1 

REPORT OF THE FEDERAL JUDICIARY WORKPLACE CONDUCT

WORKING GROUP

TO 

THE JUDICIAL CONFERENCE OF THE UNITED STATES 

JUNE 1, 2018

INTRODUCTION

On December 20, 2017, Chief Justice John G. Roberts, Jr., asked the Director of the 

Administrative Office of the United States Courts to establish a working group to examine the 

sufficiency of the safeguards currently in place within the Judiciary to protect all court 

employees from inappropriate conduct in the workplace.1

 The Chief Justice highlighted this 

issue in his 2017 Year-End Report on the Federal Judiciary, noting that the Judicial Branch 

cannot assume that it is immune from the problems of sexual harassment that have arisen 

elsewhere in the public and private sectors. He directed the working group to consider whether 

changes are needed to: the Judiciary’s codes of conduct; its guidance to employees on issues of 

confidentiality and reporting of instances of misconduct; its educational programs; and its rules 

for investigating and processing misconduct complaints.2

 The ultimate goal of this undertaking 

is “to ensure an exemplary workplace for every judge and every court employee.”3

On January 12, 2018, the Director announced the formation of the Federal Judiciary 

Workplace Conduct Working Group (Working Group).4 The Working Group, chaired by the 

Director, consists of eight experienced judges and court administrators from diverse units within 

 

1 See Appendix 1: Memorandum from James C. Duff, Director of the Administrative Office, to all Judiciary

Employees (Dec. 20, 2017). 2 See Appendix 2: Chief Justice John G. Roberts, Jr., United States Supreme Court, Year-End Report on the 

Federal Judiciary at 11 (2017). 3 Id. 4 See Appendix 3: Press Release, Federal Judiciary Workplace Conduct Working Group Formed

(Jan. 12, 2018).
2 

the Judiciary. The members include representatives from the Administrative Office, the Federal 

Judicial Center (FJC), and six different courts from five different circuits.5

 The Director has 

enlisted the Administrative Office’s General Counsel and her staff to provide additional 

subject-matter expertise, counsel, and support. The Working Group has collaborated 

continuously since its inception by telephone and electronic means, and it has convened monthly 

in-person meetings at the Administrative Office in Washington, D.C., on February 7, 2018; 

March 1, 2018; April 6, 2018; and May 21, 2018. 

The Working Group took its charter from the Chief Justice’s goal of ensuring an 

exemplary workplace for every judge and every court employee. As the branch of government 

whose core purpose is equal justice under law, the Judiciary must hold itself to the highest 

standards of conduct and civility to maintain the public trust. The Working Group developed its 

findings and recommendations not only to address harassment, but to pursue the overarching 

goal of an inclusive and respectful workplace.

The Working Group proceeded from the premise that in many respects the Judiciary 

shares common features with other public and private workplaces. The Working Group 

therefore analyzed existing literature on workplace misconduct in those sectors. The Working 

Group found particularly helpful a June 2016 study by a Select Task Force of the United States 

Equal Employment Opportunity Commission (EEOC).

6

 The EEOC Study analyzes the 

prevalence of harassment, employee responses, risk factors, and steps that can be taken to 

prevent and remedy inappropriate conduct.7

 Its summary of recommendations provides 

 

5 Id.

6 U.S. Equal Emp. Opportunity Comm’n, Select Task Force on the Study of Harassment in the Workplace, 

Report of Co-Chairs Chai R. Feldblum and Victoria A. Lipnic, (2016), (EEOC Study). 7 Id.
3 

invaluable general guidance on developing harassment prevention policies, providing education 

and compliance training, and promoting workplace civility.8

 

The Working Group included in its review the entire federal Judiciary, including judges, 

court unit executives, managers, supervisors and others serving in supervisory roles, as well as 

employees, law clerks, interns, externs, and other volunteers. It recognized that, despite the 

Judicial Branch’s many shared characteristics with other workplaces, the judicial workplace is 

unique in certain respects. On the one hand, the Judiciary has distinct features that are likely to 

lessen the risk of employee harassment. For example, the Judiciary, by virtue of its institutional 

role, is committed to fairness and the rule of law; it has a tradition of formality and decorum; its 

Article III judges are subject to rigorous screening through the judicial confirmation process; its 

bankruptcy and magistrate judges are carefully vetted before appointment; its executives and 

most employees are subject to pre-employment background investigations; it has long 

maintained codes of professional conduct; it has developed and maintained a host of fair 

employment training and educational programs; and it is subject to both statutory and regulatory 

programs to investigate and remedy misconduct.9

 But on the other hand, some elements of the 

judicial workplace can increase the risk of misconduct or impose obstacles to addressing 

inappropriate behavior effectively. For example, there are significant “power disparities” 

between judges and the law clerks and other employees who work with them, which may deter a 

law clerk or employee from challenging or reporting objectionable conduct. Judges enjoy life 

tenure, and they are subject to discipline only through formal processes. Further, the judicial 

decision-making process requires a high degree of confidentiality, and law clerks and other 

 

8 Id. at 66-71. 9 See Appendix 4: Letter from James C. Duff, Director of the Administrative Office, to Chairman

Charles E. Grassley and Ranking Member Dianne Feinstein (Feb. 16, 2018).
4 

chambers employees may mistakenly believe that the obligation of confidentiality extends to the 

reporting of misconduct. 

The Working Group accordingly embraced the recommendations set forth in the EEOC 

Study, but it focused additional effort on identifying those factors that distinguished the Judiciary 

and called for further refinement of the standards that would apply in other workplaces. The 

Working Group sought out the views of interested constituencies, including current and former 

law clerks, court employees, and Judicial Branch advisory councils. It conducted in-person 

meetings with representative law clerks, employees, and industry experts, including the co-chairs 

of the EEOC Study.10 The Working Group broadly solicited input through an “electronic 

mailbox” that enabled any current or former Judiciary employee to provide anonymous or 

attributable suggestions and comments. The Working Group sought and received input from 

several circuits’ own workplace conduct working groups. Based on its input from these sources 

and its members’ own experiences in the Judiciary, the Working Group then engaged in a review 

of: (1) the Judiciary’s codes of conduct and published guidance for judges, law clerks, and other 

judiciary employees; (2) the existing statutory framework for misconduct complaints under the 

Judicial Conduct and Disability Act (JC&D Act) and the Judiciary’s internal framework of 

Employment Dispute Resolution Plans (EDR Plans); and (3) the Judiciary’s educational 

programs and publications for promoting fair employment practices and workplace civility.11 

 

10 The Working Group appreciates the written submissions and detailed in–person discussions during 

meetings between the Working Group members and the co-chairs of the EEOC Study (supra note 6), Acting 

Commission Chair Victoria A. Lipnic and Commissioner Chai R. Feldblum, and with current and former law 

clerks Jaime Santos, Kendall Turner, Deeva Shah, Claire Madill, and Sara McDermott, as well as many other 

current employees within the Judiciary.

11 In the course of this undertaking, the Working Group briefed the Judicial Conference and all Judiciary 

employees on its progress, answered media inquiries, and responded to communications from interested 

members of Congress. See, e.g., Appendix 4, supra note 9. See also Appendix 5: Letter from James C. Duff, 

Director of the Administrative Office, to Chairman Charles E. Grassley and Ranking Member Dianne Feinstein 

(Mar. 8, 2018); Memorandum from James C. Duff, Director of the Administrative Office, seeking comments 

from all Judiciary employees (Feb. 20, 2018); Press Release, Judiciary Workplace Conduct Group Seeks Law 
5 

The product of these efforts is this report to the Judicial Conference of the United States. 

The Judicial Conference, presided over by the Chief Justice, is the national policy-making body 

for the federal courts. It establishes policies based on the advice of its various committees. The 

Working Group’s Report offers a number of recommendations to the Judicial Conference and its 

committees for their consideration and further action. The Report also includes 

recommendations that the Administrative Office, as the administrative arm of the Judiciary, and 

the FJC, as the Judiciary’s education and research agency, can implement directly. 

The Report first provides a summary of what was learned through the meetings with 

affected constituencies, subject-matter experts, and other interested groups, and from comments 

submitted by employees. The Report then sets forth recommendations and identifies steps 

already taken to: (1) revise and clarify the Judiciary’s codes and other published guidance for 

promoting appropriate workplace behavior; (2) improve the procedures for identifying and 

correcting misconduct, including the creation of new avenues for employees to seek advice and 

register complaints; and (3) enhance educational and training programs to raise awareness of 

conduct issues, prevent harassment, and promote an exemplary workplace environment. 

The Working Group’s submission of this Report does not conclude its work. Under the 

Chief Justice’s direction, the Working Group intends to monitor ongoing initiatives and measure 

progress to ensure its goals are fulfilled.

