily accessible to the public 

through searchable electronic indices.

Matters involving orders issued following a special-committee investigation often 

involve highly sensitive situations, and it is important that judicial councils have every 

opportunity to reach a correct and just outcome. This would include the ability to reach 

informal resolution before a subject judge’s identity must be released. But there must 

also come a point of procedural finality. The date of finality — and thus the time at 

which other safeguards and rules such as the publication requirement are triggered —
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 57

is the date on which the judicial council issues a Final Order. See In re Complaint of 

Judicial Misconduct, 751 F.3d 611, 617 (2014) (requiring publication of a judicial council 

order “[e]ven though the period for review had not yet elapsed” and concluding that “the 

order was a final decision because the Council had adjudicated the matter on the merits 

after having received a report from a special investigating committee”). As determined 

in the cited case, modifications of this kind to a final order are subject to review by the 

Committee on Judicial Conduct and Disability. 

25. Disqualification

(a) General Rule. Any judge is disqualified from participating in any 

proceeding under these Rules if the judge concludes that 

circumstances warrant disqualification. If a complaint is filed by a 

judge, that judge is disqualified from participating in any 

consideration of the complaint except to the extent that these Rules 

provide for a complainant’s participation. A chief judge who has 

identified a complaint under Rule 5 is not automatically disqualified 

from considering the complaint.

(b) Subject Judge. A subject judge, including a chief judge, is 

disqualified from considering a complaint except to the extent that 

these Rules provide for participation by a subject judge.

(c) Chief Judge Disqualified from Considering Petition for Review of 

Chief Judge’s Order. If a petition for review of the chief judge’s order 

entered under Rule 11(c), (d), or (e) is filed with the judicial council in 

accordance with Rule 18, the chief judge is disqualified from

participating in the council’s consideration of the petition.

(d) Member of Special Committee Not Disqualified. A member of the 

judicial council who serves on a special committee, including the 

chief judge, is not disqualified from participating in council

consideration of the committee’s report.

(e) Subject Judge’s Disqualification After Appointment of Special 

Committee. Upon appointment of a special committee, the subject 

judge is disqualified from participating in the identification or 

consideration of any complaint, related or unrelated to the pending 

matter, under the Act or these Rules. The disqualification continues 

until all proceedings on the complaint against the subject judge are 

finally terminated with no further right of review.

(f) Substitute for Disqualified Chief Judge. If the chief judge is 

disqualified from performing duties that the Act and these Rules 

assign to a chief judge (including where a complaint is filed against a 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 58

chief judge), those duties must be assigned to the most-senior active 

circuit judge not disqualified. If all circuit judges in regular active 

service are disqualified, the judicial council may determine whether 

to request a transfer under Rule 26, or, in the interest of sound 

judicial administration, to permit the chief judge to dispose of the 

complaint on the merits. Members of the judicial council who are 

named in the complaint may participate in this determination if 

necessary to obtain a quorum of the council.

(g) Judicial-Council Action When Multiple Judges Disqualified. 

Notwithstanding any other provision in these Rules to the contrary,

(1) a member of the judicial council who is a subject judge may 

participate in its disposition if:

(A) participation by one or more subject judges is 

necessary to obtain a quorum of the judicial council;

(B) the judicial council finds that the lack of a quorum is 

due to the naming of one or more judges in the 

complaint for the purpose of disqualifying that judge or 

those judges, or to the naming of one or more judges 

based on their participation in a decision excluded from 

the definition of misconduct under Rule 4(b); and

(C) the judicial council votes that it is necessary, 

appropriate, and in the interest of sound judicial 

administration that one or more subject judges be 

eligible to act.

(2) otherwise disqualified members may participate in votes taken 

under (g)(1)(B) and (g)(1)(C).

(h) Disqualification of Members of Committee on Judicial Conduct and 

Disability. No member of the Committee on Judicial Conduct and 

Disability is disqualified from participating in any proceeding under 

the Act or these Rules because of consultations with a chief judge, a 

member of a special committee, or a member of a judicial council 

about the interpretation or application of the Act or these Rules, 

unless the member believes that the consultation would prevent 

fair-minded participation.

COMMENTARY ON RULE 25

Rule 25 is adapted from the Illustrative Rules.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 59

Subsection (a) provides the general rule for disqualification. Of course, a judge 

is not disqualified simply because the subject judge is on the same court. However, this 

subsection recognizes that there may be cases in which an appearance of bias or 

prejudice is created by circumstances other than an association with the subject judge 

as a colleague. For example, a judge may have a familial relationship with a 

complainant or subject judge. When such circumstances exist, a judge may, in his or 

her discretion, conclude that disqualification is warranted.

