107TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 107–459

JUDICIAL IMPROVEMENTS ACT OF 2002

MAY 14, 2002.—Committed to the Committee of the Whole House on the State of

the Union and ordered to be printed

Mr. SENSENBRENNER, from the Committee on the Judiciary,

submitted the following

R E P O R T

[To accompany H.R. 3892]

[Including cost estimate of the Congressional Budget Office]

The Committee on the Judiciary, to whom was referred the bill

(H.R. 3892) to amend title 28, United States Code, to make certain

modifications in the judicial discipline procedures, and for other

purposes, having considered the same, reports favorably thereon

with an amendment and recommends that the bill as amended do

pass.

CONTENTS

Page

The Amendment ...................................................................................................... 1

Purpose and Summary ............................................................................................ 7

Background and Need for the Legislation ............................................................. 7

Hearings ................................................................................................................... 8

Committee Consideration ........................................................................................ 9

Vote of the Committee ............................................................................................. 9

Committee Oversight Findings ............................................................................... 9

Performance Goals and Objectives ......................................................................... 9

New Budget Authority and Tax Expenditures ...................................................... 10

Congressional Budget Office Cost Estimate .......................................................... 10

Constitutional Authority Statement ...................................................................... 11

Section-by-Section Analysis and Discussion .......................................................... 11

Changes in Existing Law Made by the Bill, as Reported ..................................... 20

Markup Transcript .................................................................................................. 36

The amendment is as follows:

Strike all after the enacting clause and insert the following:

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Judicial Improvements Act of 2002’’.

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SEC. 2. JUDICIAL DISCIPLINE PROCEDURES.

(a) IN GENERAL.—Part I of title 28, United States Code, is amended by inserting

after chapter 15 the following new chapter:

‘‘CHAPTER 16—COMPLAINTS AGAINST JUDGES AND JUDICIAL

DISCIPLINE

‘‘Sec.

‘‘351. Complaints; judge defined.

‘‘352. Review of complaint by chief judge.

‘‘353. Special committees.

‘‘354. Action by judicial council.

‘‘355. Action by Judicial Conference.

‘‘356. Subpoena power.

‘‘357. Review of orders and actions.

‘‘358. Rules.

‘‘359. Restrictions.

‘‘360. Disclosure of information.

‘‘361. Reimbursement of expenses.

‘‘362. Other provisions and rules not affected.

‘‘363. Court of Federal Claims, Court of International Trade, Court of Appeals for the Federal Circuit.

‘‘364. Effect of felony conviction.

‘‘§ 351. Complaints; judge defined

‘‘(a) FILING OF COMPLAINT BY ANY PERSON.—Any person alleging that a judge

has engaged in conduct prejudicial to the effective and expeditious administration

of the business of the courts, or alleging that such judge is unable to discharge all

the duties of office by reason of mental or physical disability, may file with the clerk

of the court of appeals for the circuit a written complaint containing a brief statement of the facts constituting such conduct.

‘‘(b) IDENTIFYING COMPLAINT BY CHIEF JUDGE.—In the interests of the effective

and expeditious administration of the business of the courts and on the basis of information available to the chief judge of the circuit, the chief judge may, by written

order stating reasons therefor, identify a complaint for purposes of this chapter and

thereby dispense with filing of a written complaint.

‘‘(c) TRANSMITTAL OF COMPLAINT.—Upon receipt of a complaint filed under subsection (a), the clerk shall promptly transmit the complaint to the chief judge of the

circuit, or, if the conduct complained of is that of the chief judge, to that circuit

judge in regular active service next senior in date of commission (hereafter, for purposes of this chapter only, included in the term ‘chief judge’). The clerk shall simultaneously transmit a copy of the complaint to the judge whose conduct is the subject

of the complaint. The clerk shall also transmit a copy of any complaint identified

under subsection (b) to the judge whose conduct is the subject of the complaint.

‘‘(d) DEFINITIONS.—In this chapter—

‘‘(1) the term ‘judge’ means a circuit judge, district judge, bankruptcy judge,

or magistrate judge; and

‘‘(2) the term ‘complainant’ means the person filing a complaint under subsection (a) of this section.

‘‘§ 352. Review of complaint by chief judge

‘‘(a) EXPEDITIOUS REVIEW; LIMITED INQUIRY.—The chief judge shall expeditiously review any complaint received under section 351(a) or identified under section 351(b). In determining what action to take, the chief judge may conduct a limited inquiry for the purpose of determining—

‘‘(1) whether appropriate corrective action has been or can be taken without

the necessity for a formal investigation; and

‘‘(2) whether the facts stated in the complaint are either plainly untrue or

are incapable of being established through investigation.

For this purpose, the chief judge may request the judge whose conduct is complained of to file a written response to the complaint. Such response shall not be

made available to the complainant unless authorized by the judge filing the response. The chief judge or his or her designee may also communicate orally or in

writing with the complainant, the judge whose conduct is complained of, and any

other person who may have knowledge of the matter, and may review any transcripts or other relevant documents. The chief judge shall not undertake to make

findings of fact about any matter that is reasonably in dispute.

‘‘(b) ACTION BY CHIEF JUDGE FOLLOWING REVIEW.—After expeditiously reviewing a complaint under subsection (a), the chief judge, by written order stating his

or her reasons, may—

‘‘(1) dismiss the complaint—

‘‘(A) if the chief judge finds the complaint to be—

‘‘(i) not in conformity with section 351(a);

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‘‘(ii) directly related to the merits of a decision or procedural ruling; or ‘‘(iii) frivolous, lacking sufficient evidence to raise an inference that

misconduct has occurred, or containing allegations which are incapable

of being established through investigation; or

‘‘(B) when a limited inquiry conducted under subsection (a) demonstrates that the allegations in the complaint lack any factual foundation

or are conclusively refuted by objective evidence; or

‘‘(2) conclude the proceeding if the chief judge finds that appropriate corrective action has been taken or that action on the complaint is no longer necessary because of intervening events.

The chief judge shall transmit copies of the written order to the complainant and

to the judge whose conduct is the subject of the complaint. ‘‘(c) REVIEW OF ORDERS OF CHIEF JUDGE.—A complainant or judge aggrieved by

a final order of the chief judge under this section may petition the judicial council

of the circuit for review thereof. The denial of a petition for review of the chief

judge’s order shall be final and conclusive and shall not be judicially reviewable on

appeal or otherwise. ‘‘(d) REFERRAL OF PETITIONS FOR REVIEW TO PANELS OF THE JUDICIAL COUN- CIL.—Each judicial council may, pursuant to rules prescribed under section 358,

refer a petition for review filed under subsection (c) to a panel of no fewer than 5

members of the council, at least 2 of whom shall be district judges.

‘‘§ 353. Special committees

‘‘(a) APPOINTMENT.—If the chief judge does not enter an order under section

352(b), the chief judge shall promptly— ‘‘(1) appoint himself or herself and equal numbers of circuit and district

judges of the circuit to a special committee to investigate the facts and allegations contained in the complaint; ‘‘(2) certify the complaint and any other documents pertaining thereto to

each member of such committee; and ‘‘(3) provide written notice to the complainant and the judge whose conduct

is the subject of the complaint of the action taken under this subsection.

‘‘(b) CHANGE IN STATUS OR DEATH OF JUDGES.—A judge appointed to a special

committee under subsection (a) may continue to serve on that committee after becoming a senior judge or, in the case of the chief judge of the circuit, after his or

her term as chief judge terminates under subsection (a)(3) or (c) of section 45. If

a judge appointed to a committee under subsection (a) dies, or retires from office

under section 371(a), while serving on the committee, the chief judge of the circuit

may appoint another circuit or district judge, as the case may be, to the committee. ‘‘(c) INVESTIGATION BY SPECIAL COMMITTEE.—Each committee appointed under

subsection (a) shall conduct an investigation as extensive as it considers necessary,

and shall expeditiously file a comprehensive written report thereon with the judicial

council of the circuit. Such report shall present both the findings of the investigation

and the committee’s recommendations for necessary and appropriate action by the

judicial council of the circuit.

‘‘§ 354. Action by judicial council

‘‘(a) ACTIONS UPON RECEIPT OF REPORT.— ‘‘(1) ACTIONS.—The judicial council of a circuit, upon receipt of a report filed

under section 353(c)— ‘‘(A) may conduct any additional investigation which it considers to be

necessary; ‘‘(B) may dismiss the complaint; and

‘‘(C) if the complaint is not dismissed, shall take such action as is appropriate to assure the effective and expeditious administration of the business of the courts within the circuit.

‘‘(2) DESCRIPTION OF POSSIBLE ACTIONS IF COMPLAINT NOT DISMISSED.— ‘‘(A) IN GENERAL.—Action by the judicial council under paragraph (1)(C)

may include— ‘‘(i) ordering that, on a temporary basis for a time certain, no further cases be assigned to the judge whose conduct is the subject of a

complaint;

‘‘(ii) censuring or reprimanding such judge by means of private

communication; and

‘‘(iii) censuring or reprimanding such judge by means of public announcement.

‘‘(B) FOR ARTICLE III JUDGES.—If the conduct of a judge appointed to

hold office during good behavior is the subject of the complaint, action by

the judicial council under paragraph (1)(C) may include—

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‘‘(i) certifying disability of the judge pursuant to the procedures and

standards provided under section 372(b); and

‘‘(ii) requesting that the judge voluntarily retire, with the provision

that the length of service requirements under section 371 of this title

shall not apply.

‘‘(C) FOR MAGISTRATE JUDGES.—If the conduct of a magistrate judge is

the subject of the complaint, action by the judicial council under paragraph

(1)(C) may include directing the chief judge of the district of the magistrate

judge to take such action as the judicial council considers appropriate.

‘‘(3) LIMITATIONS ON JUDICIAL COUNCIL REGARDING REMOVALS.—

‘‘(A) ARTICLE III JUDGES.—Under no circumstances may the judicial

council order removal from office of any judge appointed to hold office during good behavior.

‘‘(B) MAGISTRATE AND BANKRUPTCY JUDGES.—Any removal of a magistrate judge under this subsection shall be in accordance with section 631

and any removal of a bankruptcy judge shall be in accordance with section

152.

‘‘(4) NOTICE OF ACTION TO JUDGE.—The judicial council shall immediately

provide written notice to the complainant and to the judge whose conduct is the

subject of the complaint of the action taken under this subsection.

‘‘(b) REFERRAL TO JUDICIAL CONFERENCE.—

‘‘(1) IN GENERAL.—In addition to the authority granted under subsection (a),

the judicial council may, in its discretion, refer any complaint under section 351,

together with the record of any associated proceedings and its recommendations

for appropriate action, to the Judicial Conference of the United States.

‘‘(2) SPECIAL CIRCUMSTANCES.—In any case in which the judicial council determines, on the basis of a complaint and an investigation under this chapter,

or on the basis of information otherwise available to the judicial council, that

a judge appointed to hold office during good behavior may have engaged in

conduct—

‘‘(A) which might constitute one or more grounds for impeachment

under article II of the Constitution, or

‘‘(B) which, in the interest of justice, is not amenable to resolution by

the judicial council,

the judicial council shall promptly certify such determination, together with any

complaint and a record of any associated proceedings, to the Judicial Conference

of the United States.

‘‘(3) NOTICE TO COMPLAINANT AND JUDGE.—A judicial council acting under

authority of this subsection shall, unless contrary to the interests of justice, immediately submit written notice to the complainant and to the judge whose conduct is the subject of the action taken under this subsection.

‘‘§ 355. Action by Judicial Conference

‘‘(a) IN GENERAL.—Upon referral or certification of any matter under section

354(b), the Judicial Conference, after consideration of the prior proceedings and

such additional investigation as it considers appropriate, shall by majority vote take

such action, as described in section 354(a)(1)(C) and (2), as it considers appropriate.

‘‘(b) IF IMPEACHMENT WARRANTED.—

‘‘(1) IN GENERAL.—If the Judicial Conference concurs in the determination

of the judicial council, or makes its own determination, that consideration of impeachment may be warranted, it shall so certify and transmit the determination

and the record of proceedings to the House of Representatives for whatever action the House of Representatives considers to be necessary. Upon receipt of the

determination and record of proceedings in the House of Representatives, the

Clerk of the House of Representatives shall make available to the public the

determination and any reasons for the determination.

‘‘(2) IN CASE OF FELONY CONVICTION.—If a judge has been convicted of a felony under State or Federal law and has exhausted all means of obtaining direct

review of the conviction, or the time for seeking further direct review of the conviction has passed and no such review has been sought, the Judicial Conference

may, by majority vote and without referral or certification under section 354(b),

transmit to the House of Representatives a determination that consideration of

impeachment may be warranted, together with appropriate court records, for

whatever action the House of Representatives considers to be necessary.

‘‘§ 356. Subpoena power

‘‘(a) JUDICIAL COUNCILS AND SPECIAL COMMITTEES.—In conducting any investigation under this chapter, the judicial council, or a special committee appointed

under section 353, shall have full subpoena powers as provided in section 332(d).

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‘‘(b) JUDICIAL CONFERENCE AND STANDING COMMITTEES.—In conducting any investigation under this chapter, the Judicial Conference, or a standing committee appointed by the Chief Justice under section 331, shall have full subpoena powers as

provided in that section.

‘‘§ 357. Review of orders and actions

‘‘(a) REVIEW OF ACTION OF JUDICIAL COUNCIL.—A complainant or judge aggrieved by an action of the judicial council under section 354 may petition the Judicial Conference of the United States for review thereof. ‘‘(b) ACTION OF JUDICIAL CONFERENCE.—The Judicial Conference, or the standing committee established under section 331, may grant a petition filed by a complainant or judge under subsection (a). ‘‘(c) NO JUDICIAL REVIEW.—Except as expressly provided in this section and section 352(c), all orders and determinations, including denials of petitions for review,

shall be final and conclusive and shall not be judicially reviewable on appeal or otherwise.

‘‘§ 358. Rules

‘‘(a) IN GENERAL.—Each judicial council and the Judicial Conference may prescribe such rules for the conduct of proceedings under this chapter, including the

processing of petitions for review, as each considers to be appropriate. ‘‘(b) REQUIRED PROVISIONS.—Rules prescribed under subsection (a) shall contain

provisions requiring that—

‘‘(1) adequate prior notice of any investigation be given in writing to the

judge whose conduct is the subject of a complaint under this chapter;

‘‘(2) the judge whose conduct is the subject of a complaint under this chapter be afforded an opportunity to appear (in person or by counsel) at proceedings

conducted by the investigating panel, to present oral and documentary evidence,

to compel the attendance of witnesses or the production of documents, to crossexamine witnesses, and to present argument orally or in writing; and

‘‘(3) the complainant be afforded an opportunity to appear at proceedings

conducted by the investigating panel, if the panel concludes that the complainant could offer substantial information.

‘‘(c) PROCEDURES.—Any rule prescribed under this section shall be made or

amended only after giving appropriate public notice and an opportunity for comment. Any such rule shall be a matter of public record, and any such rule promulgated by a judicial council may be modified by the Judicial Conference. No rule promulgated under this section may limit the period of time within which a person may

file a complaint under this chapter.

‘‘§ 359. Restrictions

‘‘(a) RESTRICTION ON INDIVIDUALS WHO ARE SUBJECT OF INVESTIGATION.—No

judge whose conduct is the subject of an investigation under this chapter shall serve

upon a special committee appointed under section 353, upon a judicial council, upon

the Judicial Conference, or upon the standing committee established under section

331, until all proceedings under this chapter relating to such investigation have

been finally terminated.

‘‘(b) AMICUS CURIAE.—No person shall be granted the right to intervene or to

appear as amicus curiae in any proceeding before a judicial council or the Judicial

Conference under this chapter.

‘‘§ 360. Disclosure of information

‘‘(a) CONFIDENTIALITY OF PROCEEDINGS.—Except as provided in section 355, all

papers, documents, and records of proceedings related to investigations conducted

under this chapter shall be confidential and shall not be disclosed by any person

in any proceeding except to the extent that—

‘‘(1) the judicial council of the circuit in its discretion releases a copy of a

report of a special committee under section 353(c) to the complainant whose

complaint initiated the investigation by that special committee and to the judge

whose conduct is the subject of the complaint;

‘‘(2) the judicial council of the circuit, the Judicial Conference of the United

States, or the Senate or the House of Representatives by resolution, releases

any such material which is believed necessary to an impeachment investigation

or trial of a judge under article I of the Constitution; or

‘‘(3) such disclosure is authorized in writing by the judge who is the subject

of the complaint and by the chief judge of the circuit, the Chief Justice, or the

chairman of the standing committee established under section 331.

‘‘(b) PUBLIC AVAILABILITY OF WRITTEN ORDERS.—Each written order to implement any action under section 354(a)(1)(C), which is issued by a judicial council, the

Judicial Conference, or the standing committee established under section 331, shall

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be made available to the public through the appropriate clerk’s office of the court

of appeals for the circuit. Unless contrary to the interests of justice, each such order

shall be accompanied by written reasons therefor.