I. FINDINGS

 

Clerk, Employee Input (Feb. 21, 2018); Memorandum from James C. Duff, Director of the Administrative 

Office, to all United States Judges (Feb. 28, 2018). See Appendix 6: Press Release, Judicial Conference Receives 

Status Report on Workplace Conduct Review (Mar. 13, 2018).
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The EEOC Study of harassment in the workplace provided the Working Group with a 

current and reliable empirical baseline to understand the problem and focus its inquiries. The 

EEOC Task Force conducted its study over 18 months from January 14, 2015, through June 

2016. The 88-page report convincingly explains that workplace harassment is a persistent and 

pervasive problem in all economic sectors, in all socioeconomic classes, and at all organizational 

levels. The EEOC Study noted that almost one third of the 90,000 charges it received in 2015 

included an allegation of workplace harassment. Those charges included harassment on the basis 

of sex (including sexual orientation, gender identity, and pregnancy), race, disability, age, 

ethnicity/national origin, color, and religion.12 The EEOC Study found that between 25 percent 

and 85 percent of women in the private sector and federal sector workplace experienced sexual 

harassment, depending on how that term is defined.13 The EEOC Study stated that three out of 

four individuals who experienced harassment never talked to a supervisor or manager about it.14 

In short, the EEOC Study confirmed that the problem of workplace harassment is both 

widespread and underreported in workplaces throughout the nation, and—as the Chief Justice 

noted in his Year-End Report—there is no reason to believe that the Judiciary is immune.15

The information that the Working Group gathered is generally consistent with the EEOC 

Study. The Judicial Branch employs 30,000 individuals in a broad range of occupations. Based 

on input from the electronic mailbox, the advisory groups, and circuit surveys (much of which 

was anonymous), and from interviews with employees, including law clerks, the Working Group 

believes that inappropriate conduct, although not pervasive in the Judiciary, is not limited to a 

 12 EEOC Study, supra note 6, at iv. 13 Id. at 8. 14 Id. at v.

15 As the EEOC Study points out, harassment for any reason is problematic, and the Working Group’s 

references to harassment are therefore not limited to harassment of a sexual nature. 
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few isolated instances. This information suggests that, of the inappropriate behavior that does 

occur, incivility, disrespect, or crude behavior is more common than sexual harassment. As the 

EEOC Study noted, “incivility is often an antecedent to workplace harassment.” The Working 

Group agrees that, rather than focusing simply on eliminating unwelcome behavior, the Judiciary 

should “promot[e] respect and civility in the workplace generally.”16 

The EEOC Study was useful in another important respect. It provided the Working 

Group with a cogent approach for assessing and addressing the problem of workplace 

harassment and inappropriate behavior within the Judiciary. The EEOC Study’s 

recommendations, which the co-chairs recently distilled in a Harvard Business Review article,17

identify five key steps that employers can take to end harassment:

•

•

•

•

•

Demonstrate Committed and Engaged Leadership

Require Consistent and Demonstrated Accountability 

Issue Strong and Comprehensive Policies 

Offer Trusted and Accessible Complaint Procedures 

Provide Regular, Interactive Training Tailored to the Organization. 

Those elements provide a sound framework for evaluating the information that the 

Working Group received from its in-person interviews, electronic mailbox submissions, advisory 

council input, and other sources. 

 

16 EEOC Study, supra note at 55. 17 Chai R. Feldblum & Victoria A. Lipnic, Breaking the Silence, Harvard Business Review (2018), 

https://hbr.org/2018/01/breaking-the-silence, (Breaking the Silence).
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A. Does the Judiciary Demonstrate Committed and Engaged Leadership? 

The EEOC Study emphasizes that the leadership of an organization must show its 

commitment “to a diverse, inclusive, and respectful workplace in which harassment is not 

accepted.”18 Additionally, “leadership must come from the very top of the organization.”19 

The Chief Justice’s formation of this Working Group, and the Judicial Conference’s 

interim review of the Working Group’s progress at the March 2018 Judicial Conference session, 

demonstrate a commitment “from the top” of the Judiciary.20 But that leadership must extend 

throughout the Judiciary, beginning with judges. The Judicial Branch’s administration and 

management is dispersed through thirteen circuit courts, 94 district courts, and a host of other 

judicial entities. Many of those entities have already expressed a commitment to the goals of a 

welcoming and civil workplace. For example, several circuits and district courts already have 

launched their own workplace initiatives.21 Other circuits and district courts are following suit. 

The Working Group received anonymous anecdotal reports about harassment or other 

inappropriate behavior that were not properly addressed. It is therefore vital that judges and 

court executives ensure, through educational programs, performance reviews, and other 

mechanisms for motivating positive change, that judges, executives, supervisors, and managers 

at every level throughout the Judiciary demonstrate the same strong commitment to workplace 

civility. 

 

18 EEOC Study, supra note 6 at 31. 19 Id. 20 See Appendix 6, supra note 11. 21 See, e.g., Press Releases, Ninth Circuit Committee Begins Workplace Environment Review (Feb. 28, 2018) 

and Ninth Circuit Judicial Council Acts on Workplace Environment Recommendations (May 21, 2018). See 

also United States Court of Appeals for the Seventh Circuit Announcement by Chief Judge Diane Wood 

appointing Committee to examine harassment claims process. (Dec. 29, 2017). On April 18, 2018, the District 

Court for the District of Utah issued recommendations for how to promote a respectful workplace in its court.
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B. Does the Judiciary Require Consistent and Demonstrated Accountability? 

The EEOC Study co-chairs have noted that “[e]mployees have to see that bad behavior 

will not stand and that everyone complicit in that behavior will be held responsible.”22 

Additionally, when an instance of harassment has been determined, “the discipline that follows 

must be proportionate.”23 “There should be zero tolerance for harassment, but that does not 

mean that all harassers should be disciplined the same way—that is, by being fired.”24

Judicial employees who are subject to harassment or other forms of workplace abuse 

currently have two principal mechanisms for seeking redress. First, if an employee is harassed 

or mistreated by a judge, the employee may file a written complaint under the Judicial Conduct 

and Disability Act (JC&D Act), 28 U.S.C. §§ 351-364, a statutory mechanism specifically 

designed for disciplining judges. The filing of a written complaint triggers a formal review 

process, which can result in sanctions ranging from a private reprimand to a recommendation of 

impeachment.25 The JC&D Act and the Rules for Judicial Conduct and Judicial Disability 

Procedures (Conduct Rules) provide authority for a chief circuit judge to initiate an inquiry and 

identify a complaint even if that judge receives information about misconduct in a form other 

than a formal, signed complaint.26 

Alternatively, an employee subjected to misconduct, whether by a judge, supervisor, or 

other employee, may report the wrongful conduct or initiate a claim under one of the 

Employment Dispute Resolution Plans (EDR Plans) that have been established in all thirteen of 

the nation’s judicial circuits. An EDR Plan is a judicially created program, based on the 

 

22 Breaking the Silence, supra note 17 at 5. 23 Id. 24 Id.

25 See Appendix 7: An Executive Summary of the current JC&D Act. 26 See Conduct Rule 5. This mechanism has been used in the past to initiate complaints against judges. 
10

Judiciary’s Model Employment Dispute Resolution Plan (Model EDR Plan), for resolving a wide 

range of employee disputes.27 

The Judiciary has a good record for accountability under both of these disciplinary 

mechanisms. Under either system, a complaint, reported matter, or claim receives careful 

evaluation. In the case of the JC&D Act, very few complaints are filed alleging workplace 

harassment. Rather, the bulk of the complaints are filed by litigants who are dissatisfied with the 

outcome of their cases or incarcerated individuals challenging their confinement, both of which 

are not cognizable under the Act.

28 The Judiciary’s publicly reported data shows that, of the 

1,303 judicial “misconduct” complaints filed nationwide under the JC&D Act procedures in 

fiscal year 2016, over 1,200 were filed by dissatisfied litigants and prison inmates. No 

misconduct complaints were filed under these procedures by law clerks or judiciary employees 

that year. And, none of the four complaints that were referred to a special committee for further 

investigation involved sexual misconduct. This pattern of filings is true year after year. But in 

those instances where complaints have identified judges as subjecting employees to sexual 

harassment or other forms of misconduct, the process has triggered a thorough investigation and, 

when the claim is substantiated, the process has resulted in reprimand, removal, or retirement of 

the judge.29 An important feature of the JC&D Act process is that serious complaints that reach 

the investigative stage receive multiple levels of review by multiple panels of judges. 

The Working Group found that the JC&D Act and the EDR Plans are effective when 

their provisions are invoked. But there is room for improvement in terms of transparency and 

accessibility. The Working Group received suggestions that the complainants should have 

 27 See Appendix 8: Executive Summary of Model Employment Dispute Resolution Plan. 28 28 U.S.C. § 352(b)(1)(A)(i). 29 See Appendix 4, supra note 9, at 9-17.
11

additional time under the EDR Plans for filing complaints, and complainants should receive 

more communication and updates during the investigatory phase of the proceedings. Confidence 

in court EDR Plans could be increased if those plans required chief district judges and chief 

bankruptcy judges to inform their chief circuit judge or circuit judicial council of reports of 

wrongful conduct by judges in their district and how those reports were addressed locally. 

Ensuring that the circuit court is informed of such reports would provide an additional incentive 

to investigate that report properly, could provide the basis for identification of a JC&D Act

complaint, as discussed below, and would create a record at the circuit level that could prove 

relevant if there are future complaints against the same judge. 

The Working Group found that public confidence in the JC&D Act would benefit if the 

Judiciary specifically identified harassment complaints in its statistical reports and made 

decisions on those complaints more readily accessible through searchable electronic indices. 

Some commenters noted that accountability could be strengthened through better communication 

about the outcome of disciplinary proceedings. Commenters noted the value of more regular 

employee input on workplace conditions and implementing exit interviews for employees who 

leave the workforce more consistently. 

Law clerks and others with whom the Working Group spoke expressed concern about the 

seeming lack of punishment for a judge who, under allegations of serious misconduct, retires or 

resigns and thereby terminates the disciplinary proceeding. Some believe that if the disciplinary 

process compels a life-tenured judge to leave the bench under the cloud of alleged misconduct, 

then the process has produced an appropriate result, and the removal of that judge from the 

bench without much expense or delay is beneficial. But others noted that a judge who meets the 

service requirements for retirement benefits suffers no monetary penalty and may return to legal 
12

practice. They have expressed the view that additional steps, such as a report to the local bar 

association, should be considered. More generally, commenters have noted that the termination 

of a disciplinary action should not prevent the Judiciary from continuing an institutional review

to determine if there are systemic problems within a court or judicial organization that require 

correction. 

The most significant challenge for accountability, however, arises from the reluctance of 

victims to report misconduct. Neither the JC&D Act nor the EDR Plans can ensure 

accountability if victims are unwilling to come forward. Victims are hesitant to report 

harassment and other inappropriate behavior for a variety of reasons, including lack of 

confidence that they will be believed, fear that no action will be taken, and concerns that a 

complaint will subject them to retaliatory action or affect future job prospects. Additionally, 

some forms of inappropriate conduct—such as isolated acts, insensitive comments, or 

unintentional slights—do not lend themselves to a formal complaint process and are better 

addressed through less formal mechanisms. As explained below, the Working Group found that 

the Judiciary must both reduce barriers to reporting and provide alternative avenues for seeking 

advice, counseling, and assistance. 

Although the reluctance to report misconduct arises in all employment categories, it 

deserves special attention in the case of law clerks, most of whom serve in the courts for only

one to two years. The Working Group met with law clerk representatives who provided 

invaluable insight into the problems they and their peers face when confronted with harassment. 