Subsection (e) makes it clear that the disqualification of the subject judge relates 

only to the subject judge’s participation in any proceeding arising under the Act or these 

Rules. For example, the subject judge cannot initiate complaints by identification, 

conduct limited inquiries, or choose between dismissal and special-committee 

investigation as the threshold disposition of a complaint. Likewise, the subject judge 

cannot participate in any proceeding arising under the Act or these Rules as a member 

of any special committee, the judicial council of the circuit, the Judicial Conference, or 

the Committee on Judicial Conduct and Disability. The Illustrative Rule, based on 

Section 359(a) of the Act, is ambiguous and could be read to disqualify a subject judge 

from service of any kind on each of the bodies mentioned. This is undoubtedly not the 

intent of the Act; such a disqualification would be anomalous in light of the Act’s 

allowing a subject judge to continue to decide cases and to continue to exercise the 

powers of chief circuit or district judge. It would also create a substantial deterrence to 

the appointment of special committees, particularly where a special committee is 

needed solely because the chief judge may not decide matters of credibility in his or her 

review under Rule 11.

While a subject judge is barred by Rule 25(b) from participating in the disposition 

of the complaint in which he or she is named, Rule 25(e) recognizes that participation in 

proceedings arising under the Act or these Rules by a judge who is the subject of a 

special committee investigation may lead to an appearance of self-interest in creating 

substantive and procedural precedents governing such proceedings. Rule 25(e) bars 

such participation.

Under the Act, a complaint against the chief judge is to be handled by “that circuit 

judge in regular active service next senior in date of commission.” 28 U.S.C. § 351(c). 

Rule 25(f) provides that seniority among judges other than the chief judge is to be 

determined by date of commission, with the result that complaints against the chief 

judge may be routed to a former chief judge or other judge who was appointed earlier 

than the chief judge. The Rules do not purport to prescribe who is to preside over 

meetings of the judicial council. Consequently, where the presiding member of the 

judicial council is disqualified from participating under these Rules, the order of 

precedence prescribed by Rule 25(f) for performing “duties that the Act and these Rules 

assign to a chief judge” does not apply to determine the acting presiding member of the 

council. That is a matter left to the internal rules or operating practices of each judicial 

council. In most cases the most senior active circuit judge who is a member of the 

judicial council and who is not disqualified will preside.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 60

Sometimes a single complaint is filed against a large group of judges. If the 

normal disqualification rules are observed in such a case, no court of appeals judge can 

serve as acting chief judge of the circuit, and the judicial council will be without appellate 

members. Where the complaint is against all circuit and district judges, under normal 

rules no member of the judicial council can perform the duties assigned to the council 

under the statute.

A similar problem is created by successive complaints arising out of the same 

underlying grievance. For example, a complainant files a complaint against a district 

judge based on alleged misconduct, and the complaint is dismissed by the chief judge 

under the statute. The complainant may then file a complaint against the chief judge for 

dismissing the first complaint, and when that complaint is dismissed by the next senior 

judge, still a third complaint may be filed. The threat is that the complainant will bump 

down the seniority ladder until, once again, there is no member of the court of appeals 

who can serve as acting chief judge for the purpose of the next complaint. Similarly, 

complaints involving the merits of litigation may involve a series of decisions in which 

many judges participated or in which a rehearing en banc was denied by the court of 

appeals, and the complaint may name a majority of the judicial council as subject 

judges.

In recognition that these multiple-judge complaints are virtually always meritless, 

the judicial council is given discretion to determine: (1) whether it is necessary, 

appropriate, and in the interest of sound judicial administration to permit the chief judge 

to dispose of a complaint where it would otherwise be impossible for any active circuit 

judge in the circuit to act, and (2) whether it is necessary, appropriate, and in the 

interest of sound judicial administration, after appropriate findings as to need and 

justification are made, to permit subject judges of the judicial council to participate in the 

disposition of a petition for review where it would otherwise be impossible to obtain a 

quorum.

Applying a rule of necessity in these situations is consistent with the appearance 

of justice. See, e.g., In re Complaint of Doe, 2 F.3d 308 (8th Cir. Jud. Council 1993) 

(invoking the rule of necessity); In re Complaint of Judicial Misconduct, No. 91-80464 

(9th Cir. Jud. Council 1992) (same). There is no unfairness in permitting the chief judge 

to dispose of a patently insubstantial complaint that names all active circuit judges in the 

circuit.

Similarly, there is no unfairness in permitting subject judges, in these 

circumstances, to participate in the review of the chief judge’s dismissal of an 

insubstantial complaint. The remaining option is to assign the matter to another body. 

Among other alternatives, the judicial council may request a transfer of the petition 

under Rule 26. Given the administrative inconvenience and delay involved in these 

alternatives, it is desirable to request a transfer only if the judicial council determines 

that the petition for review is substantial enough to warrant such action.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 61

In the unlikely event that a quorum of the judicial council cannot be obtained to 

consider the report of a special committee, it would normally be necessary to request a 

transfer under Rule 26.