‘‘§ 361. Reimbursement of expenses

‘‘Upon the request of a judge whose conduct is the subject of a complaint under

this chapter, the judicial council may, if the complaint has been finally dismissed

under section 354(a)(1)(B), recommend that the Director of the Administrative Office

of the United States Courts award reimbursement, from funds appropriated to the

Federal judiciary, for those reasonable expenses, including attorneys’ fees, incurred

by that judge during the investigation which would not have been incurred but for

the requirements of this chapter.

‘‘§ 362. Other provisions and rules not affected

‘‘Except as expressly provided in this chapter, nothing in this chapter shall be

construed to affect any other provision of this title, the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, the Federal Rules of Appellate Procedure, or the Federal Rules of Evidence.

‘‘§ 363. Court of Federal Claims, Court of International Trade, Court of Appeals for the Federal Circuit

‘‘The United States Court of Federal Claims, the Court of International Trade,

and the Court of Appeals for the Federal Circuit shall each prescribe rules, consistent with the provisions of this chapter, establishing procedures for the filing of

complaints with respect to the conduct of any judge of such court and for the investigation and resolution of such complaints. In investigating and taking action with

respect to any such complaint, each such court shall have the powers granted to a

judicial council under this chapter.

‘‘§ 364. Effect of felony conviction

‘‘In the case of any judge or judge of a court referred to in section 363 who is

convicted of a felony under State or Federal law and has exhausted all means of

obtaining direct review of the conviction, or the time for seeking further direct review of the conviction has passed and no such review has been sought, that judge

shall not hear cases unless the judicial council of the circuit (or, in the case of a

judge of a court referred to in section 363, that court) determines otherwise.’’.

(b) CONFORMING AMENDMENT.—The table of chapters for part I of title 28,

United States Code, is amended by inserting after the item relating to chapter 15

the following new item:

‘‘16. Complaints against judges and judicial discipline ........................................................................... 351’’.

SEC. 3. TECHNICAL AMENDMENTS.

(a) RETIREMENT FOR DISABILITY.—(1) Section 372 of title 28, United States

Code, is amended—

(A) in the section caption by striking ‘‘; judicial discipline’’; and

(B) by striking subsection (c).

(2) The item relating to section 372 in the table of sections for chapter 17 of

title 28, United States Code, is amended by striking ‘‘; judicial discipline’’.

(b) JUDICIAL CONFERENCE.—Section 331 of title 28, United States Code, is

amended in the fourth undesignated paragraph by striking ‘‘section 372(c)’’ each

place it appears and inserting ‘‘chapter 16’’.

(c) JUDICIAL COUNCILS.—Section 332 of title 28, United States Code, is

amended—

(1) in subsection (d)(2)—

(A) by striking ‘‘section 372(c) of this title’’ and inserting ‘‘chapter 16

of this title’’; and

(B) by striking ‘‘372(c)(4)’’ and inserting ‘‘353’’; and

(2) by striking the second subsection designated as subsection (h).

(d) RECALL OF BANKRUPTCY JUDGES AND MAGISTRATE JUDGES.—Section 375(d)

of title 28, United States Code, is amended by striking ‘‘section 372(c)’’ and inserting

‘‘chapter 16’’.

(e) DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS.—

Section 604 of title 28, United States Code, is amended—

(1) in subsection (a)(20)—

(A) in subparagraph (B), by striking ‘‘372(c)(11)’’ and inserting ‘‘358’’;

and

(B) in subparagraph (C), by striking ‘‘372(c)(15)’’ and inserting ‘‘360(b)’’;

and

(2) in subsection (h)—

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1 28 U.S.C. § 372(c). 2Operations of Federal Judicial Misconduct Statutes: Hearings Before the Subcomm. On

Courts, the Internet, and Intellectual Property of the House Comm. on the Judiciary, 107th

Cong., 1st Sess. [hereinafter ‘‘Subcommittee Hearing’’] 56, 58 (testimony of Michael J. Remington).

(A) in paragraph (1), by striking ‘‘section 372’’ each place it appears and

inserting ‘‘chapter 16’’; and

(B) in paragraph (2), by striking ‘‘section 372(c)’’ and inserting ‘‘chapter

16’’.

(f) COURT OF APPEALS FOR VETERANS CLAIMS.—Section 7253(g) of title 38,

United States Code, is amended—

(1) in paragraph (1)—

(A) by striking ‘‘section 372(c)’’ and inserting ‘‘chapter 16’’; and

(B) by striking ‘‘such section’’ and inserting ‘‘such chapter’’;

(2) in paragraph (2)—

(A) in the first sentence, by striking ‘‘paragraphs (7) through (15) of

section 372(c)’’ and inserting ‘‘sections 354(b) through 360’’; and

(B) in the second sentence, by striking ‘‘paragraph (7) or (8) of section

372(c)’’ and inserting ‘‘section 354(b) or 355’’; and

(3) in paragraph (3)(B), by striking ‘‘372(c)(16)’’ and inserting ‘‘361’’.

PURPOSE AND SUMMARY

The purpose of H.R. 3892, the ‘‘Judicial Improvements Act of

2002,’’ is to reorganize and clarify the existing statutory mechanism that allows individuals to file complaints against Article III

judges. These reforms will offer more guidance to circuit chief

judges when evaluating individual complaints, while providing individuals with more insight as to the disposition of their cases. The

overall reorganization will make the process of learning about and

filing a complaint more user-friendly.

BACKGROUND AND NEED FOR THE LEGISLATION

The statutory mechanism by which citizens may register complaints against sitting Federal judges is the ‘‘Judicial Councils Reform and Judicial Conduct and Disability Act of 1980’’ (the ‘‘Act’’

or the ‘‘1980 Act’’).1 One of the contributors to the development and

implementation of the Act observed that

[it] was the product of extensive dialogues between the legislative and judicial branches of government. Congress

made it . . . evident to the judiciary that there be in place

a formal and credible supplement to the impeachment

process for resolving complaints of misconduct or disability

brought against Federal judges, while the judiciary revealed to Congress its concern that any such system not

prove to be a cure worse than the disease. . . . The 1980

Act recognized that judicial independence and public accountability are not mutually exclusive. [It] satisfied the

constitutional parameters by asking the judiciary to selfregulate and by reserving removal authority to the House

and Senate. The Act establishes procedures and mechanisms within the judicial branch to consider and respond

to complaints against judges. Most complaints are handled

initially by the chief judges of the circuits and then by the

judicial councils of the circuits, but when impeachable offenses are identified, the councils and the Judicial Conference are empowered to refer the matter directly to the

Congress.2

8

3See REPORT OF THE NATIONAL COMMISSION ON JUDICIAL DISCIPLINE AND REMOVAL (August

1993), and Jeffrey N. Barr & Thomas E. Willgang, Decentralized Self-Regulation, Accountability,

and Judicial Independence Under the Federal Judicial Conduct and Disability of 1980, 142 U.

Pa. L. Rev. (1993). 4See especially Subcommittee Hearing 39–52 (testimony of Arthur D. Hellman, Professor of

Law and Distinguished Faculty Scholar, University of Pittsburgh School of Law). 5 28 U.S.C. § 372(c).

The Act and its self-regulatory construct, for the most part, have

been generally well-received over the past 22 years by Congress,

the Judiciary, and legal critics. At the same time, and not surprisingly, it has also inspired a body of scholarly critique and evaluation 3 which has identified select provisions within the statute that

could be improved upon to ensure that legitimate complaints are

more thoroughly evaluated without diminishing the independence

of the Judiciary.

Given that Congress has not thoroughly evaluated the operations

of the Act in more than a decade, and mindful of its oversight responsibilities under House rules and the U.S. Constitution, the

Subcommittee on Courts, the Internet, and Intellectual Property

conducted a November 29, 2001, hearing on the judicial misconduct

statutes. In the wake of the hearing and based on testimony 4 received at that time, the Committee now finds that the following

provisions within the Act should be revised:

1. The Act should be reorganized as a separate chapter within

title 28 of the U.S. Code so as to publicize its existence and

to facilitate its use.

2. The power of a circuit chief judge to conduct a ‘‘limited inquiry’’ should be defined more clearly, both for the benefit

of the chief judge in articulating reasons for disposing of a

case and for a complainant who wishes to understand such

a disposition.

3. The concept of dismissing a case for ‘‘frivolousness’’ should

be expanded upon for the same reason.

4. A judicial council should be given the explicit authority to

refer a complaint to a five-member panel for greater scrutiny.

In sum, the Committee finds that the Act functions well but

could function better. These changes, if implemented pursuant to

enactment of H.R. 3892, will respond to the needs of chief judges,

judicial councils, and the Judicial Conference in understanding

their obligations under the Act. This legislation also addresses the

concerns of complainants and the American public who must have

confidence that the application of the Act is premised on fairness

and accessibility.

HEARINGS

The Subcommittee on Courts, the Internet, and Intellectual Property conducted an oversight hearing on the Operation of Federal

Judicial Misconduct Statutes 5 and Recusal Statutes on November

29, 2001. Four witnesses testified at the hearing: Michael J. Remington, a private attorney who worked for the 1993 National Commission on Judicial Discipline and Removal; Arthur Hellman, Professor at the University of Pittsburgh School of Law; Douglas T.

Kendall, Executive Director of Community Rights Counsel, a citiVerDate 11-MAY-2000 22:44 May 14, 2002 Jkt 099006 PO 00000 Frm 00008 Fmt 6659 Sfmt 6601 E:\HR\NSET\HR459.XXX pfrm01 PsN: HR459
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zens advocacy group; and Judge William L. Osteen, U.S. district

judge for the middle district of North Carolina.

COMMITTEE CONSIDERATION

On March 20, 2002, the Subcommittee on Courts, the Internet,

and Intellectual Property met in open session and ordered favorably reported the bill H.R. 3892 with a single amendment in the

nature of a substitute, by voice vote, a quorum being present. On

April 24, 2002, the Committee met in open session and ordered favorably reported the bill H.R. 3892 with a single amendment in the

nature of a substitute, a quorum being present.

VOTE OF THE COMMITTEE

There were no recorded votes on H.R. 3892.

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of rule XIII of the Rules of the

House of Representatives, the Committee reports that the findings

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report.

PERFORMANCE GOALS AND OBJECTIVES

The general consensus among Members of the Subcommittee and

the witnesses who testified at the oversight hearing on the operations of the judicial misconduct statutes is that the Federal judiciary is held in high esteem by Congress and the American public.

In proposing a basic reorganization of and other amendments to 28

U.S.C. § 372(c), the Committee believes that the Federal Judiciary

will be better positioned to accomplish two primary goals or objectives.

First, the responsibilities of a chief judge in evaluating the merits of a complaint will be more clearly defined, especially when a

decision is made to dismiss a complaint. In conjunction with new

statutory authority for a judicial council to refer a complaint to a

five-member panel, the Federal Judiciary will be empowered to

make dispositive decisions that are more fully informed and articulated. This will not only assist a chief judge or judicial council with

their responsibilities, but will also enable a complainant to understand more fully the reasoning behind the disposition of a petition.

The goal, therefore, is to instill greater public confidence in this

self-regulatory system by enabling judges to offer greater explicitness in rendering decisions.

Second, the basic reorganization of 28 U.S.C. § 372(c)—by codifying it as a new chapter in title 28 of the Code—not only elevates

the statute to a more deserved and appropriate level of importance,

it spotlights its very existence. If for no other reason, this change

will assist the Congress and the Federal Judiciary in attaining a

second goal or objective: to publicize the existence of a statutory

mechanism that allows individuals to register and pursue meritorious complaints against sitting judges. This is a highly worthwhile goal, because it evinces a willingness on the part of the judiVerDate 11-MAY-2000 22:44 May 14, 2002 Jkt 099006 PO 00000 Frm 00009 Fmt 6659 Sfmt 6601 E:\HR\NSET\HR459.XXX pfrm01 PsN: HR459
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7Letter from the Honorable Howard Coble, Chairman, and the Honorable Howard L. Berman,

Ranking Member, the Subcommittee on Courts, the Internet, and Intellectual Property of the

House Committee on the Judiciary [hereinafter ‘‘Chairman Coble and Ranking Member Ber- man’’], to the Honorable William H. Rehnquist, Chief Justice, United States Supreme Court

(February 27, 2002). (Reprinted on page 16). 8Letter from Chairman Coble and Ranking Member Berman to the Honorable Fern M. Smith,

Director, the Federal Judicial Center (January 29, 2002). (Reprinted on page 19).

ciary to develop an even more open and honest relationship with

the public, thereby enhancing public regard for Federal judges in

their professional capacities as public servants.

The Committee also notes that the Chairman of the Subcommittee on Courts, the Internet, and Intellectual Property, Representative Coble, and the Ranking Subcommittee Member, Representative Berman, sent a letter to the Chief Justice 7 regarding

additional reforms that the Judicial Conference might wish to pursue in its efforts to increase public confidence in the ethical stature

of its members. These suggestions include the development of links

to the rules and forms governing judicial complaint procedures on

every Federal court’s web site; the posting of ‘‘conflict lists’’ on

these same web sites for recusal purposes; and renewing a commitment to the timely and thorough filing of financial disclosure

forms. These reforms will help the Judiciary to meet the goals or

objectives previously mentioned.

Finally, Chairman Coble and Ranking Member Berman have

written to the Federal Judicial Center,8 requesting an update on

the disposition of cases under the Act. It is hoped that the information provided by the Center will help the Committee to understand

if the relevant dispositions lack sufficient explanation as to their

outcome, and what percentage of the dispositions are directly related to the merits of a decision or procedural ruling. The Center’s

response will better inform the Committee’s understanding of the

operation of the Act and the Judiciary as to its obligations under

it.

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of House rule XIII is inapplicable because this legislation does not provide new budgetary authority or increased tax

expenditures.

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with clause 3(c)(3) of rule XIII of the Rules of the

House of Representatives, the Committee sets forth, with respect to

the bill, H.R. 3892, the following estimate and comparison prepared

by the Director of the Congressional Budget Office under section

402 of the Congressional Budget Act of 1974.

U.S. CONGRESS,

CONGRESSIONAL BUDGET OFFICE,

Washington, DC, May 7, 2002.

Hon. F. JAMES SENSENBRENNER, Jr., Chairman,

Committee on the Judiciary,

House of Representatives, Washington, DC.

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 3892, the Judicial Improvements Act of 2002.

11

If you wish further details on this estimate, we will be pleased

to provide them. The CBO staff contact is Lanette J. Walker, who

can be reached at 226–2860.

Sincerely,

DAN L. CRIPPEN, Director.

Enclosure

cc: Honorable John Conyers, Jr.

Ranking Member

H.R. 3892—Judicial Improvements Act of 2002.

H.R. 3892 would establish a new chapter in the Federal judicial

code regarding complaints against judges and disciplinary procedures. Based on information from the Administrative Office of the

United States Courts, CBO estimates that enacting the bill would

have no impact on the budget of the courts because similar procedures are followed under current law. Because enacting H.R. 3892

would not affect direct spending or receipts, pay-as-you- go procedures would not apply to the bill.

H.R. 3892 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would

impose no costs on State, local, or tribal governments.

The CBO staff contact for this estimate is Lanette J. Walker,

who can be reached at 226–2860. This estimate was approved by

Peter H. Fontaine, Deputy Assistant Director for Budget Analysis.

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House

of Representatives, the Committee finds the authority for this legislation in article III, section 1 of the Constitution.

SECTION-BY-SECTION ANALYSIS AND DISCUSSION

Section 1. Short Title. The short title of H.R. 3892 is the ‘‘Judicial

Improvements Act of 2002.’’

Section 2. Judicial Discipline Procedures. Section 2 reorganizes

the current ‘‘Judicial Conduct and Disability Act of 1980’’ by creating a new chapter (16) in Part 1 of title 28 to address the issue

of judicial complaints and misconduct. Given the importance of providing citizens a mechanism by which they may question judicial

conduct, the statute should not be buried in a subsection of the

code. The reorganization is easier to follow and easier to find. (The

November 29, 2001, hearing on the matter revealed that judicial

complaint procedures are under-publicized, to the public detriment.) Changes to the text of the current statute are, for the most

part, few in number, and either clarifying or technical in nature.

More specifically, section 2 creates the following new sections of

new chapter 16 of title 28 of the U.S. Code:

New Section 351. Complaints; judges defined. Any person who believes a judge has indulged in conduct ‘‘prejudicial’’ to the business

of the courts, or who alleges that a judge cannot discharge the duties of office based on a mental or physical disability, may file a

written complaint with the clerk of court for the circuit in which

the judge presides. The clerk then transfers the complaint to the

12

chief judge of the circuit for disposition, or if the chief judge is the

subject of the complaint, to the circuit judge next most senior.

Circuit, district, bankruptcy, and magistrate judges are explicitly

covered by the statute.