Law clerks, who are typically at the start of their legal careers, must step into a new, unfamiliar, 

and sometimes daunting work environment when they join a judge’s chambers. They work in 

close quarters with their judge, providing confidential support in an isolating environment. 
13

There is an acute “power disparity” between a life-tenured judge, who is a person of stature and 

influence, and a law clerk. Law clerks face strong disincentives to report inappropriate conduct. 

The law clerk who reports misconduct may understandably fear that the complaint will 

permanently destroy the bond of trust between the judge and clerk and cause unwelcome strife in 

the chambers. Law clerks know that a judge’s recommendation often plays a crucial role in the 

individual’s future job prospects. A judge’s rancor may result in embarrassment among peers, 

tarnish the clerk’s professional reputation, and curtail career opportunities. The Judiciary has a 

need to provide clear avenues for relief that recognize those legitimate concerns. 

The Working Group believes that an important first step is vigilance on the part of judges 

themselves. Under the Code of Conduct for United States Judges, judges have a responsibility to 

promote appropriate behavior in the workplace, and that responsibility should extend beyond 

one’s own chambers. Judges respect one another’s independence, and each is reciprocally 

disinclined to intrude into another’s relationships with employees. But the virtues of mutual 

respect, independence, and collegiality should not prevent a judge from intervening when 

necessary to protect an employee from another judge’s inappropriate conduct. 

The Working Group knows from firsthand experience that many judges, especially chief 

judges, take action when they observe, or become aware of, a colleague’s inappropriate behavior. 

But neither the Judiciary’s Code of Conduct nor its educational programs have provided 

sufficiently focused guidance on this matter. The Code of Conduct should make clearer that 

judges cannot turn a blind eye to a colleague’s mistreatment of employees, and the training 

programs for new and experienced judges should provide direction on how to navigate this 

sensitive issue without eroding the distinctive values of the Judicial Branch.
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C. Does the Judiciary Have Strong and Comprehensive Policies? 

The EEOC Study co-chairs have observed that employees in workplaces without express 

anti-harassment policies report the highest levels of harassment. They urge the adoption of 

anti-harassment policies that: (1) provide clear and simple explanations of prohibited conduct; 

(2) assure employees who report harassment that they will be protected from retaliation; 

(3) describe multiple avenues for making complaints; (4) provide confidentiality to the extent 

possible; (5) lead to prompt, thorough, and impartial investigations; and (6) result in 

proportionate corrective action.30

The Judiciary has long had in place a number of codes of judicial and employee conduct 

and a large body of publications designed to maintain high standards of behavior and preserve 

the independence and integrity of the Judicial Branch. Those carefully conceived publications, 

individually and collectively, reflect the essential characteristics that the EEOC Study has 

highlighted. The Working Group found, however, that those codes and publications were not 

developed with the aim of addressing the particular issues of workplace harassment or incivility, 

and they do not take full account of the nuances of these problems. The Working Group 

identified a number of areas where the codes and publications warrant clarification and revision 

to leave no doubt that disrespect, abuse, and harassment are impermissible and should be 

reported without fear of retaliation or adverse consequences.

First, commenters noted that many employees are not aware of the codes, publications, 

other sources of information regarding appropriate workplace behavior, and the mechanisms for 

recourse that are available when workplace issues arise. That information is usually provided 

commingled with a large amount of other information at the commencement of the employee’s 

 

30 Breaking the Silence, supra note 17, at 6. 
15

tenure and, unless reinforced through regular training, may be overlooked or forgotten when 

inappropriate conduct arises.

Second, the codes and publications do not provide sufficiently clear advice on some 

pivotal questions respecting prohibited conduct and responses to harassment. For example, a 

number of commenters did not understand that the confidentiality provisions, which are designed 

to ensure the integrity of the judicial decision-making process, do not prevent an employee from 

reporting misconduct. Others noted that the codes and publications do not provide clear 

guidance on protection from harassment based on sexual orientation or gender identity. Still 

others suggested that the guidance documents do not highlight sufficiently the prohibitions on 

retaliation for reporting misconduct. 

Third, law clerks and others expressed concern that efforts to avoid situations that might 

raise the potential for inappropriate behavior, or the perception of it, should not lead to 

diminished opportunities for any group of people. Efforts to promote a respectful workplace 

should promote, not detract from, an inclusive workplace.31

Fourth, commenters expressed a desire for simplified and easily accessible mechanisms 

for seeking relief from inappropriate behavior. The Working Group discusses those options in 

the following section. But for present purposes, there is also a strong desire to simplify and 

clarify, to the extent possible, the existing JC&D Act and EDR Plan processes. Among the 

proposals, commenters have suggested that: court websites should provide “one-click” 

electronic access to JC&D Act and EDR Plan information; information and the EDR Plans 

themselves should be clear and easy to understand; and the Administrative Office should develop 

 31 SDNY Chief Judge Colleen McMahon Takes on Sexual Harassment (Dec. 12, 2017), 

https://finance.yahoo.com/news/sdny-chief-judge-colleen-mcmahon-163150749.html.
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concise visual flowcharts of the complaint processes under the JC&D Act and the EDR Plans. A 

graphical overview of the Judicial Conduct and Disability process, as well as a collection of 

frequently asked questions, already exist, but could be improved. 32 A list of key contacts

should be readily available in all relevant employee guidance publications, including the Law 

Clerk Handbook and other resources on the courts’ intranet sites. 

Fifth, commenters suggested programmatic improvements. They noted the need for 

better qualifications and training of EDR Coordinators who assist employees in navigating the 

EDR reporting and claims process. They proposed that the Judiciary develop mechanisms for 

separating alleged harassers or abusers from complainants during the investigation process and, 

if necessary, following resolution of the complaint. Commenters noted that law clerks may feel 

especially vulnerable if required to remain in close proximity to a judge during a misconduct 

inquiry, especially in small judicial districts, and there are currently no formal mechanisms for 

relocating law clerks to other chambers or work stations. Employees commented on the lack of 

options available to be reassigned or transferred during the pendency of a complaint or after a 

resolution finding misconduct occurred.

Finally, commenters noted the need for greater uniformity in approach across circuits. 

They noted, for example, that EDR Plans vary from circuit to circuit on coverage of chambers

employees, law clerks, and interns/externs. 

 32 See FAQs: Filing a Judicial Conduct and Disability Complaint Against a Federal Judge (June 2016),

http://www.uscourts.gov/judges-judgeships/judicial-conduct-disability/faqs-filing-judicial-conduct-ordisability-complaint.
17

D. Does the Judiciary Provide Trusted and Accessible Complaint Procedures? 

The EEOC Study co-chairs observe that institutions must not only create effective 

complaint procedures, but they should also offer workers multiple channels for seeking relief.33 

As previously discussed, the Judiciary employs two formal mechanisms for reporting 

misconduct: (1) the JC&D Act’s statutory procedures for complaints against judges; and (2) the 

EDR Plans developed in each circuit, based on the Model EDR Plan approved by the Judicial 

Conference, for reporting and making claims against both judges and other judicial employees. 

The Working Group found that, while each of those procedures fulfills an important function, the 

Judiciary should develop additional, less formal alternatives for addressing inappropriate 

workplace behavior. 

Judges, managers, and employees all recognized the virtue of having other options, apart 

from a formal complaint, for guidance, counseling, and relief related to workplace conduct 

issues. Inappropriate workplace behavior can take many forms, ranging from unconscious verbal 

slights to intentional physical assaults. There is a corresponding need to have a range of avenues 

for advice, counseling, mediation, and relief that are calibrated to the nature of the conduct. 

There is a need for response mechanisms at the local, regional, and national level. 

The Working Group received suggestions that individual courts identify, enlist, and train 

trusted individuals within their workplace who can provide employees with informal and 

confidential counseling and mediation of disputes at the local level. The Working Group heard 

concerns that those employees also need to have avenues for advice and assistance from outside 

the local environment, and the Judiciary should therefore provide counseling and mediation 

services on a confidential basis as appropriate at the regional or national level by persons who 

 

33 Breaking the Silence, supra note 17, at 7. 
18

are free from any perception of local bias. Commenters noted that law clerks and employees 

may need post-employment advice and assistance. Finally, the Working Group received 

suggestions that the courts strengthen their relationships with law schools, which receive 

feedback from former students who serve as law clerks about the working environment in the 

Judiciary to gain additional insights into the problem of workplace harassment of law clerks. 

E. Does the Judiciary Provide Regular, Interactive Training Tailored to the Organization? 

The EEOC Study identifies effective training as an essential component of an 

anti-harassment effort, but that training must be part of a holistic effort, coupled with committed 

leadership, demonstrated accountability, clear policies, and effective complaint procedures.34 

The EEOC Study co-chairs note that not all traditional anti-harassment training has proven 

effective, and the most promising programs focus on “compliance training,” “workplace 

civility,” and “bystander intervention.” 

The Judiciary’s FJC has, as one of its core missions, the responsibility to “stimulate, 

create, develop, and conduct programs of continuing education and training for judges and 

employees of the Judicial Branch.”35 Working with the Administrative Office and individual 

courts, the FJC has created a broad range of publications, on-line resources, and in-person 

training programs to promote fair employment practices and workplace civility.36 For example, 

the FJC has regularly provided training programs for court employees in individual districts. It 

offers a program entitled “Preventing Workplace Harassment” in two versions, one for managers 

and one for employees. It offers a program on workplace civility called “Respect in the 

Workplace,” and another on the Code of Conduct. These programs each use an FJC-designed 

 

34 EEOC Study, supra note 6, at 45. 35 28 U.S.C. § 620(b)(3). 36 See Appendix 9: List of Federal Judicial Center training resources. 
19

lesson plan and materials tailored specifically to the judicial workplace and delivered by FJCtrained faculty. Since 2016, the FJC has arranged for these three programs to be conducted 

nearly 200 times in courts around the country. The Judicial Conference’s Committee on Codes 

of Conduct also provides programs on a variety of ethical issues, including the duty to report 

misconduct. 

The Administrative Office, through its Office of the General Counsel, Office of Fair 

Employment Practices, and Office of Human Resources, provides training through the Human 

Resources Academy and by videoconference on the employee dispute resolution process, 

employment laws, wrongful conduct, and unconscious bias, as well as other relevant topics. 