Rule 25(h) recognizes that the jurisdictional statement of the Committee on 

Judicial Conduct and Disability contemplates consultation between members of the 

Committee and judicial participants in proceedings under the Act and these Rules. 

Such consultation should not automatically preclude participation by a member in that 

proceeding.

26. Transfer to Another Judicial Council

In exceptional circumstances, a chief judge or a judicial council may ask the 

Chief Justice to transfer a proceeding based on a complaint identified under Rule 

5 or filed under Rule 6 to the judicial council of another circuit. The request for a 

transfer may be made at any stage of the proceeding before a reference to the 

Judicial Conference under Rule 20(b)(1)(C) or 20(b)(2) or a petition for review is 

filed under Rule 22. Upon receiving such a request, the Chief Justice may refuse 

the request or select the transferee judicial council, which may then exercise the 

powers of a judicial council under these Rules.

COMMENTARY ON RULE 26

Rule 26 implements the Breyer Committee’s recommended use of transfers. 

Breyer Committee Report, 239 F.R.D. at 214–15.

Rule 26 authorizes the transfer of a complaint proceeding to another judicial 

council selected by the Chief Justice. Such transfers may be appropriate, for example, 

in the case of a serious complaint where there are multiple disqualifications among the 

original judicial council, where the issues are highly visible and a local disposition may 

weaken public confidence in the process, where internal tensions arising in the council 

as a result of the complaint render disposition by a less involved council appropriate, or 

where a complaint calls into question policies or governance of the home court of 

appeals. The power to effect a transfer is lodged in the Chief Justice to avoid disputes 

in a judicial council over where to transfer a sensitive matter and to ensure that the 

transferee council accepts the matter.

Upon receipt of a transferred proceeding, the transferee judicial council shall 

determine the proper stage at which to begin consideration of the complaint — for 

example, reference to the transferee chief judge, appointment of a special committee, 

etc.

27. Withdrawal of Complaint or Petition for Review

(a) Complaint Pending Before Chief Judge. With the chief judge’s 

consent, the complainant may withdraw a complaint that is before 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 62

the chief judge for a decision under Rule 11. The withdrawal of a 

complaint will not prevent the chief judge from identifying or having 

to identify a complaint under Rule 5 based on the withdrawn 

complaint.

(b) Complaint Pending Before Special Committee or Judicial Council. 

After a complaint has been referred to the special committee for 

investigation and before the committee files its report, the 

complainant may withdraw the complaint only with the consent of 

both the subject judge and either the special committee or the 

judicial council.

(c) Petition for Review. A petition for review addressed to the judicial 

council under Rule 18, or the Committee on Judicial Conduct and 

Disability under Rule 22, may be withdrawn if no action on the 

petition has been taken.

COMMENTARY ON RULE 27

Rule 27 is adapted from the Illustrative Rules and treats the complaint 

proceeding, once begun, as a matter of public business rather than as the property of 

the complainant. Accordingly, the chief judge or the judicial council remains responsible 

for addressing any complaint under the Act, even a complaint that has been formally 

withdrawn by the complainant.

Under subsection (a), a complaint pending before the chief judge may be 

withdrawn if the chief judge consents. Where the complaint clearly lacked merit, the 

chief judge may accordingly be saved the burden of preparing a formal order and 

supporting memorandum. However, the chief judge may, or be obligated under Rule 5, 

to identify a complaint based on allegations in a withdrawn complaint.

If the chief judge appoints a special committee, Rule 27(b) provides that the 

complaint may be withdrawn only with the consent of both the body before which it is 

pending (the special committee or the judicial council) and the subject judge. Once a 

complaint has reached the stage of appointment of a special committee, a resolution of 

the issues may be necessary to preserve public confidence. Moreover, the subject 

judge is given the right to insist that the matter be resolved on the merits, thereby 

eliminating any ambiguity that might remain if the proceeding were terminated by 

withdrawal of the complaint.

With regard to all petitions for review, Rule 27(c) grants the petitioner unrestricted 

authority to withdraw the petition. It is thought that the public’s interest in the 

proceeding is adequately protected, because there will necessarily have been a 

decision by the chief judge and often by the judicial council as well in such a case.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 63

28. Availability of Rules and Forms

These Rules and copies of the complaint form as provided in Rule 6(a) must be 

available without charge in the office of the circuit clerk of each court of appeals, 

district court, bankruptcy court, or other federal court whose judges are subject 

to the Act. Each court must also make these Rules, the complaint form, and 

complaint-filing instructions available on the court’s website, or provide an 

Internet link to these items on the appropriate court of appeals website or on 

www.uscourts.gov. 

29. Effective Date

These Rules will become effective after promulgation by the Judicial Conference 

of the United States.

Appendix to the Rules: Form AO 310 (Complaint of Judicial Misconduct or 

Disability)