This new section clarifies that bankruptcy judges are covered,

consistent with original intent of current statute.

New Section 352. Review of complaint by chief judge. The chief

judge shall review a complaint upon receipt, and may conduct a

‘‘limited inquiry’’ to determine: (1) whether ‘‘appropriate corrective

action’’ has been taken or may be taken, thereby obviating the need

for a formal investigation; and (2) whether the facts stated in the

complaint are plainly untrue or are incapable of being established

through investigation.

The chief judge is empowered to request a written response from

the judge who is the subject of the complaint, and also to communicate with the complainant and anyone else who has knowledge

of the matter. The chief judge may not undertake fact findings

about any matter that is ‘‘reasonably in dispute.’’

The chief judge may dismiss a complaint, by written order stating the reasons why, if the complaint is filed inconsistent with the

requirements of new § 351; is directly related to the merits of a decision or ruling; or is frivolous, lacks sufficient evidence to raise an

inference that misconduct has occurred, or contains allegations

which are incapable of being established through investigation. In

addition, the chief judge may dismiss a complaint when a limited

inquiry demonstrates that the allegations ‘‘lack any factual foundation or are conclusively refuted by objective evidence.’’ The proceeding may also be concluded if the chief judge believes that appropriate corrective action has been taken or that further action is

unwarranted because of ‘‘intervening events.’’

A complainant who disagrees with a chief judge’s final order

under new § 352 may petition a judicial council within that circuit

for review. A decision by a judicial council to deny review is final

and may not be reviewed or appealed further. A judicial council

which elects to review a petition may refer it to a panel of no fewer

than five members, at least two of whom must be district judges.

The power of a chief judge to conduct a ‘‘limited inquiry’’ pursuant to these changes is consistent with the views of the National

Commission on Judicial Discipline and Removal, the circuits, and

the Judicial Conference. Such power should be defined more clearly

and not left to implication from other sources, as is the case in the

current statute. The expansion of the concept of a complaint dismissed for frivolousness tracks recommendations set forth in the Illustrative Rules Governing Judicial Misconduct and Disability, developed by the Judicial Conference, and those offered by the Federal Judicial Center. This offers greater guidance to the chief judge

and will better inform a complainant in the event of a dismissal.

Finally, permitting a judicial council to refer a petition to a panel

of at least five members for review creates flexibility and enhances

the likelihood that the petition will receive greater scrutiny and

process.

New Section 353. Special committees. If the complaint is not dismissed under new § 352, the chief judge shall appoint himself/herself and an equal number of district and circuit judges to a ‘‘special

13

committee’’ to investigate the facts and allegations contained in the

complaint. Notice is given to the complainant and affected judge.

The Committee is empowered to conduct an investigation as extensive as it considers necessary, and must expeditiously file a

comprehensive written report—containing findings and recommendations for action—with the judicial council of the circuit.

There is no change to current law beyond reorganization in new

§ 353.

New Section 354. Action by judicial council. Upon receipt of a report, a judicial council may conduct a further investigation; dismiss

the complaint; or, failing dismissal, take such action as is ‘‘appropriate.’’ Possible courses of action if a complaint is not dismissed include:

ordering, on a temporary basis, that the affected judge may no

longer be assigned cases; privately censuring/reprimanding the

judge; or publicly censuring/reprimanding the judge.

In any case involving an Article III judge who cannot discharge

his/her responsibilities based on a permanent mental or physical

disability, a judicial council may certify the disability pursuant to

28 U.S.C. § 372(b) and request that the judge voluntarily retire.

In the case of a magistrate judge, a judicial council may direct

the chief judge of the district of the magistrate judge to take such

action as the judicial council deems appropriate.

A judicial council may not order the removal of any Article III

judge, and removals of magistrate or bankruptcy judges must be

done in conformity with other provisions in title 28.

A judicial council is further empowered, in its discretion, to share

a complaint and related findings, or other information otherwise

available to the judicial council, with the Judicial Conference. A judicial council must share any information which suggests that a

judge has committed an impeachable offense, or has indulged in behavior that ‘‘is not amenable to resolution’’ by the judicial council.

There is no change to current law beyond reorganization in new

§ 354.

New Section 355. Action by Judicial Conference. New § 355 empowers the Judicial Conference, after reviewing the information

forwarded by a judicial council pursuant to new § 354, to take appropriate action by majority vote. The Conference is required to

submit any recommendation of impeachment to the House of Representatives, including a recommendation based on State or Federal felony conviction of a judge.

In this section, the reference to ‘‘felony’’ in the current statute is

clarified with the substituted ‘‘felony under State or Federal law’’

in new chapter 16. This dovetails with the treatment of felony convictions in new § 364. Otherwise, there is no other change to existing law.

New Section 356. Subpoena power. New § 356 confers full subpoena power on judicial councils, special committees, the Judicial

Conference, and any standing committees appointed by the Chief

Justice which are conducting investigations related to judicial misconduct under this chapter.

There is no change to current law beyond reorganization in new

§ 356.

New Section 357. Review of orders and actions. An aggrieved

judge may petition the Judicial Conference to review the action of

14

a judicial council taken pursuant to new § 354. Except as otherwise

permitted under this section or new § 352, all orders and determinations are final and not subject to review.

There is no change to current law beyond reorganization in new

§ 357.

New Section 358. Rules. New § 358 authorizes each judicial council and the Judicial Conference to prescribe rules for the conduct

of proceedings in an investigation. Minimum standards governing

notice and process for the complainant and affected judge are included. Rules may not be amended in the absence of public notice

and comment; and the Judicial Conference may modify the rules

developed by a judicial council.

There is no change to current law beyond reorganization in new

§ 358.

New Section 359. Restrictions. No judge who is the subject of an

investigation may serve upon a special committee, judicial council,

Judicial Conference, or standing committee until ‘‘all related proceedings’’ of an investigation under new chapter 16 are complete.

There is no change to current law beyond reorganization in new

§ 359.

New Section 360. Disclosure of Information. Unless otherwise

provided in new chapter 16, all papers, documents, and records of

an investigation are confidential and may not be disclosed, subject

to three exceptions: (1) a judicial council elects to release a report

developed by a special committee to the complainant and the affected judge; (2) the judicial council, Judicial Conference, or the

Senate or House of Representatives by resolution releases information related to an impeachment investigation; or (3) the affected

judge, and either the chief judge of the circuit, the Chief Justice,

or the chairman of a standing committee authorize in writing their

joint desire to disclose information.

Each written order to implement any action which is issued by

a judicial council, the Judicial Conference, or a standing committee

shall be made available to the appropriate clerk of court’s office.

Unless contrary to the interests of justice, each order shall be accompanied by written reasons explaining the decision.

There is no change to current law beyond reorganization in new

§ 360.

New Section 361. Reimbursement of expenses. An affected judge

may request that he/she be reimbursed through the Administrative

Office of the Courts for reasonable expenses incurred in the course

of an investigation when a complaint is dismissed.

There is no change to current law beyond reorganization in new

§ 361.

New Section 362. Other provisions and rules not affected. Except

as expressly provided in new chapter 16, the legislation does not

affect the Federal Rules of Procedure, Evidence, Criminal Procedure, or Appellate Procedure.

There is no change to current law beyond reorganization in new

§ 362.

New Section 363. Court of Federal Claims, Court of International

Trade, Court of Appeals for the Federal Circuit. The Court of Federal Claims, Court of International Trade, and Court of Appeals for

the Federal Circuit shall establish procedures for the filing of complaints regarding the conduct of any judge of such court and for the

15

investigation and resolution of complaints. Each of these courts will

have the same powers granted to judicial councils under new chapter 16.

There is no change to current law beyond reorganization in new

§ 363.

New Section 364. Effect of felony conviction. If a judge under new

chapter 16 is convicted of a State or Federal felony, and has exhausted all means of direct review of the conviction, or the time for

obtaining such review has passed, that judge may not hear cases

unless the relevant judicial council (or the court of a judge as set

forth in new § 363) determines otherwise.

New § 364 implements a recommendation developed by the 1993

National Commission on Judicial Discipline and Removal. There is

no other change beyond reorganization in new § 364.

Section 3. Technical Amendments. Section 3 makes technical and

conforming amendments to the relevant provisions of the U.S. Code

based on the content of sections 1 and 2.

16

17

18

19

20

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the

House of Representatives, changes in existing law made by the bill,

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italics,

existing law in which no change is proposed is shown in roman):

TITLE 28, UNITED STATES CODE

* * * * * * *

PART I—ORGANIZATION OF COURTS

Chapter Sec.

1. Supreme Court ........................................................................................... 1

* * * * * * *

16. Complaints against judges and judicial discipline ........................ 351

* * * * * * *

CHAPTER 15—CONFERENCES AND COUNCILS OF

JUDGES

* * * * * * *

§ 331. Judicial Conference of the United States

The Chief Justice of the United States shall summon annually

the chief judge of each judicial circuit, the chief judge of the Court

21

of International Trade, and a district judge from each judicial circuit to a conference at such time and place in the United States

as he may designate. He shall preside at such conference which

shall be known as the Judicial Conference of the United States.

Special sessions of the Conference may be called by the Chief Justice at such times and places as he may designate.

The district judge to be summoned from each judicial circuit

shall be chosen by the circuit and district judges of the circuit and

shall serve as a member of the Judicial Conference of the United

States for a term of not less than 3 successive years nor more than

5 successive years, as established by majority vote of all circuit and

district judges of the circuit. A district judge serving as a member

of the Judicial Conference may be either a judge in regular active

service or a judge retired from regular active service under section

371(b) of this title.

If the chief judge of any circuit, the chief judge of the Court

of International Trade, or the district judge chosen by the judges

of the circuit is unable to attend, the Chief Justice may summon

any other circuit or district judge from such circuit or any other

judge of the Court of International Trade, as the case may be.

Every judge summoned shall attend and, unless excused by the

Chief Justice, shall remain throughout the sessions of the conference and advise as to the needs of his circuit or court and as to

any matters in respect of which the administration of justice in the

courts of the United States may be improved.

The Conference shall make a comprehensive survey of the condition of business in the courts of the United States and prepare

plans for assignment of judges to or from circuits or districts where

necessary. It shall also submit suggestions and recommendations to

the various courts to promote uniformity of management procedures and the expeditious conduct of court business. The Conference is authorized to exercise the authority provided in øsection

372(c)¿ chapter 16 of this title as the Conference, or through a

standing committee. If the Conference elects to establish a standing

committee, it shall be appointed by the Chief Justice and all petitions for review shall be reviewed by that committee. The Conference or the standing committee may hold hearings, take sworn

testimony, issue subpoenas and subpoenas duces tecum, and make

necessary and appropriate orders in the exercise of its authority.

Subpoenas and subpoenas duces tecum shall be issued by the clerk

of the Supreme Court or by the clerk of any court of appeals, at

the direction of the Chief Justice or his designee and under the seal

of the court, and shall be served in the manner provided in rule

45(c) of the Federal Rules of Civil Procedure for subpoenas and

subpoenas duces tecum issued on behalf of the United States or an

officer or any agency thereof. The Conference may also prescribe

and modify rules for the exercise of the authority provided in øsection 372(c)¿ chapter 16 of this title. All judicial officers and employees of the United States shall promptly carry into effect all orders

of the Judicial Conference or the standing committee established

pursuant to this section.

The Conference shall also carry on a continuous study of the

operation and effect of the general rules of practice and procedure

now or hereafter in use as prescribed by the Supreme Court for the

other courts of the United States pursuant to law. Such changes in

22

and additions to those rules as the Conference may deem desirable

to promote simplicity in procedure, fairness in administration, the

just determination of litigation, and the elimination of unjustifiable

expense and delay shall be recommended by the Conference from

time to time to the Supreme Court for its consideration and adoption, modification or rejection, in accordance with law.

The Judicial Conference shall review rules prescribed under

section 2071 of this title by the courts, other than the Supreme

Court and the district courts, for consistency with Federal law. The

Judicial Conference may modify or abrogate any such rule so reviewed found inconsistent in the course of such a review.

The Attorney General shall, upon request of the Chief Justice,

report to such Conference on matters relating to the business of the

several courts of the United States, with particular reference to

cases to which the United States is a party. The Chief Justice shall

submit to Congress an annual report of the proceedings of the Judicial Conference and its recommendations for legislation.

§ 332. Judicial councils of circuits

(a) * * *

* * * * * * *

(d)(1)***

(2) All judicial officers and employees of the circuit shall

promptly carry into effect all orders of the judicial council. In the

case of failure to comply with an order made under this subsection

or a subpoena issued under øsection 372(c) of this title¿ chapter 16

of this title, a judicial council or a special committee appointed

under section ø372(c)(4)¿ 353 of this title may institute a contempt

proceeding in any district court in which the judicial officer or employee of the circuit who fails to comply with the order made under

this subsection shall be ordered to show cause before the court why

he or she should not be held in contempt of court.

* * * * * * *

ø(h)(1) The United States Court of Appeals for the Federal Circuit may appoint a circuit executive, who shall serve at the pleasure of the court. In appointing a circuit executive, the court shall

take into account experience in administrative and executive positions, familiarity with court procedures, and special training. The

circuit executive shall exercise such administrative powers and perform such duties as may be delegated by the court. The duties delegated to the circuit executive may include but need not be limited

to the duties specified in subsection (e) of this section, insofar as

they are applicable to the Court of Appeals for the Federal Circuit.

ø(2) The circuit executive shall be paid the salary for circuit executives established under subsection (f ) of this section.

ø(3) The circuit executive may appoint, with the approval of

the court, necessary employees in such number as may be approved

by the Director of the Administrative Office of the United States

Courts.

ø(4) The circuit executive and staff shall be deemed to be officers and employees of the United States within the meaning of the

statutes specified in subsection (f )(4).

ø(5) The court may appoint either a circuit executive under

this subsection or a clerk under section 711 of this title, but not

23

both, or may appoint a combined circuit executive/clerk who shall

be paid the salary of a circuit executive.¿

* * * * * * *

CHAPTER 16—COMPLAINTS AGAINST JUDGES AND

JUDICIAL DISCIPLINE

Sec.

351. Complaints; judge defined.

352. Review of complaint by chief judge.

353. Special committees.

354. Action by judicial council.

355. Action by Judicial Conference.

356. Subpoena power.

357. Review of orders and actions.

358. Rules.

359. Restrictions.

360. Disclosure of information.

361. Reimbursement of expenses.

362. Other provisions and rules not affected.

363. Court of Federal Claims, Court of International Trade, Court of Appeals for the

Federal Circuit.

364. Effect of felony conviction.

§ 351. Complaints; judge defined

(a) FILING OF COMPLAINT BY ANY PERSON.—Any person alleging that a judge has engaged in conduct prejudicial to the effective

and expeditious administration of the business of the courts, or alleging that such judge is unable to discharge all the duties of office

by reason of mental or physical disability, may file with the clerk

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

a brief statement of the facts constituting such conduct.

(b) IDENTIFYING COMPLAINT BY CHIEF JUDGE.—In the interests

of the effective and expeditious administration of the business of the

courts and on the basis of information available to the chief judge

of the circuit, the chief judge may, by written order stating reasons

therefor, identify a complaint for purposes of this chapter and thereby dispense with filing of a written complaint.

(c) TRANSMITTAL OF COMPLAINT.—Upon receipt of a complaint

filed under subsection (a), the clerk shall promptly transmit the

complaint to the chief judge of the circuit, or, if the conduct complained of is that of the chief judge, to that circuit judge in regular

active service next senior in date of commission (hereafter, for purposes of this chapter only, included in the term ‘‘chief judge’’). The

clerk shall simultaneously transmit a copy of the complaint to the

judge whose conduct is the subject of the complaint. The clerk shall

also transmit a copy of any complaint identified under subsection

(b) to the judge whose conduct is the subject of the complaint.

(d) DEFINITIONS.—In this chapter—

(1) the term ‘‘judge’’ means a circuit judge, district judge,

bankruptcy judge, or magistrate judge; and

(2) the term ‘‘complainant’’ means the person filing a complaint under subsection (a) of this section.

§ 352. Review of complaint by chief judge

(a) EXPEDITIOUS REVIEW; LIMITED INQUIRY.—The chief judge

shall expeditiously review any complaint received under section

351(a) or identified under section 351(b). In determining what acVerDate 11-MAY-2000 22:44 May 14, 2002 Jkt 099006 PO 00000 Frm 00023 Fmt 6659 Sfmt 6603 E:\HR\NSET\HR459.XXX pfrm01 PsN: HR459
24

tion to take, the chief judge may conduct a limited inquiry for the

purpose of determining—

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

taken without the necessity for a formal investigation; and

(2) whether the facts stated in the complaint are either

plainly untrue or are incapable of being established through investigation.

For this purpose, the chief judge may request the judge whose conduct is complained of to file a written response to the complaint.