Furthermore, individual circuits, courts, and various committees have taken the initiative to 

develop their own training programs, building on the materials and resources provided by the 

FJC and the Administrative Office.

Although the Judiciary has very vigorous training programs, the Working Group found 

several areas in which those efforts could be improved or refined. First, the Judiciary would 

benefit from a more focused emphasis on workplace civility training as part of the orientation 

program for all new employees, including law clerks and judges, with “refresher” training 

repeated at regular intervals. Use of the current programs varies from court to court and even 

within individual court systems. Second, there may be opportunities to integrate training on 

those subjects into existing programs on judicial management, court administration, and 

courtroom practices, emphasizing that civility is a responsibility—not an option—and each judge 

and employee should actively promote appropriate workplace conduct as an integral element of 

their day-to-day duties. Third, judicial managers could benefit from increased emphasis on 

proactive measures, including how to encourage civility and identify the risk factors for abusive 
20

work environments before problems develop. Fourth, the Judiciary should place greater 

emphasis on “bystander intervention,” encouraging all who witness misconduct to take action 

through channels for reporting and response. Finally, the Working Group endorsed the 

observation of the EEOC Study’s co-chairs that training programs should be continuously

evaluated to determine their effectiveness, paying close attention to new learning, techniques, 

and developments in this field. 

II. RECOMMENDATIONS

The Judiciary has already taken important steps under each of the EEOC Study’s 

benchmarks for preventing harassment. The Judiciary has shown leadership in responding to 

reported sexual harassment, and it has demonstrated a genuine commitment to accountability 

through its past disciplinary actions. The Judiciary has detailed codes of conduct and guidance 

documents for judges and other judicial employees, and it has carefully reticulated complaint 

procedures that have proven effective when invoked. The Judiciary also has a variety of judicial 

and employee training programs to address the problems of fair employment practices and to 

promote workplace civility. 

But meeting those benchmarks is not enough, nor has it proven sufficient to address the 

issue fully. The Judiciary should set as its goal the creation of an exemplary environment in 

which every employee is not only free from harassment or inappropriate behavior, but works in 

an atmosphere of civility and respect. The Judiciary cannot guarantee that inappropriate 

behavior will never occur, but when it does, the Judiciary should ensure that every employee has 

access to clear avenues to report and to seek and receive remedial action free from retaliation. 

The Working Group offers recommendations in three discrete areas that are central to 

achieving these goals: (1) substantive standards; (2) procedures for seeking advice, assistance, 
21

or redress; and (3) educational efforts. First, the Judiciary should revise its codes and other 

published guidance in key respects to state clear and consistent standards, delineate 

responsibilities, and promote appropriate workplace behavior. Second, the Judiciary should 

improve its procedures for identifying and correcting misconduct, strengthening, streamlining, 

and making more uniform existing processes, as well as adding less formal mechanisms for 

employees to seek advice and assistance. Third, the Judiciary should supplement its educational 

and training programs to raise awareness of conduct issues, prevent harassment, and promote 

civility throughout the Judicial Branch. These efforts will require the concerted efforts and 

collaboration of the Administrative Office, the FJC, and the Judicial Conference. Those 

organizations have all expressed strong support for this undertaking, and significant work in 

many areas already is underway. 

A. Codes of Conduct and Guidance Documents 

The Judicial Conference has adopted the Code of Conduct for United States Judges as a 

set of ethical principles to guide judges in the conduct of their responsibilities. The Code 

consists of five basic Canons and related commentary.37 The captions of the five Canons capture 

their essential themes: (1) A Judge Should Uphold the Integrity and Independence of the 

Judiciary; (2) A Judge Should Avoid Impropriety and the Appearance of Impropriety in All 

Activities; (3) A Judge Should Perform the Duties of the Office Fairly, Impartially, and 

Diligently; (4) A Judge May Engage in Extrajudicial Activities that Are Consistent with the 

Obligations of Judicial Office; and (5) A Judge Should Refrain from Political Activity.38 

 

37 See Code of Conduct for United States Judges, Committee on Codes of Conduct, Judicial Conference of the 

United States (rev. Mar. 2014).

38 Id. 
22

Canon 1 of the Code sets out the most fundamental principle: 

A judge should maintain and enforce high standards of conduct and should personally 

observe those standards, so that the integrity and independence of the Judiciary may be 

preserved. 

As the commentary to Canon 1 explains, the Canons are rules of reason. They are aptly 

described as an “aspirational” set of standards that judges should follow to promote public 

confidence in the integrity of our judicial system.39 They may provide standards of conduct for 

application in proceedings under the JC&D Act, but not every violation of the Code should lead 

to disciplinary action, nor is the Code designed or intended as a basis for civil liability or 

criminal prosecution.40 

The Canons contain a number of provisions that indicate, either expressly or by clear 

implication, that judges have a duty to refrain from and prevent harassment and other 

inappropriate workplace conduct. For example, Canon 2 notes that “[a] judge should respect and 

comply with the law and should act at all times in a manner that promotes public confidence in 

the integrity and impartiality of the judiciary.”41 The associated commentary notes:

Public confidence in the judiciary is eroded by irresponsible or improper conduct by 

judges. A judge must avoid all impropriety and appearance of impropriety. This 

prohibition applies to both professional and personal conduct. A judge must expect to be 

the subject of constant public scrutiny and accept freely and willingly restrictions that 

might be viewed as burdensome by the ordinary citizen.42 

 

39 Id. 40 Id. 41 Id. at Canon 2A. 42 Id. at Canon 2A Commentary.
23

Canon 2 does not specifically mention employee harassment or inappropriate workplace 

behavior. But the lack of specificity is not surprising. The commentary explains, “[b]ecause it is 

not practicable to list all prohibited acts, the prohibition is necessarily cast in general terms that 

extend to conduct by judges that is harmful although not specifically mentioned in the Code.”43 

Canon 3 addresses the matter of incivility with greater specificity. In addressing a judge’s 

adjudicative responsibilities, Canon 3 states that “[a] judge should be patient, dignified, 

respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge 

deals in an official capacity.”44 But Canon 3 does not provide a similar prescription when 

addressing a judge’s administrative responsibilities, including supervision of chambers 

employees, and interactions with other court employees.45 Rather, as the Commentary to Canon 

2 indicates, the Code has relied on the ability of judges to discern that incivility is harmful or 

otherwise wrong in the administrative setting.

 The Working Group does not doubt that judges and judiciary employees should be able to 

discern that harassment and other inappropriate workplace behavior is impermissible in any 

setting. But public confidence in the Judiciary would be strengthened if the Code made clear, 

through express language in the Canons or the associated commentary, that judges have an 

obligation to promote civility and maintain a workplace that is free from harassment. The Code 

of Conduct was last substantially revised in 2009. The time is ripe for the Judicial Conference’s 

Committee on Codes of Conduct to consider revisions to the Canons and their commentary that 

would provide more specific guidance to judges regarding their responsibilities. The Working 

Group does not propose specific language because that is the province of the Committee. 

 

43 Id. 44 Id. at Canon 3A(3). 

45 Id. at Canon 3(B). 
24

Significant work in this area already is underway. The Working Group believes that the 

Committee should clarify three key points. 

 First, the Code should make clear that a judge has an affirmative duty to promote civility, 

not only in the courtroom, but throughout the courthouse. As the EEOC Study indicated, 

leadership is critical to the prevention of harassment. Judges set the tone for conduct in the 

judicial workplace. They must demonstrate, through their words and actions, their own 

commitment to high standards of conduct. Canon 3 admonishes judges to show patience, 

dignity, respect, and courtesy to litigants, jurors, witnesses, lawyers, and others. The Code 

should impress upon judges that those virtues are vital in their chambers and throughout the 

court building as well. 

 Second, the Code should expressly recognize that a judge should neither engage in nor 

tolerate workplace misconduct, including comments or statements that could reasonably be 

interpreted as harassment, abusive behavior, or retaliation for reporting such conduct. The 

Committee should examine whether a more specific statement is needed in proscribing 

harassment, bias, or prejudice based on race, color, religion, national origin, sex, age, disability, 

or other bases. For example, studies reveal high rates of harassment in the private workforce 

based on sexual orientation or gender identity.46 The Committee should indicate that harassment 

on those bases is impermissible. 

Third, the Committee should provide additional guidance on a judge’s responsibility to 

curtail inappropriate workplace conduct by others, including other judges. Canon 3B(5) of the 

Code currently states that “a judge should take appropriate action upon learning of reliable 

 

46 See, e.g., Gender Identity and Sexual Orientation Discrimination in the Workplace: A Practical Guide 

(Christine Michelle Duffy, Denise M. Visconti, D’Arcy Kemnitz and National LGBT Bar Association eds., 2014).
25

evidence indicating the likelihood that a judge’s conduct contravened this Code[.]” The 

Committee should clarify that the obligation to take appropriate action extends to inappropriate 

treatment of court employees, including chambers employees. The Judiciary would benefit from 

explicit recognition that the judicial virtues of mutual respect, independence, and collegiality 

should not prevent a judge from intervening when necessary to protect an employee from another 

judge’s inappropriate conduct. The Canon 3B(5) Commentary states that “appropriate action” 

can include “direct communication with the judge” or “reporting the conduct to appropriate 

authorities,” noting that “a judge should be candid and honest with disciplinary authorities.” The 

Committee could usefully clarify that “appropriate action” depends on the circumstances, but 

that action should be reasonably likely to address the misconduct, prevent harm to those affected 

by it, and promote public confidence in the integrity and impartiality of the Judiciary. 