Such response shall not be made available to the complainant unless authorized by the judge filing the response. The chief judge or

his or her designee may also communicate orally or in writing with

the complainant, the judge whose conduct is complained of, and any

other person who may have knowledge of the matter, and may review any transcripts or other relevant documents. The chief judge

shall not undertake to make findings of fact about any matter that

is reasonably in dispute.

(b) ACTION BY CHIEF JUDGE FOLLOWING REVIEW.—After expeditiously reviewing a complaint under subsection (a), the chief judge,

by written order stating his or her reasons, may—

(1) dismiss the complaint—

(A) if the chief judge finds the complaint to be—

(i) not in conformity with section 351(a);

(ii) directly related to the merits of a decision or

procedural ruling; or

(iii) frivolous, lacking sufficient evidence to raise

an inference that misconduct has occurred, or containing allegations which are incapable of being established through investigation; or

(B) when a limited inquiry conducted under subsection

(a) demonstrates that the allegations in the complaint lack

any factual foundation or are conclusively refuted by objective evidence; or

(2) conclude the proceeding if the chief judge finds that appropriate corrective action has been taken or that action on the

complaint is no longer necessary because of intervening events.

The chief judge shall transmit copies of the written order to the

complainant and to the judge whose conduct is the subject of the

complaint.

(c) REVIEW OF ORDERS OF CHIEF JUDGE.—A complainant or

judge aggrieved by a final order of the chief judge under this section

may petition the judicial council of the circuit for review thereof.

The denial of a petition for review of the chief judge’s order shall

be final and conclusive and shall not be judicially reviewable on appeal or otherwise.

(d) REFERRAL OF PETITIONS FOR REVIEW TO PANELS OF THE JUDICIAL COUNCIL.—Each judicial council may, pursuant to rules prescribed under section 358, refer a petition for review filed under

subsection (c) to a panel of no fewer than 5 members of the council,

at least 2 of whom shall be district judges.

§ 353. Special committees

(a) APPOINTMENT.—If the chief judge does not enter an order

under section 352(b), the chief judge shall promptly—

25

(1) appoint himself or herself and equal numbers of circuit

and district judges of the circuit to a special committee to investigate the facts and allegations contained in the complaint;

(2) certify the complaint and any other documents pertaining thereto to each member of such committee; and

(3) provide written notice to the complainant and the judge

whose conduct is the subject of the complaint of the action taken

under this subsection.

(b) CHANGE IN STATUS OR DEATH OF JUDGES.—A judge appointed to a special committee under subsection (a) may continue to

serve on that committee after becoming a senior judge or, in the case

of the chief judge of the circuit, after his or her term as chief judge

terminates under subsection (a)(3) or (c) of section 45. If a judge appointed to a committee under subsection (a) dies, or retires from office under section 371(a), while serving on the committee, the chief

judge of the circuit may appoint another circuit or district judge, as

the case may be, to the committee.

(c) INVESTIGATION BY SPECIAL COMMITTEE.—Each committee

appointed under subsection (a) shall conduct an investigation as extensive as it considers necessary, and shall expeditiously file a comprehensive written report thereon with the judicial council of the circuit. Such report shall present both the findings of the investigation

and the committee’s recommendations for necessary and appropriate

action by the judicial council of the circuit.

§ 354. Action by judicial council

(a) ACTIONS UPON RECEIPT OF REPORT.—

(1) ACTIONS.—The judicial council of a circuit, upon receipt

of a report filed under section 353(c)—

(A) may conduct any additional investigation which it

considers to be necessary;

(B) may dismiss the complaint; and

(C) if the complaint is not dismissed, shall take such

action as is appropriate to assure the effective and expeditious administration of the business of the courts within the

circuit.

(2) DESCRIPTION OF POSSIBLE ACTIONS IF COMPLAINT NOT

DISMISSED.—

(A) IN GENERAL.—Action by the judicial council under

paragraph (1)(C) may include—

(i) ordering that, on a temporary basis for a time

certain, no further cases be assigned to the judge whose

conduct is the subject of a complaint;

(ii) censuring or reprimanding such judge by

means of private communication; and

(iii) censuring or reprimanding such judge by

means of public announcement.

(B) FOR ARTICLE III JUDGES.—If the conduct of a judge

appointed to hold office during good behavior is the subject

of the complaint, action by the judicial council under paragraph (1)(C) may include—

(i) certifying disability of the judge pursuant to the

procedures and standards provided under section

372(b); and

26

(ii) requesting that the judge voluntarily retire,

with the provision that the length of service requirements under section 371 of this title shall not apply.

(C) FOR MAGISTRATE JUDGES.—If the conduct of a magistrate judge is the subject of the complaint, action by the

judicial council under paragraph (1)(C) may include directing the chief judge of the district of the magistrate judge to

take such action as the judicial council considers appropriate.

(3) LIMITATIONS ON JUDICIAL COUNCIL REGARDING REMOV- ALS.— (A) ARTICLE III JUDGES.—Under no circumstances may

the judicial council order removal from office of any judge

appointed to hold office during good behavior.

(B) MAGISTRATE AND BANKRUPTCY JUDGES.—Any removal of a magistrate judge under this subsection shall be

in accordance with section 631 and any removal of a bankruptcy judge shall be in accordance with section 152.

(4) NOTICE OF ACTION TO JUDGE.—The judicial council

shall immediately provide written notice to the complainant

and to the judge whose conduct is the subject of the complaint

of the action taken under this subsection.

(b) REFERRAL TO JUDICIAL CONFERENCE.— (1) IN GENERAL.—In addition to the authority granted

under subsection (a), the judicial council may, in its discretion,

refer any complaint under section 351, together with the record

of any associated proceedings and its recommendations for appropriate action, to the Judicial Conference of the United

States.

(2) SPECIAL CIRCUMSTANCES.—In any case in which the judicial council determines, on the basis of a complaint and an

investigation under this chapter, or on the basis of information

otherwise available to the judicial council, that a judge appointed to hold office during good behavior may have engaged

in conduct—

(A) which might constitute one or more grounds for impeachment under article II of the Constitution, or

(B) which, in the interest of justice, is not amenable to

resolution by the judicial council,

the judicial council shall promptly certify such determination,

together with any complaint and a record of any associated proceedings, to the Judicial Conference of the United States.

(3) NOTICE TO COMPLAINANT AND JUDGE.—A judicial council acting under authority of this subsection shall, unless contrary to the interests of justice, immediately submit written notice to the complainant and to the judge whose conduct is the

subject of the action taken under this subsection.

§ 355. Action by Judicial Conference

(a) IN GENERAL.—Upon referral or certification of any matter

under section 354(b), the Judicial Conference, after consideration of

the prior proceedings and such additional investigation as it considers appropriate, shall by majority vote take such action, as described in section 354(a)(1)(C) and (2), as it considers appropriate.

(b) IF IMPEACHMENT WARRANTED.—

27

(1) IN GENERAL.—If the Judicial Conference concurs in the

determination of the judicial council, or makes its own determination, that consideration of impeachment may be warranted, it shall so certify and transmit the determination and

the record of proceedings to the House of Representatives for

whatever action the House of Representatives considers to be

necessary. Upon receipt of the determination and record of proceedings in the House of Representatives, the Clerk of the House

of Representatives shall make available to the public the determination and any reasons for the determination.

(2) IN CASE OF FELONY CONVICTION.—If a judge has been

convicted of a felony under State or Federal law and has exhausted all means of obtaining direct review of the conviction,

or the time for seeking further direct review of the conviction

has passed and no such review has been sought, the Judicial

Conference may, by majority vote and without referral or certification under section 354(b), transmit to the House of Representatives a determination that consideration of impeachment may

be warranted, together with appropriate court records, for whatever action the House of Representatives considers to be necessary.

§ 356. Subpoena power

(a) JUDICIAL COUNCILS AND SPECIAL COMMITTEES.—In conducting any investigation under this chapter, the judicial council, or

a special committee appointed under section 353, shall have full

subpoena powers as provided in section 332(d).

(b) JUDICIAL CONFERENCE AND STANDING COMMITTEES.—In

conducting any investigation under this chapter, the Judicial Conference, or a standing committee appointed by the Chief Justice

under section 331, shall have full subpoena powers as provided in

that section.

§ 357. Review of orders and actions

(a) REVIEW OF ACTION OF JUDICIAL COUNCIL.—A complainant

or judge aggrieved by an action of the judicial council under section

354 may petition the Judicial Conference of the United States for

review thereof.

(b) ACTION OF JUDICIAL CONFERENCE.—The Judicial Conference, or the standing committee established under section 331,

may grant a petition filed by a complainant or judge under subsection (a).

(c) NO JUDICIAL REVIEW.—Except as expressly provided in this

section and section 352(c), all orders and determinations, including

denials of petitions for review, shall be final and conclusive and

shall not be judicially reviewable on appeal or otherwise.

§ 358. Rules

(a) IN GENERAL.—Each judicial council and the Judicial Conference may prescribe such rules for the conduct of proceedings

under this chapter, including the processing of petitions for review,

as each considers to be appropriate.

(b) REQUIRED PROVISIONS.—Rules prescribed under subsection

(a) shall contain provisions requiring that—

28

(1) adequate prior notice of any investigation be given in

writing to the judge whose conduct is the subject of a complaint

under this chapter;

(2) the judge whose conduct is the subject of a complaint

under this chapter be afforded an opportunity to appear (in person or by counsel) at proceedings conducted by the investigating

panel, to present oral and documentary evidence, to compel the

attendance of witnesses or the production of documents, to

cross-examine witnesses, and to present argument orally or in

writing; and

(3) the complainant be afforded an opportunity to appear at

proceedings conducted by the investigating panel, if the panel

concludes that the complainant could offer substantial information.

(c) PROCEDURES.—Any rule prescribed under this section shall

be made or amended only after giving appropriate public notice and

an opportunity for comment. Any such rule shall be a matter of public record, and any such rule promulgated by a judicial council may

be modified by the Judicial Conference. No rule promulgated under

this section may limit the period of time within which a person may

file a complaint under this chapter.

§ 359. Restrictions

(a) RESTRICTION ON INDIVIDUALS WHO ARE SUBJECT OF INVESTIGATION.—No judge whose conduct is the subject of an investigation under this chapter shall serve upon a special committee appointed under section 353, upon a judicial council, upon the Judicial Conference, or upon the standing committee established under

section 331, until all proceedings under this chapter relating to such

investigation have been finally terminated.

(b) AMICUS CURIAE.—No person shall be granted the right to intervene or to appear as amicus curiae in any proceeding before a judicial council or the Judicial Conference under this chapter.

§ 360. Disclosure of information

(a) CONFIDENTIALITY OF PROCEEDINGS.—Except as provided in

section 355, all papers, documents, and records of proceedings related to investigations conducted under this chapter shall be confidential and shall not be disclosed by any person in any proceeding

except to the extent that—

(1) the judicial council of the circuit in its discretion releases a copy of a report of a special committee under section

353(c) to the complainant whose complaint initiated the investigation by that special committee and to the judge whose conduct is the subject of the complaint;

(2) the judicial council of the circuit, the Judicial Conference of the United States, or the Senate or the House of Representatives by resolution, releases any such material which is

believed necessary to an impeachment investigation or trial of

a judge under article I of the Constitution; or

(3) such disclosure is authorized in writing by the judge

who is the subject of the complaint and by the chief judge of the

circuit, the Chief Justice, or the chairman of the standing committee established under section 331.

29

(b) PUBLIC AVAILABILITY OF WRITTEN ORDERS.—Each written

order to implement any action under section 354(a)(1)(C), which is

issued by a judicial council, the Judicial Conference, or the standing committee established under section 331, shall be made available to the public through the appropriate clerk’s office of the court

of appeals for the circuit. Unless contrary to the interests of justice,

each such order shall be accompanied by written reasons therefor.

§ 361. Reimbursement of expenses

Upon the request of a judge whose conduct is the subject of a

complaint under this chapter, the judicial council may, if the complaint has been finally dismissed under section 354(a)(1)(B), recommend that the Director of the Administrative Office of the United

States Courts award reimbursement, from funds appropriated to the

Federal judiciary, for those reasonable expenses, including attorneys’ fees, incurred by that judge during the investigation which

would not have been incurred but for the requirements of this chapter.

§ 362. Other provisions and rules not affected

Except as expressly provided in this chapter, nothing in this

chapter shall be construed to affect any other provision of this title,

the Federal Rules of Civil Procedure, the Federal Rules of Criminal

Procedure, the Federal Rules of Appellate Procedure, or the Federal

Rules of Evidence.

§ 363. Court of Federal Claims, Court of International Trade,

Court of Appeals for the Federal Circuit

The United States Court of Federal Claims, the Court of International Trade, and the Court of Appeals for the Federal Circuit

shall each prescribe rules, consistent with the provisions of this

chapter, establishing procedures for the filing of complaints with respect to the conduct of any judge of such court and for the investigation and resolution of such complaints. In investigating and taking

action with respect to any such complaint, each such court shall

have the powers granted to a judicial council under this chapter.

§ 364. Effect of felony conviction

In the case of any judge or judge of a court referred to in section

363 who is convicted of a felony under State or Federal law and has

exhausted all means of obtaining direct review of the conviction, or

the time for seeking further direct review of the conviction has

passed and no such review has been sought, that judge shall not

hear cases unless the judicial council of the circuit (or, in the case

of a judge of a court referred to in section 363, that court) determines otherwise.

CHAPTER 17—RESIGNATION AND RETIREMENT OF

JUSTICES AND JUDGES

* * * * * * *

Sec.

371. Retirement on salary; retirement in senior status.

372. Retirement for disability; substitute judge on failure to retireø; judicial discipline¿.

* * * * * * *

30

§ 372. Retirement for disability; substitute judge on failure

to retireø; judicial discipline¿

(a) * * *

* * * * * * *

ø(c)(1) Any person alleging that a circuit, district, or bankruptcy judge, or a magistrate judge, has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts, or alleging that such a judge or magistrate judge

is unable to discharge all the duties of office by reason of mental

or physical disability, may file with the clerk of the court of appeals

for the circuit a written complaint containing a brief statement of

the facts constituting such conduct. In the interests of the effective

and expeditious administration of the business of the courts and on

the basis of information available to the chief judge of the circuit,

the chief judge may, by written order stating reasons therefor,

identify a complaint for purposes of this subsection and thereby

dispense with filing of a written complaint.

ø(2) Upon receipt of a complaint filed under paragraph (1) of

this subsection, the clerk shall promptly transmit such complaint

to the chief judge of the circuit, or, if the conduct complained of is

that of the chief judge, to that circuit judge in regular active service next senior in date of commission (hereafter, for purposes of

this subsection only, included in the term ‘‘chief judge’’). The clerk

shall simultaneously transmit a copy of the complaint to the judge

or magistrate judge whose conduct is the subject of the complaint.

ø(3) After expeditiously reviewing a complaint, the chief judge,

by written order stating his reasons, may— ø(A) dismiss the complaint, if he finds it to be (i) not in

conformity with paragraph (1) of this subsection, (ii) directly

related to the merits of a decision or procedural ruling, or (iii)

frivolous; or

ø(B) conclude the proceeding if he finds that appropriate

corrective action has been taken or that action on the complaint is no longer necessary because of intervening events.

The chief judge shall transmit copies of his written order to the

complainant and to the judge or magistrate judge whose conduct is

the subject of the complaint.

ø(4) If the chief judge does not enter an order under paragraph

(3) of this subsection, such judge shall promptly—

ø(A) appoint himself and equal numbers of circuit and district judges of the circuit to a special committee to investigate

the facts and allegations contained in the complaint;

ø(B) certify the complaint and any other documents pertaining thereto to each member of such committee; and

ø(C) provide written notice to the complainant and the

judge or magistrate judge whose conduct is the subject of the

complaint of the action taken under this paragraph.

A judge appointed to a special committee under this paragraph

may continue to serve on that committee after becoming a senior

judge or, in the case of the chief judge of the circuit, after his or

her term as chief judge terminates under subsection (a)(3) or (c) of

section 45 of this title. If a judge appointed to a committee under

this paragraph dies, or retires from office under section 371(a) of

this title, while serving on the committee, the chief judge of the cirVerDate 11-MAY-2000 22:44 May 14, 2002 Jkt 099006 PO 00000 Frm 00030 Fmt 6659 Sfmt 6601 E:\HR\NSET\HR459.XXX pfrm01 PsN: HR459
31

cuit may appoint another circuit or district judge, as the case may

be, to the committee.

ø(5) Each committee appointed under paragraph (4) of this

subsection shall conduct an investigation as extensive as it considers necessary, and shall expeditiously file a comprehensive written report thereon with the judicial council of the circuit. Such report shall present both the findings of the investigation and the

committee’s recommendations for necessary and appropriate action

by the judicial council of the circuit.