The Working Group suggests that the revision of the Code of Conduct for United States

Judges be the first of several steps to clarify substantive standards. There are other codes and 

guidance documents that require comparable revisions. For example, the Judiciary maintains a 

Code of Conduct for Judicial Employees (Code for Employees), which similarly consists of an 

aspirational set of standards expressed through five Canons that mirrors the Code for Judges.47 

Like Canon 3 of the Code for Judges, Canon 3C of the Code for Employees provides guidance 

 

47 The captions of those five Canons state: (1) A Judicial Employee Should Uphold the Integrity and 

Independence of the Judiciary and of the Judicial Employee’s Office; (2) A Judicial Employee Should Avoid

Impropriety and the Appearance of Impropriety in All Activities; (3) A Judicial Employee Should Adhere to 

Appropriate Standards in Performing the Duties of the Office; (4) In Engaging in Outside Activities, A Judicial 

Employee Should Avoid the Risk of Conflict with Official Duties, Should Avoid the Appearance of Impropriety, 

and Should Comply with Disclosure Requirements; and (5) A Judicial Employee Should Refrain from 

Inappropriate Political Activity. See Code of Conduct for Judicial Employees, Committee on Codes of Conduct, 

Judicial Conference of the United States (Mar. 2014). 
26

on an employee’s responsibility to those who use the courts, but does not expressly address the 

employee’s responsibility to fellow employees:

A judicial employee should be patient, dignified, respectful, and courteous to all persons 

with whom the employee deals in an official capacity, including the general public, and 

should require similar conduct of personnel subject to the judicial employee’s direction 

and control.48

The Code for Employees would similarly benefit from more specific direction regarding the duty 

of employees—and especially supervisors—to promote workplace civility, avoid harassment, 

and take action when they observe misconduct by others. The Committee on Codes of Conduct 

should consider additional changes to the Code for Employees to ensure that both judges and 

judicial employees understand that confidentiality obligations should never prevent any 

employee—including law clerks—from revealing abuse or reporting misconduct by any person. 

Canon 3D of the Code for Employees currently states:

A judicial employee should never disclose any confidential information received in the 

course of official duties except in the performance of such duties, nor should a judicial 

employee employ such information for personal gain. A former judicial employee should 

observe the same restrictions on disclosure of confidential information that apply to a 

current judicial employee, except as modified by the appointing authority.49

As the Working Group noted in its findings, some law clerks have misunderstood their 

obligation of confidentiality to require that they refrain from reporting misconduct. The 

Committee should make revisions to the Code to cure that misunderstanding and make 

 

48 Id. 49 Id.
27

absolutely clear that the general restriction on use or disclosure of confidential information does 

not prevent, nor should it discourage, an employee from revealing abuse or reporting 

misconduct, including sexual or other forms of harassment, by a judge, supervisor, or other 

person. Those revisions should also make clear that retaliation against a person who reports 

misconduct is itself serious misconduct that will not be tolerated. 

The Judiciary has a wide range of guidance documents, policy statements, and 

instructions issued by the Administrative Office, individual courts, and other Judicial Branch 

entities that should be revised in parallel fashion to ensure that the Judiciary’s substantive 

standards of workplace conduct are set out and explained in a consistent and cohesive manner. 

As one example, the Working Group reviewed a model confidentiality statement that was posted 

on the Judiciary’s internal website. The Working Group found that this statement contained 

ambiguous language that could unintentionally discourage law clerks or other employees from 

reporting sexual harassment or other workplace misconduct. The Judicial Conference, at the 

recommendation of its Committee on Codes of Conduct, removed that model statement from the 

internal website and its text is in the process of being reviewed. The Judiciary has already 

revised language in the Law Clerk Handbook to clarify that nothing in applicable confidentiality 

provisions precludes consulting about instances of misconduct or the filing of a misconduct 

complaint. 

The Working Group recommends that the Administrative Office and the FJC take on the 

challenge of reviewing all of their guidance respecting workplace conduct and civility to ensure 

that they provide a consistent, accessible message that the Judiciary will not tolerate harassment 

or other inappropriate conduct. Those efforts should include both traditional publications and 

electronic information that employees can access through Judiciary websites. All employees 
28

need to know that they have access to a variety of mechanisms, including those described in the 

following section, to obtain relief without fear of retaliation. 

B. Procedures for Identifying and Correcting Misconduct 

The Judicial Conference promulgated the Code of Conduct for United States Judges and 

the Code of Conduct for Judicial Employees to set out the substantive standards of conduct for 

judges and employees. As explained in the Working Group’s findings, judges are subject to 

discipline through the statutory procedures set out in the JC&D Act, which the Judicial 

Conference has implemented through its Conduct Rules.50 In addition, both judges and 

employees are subject to EDR Plans already in place in all thirteen circuits. The Working Group 

suggests some changes to both of these procedures. But the Working Group concludes that, 

beyond those changes, there is a pressing need to develop responsive informal processes to 

counsel employees and rectify inappropriate behavior. The Judiciary should also recognize the 

value, in appropriate cases, of systemic institutional review of workplace misconduct apart from 

individual disciplinary proceedings. 

1. The Judicial Conduct and Disability Act 

The JC&D Act authorizes any person to file a complaint alleging that a federal judge has 

engaged in conduct “prejudicial to the effective and expeditious administration of the courts” or 

has become, by reason of a mental or physical disability, “unable to discharge all the duties” of 

the judicial office.51 Congress enacted the statute to provide “a fair and proper procedure 

whereby the Judicial Branch of the Federal Government can keep its own house in order” by 

identifying and correcting instances of judicial misconduct and disability that do not involve 

 

50 See Guide to Judiciary Policy, Vol. 2E, Ch. 3 (as amended Sept. 17, 2015), http://www.uscourts.gov/judgesjudgeships/judicial-conduct-disability. 51 28 U.S.C. §§ 351-364. 
29

impeachable offenses.52 The Judicial Conference has formulated its Conduct Rules to provide 

mandatory and nationally uniform provisions for implementing the JC&D Act.53

In 2004, Chief Justice Rehnquist established a study committee to examine the 

effectiveness of the JC&D Act. The study committee submitted a comprehensive report in 2006 

that found “no serious problem with the judiciary’s handling of the vast bulk of complaints under 

the Act,” but that recommended a number of changes in the Conduct Rules to further enhance 

the effectiveness of the Act.54 The Judicial Conference’s Committee on Judicial Conduct and 

Disability drafted proposed changes, which the Judicial Conference adopted.55 The Working 

Group has found that the JC&D Act procedures generally work well in addressing workplace 

misconduct in the instances when they are invoked. Like the Chief Justice’s study committee, 

the Working Group sees no need for any legislative changes. The Working Group does 

recommend, however, that the Judicial Conference’s Committee on Judicial Conduct and 

Disability consider clarifying amendments to the Conduct Rules and publications describing the 

JC&D Act procedures. The Committee is in the best position to determine whether the 

clarifications should be implemented through the Rules themselves, the associated commentary, 

or other publications. That Committee has in fact already begun examination of some of those 

matters. 

First, the Working Group recommends that the Conduct Rules or associated commentary 

state with greater clarity that traditional judicial rules respecting “standing”— viz., the 

requirement that the complainant himself or herself must claim redressable injury from the 

 

52 S. Rep. No. 96-362, (1979), reprinted in 1980 U.S.C.C.A.N. 4315, 4325.

53 See Appendix 7, supra note 25, for a more detailed description of the JC&D Act and its associated Conduct 

Rules.

54 Implementation of the Judicial Conduct and Disability Act of 1980, A Report to the Chief Justice, The Judicial 

Conduct and Disability Act Study Committee (Sept. 2006). 55 JCUS-MAR 08, p. 21.
30

alleged misconduct—do not apply to the JC&D Act complaint process. The Conduct Rules 

currently provide that “[a] complaint is . . . a document that . . . is filed by any person in his or 

her individual capacity or on behalf of a professional organization” (emphasis added).56 The 

Committee on Judicial Conduct and Disability and individual circuit judicial councils have 

regularly stated in their decisions that traditional standing requirements do not apply to judicial 

conduct and disability proceedings. See, e.g., In re Complaints of Judicial Misconduct, 

No. 93-372-001 (U.S. Jud. Conf. Nov. 2, 1993). Nevertheless, the Conduct Rules or 

commentary should state so expressly to ensure that complainants understand that they need not 

themselves be the subject of the alleged misconduct. That clarification should encourage and 

facilitate early reporting and action on potential misconduct.

Second, the Working Group suggests that the Conduct Rules or commentary include 

express reference to workplace harassment within the definition of misconduct.57 The Working 

Group has previously suggested that the Committee on Codes of Conduct should consider more 

specific substantive guidance on the subject of harassment and impermissible behavior in the 

codes of conduct for judges and employees, including a clear proscription on harassment based 

on sexual orientation or gender identity. The Committee on Judicial Conduct and Disability 

should adopt language and examples in its procedural rules that are congruent with any changes 

in the codes. 

Third, the Working Group proposes that the Committee on Judicial Conduct and 

Disability make clear through the Conduct Rules, commentary, or other guidance documents that 

confidentiality obligations should never be an obstacle to reporting judicial misconduct or 

 

56 See Appendix 7, supra note 25, Conduct Rule 3(c)(1). 57 See id. Conduct Rule 3(h)(1) (providing a non-exclusive list of actions that constitute misconduct).
31

disability. The Conduct Rules discuss confidentiality primarily in the context of protecting the 

complainant and judge from publicity during the investigatory process.58 But complainants 

additionally need to understand that the obligations of confidentiality that judicial employees 

must observe in the course of judicial business do not shield a judge from a complaint under the 

JC&D Act. To promote this goal, the Committee should consider clarification that the 

confidentiality provisions in both the JC&D Act and the Conduct Rules relate to the fairness and 

thoroughness of the judicial conduct and disability complaint process, and not to reporting or 

disclosing judicial misconduct or disability. 

Fourth, the Working Group recommends that the Committee on Judicial Conduct and 

Disability provide additional guidance, consistent with the proposal to the Committee on Codes 

of Conduct, on a judge’s obligations to report or disclose misconduct and to safeguard 

complainants from retaliation. These substantive obligations, which are critical in maintaining 

public confidence in the Judiciary, warrant repetition in the Conduct Rules. If judges ignore or 

conceal potential misconduct, they undermine employee and public respect for the justice 

system. The Conduct Rules and commentary or associated guidance should reinforce the 

principle that retaliation for reporting or disclosing judicial misconduct constitutes misconduct.