ø(6) Upon receipt of a report filed under paragraph (5) of this

subsection, the judicial council— ø(A) may conduct any additional investigation which it

considers to be necessary;

ø(B) shall take such action as is appropriate to assure the

effective and expeditious administration of the business of the

courts within the circuit, including, but not limited to, any of

the following actions:

ø(i) directing the chief judge of the district of the magistrate judge whose conduct is the subject of the complaint

to take such action as the judicial council considers appropriate;

ø(ii) certifying disability of a judge appointed to hold

office during good behavior whose conduct is the subject of

the complaint, pursuant to the procedures and standards

provided under subsection (b) of this section;

ø(iii) requesting that any such judge appointed to hold

office during good behavior voluntarily retire, with the provision that the length of service requirements under section 371 of this title shall not apply;

ø(iv) ordering that, on a temporary basis for a time

certain, no further cases be assigned to any judge or magistrate judge whose conduct is the subject of a complaint;

ø(v) censuring or reprimanding such judge or magistrate judge by means of private communication;

ø(vi) censuring or reprimanding such judge or magistrate judge by means of public announcement; or

ø(vii) ordering such other action as it considers appropriate under the circumstances, except that (I) in no circumstances may the council order removal from office of

any judge appointed to hold office during good behavior,

and (II) any removal of a magistrate judge shall be in accordance with section 631 of this title and any removal of

a bankruptcy judge shall be in accordance with section 152

of this title;

ø(C) may dismiss the complaint; and

ø(D) shall immediately provide written notice to the

complainant and to such judge or magistrate judge of the

action taken under this paragraph.

ø(7)(A) In addition to the authority granted under paragraph

(6) of this subsection, the judicial council may, in its discretion,

refer any complaint under this subsection, together with the record

of any associated proceedings and its recommendations for appropriate action, to the Judicial Conference of the United States.

ø(B) In any case in which the judicial council determines, on

the basis of a complaint and an investigation under this subsection,

32

or on the basis of information otherwise available to the council,

that a judge appointed to hold office during good behavior may

have engaged in conduct— ø(i) which might constitute one or more grounds for impeachment under article II of the Constitution; or

ø(ii) which, in the interest of justice, is not amenable to

resolution by the judicial council,

the judicial council shall promptly certify such determination, together with any complaint and a record of any associated proceedings, to the Judicial Conference of the United States.

ø(C) A judicial council acting under authority of this paragraph

shall, unless contrary to the interests of justice, immediately submit written notice to the complainant and to the judge or magistrate judge whose conduct is the subject of the action taken under

this paragraph.

ø(8)(A) Upon referral or certification of any matter under paragraph (7) of this subsection, the Judicial Conference, after consideration of the prior proceedings and such additional investigation as

it considers appropriate, shall by majority vote take such action, as

described in paragraph (6)(B) of this subsection, as it considers appropriate. If the Judicial Conference concurs in the determination

of the council, or makes its own determination, that consideration

of impeachment may be warranted, it shall so certify and transmit

the determination and the record of proceedings to the House of

Representatives for whatever action the House of Representatives

considers to be necessary. Upon receipt of the determination and

record of proceedings in the House of Representatives, the Clerk of

the House of Representatives shall make available to the public the

determination and any reasons for the determination.

ø(B) If a judge or magistrate judge has been convicted of a felony and has exhausted all means of obtaining direct review of the

conviction, or the time for seeking further direct review of the conviction has passed and no such review has been sought, the Judicial Conference may, by majority vote and without referral or certification under paragraph (7), transmit to the House of Representatives a determination that consideration of impeachment may be

warranted, together with appropriate court records, for whatever

action the House of Representatives considers to be necessary.

ø(9)(A) In conducting any investigation under this subsection,

the judicial council, or a special committee appointed under paragraph (4) of this subsection, shall have full subpoena powers as

provided in section 332(d) of this title.

ø(B) In conducting any investigation under this subsection, the

Judicial Conference, or a standing committee appointed by the

Chief Justice under section 331 of this title, shall have full subpoena powers as provided in that section.

ø(10) A complainant, judge, or magistrate judge aggrieved by

a final order of the chief judge under paragraph (3) of this subsection may petition the judicial council for review thereof. A complainant, judge, or magistrate judge aggrieved by an action of the

judicial council under paragraph (6) of this subsection may petition

the Judicial Conference of the United States for review thereof. The

Judicial Conference, or the standing committee established under

section 331 of this title, may grant a petition filed by a complainant, judge, or magistrate judge under this paragraph. Except as exVerDate 11-MAY-2000 22:44 May 14, 2002 Jkt 099006 PO 00000 Frm 00032 Fmt 6659 Sfmt 6601 E:\HR\NSET\HR459.XXX pfrm01 PsN: HR459
33

pressly provided in this paragraph, all orders and determinations,

including denials of petitions for review, shall be final and conclusive and shall not be judicially reviewable on appeal or otherwise.

ø(11) Each judicial council and the Judicial Conference may

prescribe such rules for the conduct of proceedings under this subsection, including the processing of petitions for review, as each

considers to be appropriate. Such rules shall contain provisions requiring that— ø(A) adequate prior notice of any investigation be given in

writing to the judge or magistrate judge whose conduct is the

subject of the complaint;

ø(B) the judge or magistrate judge whose conduct is the

subject of the 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; and

ø(C) the complainant be afforded an opportunity to appear

at proceedings conducted by the investigating panel, if the

panel concludes that the complainant could offer substantial

information.

Any such rule shall be made or amended only after giving appropriate public notice and an opportunity for comment. Any rule promulgated under this subsection shall be a matter of public record,

and any such rule promulgated by a judicial council may be modified by the Judicial Conference. No rule promulgated under this

subsection may limit the period of time within which a person may

file a complaint under this subsection.

ø(12) No judge or magistrate judge whose conduct is the subject of an investigation under this subsection shall serve upon a

special committee appointed under paragraph (4) of this subsection,

upon a judicial council, upon the Judicial Conference, or upon the

standing committee established under section 331 of this title, until

all related proceedings under this subsection have been finally terminated.

ø(13) No person shall be granted the right to intervene or to

appear as amicus curiae in any proceeding before a judicial council

or the Judicial Conference under this subsection.

ø(14) Except as provided in paragraph (8), all papers, documents, and records of proceedings related to investigations conducted under this subsection shall be confidential and shall not be

disclosed by any person in any proceeding except to the extent

that—

ø(A) the judicial council of the circuit in its discretion releases a copy of a report of a special investigative committee

under paragraph (5) to the complainant whose complaint initiated the investigation by that special committee and to the

judge or magistrate judge whose conduct is the subject of the

complaint;

ø(B) the judicial council of the circuit, the Judicial Conference of the United States, or the Senate or the House of

Representatives by resolution, releases any such material

which is believed necessary to an impeachment investigation

or trial of a judge under article I of the Constitution; or

34

ø(C) such disclosure is authorized in writing by the judge

or magistrate judge who is the subject of the complaint and by

the chief judge of the circuit, the Chief Justice, or the chairman of the standing committee established under section 331

of this title.

ø(15) Each written order to implement any action under paragraph (6)(B) of this subsection, which is issued by a judicial council,

the Judicial Conference, or the standing committee established

under section 331 of this title, shall be made available to the public

through the appropriate clerk’s office of the court of appeals for the

circuit. Unless contrary to the interests of justice, each such order

issued under this paragraph shall be accompanied by written reasons therefor.

ø(16) Upon the request of a judge or magistrate judge whose

conduct is the subject of a complaint under this subsection, the judicial council may, if the complaint has been finally dismissed

under paragraph (6)(C), recommend that the Director of the Administrative Office of the United States Courts award reimbursement, from funds appropriated to the Federal judiciary, for those

reasonable expenses, including attorneys’ fees, incurred by that

judge or magistrate judge during the investigation which would not

have been incurred but for the requirements of this subsection.

ø(17) Except as expressly provided in this subsection, nothing

in this subsection shall be construed to affect any other provision

of this title, the Federal Rules of Civil Procedure, the Federal Rules

of Criminal Procedure, the Federal Rules of Appellate Procedure,

or the Federal Rules of Evidence.

ø(18) The United States Court of Federal Claims, the Court of

International Trade, and the Court of Appeals for the Federal Circuit shall each prescribe rules, consistent with the foregoing provisions of this subsection, establishing procedures for the filing of

complaints with respect to the conduct of any judge of such court

and for the investigation and resolution of such complaints. In investigating and taking action with respect to any such complaint,

each such court shall have the powers granted to a judicial council

under this subsection.¿

* * * * * * *

§ 375. Recall of certain judges and magistrate judges

(a) * * *

* * * * * * *

(d) A certification under subsection (a) may be terminated in

accordance with øsection 372(c)¿ chapter 16 of this title, and such

a certification shall be terminated upon the death of the recalled

judge or magistrate judge involved.

* * * * * * *

PART III—COURT OFFICERS AND EMPLOYEES

* * * * * * *

35

CHAPTER 41—ADMINISTRATIVE OFFICE OF UNITED

STATES COURTS

* * * * * * *

§ 604. Duties of Director generally

(a) The Director shall be the administrative officer of the

courts, and under the supervision and direction of the Judicial Conference of the United States, shall:

(1) * * *

* * * * * * *

(20) Periodically compile— (A) * * *

(B) the rules which are prescribed under section

ø372(c)(11)¿ 358 of this title; and

(C) the orders which are required to be publicly available under section ø372(c)(15)¿ 360(b) of this title;

so as to provide a current record of such rules and orders;

* * * * * * *

(h)(1) The Director shall, out of funds appropriated for the operation and maintenance of the courts, provide facilities and pay

necessary expenses incurred by the judicial councils of the circuits

and the Judicial Conference under øsection 372¿ chapter 16 of this

title, including mileage allowance and witness fees, at the same

rate as provided in section 1821 of this title. Administrative and

professional assistance from the Administrative Office of the

United States Courts may be requested by each judicial council and

the Judicial Conference for purposes of discharging their duties

under øsection 372¿ chapter 16 of this title.

(2) The Director of the Administrative Office of the United

States Courts shall include in his annual report filed with the Congress under this section a summary of the number of complaints

filed with each judicial council under øsection 372(c)¿ chapter 16 of

this title, indicating the general nature of such complaints and the

disposition of those complaints in which action has been taken.

* * * * * * *

SECTION 7253 OF TITLE 38, UNITED STATES CODE

§ 7253. Composition

(a) * * *

* * * * * * *

(g) RULES.—(1) The Court shall prescribe rules, consistent with

the provisions of øsection 372(c)¿ chapter 16 of title 28, establishing

procedures for the filing of complaints with respect to the conduct

of any judge of the Court and for the investigation and resolution

of such complaints. In investigating and taking action with respect

to any such complaint, the Court shall have the powers granted to

a judicial council under øsuch section¿ such chapter.

(2) The provisions of øparagraphs (7) through (15) of section

372(c)¿ sections 354(b) through 360 of title 28, regarding referral or

certification to, and petition for review in, the Judicial Conference

36

of the United States and action thereon, shall apply to the exercise

by the Court of the powers of a judicial council under paragraph

(1) of this subsection. The grounds for removal from office specified

in subsection (f)(1) shall provide a basis for a determination pursuant to øparagraph (7) or (8) of section 372(c)¿ section 354(b) or 355

of title 28, and certification and transmittal by the Conference shall

be made to the President for consideration under subsection (f).

(3)(A)***

(B) The Court shall have the power provided under section

ø372(c)(16)¿ 361 of title 28 to award reimbursement for the reasonable expenses described in that section. Reimbursements under

this subparagraph shall be made from funds appropriated to the

Court.

* * * * * * *

MARKUP TRANSCRIPT

BUSINESS MEETING

WEDNESDAY, APRIL 24, 2002

HOUSE OF REPRESENTATIVES,

COMMITTEE ON THE JUDICIARY,

Washington, DC.

The Committee met, pursuant to notice, at 10:09 a.m., in Room

2141, Rayburn House Office Building, Hon. F. James Sensenbrenner, Jr. [Chairman of the Committee] presiding.

Chairman SENSENBRENNER. [Presiding.] The Committee will be

in order.

[Intervening business.]

At this point in time, because the gentleman from California, Mr.

Berman, had an appointment, the Committee stands in recess subject—okay. Then the Chair recognizes the gentleman from North

Carolina, Mr. Coble.

The next item on the agenda is H.R. 3892, the ‘‘Judicial Improvements Act of 2002.’’ [The bill, H.R. 3892, follows:]

37

1

I

107TH CONGRESS

2D SESSION H. R. 3892

To amend title 28, United States Code, to make certain modifications in

the judicial discipline procedures, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

MARCH 7, 2002

Mr. COBLE (for himself and Mr. BERMAN) introduced the following bill; which

was referred to the Committee on the Judiciary

A BILL

To amend title 28, United States Code, to make certain

modifications in the judicial discipline procedures, and

for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Judicial Improvements

5 Act of 2002’’.

6 SEC. 2. JUDICIAL DISCIPLINE PROCEDURES.

7 (a) IN GENERAL.—Part I of title 28, United States

8 Code, is amended by inserting after chapter 15 the fol9 lowing new chapter:

38

2

•HR 3892 IH

1 ‘‘CHAPTER 16—COMPLAINTS AGAINST JUDGES

2 AND JUDICIAL DISCIPLINE

‘‘Sec.

‘‘351. Complaints; judge defined.

‘‘352. Review of complaint by chief judge.

‘‘353. Special committees.

‘‘354. Action by judicial council.

‘‘355. Action by Judicial Conference.

‘‘356. Subpoena power.

‘‘357. Review of orders and actions.

‘‘358. Rules.

‘‘359. Restrictions.

‘‘360. Disclosure of information.

‘‘361. Reimbursement of expenses.

‘‘362. Other provisions and rules not affected.

‘‘363. Court of Federal Claims, Court of International Trade, Court of Appeals

for the Federal Circuit.

‘‘364. Effect of felony conviction.

3 ‘‘§ 351. Complaints; judge defined

4 ‘‘(a) FILING OF COMPLAINT BY ANY PERSON.—Any

5 person alleging that a judge has engaged in conduct preju6 dicial to the effective and expeditious administration of the

7 business of the courts, or alleging that such judge is un8 able to discharge all the duties of office by reason of men9 tal or physical disability, may file with the clerk of the

10 court of appeals for the circuit a written complaint con11 taining a brief statement of the facts constituting such

12 conduct.

13 ‘‘(b) IDENTIFYING COMPLAINT BY CHIEF JUDGE.—

14 In the interests of the effective and expeditious adminis15 tration of the business of the courts and on the basis of

16 information available to the chief judge of the circuit, the

17 chief judge may, by written order stating reasons therefor,

39

3

•HR 3892 IH

1 identify a complaint for purposes of this chapter and

2 thereby dispense with filing of a written complaint.

3 ‘‘(c) TRANSMITTAL OF COMPLAINT.—Upon receipt of

4 a complaint filed under subsection (a), the clerk shall

5 promptly transmit the complaint to the chief judge of the

6 circuit, or, if the conduct complained of is that of the chief

7 judge, to that circuit judge in regular active service next

8 senior in date of commission (hereafter, for purposes of

9 this chapter only, included in the term ‘chief judge’). The

10 clerk shall simultaneously transmit a copy of the com11 plaint to the judge whose conduct is the subject of the

12 complaint. The clerk shall also transmit a copy of any

13 complaint identified under subsection (b) to the judge

14 whose conduct is the subject of the complaint.

15 ‘‘(d) DEFINITIONS.—In this chapter—

16 ‘‘(1) the term ‘judge’ means a circuit judge, dis17 trict judge, bankruptcy judge, or magistrate judge;

18 and

19 ‘‘(2) the term ‘complainant’ means the person

20 filing a complaint under subsection (a) of this sec21 tion.

22 ‘‘§ 352. Review of complaint by chief judge

23 ‘‘(a) EXPEDITIOUS REVIEW; LIMITED INQUIRY.—

24 The chief judge shall expeditiously review any complaint

25 received under section 351(a) or identified under section

40

4

•HR 3892 IH

1 351(b). In determining what action to take, the chief

2 judge may conduct a limited inquiry for the purpose of

3 determining—

4 ‘‘(1) whether appropriate corrective action has

5 been or can be taken without the necessity for a for6 mal investigation; and

7 ‘‘(2) whether the facts stated in the complaint

8 are either plainly untrue or are incapable of being

9 established through investigation.

10 For this purpose, the chief judge may request the judge

11 whose conduct is complained of to file a written response

12 to the complaint. Such response shall not be made avail13 able to the complainant unless authorized by the judge fil14 ing the response. The chief judge or his or her designee

15 may also communicate orally or in writing with the com16 plainant, the judge whose conduct is complained of, and

17 any other person who may have knowledge of the matter,

18 and may review any transcripts or other relevant docu19 ments. The chief judge shall not undertake to make find20 ings of fact about any matter that is reasonably in dispute.