Fifth, the Working Group recommends that the Judiciary as a whole consider possible 

mechanisms for improving the transparency of the JC&D Act process. As the Working Group 

noted in its findings, employees—as well as members of the press and public—seek greater 

insight on the progress of individual complaints and the complaint process generally. In some 

circumstances, the most appropriate remedy for misconduct—particularly for minor or 

unintentional infractions—is a private reprimand. But in other cases, there is considerable value 

 

58 See id. Conduct Rule 23. 
32

in revealing disciplinary action so that the complainant, other judicial employees, and the public 

can see that misconduct is met with a proportionate response. Chief circuit judges should be 

mindful of their authority under Conduct Rule 23(a) to “disclose the existence of a 

proceeding...when necessary or appropriate to maintain public confidence in the judiciary’s 

ability to redress misconduct or disability.” As previously noted in the Working Group’s 

findings, public confidence in the JC&D Act will benefit from efforts, already agreed upon by 

the Administrative Office to identify harassment complaints in its statistical reports. Individual 

circuits should seek ways to make decisions on complaints filed in their courts more readily 

accessible to the public through searchable electronic indices. 

2. Employment Dispute Resolution Plans 

The Judicial Conference, through its Committee on Judicial Resources, has developed the 

Model EDR Plan to set out recommended policies and procedures for resolving a wide range of 

employee disputes. The Model EDR Plan specifically provides at Ch. II, § 1: 

Discrimination against employees based on race, color, religion, sex (including 

pregnancy and sexual harassment), national origin, age (at least 40 years of age at the 

time of the alleged discrimination), and disability is prohibited. Harassment against an 

employee based upon any of these protected categories or retaliation for engaging in any 

protected activity is prohibited. All of the above constitute “wrongful conduct.” 

Although individual court units may create their own EDR Plans, most follow the 

parameters of the Model EDR Plan. Judiciary employees may report wrongful conduct, which 

will result in a confidential investigation and possible disciplinary action.59 Employees who 

believe they have been harassed or discriminated against on the basis of race, color, religion, 

 

59 See Appendix 8, supra note 27, Model EDR Plan Ch. IX.
33

national origin, sex, age, or a disability may seek remedies through the dispute resolution 

procedures of their court’s EDR Plan.60 The Model EDR Plan’s dispute resolution procedure 

consists of counseling and mediation, a hearing before the chief judge of the court (or a 

designated judicial officer), and a review of the hearing decision under procedures established by 

the judicial council of the circuit.61 When an employee files a claim against a district judge 

under the Model EDR Plan, the claim is handled by the relevant circuit council, and the claim 

may be transferred for disposal to a court in the circuit other than the judge’s own court. 

As noted in its findings, the Working Group received comments from former and current 

employees concerning the accessibility, visibility, ease of use, and coverage limitations under the 

Model EDR Plan. Based on those concerns, the Working Group recommends the Judicial 

Conference consider amendments to the Model EDR Plan as described below. As in the case of 

the Working Group’s proposed revisions to the Codes of Conduct and the Conduct Rules, the 

Model EDR Plan amendment process will involve initial consideration by the relevant Judicial 

Conference committee—in this case the Committee on Judicial Resources. The Working Group 

recommends revisions in several general areas. 

First, the Working Group recommends that the Committee on Judicial Resources 

examine whether EDR Plans can be rendered more “user-friendly.” Commenters observed that 

the existence of EDR Plans is not well publicized, the text of individual EDR Plans is difficult to 

locate, and the language is sometimes difficult to understand. The Committee should examine 

whether the Model EDR Plan, and court plans based on it, can be featured more prominently on 

Judiciary websites, and whether the text can rely to a greater extent on “plain English” that is 

 

60 See id. Model EDR Plan, Ch. X. 61 See Appendix 8, supra note 27, for a more detailed description of the procedures established in the current 

Model EDR Plan. 
34

more easily comprehensible. The Model EDR Plan might be helpfully shortened to prescribe 

more clearly and succinctly the steps to be followed in the employment dispute resolution 

process. The Model EDR Plan could, for example, include a one-page flowchart of the EDR 

claims process and could include answers to frequently asked questions. 

Second, the Working Group recommends that the EDR Plans’ scope of coverage be 

consistent throughout the Judiciary. For example, under the current Model EDR Plan, the term 

“employee” excludes interns and externs providing gratuitous service. Interns and externs are 

typically new to the Judiciary’s workforce and may be at higher risk than other employees in 

encountering discrimination, harassment, and inappropriate behavior.62 The Working Group 

recommends treating interns and externs as “employees” for purposes of EDR Plans, consistent 

with the coverage of the Code of Conduct for Judicial Employees. Some circuits exclude 

chambers employees from EDR Plan coverage. The Working Group recommends that the 

Committee on Judicial Resources ensure that EDR Plans uniformly cover all Judiciary 

employees, including those working in chambers. 

Third, the Working Group recommends examination of the Model EDR Plan’s reference 

to “sex discrimination.” The current Model EDR Plan inartfully describes sex discrimination as 

“including pregnancy and sexual harassment.”63 That provision should be rewritten to describe 

sex discrimination in accord with established legal definitions and separately indicate that 

harassment, without regard to motivation, is wrongful conduct. The Working Group also 

recommends that various statements respecting sexual harassment, including a separate sample 

sexual harassment policy currently posted on the Judiciary’s internal website as part of the 

 

62 See EEOC Study supra note 6, at 27 (discussing youth and relative inexperience of some employees as a risk 

factor for encountering workplace harassment).

63 See Appendix 8, supra note 27, Model EDR Plan, Ch. II, § 1. 
35

Model EDR Plan, be removed and replaced with consistent statements of policy concerning 

harassment, which can be incorporated into a revised Model EDR Plan. Similarly, there should 

be a consistent definition of “wrongful conduct” in the workplace throughout the Judiciary. 

Fourth, the Working Group notes that the EDR Plans provide an avenue for employees to 

report wrongful conduct without filing a claim for redress. The Working Group recommends 

that Chapter IX of the Model EDR Plan be revised to state that, when a chief district judge or 

chief bankruptcy judge receives a report of wrongful conduct that could constitute reasonable 

grounds for inquiry into whether a judge has engaged in misconduct under the JC&D Act, the 

chief judge should inform the chief circuit judge of the report and any actions taken in response. 

Fifth, the Working Group recommends that the Committee on Judicial Resources extend 

the time for initiating an EDR claim. Currently, employees must request counseling—the first 

step in initiating an EDR claim—within 30 days of the alleged violation or within 30 days of the 

time the employee became aware of the alleged violation. The Working Group recommends 

extending the time limit to 180 days from the date of the alleged violation or when the 

complainant became aware of the violation to accommodate the additional time employees may 

reasonably need to ascertain and assess their options under the EDR Plan. 

Sixth, the Working Group recommends that the Committee on Judicial Resources 

consider steps to improve the training and qualifications of EDR Coordinators. The Model EDR 

Plan envisions that each court will identify an EDR Coordinator who is responsible for 

overseeing the effectiveness of the program. The EDR Coordinator provides information and 

training to employees regarding their rights under the EDR Plan and assists them in accessing the 

claims procedures.

64 Given the critical role that EDR Coordinators play in the EDR process, the 

 

64 See id. Model EDR Plan Ch. X, § 6. 
36

Working Group recommends the Judiciary set forth minimum qualification requirements for 

EDR Coordinators and institute nationwide training of EDR Coordinators at regular intervals. 

3. Alternative Informal Procedures

The JC&D Act and the EDR Plans provide useful formal mechanisms for responding to 

serious cases of harassment and workplace misconduct, but the Working Group found that they 

are not well suited to address the myriad of situations that call for less formal measures. For 

example, an employee may be uncomfortable with a well-meaning supervisor’s familiarity or 

avuncular physical contact and seek advice on how to express discomfort. Or an employee may 

encounter crude or boorish behavior from a coworker and not want to file a formal complaint, 

but may want a supervisor to step in and curtail the conduct. Or an employee may encounter 

sexual advances from a judge and seek confidential advice on what support is available if a 

formal complaint is filed, such as placement in another chambers. Or a former law clerk, now in 

private practice, may seek advice on application of the Judiciary’s confidentiality requirements 

in deciding whether to file a misconduct claim. Neither the JC&D Act procedures nor the EDR 

Plans are designed to address those situations. 

It is clear from these examples, and from the input the Working Group received from 

employees in meetings, mailbox comments, and questionnaires, that there is a need for the 

Judiciary to develop multiple informal mechanisms that can provide a broad range of advice, 

intervention, and support to employees. This is consistent with the EEOC Study

recommendation that “Employers should offer reporting procedures that are multi-faceted, 

offering a range of methods, multiple points-of-contact, and geographic and organizational 

diversity where possible, for an employee to report harassment.”65 Accordingly, the Working 

 

65 EEOC Study supra note 6, at 43.
37

Group recommends the establishment of offices at both the national and circuit level to provide 

employees with advice and assistance with their concerns about workplace misconduct apart 

from the JC&D Act and EDR Plans. The assistance will range from a discussion of options to 

address their concerns, to intervention on their behalf with appropriate court personnel and 

similar support. One goal of these offices will be to address problems and concerns in an earlier 

stage, before more serious issues evolve.

In that regard, at the national level the Administrative Office is establishing an internal 

Office of Judicial Integrity to provide counseling and assistance regarding workplace conduct to 

all Judiciary employees through telephone and email service. This office should provide advice 

on a confidential basis to the extent possible. It should also be able to assist in resolving a matter 

when requested by an employee or when otherwise warranted. The newly created position at the 

Administrative Office could be combined with existing offices there that help ensure the 

integrity of the Judiciary. These offices provide and coordinate independent financial auditing 

and management analysis services to the courts to prevent and expose waste, fraud, and abuse in 

the Judiciary.66 

At the circuit level, the Ninth Circuit Judicial Council recently announced the creation of 

a new office for a Director of Workplace Relations to oversee workplace issues and 

discrimination and sexual harassment training in that circuit.67 The Working Group recommends 

that the Judicial Conference encourage and approve funding through its budgeting process for all 

other circuits to provide similar services for their employees.