21 ‘‘(b) ACTION BY CHIEF JUDGE FOLLOWING RE22 VIEW.—After expeditiously reviewing a complaint under

23 subsection (a), the chief judge, by written order stating

24 his or her reasons, may—

25 ‘‘(1) dismiss the complaint—

41

5

•HR 3892 IH

1 ‘‘(A) if the chief judge finds the complaint

2 to be—

3 ‘‘(i) not in conformity with section

4 351(a);

5 ‘‘(ii) directly related to the merits of

6 a decision or procedural ruling; or

7 ‘‘(iii) frivolous, lacking sufficient evi8 dence to raise an inference that mis9 conduct has occurred, or containing allega10 tions which are incapable of being estab11 lished through investigation; or

12 ‘‘(B) when a limited inquiry conducted

13 under subsection (a) demonstrates that the alle14 gations in the complaint lack any factual foun15 dation or are conclusively refuted by objective

16 evidence; or

17 ‘‘(2) conclude the proceeding if the chief judge

18 finds that appropriate corrective action has been

19 taken or that action on the complaint is no longer

20 necessary because of intervening events.

21 The chief judge shall transmit copies of the written order

22 to the complainant and to the judge whose conduct is the

23 subject of the complaint.

24 ‘‘(c) REVIEW OF ORDERS OF CHIEF JUDGE.—A com25 plainant or judge aggrieved by a final order of the chief

42

6

•HR 3892 IH

1 judge under this section may petition the judicial council

2 of the circuit for review thereof. The denial of a petition

3 for review of the chief judge’s order shall be final and con4 clusive and shall not be judicially reviewable on appeal or

5 otherwise.

6 ‘‘(d) REFERRAL OF PETITIONS FOR REVIEW TO PAN7 ELS OF THE JUDICIAL COUNCIL.—Each judicial council

8 may, pursuant to rules prescribed under section 358, refer

9 a petition for review filed under subsection (c) to a panel

10 of no fewer than 5 members of the council, at least 2 of

11 whom shall be district judges.

12 ‘‘§ 353. Special committees

13 ‘‘(a) APPOINTMENT.—If the chief judge does not

14 enter an order under section 352(b), the chief judge shall

15 promptly—

16 ‘‘(1) appoint himself or herself and equal num17 bers of circuit and district judges of the circuit to

18 a special committee to investigate the facts and alle19 gations contained in the complaint;

20 ‘‘(2) certify the complaint and any other docu21 ments pertaining thereto to each member of such

22 committee; and

23 ‘‘(3) provide written notice to the complainant

24 and the judge whose conduct is the subject of the

25 complaint of the action taken under this subsection.

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1 ‘‘(b) CHANGE IN STATUS OR DEATH OF JUDGES.—

2 A judge appointed to a special committee under subsection

3 (a) may continue to serve on that committee after becom4 ing a senior judge or, in the case of the chief judge of

5 the circuit, after his or her term as chief judge terminates

6 under subsection (a)(3) or (c) of section 45. If a judge

7 appointed to a committee under subsection (a) dies, or re8 tires from office under section 371(a), while serving on

9 the committee, the chief judge of the circuit may appoint

10 another circuit or district judge, as the case may be, to

11 the committee.

12 ‘‘(c) INVESTIGATION BY SPECIAL COMMITTEE.—

13 Each committee appointed under subsection (a) shall con14 duct an investigation as extensive as it considers nec15 essary, and shall expeditiously file a comprehensive written

16 report thereon with the judicial council of the circuit. Such

17 report shall present both the findings of the investigation

18 and the committee’s recommendations for necessary and

19 appropriate action by the judicial council of the circuit.

20 ‘‘§ 354. Action by judicial council

21 ‘‘(a) ACTIONS UPON RECEIPT OF REPORT.—

22 ‘‘(1) ACTIONS.—The judicial council of a cir23 cuit, upon receipt of a report filed under section

24 353(c)—

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1 ‘‘(A) may conduct any additional investiga2 tion which it considers to be necessary;

3 ‘‘(B) may dismiss the complaint; and

4 ‘‘(C) if the complaint is not dismissed,

5 shall take such action as is appropriate to as6 sure the effective and expeditious administra7 tion of the business of the courts within the cir8 cuit.

9 ‘‘(2) DESCRIPTION OF POSSIBLE ACTIONS IF

10 COMPLAINT NOT DISMISSED.—

11 ‘‘(A) IN GENERAL.—Action by the judicial

12 council under paragraph (1)(C) may include—

13 ‘‘(i) ordering that, on a temporary

14 basis for a time certain, no further cases

15 be assigned to the judge whose conduct is

16 the subject of a complaint;

17 ‘‘(ii) censuring or reprimanding such

18 judge by means of private communication;

19 and

20 ‘‘(iii) censuring or reprimanding such

21 judge by means of public announcement.

22 ‘‘(B) FOR ARTICLE III JUDGES.—If the

23 conduct of a judge appointed to hold office dur24 ing good behavior is the subject of the comVerDate 11-MAY-2000 22:44 May 14, 2002 Jkt 099006 PO 00000 Frm 00044 Fmt 6659 Sfmt 6601 E:\HR\NSET\HR459.XXX pfrm01 PsN: HR459
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1 plaint, action by the judicial council under

2 paragraph (1)(C) may include—

3 ‘‘(i) certifying disability of the judge

4 pursuant to the procedures and standards

5 provided under section 372(b); and

6 ‘‘(ii) requesting that the judge volun7 tarily retire, with the provision that the

8 length of service requirements under sec9 tion 371 of this title shall not apply.

10 ‘‘(C) FOR MAGISTRATE JUDGES.—If the

11 conduct of a magistrate judge is the subject of

12 the complaint, action by the judicial council

13 under paragraph (1)(C) may include directing

14 the chief judge of the district of the magistrate

15 judge to take such action as the judicial council

16 considers appropriate.

17 ‘‘(3) LIMITATIONS ON JUDICIAL COUNCIL RE18 GARDING REMOVALS.—

19 ‘‘(A) ARTICLE III JUDGES.—Under no cir20 cumstances may the judicial council order re21 moval from office of any judge appointed to

22 hold office during good behavior.

23 ‘‘(B) MAGISTRATE AND BANKRUPTCY

24 JUDGES.—Any removal of a magistrate judge

25 under this subsection shall be in accordance

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1 with section 631 and any removal of a bank2 ruptcy judge shall be in accordance with section

3 152.

4 ‘‘(4) NOTICE OF ACTION TO JUDGE.—The judi5 cial council shall immediately provide written notice

6 to the complainant and to the judge whose conduct

7 is the subject of the complaint of the action taken

8 under this subsection.

9 ‘‘(b) REFERRAL TO JUDICIAL CONFERENCE.—

10 ‘‘(1) IN GENERAL.—In addition to the authority

11 granted under subsection (a), the judicial council

12 may, in its discretion, refer any complaint under sec13 tion 351, together with the record of any associated

14 proceedings and its recommendations for appropriate

15 action, to the Judicial Conference of the United

16 States.

17 ‘‘(2) SPECIAL CIRCUMSTANCES.—In any case in

18 which the judicial council determines, on the basis of

19 a complaint and an investigation under this chapter,

20 or on the basis of information otherwise available to

21 the judicial council, that a judge appointed to hold

22 office during good behavior may have engaged in

23 conduct—

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1 ‘‘(A) which might constitute one or more

2 grounds for impeachment under article II of the

3 Constitution, or

4 ‘‘(B) which, in the interest of justice, is

5 not amenable to resolution by the judicial coun6 cil,

7 the judicial council shall promptly certify such deter8 mination, together with any complaint and a record

9 of any associated proceedings, to the Judicial Con10 ference of the United States.

11 ‘‘(3) NOTICE TO COMPLAINANT AND JUDGE.—

12 A judicial council acting under authority of this sub13 section shall, unless contrary to the interests of jus14 tice, immediately submit written notice to the com15 plainant and to the judge whose conduct is the sub16 ject of the action taken under this subsection.

17 ‘‘§ 355. Action by Judicial Conference

18 ‘‘(a) IN GENERAL.—Upon referral or certification of

19 any matter under section 354(b), the Judicial Conference,

20 after consideration of the prior proceedings and such addi21 tional investigation as it considers appropriate, shall by

22 majority vote take such action, as described in section

23 354(a)(1)(C) and (2), as it considers appropriate.

24 ‘‘(b) IF IMPEACHMENT WARRANTED.—

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1 ‘‘(1) IN GENERAL.—If the Judicial Conference

2 concurs in the determination of the judicial council,

3 or makes its own determination, that consideration

4 of impeachment may be warranted, it shall so certify

5 and transmit the determination and the record of

6 proceedings to the House of Representatives for

7 whatever action the House of Representatives con8 siders to be necessary. Upon receipt of the deter9 mination and record of proceedings in the House of

10 Representatives, the Clerk of the House of Rep11 resentatives shall make available to the public the

12 determination and any reasons for the determina13 tion.

14 ‘‘(2) IN CASE OF FELONY CONVICTION.—If a

15 judge has been convicted of a felony under State or

16 Federal law and has exhausted all means of obtain17 ing direct review of the conviction, or the time for

18 seeking further direct review of the conviction has

19 passed and no such review has been sought, the Ju20 dicial Conference may, by majority vote and without

21 referral or certification under section 354(b), trans22 mit to the House of Representatives a determination

23 that consideration of impeachment may be war24 ranted, together with appropriate court records, for

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1 whatever action the House of Representatives con2 siders to be necessary.

3 ‘‘§ 356. Subpoena power

4 ‘‘(a) JUDICIAL COUNCILS AND SPECIAL COMMIT5 TEES.—In conducting any investigation under this chap6 ter, the judicial council, or a special committee appointed

7 under section 353, shall have full subpoena powers as pro8 vided in section 332(d).

9 ‘‘(b) JUDICIAL CONFERENCE AND STANDING COM10 MITTEES.—In conducting any investigation under this

11 chapter, the Judicial Conference, or a standing committee

12 appointed by the Chief Justice under section 331, shall

13 have full subpoena powers as provided in that section.

14 ‘‘§ 357. Review of orders and actions

15 ‘‘(a) REVIEW OF ACTION OF JUDICIAL COUNCIL.—

16 A complainant or judge aggrieved by an action of the judi17 cial council under section 354 may petition the Judicial

18 Conference of the United States for review thereof.

19 ‘‘(b) ACTION OF JUDICIAL CONFERENCE.—The Judi20 cial Conference, or the standing committee established

21 under section 331, may grant a petition filed by a com22 plainant or judge under subsection (a).

23 ‘‘(c) NO JUDICIAL REVIEW.—Except as expressly

24 provided in this section and section 352(c), all orders and

25 determinations, including denials of petitions for review,

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1 shall be final and conclusive and shall not be judicially

2 reviewable on appeal or otherwise.

3 ‘‘§ 358. Rules

4 ‘‘(a) IN GENERAL.—Each judicial council and the

5 Judicial Conference may prescribe such rules for the con6 duct of proceedings under this chapter, including the proc7 essing of petitions for review, as each considers to be ap8 propriate.

9 ‘‘(b) REQUIRED PROVISIONS.—Rules prescribed

10 under subsection (a) shall contain provisions requiring

11 that—

12 ‘‘(1) adequate prior notice of any investigation

13 be given in writing to the judge whose conduct is the

14 subject of a complaint under this chapter;

15 ‘‘(2) the judge whose conduct is the subject of

16 a complaint under this chapter be afforded an op17 portunity to appear (in person or by counsel) at pro18 ceedings conducted by the investigating panel, to

19 present oral and documentary evidence, to compel

20 the attendance of witnesses or the production of doc21 uments, to cross-examine witnesses, and to present

22 argument orally or in writing; and

23 ‘‘(3) the complainant be afforded an oppor24 tunity to appear at proceedings conducted by the inVerDate 11-MAY-2000 22:44 May 14, 2002 Jkt 099006 PO 00000 Frm 00050 Fmt 6659 Sfmt 6601 E:\HR\NSET\HR459.XXX pfrm01 PsN: HR459
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1 vestigating panel, if the panel concludes that the

2 complainant could offer substantial information.

3 ‘‘(c) PROCEDURES.—Any rule prescribed under this

4 section shall be made or amended only after giving appro5 priate public notice and an opportunity for comment. Any

6 such rule shall be a matter of public record, and any such

7 rule promulgated by a judicial council may be modified

8 by the Judicial Conference. No rule promulgated under

9 this section may limit the period of time within which a

10 person may file a complaint under this chapter.

11 ‘‘§ 359. Restrictions

12 ‘‘(a) RESTRICTION ON INDIVIDUALS WHO ARE SUB13 JECT OF INVESTIGATION.—No judge whose conduct is the

14 subject of an investigation under this chapter shall serve

15 upon a special committee appointed under section 353,

16 upon a judicial council, upon the Judicial Conference, or

17 upon the standing committee established under section

18 331, until all proceedings under this chapter relating to

19 such investigation have been finally terminated.

20 ‘‘(b) AMICUS CURIAE.—No person shall be granted

21 the right to intervene or to appear as amicus curiae in

22 any proceeding before a judicial council or the Judicial

23 Conference under this chapter.

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1 ‘‘§ 360. Disclosure of information

2 ‘‘(a) CONFIDENTIALITY OF PROCEEDINGS.—Except

3 as provided in section 355, all papers, documents, and

4 records of proceedings related to investigations conducted

5 under this chapter shall be confidential and shall not be

6 disclosed by any person in any proceeding except to the

7 extent that—

8 ‘‘(1) the judicial council of the circuit in its dis9 cretion releases a copy of a report of a special com10 mittee under section 353(c) to the complainant

11 whose complaint initiated the investigation by that

12 special committee and to the judge whose conduct is

13 the subject of the complaint;

14 ‘‘(2) the judicial council of the circuit, the Judi15 cial Conference of the United States, or the Senate

16 or the House of Representatives by resolution, re17 leases any such material which is believed necessary

18 to an impeachment investigation or trial of a judge

19 under article I of the Constitution; or

20 ‘‘(3) such disclosure is authorized in writing by

21 the judge who is the subject of the complaint and by

22 the chief judge of the circuit, the Chief Justice, or

23 the chairman of the standing committee established

24 under section 331.

25 ‘‘(b) PUBLIC AVAILABILITY OF WRITTEN ORDERS.—

26 Each written order to implement any action under section

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1 354(a)(1)(C), which is issued by a judicial council, the Ju2 dicial Conference, or the standing committee established

3 under section 331, shall be made available to the public

4 through the appropriate clerk’s office of the court of ap5 peals for the circuit. Unless contrary to the interests of

6 justice, each such order shall be accompanied by written

7 reasons therefor.

8 ‘‘§ 361. Reimbursement of expenses

9 ‘‘Upon the request of a judge whose conduct is the

10 subject of a complaint under this chapter, the judicial

11 council may, if the complaint has been finally dismissed

12 under section 354(a)(1)(B), recommend that the Director

13 of the Administrative Office of the United States Courts

14 award reimbursement, from funds appropriated to the

15 Federal judiciary, for those reasonable expenses, including

16 attorneys’ fees, incurred by that judge during the inves17 tigation which would not have been incurred but for the

18 requirements of this chapter.

19 ‘‘§ 362. Other provisions and rules not affected

20 ‘‘Except as expressly provided in this chapter, noth21 ing in this chapter shall be construed to affect any other

22 provision of this title, the Federal Rules of Civil Proce23 dure, the Federal Rules of Criminal Procedure, the Fed24 eral Rules of Appellate Procedure, or the Federal Rules

25 of Evidence.

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1 ‘‘§ 363. Court of Federal Claims, Court of Inter2 national Trade, Court of Appeals for the

3 Federal Circuit

4 ‘‘The United States Court of Federal Claims, the

5 Court of International Trade, and the Court of Appeals

6 for the Federal Circuit shall each prescribe rules, con7 sistent with the provisions of this chapter, establishing

8 procedures for the filing of complaints with respect to the

9 conduct of any judge of such court and for the investiga10 tion and resolution of such complaints. In investigating

11 and taking action with respect to any such complaint, each

12 such court shall have the powers granted to a judicial

13 council under this chapter.

14 ‘‘§ 364. Effect of felony conviction

15 ‘‘In the case of any judge or judge of a court referred

16 to in section 363 who is convicted of a felony under State

17 or Federal law and has exhausted all means of obtaining

18 direct review of the conviction, or the time for seeking fur19 ther direct review of the conviction has passed and no such

20 review has been sought, that judge shall not hear cases

21 unless the judicial council of the circuit (or, in the case

22 of a judge of a court referred to in section 363, that court)

23 determines otherwise.’’.

24 (b) CONFORMING AMENDMENT.—The table of chap25 ters for part I of title 28, United States Code, is amended

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1 by inserting after the item relating to chapter 15 the fol2 lowing new item:

‘‘16. Judicial discipline .................................................................... 351’’.

3 SEC. 3. EN BANC HEARINGS OF CIRCUIT JUDGES.

4 Section 46(c) of title 28, United States Code, is

5 amended by inserting after the first sentence the fol6 lowing: ‘‘For purposes of determining a majority under the

7 preceding sentence, there shall be excluded any judge who

8 is recused from the case or controversy at issue.’’.

9 SEC. 4. TECHNICAL AMENDMENTS.

10 (a) RETIREMENT FOR DISABILITY.—(1) Section 372

11 of title 28, United States Code, is amended—

12 (A) in the section caption by striking ‘‘; judi13 cial discipline’’; and

14 (B) by striking subsection (c).

15 (2) The item relating to section 372 in the table of

16 sections for chapter 17 of title 28, United States Code,

17 is amended by striking ‘‘; judicial discipline’’.

18 (b) JUDICIAL CONFERENCE.—Section 331 of title 28,

19 United States Code, is amended in the fourth undesig20 nated paragraph by striking ‘‘section 372(c)’’ each place

21 it appears and inserting ‘‘chapter 16’’.

22 (c) JUDICIAL COUNCILS.—Section 332 of title 28,

23 United States Code, is amended—

24 (1) in subsection (d)(2)—

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1 (A) by striking ‘‘section 372(c) of this

2 title’’ and inserting ‘‘chapter 16 of this title’’;

3 and

4 (B) by striking ‘‘372(c)(4)’’ and inserting

5 ‘‘353’’; and

6 (2) by striking the second subsection designated

7 as subsection (h).

8 (d) RECALL OF BANKRUPTCY JUDGES AND MAG9 ISTRATE JUDGES.—Section 375(d) of title 28, United

10 States Code, is amended by striking ‘‘section 372(c)’’ and

11 inserting ‘‘chapter 16’’.

12 (e) DIRECTOR OF THE ADMINISTRATIVE OFFICE OF

13 THE UNITED STATES COURTS.—Section 604 of title 28,

14 United States Code, is amended—

15 (1) in subsection (a)(20)—

16 (A) in subparagraph (B), by striking

17 ‘‘372(c)(11)’’ and inserting ‘‘358’’; and

18 (B) in subparagraph (C), by striking

19 ‘‘372(c)(15)’’ and inserting ‘‘360(b)’’; and

20 (2) in subsection (h)—

21 (A) in paragraph (1), by striking ‘‘section

22 372’’ each place it appears and inserting ‘‘chap23 ter 16’’; and

24 (B) in paragraph (2), by striking ‘‘section

25 372(c)’’ and inserting ‘‘chapter 16’’.

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1 (f) COURT OF APPEALS FOR VETERANS CLAIMS.—

2 Section 7253(g) of title 38, United States Code, is

3 amended—

4 (1) in paragraph (1)—

5 (A) by striking ‘‘section 372(c)’’ and in6 serting ‘‘chapter 16’’; and

7 (B) by striking ‘‘such section’’ and insert8 ing ‘‘such chapter’’;

9 (2) in paragraph (2)—

10 (A) in the first sentence, by striking

11 ‘‘paragraphs (7) through (15) of section

12 372(c)’’ and inserting ‘‘sections 354(b) through

13 360’’; and

14 (B) in the second sentence, by striking

15 ‘‘paragraph (7) or (8) of section 372(c)’’ and

16 inserting ‘‘section 354(b) or 355’’; and

17 (3) in paragraph (3)(B), by striking

18 ‘‘372(c)(16)’’ and inserting ‘‘361’’.

Æ

58

Chairman SENSENBRENNER. The Chair recognizes the gentleman

from North Carolina, Mr. Coble, Chairman of the Subcommittee on

Courts, the Internet, and Intellectual Property, for a motion.

Mr. COBLE. Mr. Chairman, the Subcommittee on Courts, the

Internet, and Intellectual Property reports favorably the bill H.R.

3892, with a single amendment in the nature of a substitute, and

moves its favorable recommendation to the full House.

Chairman SENSENBRENNER. Without objection, the bill will be

considered as read and open for amendment at any point, and the

Subcommittee amendment in the nature of a substitute which the

Members have before them will be considered as read and be considered as the original text for purposes of amendment.

[The amendment in the nature of a substitute follows:]

59 H.L.C.

AMENDMENT IN THE NATURE OF A SUBSTITUTE

TO H.R. 3892

AS REPORTED BY THE SUBCOMMITTEE ON

COURTS, THE INTERNET, AND INTELLECTUAL

PROPERTY

Strike all after the enacting clause and insert the

following:

1 SECTION 1. SHORT TITLE.

2 This Act may be cited as the ‘‘Judicial Improvements

3 Act of 2002’’.

4 SEC. 2. JUDICIAL DISCIPLINE PROCEDURES.

5 (a) IN GENERAL.—Part I of title 28, United States

6 Code, is amended by inserting after chapter 15 the fol7 lowing new chapter:

8 ‘‘CHAPTER 16—COMPLAINTS AGAINST JUDGES

9 AND JUDICIAL DISCIPLINE

‘‘Sec.

‘‘351. Complaints; judge defined.

‘‘352. Review of complaint by chief judge.

‘‘353. Special committees.

‘‘354. Action by judicial council.

‘‘355. Action by Judicial Conference.

‘‘356. Subpoena power.

‘‘357. Review of orders and actions.

‘‘358. Rules.

‘‘359. Restrictions.

‘‘360. Disclosure of information.

‘‘361. Reimbursement of expenses.

‘‘362. Other provisions and rules not affected.

‘‘363. Court of Federal Claims, Court of International Trade, Court of Appeals

for the Federal Circuit.

‘‘364. Effect of felony conviction.

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H.L.C.

1 ‘‘§ 351. Complaints; judge defined

2 ‘‘(a) FILING OF COMPLAINT BY ANY PERSON.—Any

3 person alleging that a judge has engaged in conduct preju4 dicial to the effective and expeditious administration of the

5 business of the courts, or alleging that such judge is un6 able to discharge all the duties of office by reason of men7 tal or physical disability, may file with the clerk of the

8 court of appeals for the circuit a written complaint con9 taining a brief statement of the facts constituting such

10 conduct.

11 ‘‘(b) IDENTIFYING COMPLAINT BY CHIEF JUDGE.—

12 In the interests of the effective and expeditious adminis13 tration of the business of the courts and on the basis of

14 information available to the chief judge of the circuit, the

15 chief judge may, by written order stating reasons therefor,

16 identify a complaint for purposes of this chapter and

17 thereby dispense with filing of a written complaint.

18 ‘‘(c) TRANSMITTAL OF COMPLAINT.—Upon receipt of

19 a complaint filed under subsection (a), the clerk shall

20 promptly transmit the complaint to the chief judge of the

21 circuit, or, if the conduct complained of is that of the chief

22 judge, to that circuit judge in regular active service next

23 senior in date of commission (hereafter, for purposes of

24 this chapter only, included in the term ‘chief judge’). The

25 clerk shall simultaneously transmit a copy of the com26 plaint to the judge whose conduct is the subject of the

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H.L.C.

1 complaint. The clerk shall also transmit a copy of any

2 complaint identified under subsection (b) to the judge

3 whose conduct is the subject of the complaint.

4 ‘‘(d) DEFINITIONS.—In this chapter—

5 ‘‘(1) the term ‘judge’ means a circuit judge, dis6 trict judge, bankruptcy judge, or magistrate judge;

7 and

8 ‘‘(2) the term ‘complainant’ means the person

9 filing a complaint under subsection (a) of this sec10 tion.

11 ‘‘§ 352. Review of complaint by chief judge

12 ‘‘(a) EXPEDITIOUS REVIEW; LIMITED INQUIRY.—

13 The chief judge shall expeditiously review any complaint

14 received under section 351(a) or identified under section

15 351(b). In determining what action to take, the chief

16 judge may conduct a limited inquiry for the purpose of

17 determining—

18 ‘‘(1) whether appropriate corrective action has

19 been or can be taken without the necessity for a for20 mal investigation; and

21 ‘‘(2) whether the facts stated in the complaint

22 are either plainly untrue or are incapable of being

23 established through investigation.

24 For this purpose, the chief judge may request the judge

25 whose conduct is complained of to file a written response

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H.L.C.

1 to the complaint. Such response shall not be made avail2 able to the complainant unless authorized by the judge fil3 ing the response. The chief judge or his or her designee

4 may also communicate orally or in writing with the com5 plainant, the judge whose conduct is complained of, and

6 any other person who may have knowledge of the matter,

7 and may review any transcripts or other relevant docu8 ments. The chief judge shall not undertake to make find9 ings of fact about any matter that is reasonably in dispute.

10 ‘‘(b) ACTION BY CHIEF JUDGE FOLLOWING RE11 VIEW.—After expeditiously reviewing a complaint under

12 subsection (a), the chief judge, by written order stating

13 his or her reasons, may—

14 ‘‘(1) dismiss the complaint—

15 ‘‘(A) if the chief judge finds the complaint

16 to be—

17 ‘‘(i) not in conformity with section

18 351(a);

19 ‘‘(ii) directly related to the merits of

20 a decision or procedural ruling; or

21 ‘‘(iii) frivolous, lacking sufficient evi22 dence to raise an inference that mis23 conduct has occurred, or containing allega24 tions which are incapable of being estab25 lished through investigation; or

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H.L.C.

1 ‘‘(B) when a limited inquiry conducted

2 under subsection (a) demonstrates that the alle3 gations in the complaint lack any factual foun4 dation or are conclusively refuted by objective

5 evidence; or

6 ‘‘(2) conclude the proceeding if the chief judge

7 finds that appropriate corrective action has been

8 taken or that action on the complaint is no longer

9 necessary because of intervening events.

10 The chief judge shall transmit copies of the written order

11 to the complainant and to the judge whose conduct is the

12 subject of the complaint.

13 ‘‘(c) REVIEW OF ORDERS OF CHIEF JUDGE.—A com14 plainant or judge aggrieved by a final order of the chief

15 judge under this section may petition the judicial council

16 of the circuit for review thereof. The denial of a petition

17 for review of the chief judge’s order shall be final and con18 clusive and shall not be judicially reviewable on appeal or

19 otherwise.

20 ‘‘(d) REFERRAL OF PETITIONS FOR REVIEW TO PAN21 ELS OF THE JUDICIAL COUNCIL.—Each judicial council

22 may, pursuant to rules prescribed under section 358, refer

23 a petition for review filed under subsection (c) to a panel

24 of no fewer than 5 members of the council, at least 2 of

25 whom shall be district judges.

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H.L.C.

1 ‘‘§ 353. Special committees

2 ‘‘(a) APPOINTMENT.—If the chief judge does not

3 enter an order under section 352(b), the chief judge shall

4 promptly—

5 ‘‘(1) appoint himself or herself and equal num6 bers of circuit and district judges of the circuit to

7 a special committee to investigate the facts and alle8 gations contained in the complaint;

9 ‘‘(2) certify the complaint and any other docu10 ments pertaining thereto to each member of such

11 committee; and

12 ‘‘(3) provide written notice to the complainant

13 and the judge whose conduct is the subject of the

14 complaint of the action taken under this subsection.

15 ‘‘(b) CHANGE IN STATUS OR DEATH OF JUDGES.—

16 A judge appointed to a special committee under subsection

17 (a) may continue to serve on that committee after becom18 ing a senior judge or, in the case of the chief judge of

19 the circuit, after his or her term as chief judge terminates

20 under subsection (a)(3) or (c) of section 45. If a judge

21 appointed to a committee under subsection (a) dies, or re22 tires from office under section 371(a), while serving on

23 the committee, the chief judge of the circuit may appoint

24 another circuit or district judge, as the case may be, to

25 the committee.

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H.L.C.

1 ‘‘(c) INVESTIGATION BY SPECIAL COMMITTEE.—

2 Each committee appointed under subsection (a) shall con3 duct an investigation as extensive as it considers nec4 essary, and shall expeditiously file a comprehensive written

5 report thereon with the judicial council of the circuit. Such

6 report shall present both the findings of the investigation

7 and the committee’s recommendations for necessary and

8 appropriate action by the judicial council of the circuit.

9 ‘‘§ 354. Action by judicial council

10 ‘‘(a) ACTIONS UPON RECEIPT OF REPORT.—

11 ‘‘(1) ACTIONS.—The judicial council of a cir12 cuit, upon receipt of a report filed under section

13 353(c)—

14 ‘‘(A) may conduct any additional investiga15 tion which it considers to be necessary;

16 ‘‘(B) may dismiss the complaint; and

17 ‘‘(C) if the complaint is not dismissed,

18 shall take such action as is appropriate to as19 sure the effective and expeditious administra20 tion of the business of the courts within the cir21 cuit.

22 ‘‘(2) DESCRIPTION OF POSSIBLE ACTIONS IF

23 COMPLAINT NOT DISMISSED.—

24 ‘‘(A) IN GENERAL.—Action by the judicial

25 council under paragraph (1)(C) may include—

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H.L.C.

1 ‘‘(i) ordering that, on a temporary

2 basis for a time certain, no further cases

3 be assigned to the judge whose conduct is

4 the subject of a complaint;

5 ‘‘(ii) censuring or reprimanding such

6 judge by means of private communication;

7 and

8 ‘‘(iii) censuring or reprimanding such

9 judge by means of public announcement.

10 ‘‘(B) FOR ARTICLE III JUDGES.—If the

11 conduct of a judge appointed to hold office dur12 ing good behavior is the subject of the com13 plaint, action by the judicial council under

14 paragraph (1)(C) may include—

15 ‘‘(i) certifying disability of the judge

16 pursuant to the procedures and standards

17 provided under section 372(b); and

18 ‘‘(ii) requesting that the judge volun19 tarily retire, with the provision that the

20 length of service requirements under sec21 tion 371 of this title shall not apply.

22 ‘‘(C) FOR MAGISTRATE JUDGES.—If the

23 conduct of a magistrate judge is the subject of

24 the complaint, action by the judicial council

25 under paragraph (1)(C) may include directing

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1 the chief judge of the district of the magistrate

2 judge to take such action as the judicial council

3 considers appropriate.

4 ‘‘(3) LIMITATIONS ON JUDICIAL COUNCIL RE5 GARDING REMOVALS.—

6 ‘‘(A) ARTICLE III JUDGES.—Under no cir7 cumstances may the judicial council order re8 moval from office of any judge appointed to

9 hold office during good behavior.

10 ‘‘(B) MAGISTRATE AND BANKRUPTCY

11 JUDGES.—Any removal of a magistrate judge

12 under this subsection shall be in accordance

13 with section 631 and any removal of a bank14 ruptcy judge shall be in accordance with section

15 152.

16 ‘‘(4) NOTICE OF ACTION TO JUDGE.—The judi17 cial council shall immediately provide written notice

18 to the complainant and to the judge whose conduct

19 is the subject of the complaint of the action taken

20 under this subsection.

21 ‘‘(b) REFERRAL TO JUDICIAL CONFERENCE.—

22 ‘‘(1) IN GENERAL.—In addition to the authority

23 granted under subsection (a), the judicial council

24 may, in its discretion, refer any complaint under sec25 tion 351, together with the record of any associated

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1 proceedings and its recommendations for appropriate

2 action, to the Judicial Conference of the United

3 States.

4 ‘‘(2) SPECIAL CIRCUMSTANCES.—In any case in

5 which the judicial council determines, on the basis of

6 a complaint and an investigation under this chapter,

7 or on the basis of information otherwise available to

8 the judicial council, that a judge appointed to hold

9 office during good behavior may have engaged in

10 conduct—

11 ‘‘(A) which might constitute one or more

12 grounds for impeachment under article II of the

13 Constitution, or

14 ‘‘(B) which, in the interest of justice, is

15 not amenable to resolution by the judicial coun16 cil,

17 the judicial council shall promptly certify such deter18 mination, together with any complaint and a record

19 of any associated proceedings, to the Judicial Con20 ference of the United States.

21 ‘‘(3) NOTICE TO COMPLAINANT AND JUDGE.—

22 A judicial council acting under authority of this sub23 section shall, unless contrary to the interests of jus24 tice, immediately submit written notice to the comVerDate 11-MAY-2000 22:44 May 14, 2002 Jkt 099006 PO 00000 Frm 00068 Fmt 6659 Sfmt 6601 E:\HR\NSET\HR459.XXX pfrm01 PsN: HR459
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1 plainant and to the judge whose conduct is the sub2 ject of the action taken under this subsection.

3 ‘‘§ 355. Action by Judicial Conference

4 ‘‘(a) IN GENERAL.—Upon referral or certification of

5 any matter under section 354(b), the Judicial Conference,

6 after consideration of the prior proceedings and such addi7 tional investigation as it considers appropriate, shall by

8 majority vote take such action, as described in section

9 354(a)(1)(C) and (2), as it considers appropriate.

10 ‘‘(b) IF IMPEACHMENT WARRANTED.—

11 ‘‘(1) IN GENERAL.—If the Judicial Conference

12 concurs in the determination of the judicial council,

13 or makes its own determination, that consideration

14 of impeachment may be warranted, it shall so certify

15 and transmit the determination and the record of

16 proceedings to the House of Representatives for

17 whatever action the House of Representatives con18 siders to be necessary. Upon receipt of the deter19 mination and record of proceedings in the House of

20 Representatives, the Clerk of the House of Rep21 resentatives shall make available to the public the

22 determination and any reasons for the determina23 tion.