 

66 See Appendix 10: Letters from James C. Duff, Director of the Administrative Office, to Chairman 

Charles E. Grassley (Jan. 12, 2018, and Jan. 22, 2018). 67 Press Release, United States Courts for the Ninth Circuit, Ninth Circuit Judicial Council Acts on Workplace 

Environment Recommendations (May 21, 2018). 
38

The Working Group believes that every employee should have the benefit of 

knowledgeable and responsive advisers who can counsel the employee on workplace rights and 

suggest practical solutions to the broad range of workplace issues that can arise, both in 

chambers and in the other offices that provide the courts with administrative support. The 

advisers must have sufficient rank and stature to engage actively with judges and supervisors. 

They must have the training necessary to initiate the difficult conversations that invariably result 

in addressing inappropriate workplace behavior. They must be independent of influence from 

local human resources and management. And they must have access to the resources necessary 

to engage in effective problem solving. Former employees should have access to guidance on 

the scope of the confidentiality requirements. 

In addition to these national and circuit-level resources, every court should clearly 

identify for its employees local sources to which they can turn for advice or assistance about 

workplace conduct issues. Such sources could include the chief judge, another judge, a unit 

executive, or other persons. There could be multiple sources, particularly in large courts. Any 

such persons should be trained in conducting sensitive conversations and be thoroughly familiar 

with formal and informal options including the complaint process and remedies.

The Working Group believes that the introduction of innovations to respond to workplace 

misconduct will be effective only if those processes are well publicized, readily available to all 

employees, and considered a vital part of the Judiciary’s existing human resources programs. 

The Working Group therefore recommends that the Judicial Conference should incorporate 

informal employee protection programs into its training and educational initiatives. 

Protection programs should include contingency plans and funding to provide for a 

transfer or alternative work arrangements for an employee, including a law clerk, when 
39

egregious conduct by a judge or supervisor makes it untenable for the employee to continue to 

work for that judge or supervisor. The absence of such a remedy can be a significant deterrent to 

reporting misconduct. 

4. Systemic Evaluations

The JC&D Act and the EDR Plans provide avenues to resolve specific misconduct 

complaints. They may lead to a wide range of disciplinary actions depending on the nature of 

the misconduct, and they do not foreclose the possibility, in cases of truly serious misconduct, of 

tort liability, separate disciplinary action by bar associations or other licensing bodies, criminal 

prosecution, or impeachment. But the Judiciary also has an institutional interest in determining, 

apart from any disciplinary action, what conditions enabled the misconduct or prevented its 

discovery, and what precautionary or curative steps should be undertaken to prevent its 

repetition. The Working Group believes that the Judicial Conference and the individual circuit 

judicial councils have ample authority to conduct such systemic reviews as part of their 

respective responsibilities to promote "the expeditious conduct of court business," 

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

administration of justice within [each] circuit." 28 U.S.C. § 332(d)(1). Systemic reviews of this 

sort can shed useful light on whether existing procedures are sufficient, whether workplace 

practices should be modified, and whether further training or other preventative measures are 

necessary. This Working Group's efforts, and those of individual circuits and courts, are in fact 

examples of that type of systemic institutional review.

5. Follow-up Procedures 
40

The Working Group received substantial input on the need for follow-up procedures 

when Judiciary employees, including law clerks, leave their positions for other employment. 

They may have valuable information about their experiences or have observed instances of 

harassment or other workplace misconduct that for whatever reason they chose not to report or 

share during the pendency of their employment. Exit interviews are useful for that purpose. 

Methods to capture that data can be useful not only in preventing future occurrences but may 

lend credence and support to a similar report or complaint that another employee might file. 

Follow up with law schools, which often keep track of experiences their former students had as 

law clerks, would also be useful. 

C. Education and Training Programs 

The Working Group believes that rigorous and recurrent education programs are essential 

to cultivate and maintain a respectful workplace for all employees throughout the Judiciary. The 

Judiciary already has in place vibrant educational and training programs for judges, supervisors, 

and other employees. Those programs, managed by the FJC, the Administrative Office, and 

individual courts, include a wide array of publications, on-line resources, and in-person training 

programs to promote fair employment practices and workplace civility. Nevertheless, there are 

several areas related to education and training in the Judiciary that would benefit from further 

direction and refinement. 

First, the Judiciary should ensure that all new judges and new employees receive basic 

workplace standards training as part of their initial orientation program, with “refresher” training 

conducted at regular intervals. The Working Group received numerous comments demonstrating 

a lack of awareness at all levels of the Judiciary about the existence of the JC&D Act and EDR 

processes, how they work in practice, and how to obtain assistance in filing a complaint, report, 
41

or claim. The FJC has developed high-quality educational programs, but they are not reaching 

all employees—in significant part, because they are not consistently offered throughout the 

Judicial Branch. These programs will need to be retooled to reflect any revisions that the 

Judicial Conference implements with respect to the current standards, procedures, and informal 

avenues for relief.

Efforts in this area already are underway. In December 2017, the FJC amended the Law 

Clerk Handbook to clarify that the duty of confidentiality does not prohibit a law clerk or other 

employee from reporting misconduct by a judge or other person. The Handbook and other 

publications will continue to be reviewed for potential revision or updating. The FJC has already 

placed most of its handbooks and other published guidance online. Since January 2018, the FJC 

has included workplace conduct sessions in each of the following programs for judges: one 

conference for chief district judges; one conference for chief bankruptcy judges; one national 

workshop for district judges; one national workshop for bankruptcy judges; one national 

workshop for magistrate judges; and three orientation seminars for new district and court of 

appeals judges. The FJC will include sessions on workplace conduct in scheduled educational 

programs for new chief circuit, district, and bankruptcy judges, and for court unit executives, as 

well as in additional national workshops and orientation seminars for judges, all to be held 

during 2018. The FJC is revising its curriculum for managers and supervisors, and for other 

court employees, including law clerks, to expand coverage of workplace harassment issues.

Circuit judicial conferences in 2018 will include sessions to address workplace conduct. Several 

courts already have conducted internal education programs on workplace conduct as well.

Second, the FJC should develop advanced training programs specifically aimed at 

developing a culture of workplace civility. The FJC already is considering opportunities to 
42

integrate civility training into existing programs on judicial management, court administration, 

and courtroom practices to make civility an essential component in all aspects of court 

operations. There is a particular need to train judicial managers on proactive measures to 

encourage civility and defuse abusive work environments before problems develop. Those 

efforts should include training on “bystander intervention,” which would encourage judges, 

supervisors, and other employees who witness misconduct to take action through channels for 

reporting and response. 

Third, the FJC, the Administrative Office, and individual courts should continuously 

evaluate their educational programs to assess their effectiveness, paying close attention to new 

learning techniques and developments in the field. Those components should consider new or 

revised offerings on a number of specific topics of special relevance to the judicial workplace, 

including:

• Judicial codes of conduct;

• The Judiciary’s procedures for seeking advice and assistance, and filing a complaint;

• Risk factors that can contribute to problems in the judicial workplace;

• Peer-to-peer interactions and bystander intervention;

• Gray areas: differing perceptions of what is inappropriate behavior;

• Promoting respect; and

• Equal treatment and opportunity.

Where feasible, the FJC should tailor its advanced programs to specific groups.

FJC programs for new chief circuit, district, and bankruptcy judges should devote 

considerable attention to effective leadership principles and techniques. Those programs should 

specifically address the chief judge’s role in fostering a positive working environment and in 
43

holding others accountable for maintaining that environment. That training should include a 

focus on risk factors that are highly relevant in chambers, such as power imbalances and isolated 

workplaces, and it should encourage all judges to exercise leadership in modeling exemplary 

behavior. Those programs should specifically address the judge’s duty to take appropriate action 

when learning of an apparent violation of the Code of Conduct or professional responsibility 

standards by another judge. Consistent with the Working Group’s proposal for creation of 

informal avenues for advice and assistance, those programs should address both formal and 

informal ways to deal with judges and employees who are suspected of inappropriate behavior.

FJC programs for court executives should address their leadership roles and how to

conduct effective education and training in their courts. Managers and supervisors should 

understand that their efforts to cultivate a positive workplace environment will be recognized in 

evaluating their job performance. Education for managers and supervisors should emphasize the 

importance of their “front line” position in fostering a positive workplace and in detecting and 

acting on instances of inappropriate behavior. For all persons in leadership and management 

positions, education should include methods for conducting difficult conversations. Managers 

cannot be reluctant to approach someone suspected of misconduct because of uncertainty about 

how to engage the individual. If leaders build skill and confidence in carrying out such 

conversations, they will be more effective in achieving positive outcomes.68

FJC programs for court employees, including law clerks, should emphasize standards and 

procedures, and highlight where and how to get advice and help. The FJC and the 

Administrative Office should develop materials on workplace conduct for courts to use in 

 68 As previously noted, the EDR program would benefit from more focused training for EDR Coordinators. 

They, and others whose responsibilities include advising or assisting employees reporting misconduct, 

should be well versed in the applicable standards and procedures, and they should receive training on skills 

for dealing effectively with persons who may be fearful or lack trust in the system. 
44

orienting new employees. Those materials should include guidance on persons to contact in 

seeking advice and clear explanations on procedures for reporting misconduct. Most courts 

conduct initial orientation programs for new employees that cover a broad range of unfamiliar 

subjects, such as building security, computer usage, health and retirement benefits, and 

time-keeping. Programs on workplace conduct, including what to do when experiencing or 

witnessing inappropriate conduct, should be distinct. Workplace conduct training should be 

timed and offered in a way that critical information about the Judiciary’s workplace standards 

and remedies does not get lost in the swirl of other new employee training.69 

The Working Group notes concerns that some may try to avoid allegations or the 

appearance of harassment by simply reducing their interactions with members of a different 

gender, ethnicity, or other group. This would result in loss of opportunities for positions, 

mentoring, and professional growth for members of such groups. The Judiciary should strive to 

avoid this, primarily through education.

The Working Group took note of the many education and training opportunities already 

being developed in circuit and district courts across the country. The Working Group 

encourages the Judicial Conference, the Administrative Office, and the FJC to facilitate the 

sharing of best practices that can be tailored to the unique situations of individual courts, and 

further recommends that development of such programs be done in coordination with each 

circuit and with fellow courts.