24 ‘‘(2) IN CASE OF FELONY CONVICTION.—If a

25 judge has been convicted of a felony under State or

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1 Federal law and has exhausted all means of obtain2 ing direct review of the conviction, or the time for

3 seeking further direct review of the conviction has

4 passed and no such review has been sought, the Ju5 dicial Conference may, by majority vote and without

6 referral or certification under section 354(b), trans7 mit to the House of Representatives a determination

8 that consideration of impeachment may be war9 ranted, together with appropriate court records, for

10 whatever action the House of Representatives con11 siders to be necessary.

12 ‘‘§ 356. Subpoena power

13 ‘‘(a) JUDICIAL COUNCILS AND SPECIAL COMMIT14 TEES.—In conducting any investigation under this chap15 ter, the judicial council, or a special committee appointed

16 under section 353, shall have full subpoena powers as pro17 vided in section 332(d).

18 ‘‘(b) JUDICIAL CONFERENCE AND STANDING COM19 MITTEES.—In conducting any investigation under this

20 chapter, the Judicial Conference, or a standing committee

21 appointed by the Chief Justice under section 331, shall

22 have full subpoena powers as provided in that section.

23 ‘‘§ 357. Review of orders and actions

24 ‘‘(a) REVIEW OF ACTION OF JUDICIAL COUNCIL.—

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1 cial council under section 354 may petition the Judicial

2 Conference of the United States for review thereof.

3 ‘‘(b) ACTION OF JUDICIAL CONFERENCE.—The Judi4 cial Conference, or the standing committee established

5 under section 331, may grant a petition filed by a com6 plainant or judge under subsection (a).

7 ‘‘(c) NO JUDICIAL REVIEW.—Except as expressly

8 provided in this section and section 352(c), all orders and

9 determinations, including denials of petitions for review,

10 shall be final and conclusive and shall not be judicially

11 reviewable on appeal or otherwise.

12 ‘‘§ 358. Rules

13 ‘‘(a) IN GENERAL.—Each judicial council and the

14 Judicial Conference may prescribe such rules for the con15 duct of proceedings under this chapter, including the proc16 essing of petitions for review, as each considers to be ap17 propriate.

18 ‘‘(b) REQUIRED PROVISIONS.—Rules prescribed

19 under subsection (a) shall contain provisions requiring

20 that—

21 ‘‘(1) adequate prior notice of any investigation

22 be given in writing to the judge whose conduct is the

23 subject of a complaint under this chapter;

24 ‘‘(2) the judge whose conduct is the subject of

25 a complaint under this chapter be afforded an opVerDate 11-MAY-2000 22:44 May 14, 2002 Jkt 099006 PO 00000 Frm 00071 Fmt 6659 Sfmt 6601 E:\HR\NSET\HR459.XXX pfrm01 PsN: HR459
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1 portunity to appear (in person or by counsel) at pro2 ceedings conducted by the investigating panel, to

3 present oral and documentary evidence, to compel

4 the attendance of witnesses or the production of doc5 uments, to cross-examine witnesses, and to present

6 argument orally or in writing; and

7 ‘‘(3) the complainant be afforded an oppor8 tunity to appear at proceedings conducted by the in9 vestigating panel, if the panel concludes that the

10 complainant could offer substantial information.

11 ‘‘(c) PROCEDURES.—Any rule prescribed under this

12 section shall be made or amended only after giving appro13 priate public notice and an opportunity for comment. Any

14 such rule shall be a matter of public record, and any such

15 rule promulgated by a judicial council may be modified

16 by the Judicial Conference. No rule promulgated under

17 this section may limit the period of time within which a

18 person may file a complaint under this chapter.

19 ‘‘§ 359. Restrictions

20 ‘‘(a) RESTRICTION ON INDIVIDUALS WHO ARE SUB21 JECT OF INVESTIGATION.—No judge whose conduct is the

22 subject of an investigation under this chapter shall serve

23 upon a special committee appointed under section 353,

24 upon a judicial council, upon the Judicial Conference, or

25 upon the standing committee established under section

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H.L.C.

1 331, until all proceedings under this chapter relating to

2 such investigation have been finally terminated.

3 ‘‘(b) AMICUS CURIAE.—No person shall be granted

4 the right to intervene or to appear as amicus curiae in

5 any proceeding before a judicial council or the Judicial

6 Conference under this chapter.

7 ‘‘§ 360. Disclosure of information

8 ‘‘(a) CONFIDENTIALITY OF PROCEEDINGS.—Except

9 as provided in section 355, all papers, documents, and

10 records of proceedings related to investigations conducted

11 under this chapter shall be confidential and shall not be

12 disclosed by any person in any proceeding except to the

13 extent that—

14 ‘‘(1) the judicial council of the circuit in its dis15 cretion releases a copy of a report of a special com16 mittee under section 353(c) to the complainant

17 whose complaint initiated the investigation by that

18 special committee and to the judge whose conduct is

19 the subject of the complaint;

20 ‘‘(2) the judicial council of the circuit, the Judi21 cial Conference of the United States, or the Senate

22 or the House of Representatives by resolution, re23 leases any such material which is believed necessary

24 to an impeachment investigation or trial of a judge

25 under article I of the Constitution; or

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H.L.C.

1 ‘‘(3) such disclosure is authorized in writing by

2 the judge who is the subject of the complaint and by

3 the chief judge of the circuit, the Chief Justice, or

4 the chairman of the standing committee established

5 under section 331.

6 ‘‘(b) PUBLIC AVAILABILITY OF WRITTEN ORDERS.—

7 Each written order to implement any action under section

8 354(a)(1)(C), which is issued by a judicial council, the Ju9 dicial Conference, or the standing committee established

10 under section 331, shall be made available to the public

11 through the appropriate clerk’s office of the court of ap12 peals for the circuit. Unless contrary to the interests of

13 justice, each such order shall be accompanied by written

14 reasons therefor.

15 ‘‘§ 361. Reimbursement of expenses

16 ‘‘Upon the request of a judge whose conduct is the

17 subject of a complaint under this chapter, the judicial

18 council may, if the complaint has been finally dismissed

19 under section 354(a)(1)(B), recommend that the Director

20 of the Administrative Office of the United States Courts

21 award reimbursement, from funds appropriated to the

22 Federal judiciary, for those reasonable expenses, including

23 attorneys’ fees, incurred by that judge during the inves24 tigation which would not have been incurred but for the

25 requirements of this chapter.

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1 ‘‘§ 362. Other provisions and rules not affected

2 ‘‘Except as expressly provided in this chapter, noth3 ing in this chapter shall be construed to affect any other

4 provision of this title, the Federal Rules of Civil Proce5 dure, the Federal Rules of Criminal Procedure, the Fed6 eral Rules of Appellate Procedure, or the Federal Rules

7 of Evidence.

8 ‘‘§ 363. Court of Federal Claims, Court of Inter9 national Trade, Court of Appeals for the

10 Federal Circuit

11 ‘‘The United States Court of Federal Claims, the

12 Court of International Trade, and the Court of Appeals

13 for the Federal Circuit shall each prescribe rules, con14 sistent with the provisions of this chapter, establishing

15 procedures for the filing of complaints with respect to the

16 conduct of any judge of such court and for the investiga17 tion and resolution of such complaints. In investigating

18 and taking action with respect to any such complaint, each

19 such court shall have the powers granted to a judicial

20 council under this chapter.

21 ‘‘§ 364. Effect of felony conviction

22 ‘‘In the case of any judge or judge of a court referred

23 to in section 363 who is convicted of a felony under State

24 or Federal law and has exhausted all means of obtaining

25 direct review of the conviction, or the time for seeking fur26 ther direct review of the conviction has passed and no such

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1 review has been sought, that judge shall not hear cases

2 unless the judicial council of the circuit (or, in the case

3 of a judge of a court referred to in section 363, that court)

4 determines otherwise.’’.

5 (b) CONFORMING AMENDMENT.—The table of chap6 ters for part I of title 28, United States Code, is amended

7 by inserting after the item relating to chapter 15 the fol8 lowing new item:

‘‘16. Judicial discipline .................................................................... 351’’.

9 SEC. 3. TECHNICAL AMENDMENTS.

10 (a) RETIREMENT FOR DISABILITY.—(1) Section 372

11 of title 28, United States Code, is amended—

12 (A) in the section caption by striking ‘‘; judi13 cial discipline’’; and

14 (B) by striking subsection (c).

15 (2) The item relating to section 372 in the table of

16 sections for chapter 17 of title 28, United States Code,

17 is amended by striking ‘‘; judicial discipline’’.

18 (b) JUDICIAL CONFERENCE.—Section 331 of title 28,

19 United States Code, is amended in the fourth undesig20 nated paragraph by striking ‘‘section 372(c)’’ each place

21 it appears and inserting ‘‘chapter 16’’.

22 (c) JUDICIAL COUNCILS.—Section 332 of title 28,

23 United States Code, is amended—

24 (1) in subsection (d)(2)—

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H.L.C.

1 (A) by striking ‘‘section 372(c) of this

2 title’’ and inserting ‘‘chapter 16 of this title’’;

3 and

4 (B) by striking ‘‘372(c)(4)’’ and inserting

5 ‘‘353’’; and

6 (2) by striking the second subsection designated

7 as subsection (h).

8 (d) RECALL OF BANKRUPTCY JUDGES AND MAG9 ISTRATE JUDGES.—Section 375(d) of title 28, United

10 States Code, is amended by striking ‘‘section 372(c)’’ and

11 inserting ‘‘chapter 16’’.

12 (e) DIRECTOR OF THE ADMINISTRATIVE OFFICE OF

13 THE UNITED STATES COURTS.—Section 604 of title 28,

14 United States Code, is amended—

15 (1) in subsection (a)(20)—

16 (A) in subparagraph (B), by striking

17 ‘‘372(c)(11)’’ and inserting ‘‘358’’; and

18 (B) in subparagraph (C), by striking

19 ‘‘372(c)(15)’’ and inserting ‘‘360(b)’’; and

20 (2) in subsection (h)—

21 (A) in paragraph (1), by striking ‘‘section

22 372’’ each place it appears and inserting ‘‘chap23 ter 16’’; and

24 (B) in paragraph (2), by striking ‘‘section

25 372(c)’’ and inserting ‘‘chapter 16’’.

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H.L.C.

1 (f) COURT OF APPEALS FOR VETERANS CLAIMS.—

2 Section 7253(g) of title 38, United States Code, is

3 amended—

4 (1) in paragraph (1)—

5 (A) by striking ‘‘section 372(c)’’ and in6 serting ‘‘chapter 16’’; and

7 (B) by striking ‘‘such section’’ and insert8 ing ‘‘such chapter’’;

9 (2) in paragraph (2)—

10 (A) in the first sentence, by striking

11 ‘‘paragraphs (7) through (15) of section

12 372(c)’’ and inserting ‘‘sections 354(b) through

13 360’’; and

14 (B) in the second sentence, by striking

15 ‘‘paragraph (7) or (8) of section 372(c)’’ and

16 inserting ‘‘section 354(b) or 355’’; and

17 (3) in paragraph (3)(B), by striking

18 ‘‘372(c)(16)’’ and inserting ‘‘361’’.

79

Chairman SENSENBRENNER. Again, the Chair encourages everybody to be brief and recognizes the gentleman from North Carolina.

Mr. COBLE. Mr. Chairman, I move to strike the last word and

I——

Chairman SENSENBRENNER. The gentleman is recognized for 5

minutes.

Mr. COBLE. And I can do this within the 5-minute limit.

H.R. 3892 constitutes a noncontroversial fine-tuning of an existing statute, the Judicial Conduct and Disability Act of 1980, which

permits individuals to file complaints against Federal judges for inappropriate behavior. Mr. Berman and I have introduced the bill,

Mr. Chairman, and there appears to be no controversy, and I move

its favorable consideration.

[The prepared statement of Mr. Coble follows:]

PREPARED STATEMENT OF THE HONORABLE HOWARD COBLE, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF NORTH CAROLINA

Mr. Chairman, I move to strike the last word.

H.R. 3892 constitutes a noncontroversial fine-tuning of an existing statute, the

‘‘Judicial Conduct and Disability Act of 1980,’’ which permits individuals to file complaints against federal judges for inappropriate behavior.

The Subcommittee on Courts, the Internet, and Intellectual Property conducted

an oversight hearing on the operations of federal judicial misconduct statutes last

November 29. The witnesses at the hearing were united in their general praise for

the Third Branch. Their respect for the federal judiciary is, I am confident, also

shared by each Committee member. Still, no federal entity is immune from periodic

evaluation, and that is why the Subcommittee Ranking Member, Mr. Berman, and

I have introduced H.R. 3892.

The legislation before us will reorganize the 1980 Act by re-codifying it as a new

chapter of title 28 of the U.S. Code. The bill will also clarify the responsibilities of

a circuit chief judge in making initial evaluations of a complaint.

The changes set forth in the ‘‘Judicial Improvements Act of 2002’’ are largely

based on procedures that the judges themselves have developed through the years.

The construct for the bill, based as it is on self-regulation, indicates that Congress

and the American people retain great confidence in the ability of federal judges to

identify and correct misconduct among their own colleagues.

Mr. Chairman, that concludes my explanation of H.R. 3892, and I yield back the

balance of my time.

Chairman SENSENBRENNER. Without objection, all Members’

statements may appear in the record at this point.

[The prepared statement of Mr. Conyers follows:]

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN

I rise in support of this legislation. H.R. 3892 makes several changes that will

improve vastly the operation of the Federal judicial discipline statutes.

A preliminary change is to raise the profile of the law pertaining to complaints

filed against judges. By giving these provisions their own section—as opposed to an

obscure subsection as in current law—it will be easier for persons with complaints

to find and understand the review process.

The legislation also allows the chief judge of the relevant court to conduct a ‘‘limited inquiry’’ of a complaint to determine (1) whether a formal investigation should

proceed, and (2) whether the facts alleged are plainly untrue or incapable of being

established through an investigation. This provision will preserve the resources of

the judiciary so that it is not required to investigate every complaint but can focus

on those most deserving its attention. At the same time, a complainant can appeal

the final order from a limited inquiry to the court’s judicial council.

Third, current law says that, when a judge is convicted of a felony, the Judicial

Conference may transmit to Congress a determination that impeachment may be

warranted. It is unclear, however, whether both Federal and state felonies are covered; this legislation makes it explicit that felonies in both jurisdictions are grounds

for a referral.

80

Finally, the bill amends to law to prohibit judges later convicted of felonies from

handling cases unless and until the judicial council or relevant court determines

otherwise.

I urge the members to vote ‘‘Yes’’ on this non-controversial bill.

[The prepared statement of Mr. Berman follows:]

PREPARED STATEMENT OF THE HONORABLE HOWARD L. BERMAN, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF CALIFORNIA

Mr. Chairman,

Thank you for calling this markup on the Judicial Improvements Act of 2002. This

Act makes slight modifications to existing federal judicial misconduct statutes, and

I am pleased to be a co-sponsor.

At our November hearing on the federal judicial misconduct statutes, several suggestions were made by Professor Arthur Hellman and Mr. Michael Remington to improve the methods and procedures for filing and evaluating a complaint against a

federal judge. This legislation is the outcome of those suggestions. In particular, this

legislation re-organizes the misconduct statutes into a more convenient, separate

chapter; it gives a chief judge increased flexibility to perform a limited investigation

of a complaint and dismiss it upon finding clearly obviating facts; and it specifies

how petitions for review should be evaluated.

I have shown this proposed legislation to several judges with jurisdiction over my

California district, and I have received only positive responses. The judges believe

this legislation will make it easier for a complainant to have a fair and expeditious

review of his or her complaint. They also believe it will make it easier for the judicial branch to process each complaint efficiently.

I urge my colleagues to support this bill, and I yield back the balance of my time.

Are there amendments to the bill? If there are no amendments

to the bill, the question occurs on the amendment in the nature of

a substitute. Those in favor will say aye? Opposed, no?

The ayes appear to have it. The ayes have it, and the amendment in the nature of a substitute is agreed to.

The question now occurs on the motion to report the bill H.R.

3892 favorably as amended by the amendment in the nature of a

substitute. The Chair notes the presence of a reporting quorum. All

those in favor will say aye? Opposed, no?

The ayes appear to have it. The ayes have it, and the motion to

report favorably is adopted.

Without objection, the Chairman is authorized to move to go to

conference pursuant to House rules. Without objection, the staff is

directed to make any technical and conforming changes, and all

Members will be given two days, as provided by House rules, in

which to submit additional dissenting, supplemental, or minority

views.

And now the Subcommittee—or the Committee is recessed pursuant to the call of the Chair.

[Whereupon, at 12:07 p.m., the Committee was adjourned.]

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