 69 Orientation programs for law clerks deserve special attention. Given the relatively short duration of law 

clerks’ employment, training on workplace conduct must be timely and focused. The FJC has prepared an 

online Interactive Orientation for Law Clerks (IOLC), which should be updated to include more extensive 

coverage of standards of conduct, the scope of the duty of confidentiality, and ways to seek help or file a 

complaint. But those principles can be usefully reinforced through an in-person session with a chief judge, or 

other experienced jurist, who can authoritatively emphasize the importance of those principles.
45

Education aimed at promoting a positive and respectful workplace and preventing 

harassment and abusive conduct requires a sustained effort. The FJC and other Judiciary 

providers of education and training should consistently reexamine their programs and materials 

to ensure their relevance and effectiveness. 

CONCLUSION

The Judiciary should aspire to be an exemplary workplace, taking strong affirmative 

measures to promote civility, minimize the possibility of inappropriate behavior, remove barriers 

to reporting misconduct, and provide prompt corrective action when it occurs. The Working 

Group accordingly recommends that the Judicial Conference undertake an ongoing program, as 

described above, to promote a culture of mutual understanding and respect, through 

improvements to its standards of conduct, its procedures for addressing inappropriate behavior, 

and its educational and training programs for judges, supervisors, and employees. The Working 

Group remains committed to assisting with that effort and offers its continued service in 

whatever capacity the Chief Justice and the Judicial Conference direct. 
APPENDIX 1 

Memorandum from James C. Duff, Director of the Administrative Office, to all 

Judiciary Employees (Dec. 20, 2017) 
ADMINISTRATIVE OFFICE OF THE

UNITED STATES COURTS

WASHINGTON, D.C. 20544

A TRADITION OF SERVICE TO THE FEDERAL JUDICIARY

December 20, 2017 

JAMES C. DUFF

Director

MEMORANDUM

To: All United States Judges 

Circuit Executives 

Federal Public/Community Defenders 

District Court Executives 

Clerks, United States Courts 

Chief Probation Officers 

Chief Pretrial Services Officers 

Senior Staff Attorneys 

Chief Circuit Mediators 

Bankruptcy Administrators 

Circuit Librarians 

Judicial Assistants-Secretaries

Law Clerks

From: James C. Duff 

RE: WORKPLACE CONDUCT (ACTION REQUESTED)

The Chief Justice has asked me to establish a working group to examine the sufficiency 

of the safeguards currently in place within the Judiciary to protect court employees, including 

law clerks, from wrongful conduct in the workplace. I plan to establish a working group in the 

coming weeks that will produce its report and recommendations by May 1, 2018. 

In the meantime, this memorandum provides a reminder that processes and procedures

exist for all Judicial Branch employees to report concerns of wrongful workplace conduct, 

including sexual harassment. This memorandum also provides information on the educational

tools and materials available to help prevent illegal and prohibited conduct in our workplaces. It 

is important that all employees, including judges, court unit executives, and law clerks be aware 

of the applicable rules, recourse, and resources, that are available. Please share this

memorandum with all staff. 

First, any aggrieved employee may file a complaint regarding wrongful conduct under 

the Judicial Conduct and Disability Act (JC&D) which can result in remedial action against the 

subject of the complaint. Moreover, the Judiciary’s Model Employment Dispute Resolution 

(EDR) Plan, which every circuit court, all 94 district courts, and all bankruptcy courts have 
Workplace Conduct Page 2

adopted in whole or with local modifications, identifies the range of personnel actions that are 

prohibited and states the procedures to initiate, pursue, and obtain resolution of a complaint. The 

Model EDR Plan and related resources can be found on the JNet. Court employees should follow 

their own court’s EDR Plan and/or the JC&D process when filing a complaint. Coupled with the 

JC&D, these EDR plans provide all employees protection from wrongful conduct and recourse. 

Second, the Administrative Office (AO) through its Office of the General Counsel, Office 

of Fair Employment Practices, and Office of Human Resources has created a range of on-line 

training through the HR Academy by video conference or, upon request, in-person, that 

addresses the EDR process, employment laws, wrongful conduct, and unconscious bias, among 

other relevant topics for the workplace. 

Third, the Federal Judicial Center (FJC) added a statement in the Law Clerk Handbook 

this week that makes clear that nothing in the Handbook, nor the Code of Conduct, prevents a 

law clerk or any Judiciary employee from revealing or reporting misconduct, including sexual 

harassment. The FJC offers many in-person and video presentations that address prohibited 

workplace discrimination, as well as techniques to ensure a respectful and inclusive workplace. 

In-district training on the topic of “Preventing Workplace Harassment” has been utilized by 

many courts. Districts may request this training by contacting Phyllis Drum at the FJC at 

PDrum@fjc.gov or at 202-502-4134. Several videos provide valuable information for managers 

and employees on how to prevent and counter instances of prohibited misconduct, including 

harassment. The trainings and videos cover topics ranging from the definition of wrongful 

conduct, to the responses to it, to reducing the threats of it. The videos also provide training on 

techniques for improving overall communication, teamwork and morale. And they provide 

prevention and response tools for unwelcome behavior and procedures for reporting misconduct. 

The FJC is also assembling a list of relevant videos on its homepage. These can be accessed at 

http://fjc.dcn/content/326872/preventing-sexual-harassment or by clicking on fjc.gov from this 

memorandum. 

All of these resources are intended to help foster a safe, comfortable, and respectful 

workplace in the Judiciary. I encourage the courts to make full use of these resources and I also 

encourage all who are in the Judiciary to take action when they observe or encounter 

inappropriate conduct. Everyone who works in the Judiciary has recourse if they are subjected to 

inappropriate behavior. 

As we re-examine our procedures, we welcome your input. You may contact me at 

202-502-3000 or JDuff@ao.uscourts.gov with your suggestions.
APPENDIX 2 

Chief Justice John G. Roberts, Jr., United States Supreme Court 

Year-End Report on the Federal Judiciary (2017) 
 

 

 

 

EMBARGOED until 6 p.m. E.S.T. 

 December 31, 2017 (No wires, TV, 

 radio, Internet, or other formats 

 before 6 p.m. E.S.T.) 

For further information, contact the 

 Public Information Office

 pio@supremecourt.gov 

2017 Year-End Report on the Federal Judiciary 

In October 1780, while American patriots engaged the British in 

decisive battles for independence, a storm was brewing in the Caribbean. 

The Great Hurricane of 1780—the deadliest Atlantic hurricane on record— 

tracked a course from the Lesser Antilles to Bermuda, leaving a trail of 

destruction that touched both Florida and Puerto Rico. Historians estimate 

that more than 20,000 people died. The “Great Hurricane” was just one of 

several storms that ravaged the Caribbean and Gulf of Mexico that fall. In 

all, more than 28,000 perished. 

Nearly two and a half centuries later, we remain vulnerable to natural 

catastrophes. Modern communication has enhanced our ability to learn of 

impending disasters, take precautions, and respond to those in need. But 

today’s news cycle can also divert attention from the continuing 

consequences of calamities. The torrent of information we now summon 

and dispense at the touch of a thumb can sweep past as quickly as the storm 
itself, causing us to forget the real life after-effects for those left in 

misfortune’s wake. 

Federal disaster response is primarily the responsibility of the 

executive and legislative branches of the federal, state, and territorial 

governments, which can muster, fund, and deploy the resources needed to 

respond to emergencies. Still, during this season of holidays and 

celebrations, we cannot forget our fellow citizens in Texas, Florida, Puerto 

Rico, and the Virgin Islands who are continuing to recover from Hurricanes 

Harvey, Irma, and Maria, and those in California who continue to confront 

historic wildfires and their smoldering consequences. The courts cannot 

provide food, shelter, or medical aid, but they must stand ready to perform 

their judicial functions as part of the recovery effort. The federal judiciary 

has an ongoing responsibility to prepare for catastrophes and ensure that the 

third branch of government remains open and functional during times of 

national emergency. 

Court emergency preparedness is not headline news, even on a slow 

news day. But it is important to assure the public that the courts are doing 

their part to anticipate and prepare for emergency response to people in 

need. 

2 
The Administrative Office of the United States Courts is the agency 

within the judicial branch responsible for providing the broad range of 

managerial and program support necessary for federal courts throughout the 

country. The Administrative Office staff addresses matters that span the 

federal court system, including human resources, information technology, 

and facilities stewardship. The Administrative Office has established an 

Emergency Management and Preparedness Branch that maintains continuity 

of operations programs within that agency and provides training and 

consulting functions for hundreds of court units across the country. That’s 

no small task for a court system that employs 30,000 people and includes 12 

regional courts of appeals, 94 district courts, 90 bankruptcy courts, and a 

collection of other specialized tribunals, probation and pretrial services 

offices, and federal defender offices. 

Our federal courthouse communities vary in size. Some large cities, 

like Houston, are home to dozens of federal judges and have substantial 

support teams for busy dockets. Smaller locales, like Key West, may have 

only a single judicial officer and a handful of court employees. The deadly 

hurricanes of 2017 and other emergency events brought home the need for a 

national response capability to deal with emergencies on a scale both large 

and small. Preparation begins with planning. The judiciary must anticipate 

3 
the broad range of calamities that might strike, ranging from severe weather 

to earthquakes, from cyberterrorism to on-the-ground terrorist attacks. The 

planners must identify the particular risks and available resources by region 

and locality to calculate how to deploy manpower and maintain channels of 

communication. Plans must be scaled to enable prompt and flexible 

response to both foreseeable and unforeseeable consequences of emergency 

events. 

The Emergency Management and Preparedness Branch provides 

critical consultation and planning support for federal courts throughout the 

country as they design their emergency plans and run drills. But the Branch 

also goes a step further by operating a Judiciary Emergency Response Team, 

which offers courts facing an emergency a single point of contact for 

logistical support. The Response Team serves as a principal node for 

communication and a clearinghouse for information. It provides a central 

source for assisting personnel and directing resources to support the affected 

court’s administrative needs, including procurement, information 

technology, facilities, and security. 

I recognize that this might sound like trying to fight fire with 

administrative jargon. But imagine yourself one of a handful of employees 

of the bankruptcy court in Santa Rosa, California, when raging wildfires 

4 
suddenly approach the courthouse where you work and state officials order 

evacuation—as happened this past September. The staff members did not 

face the emergency alone; they had at their disposal a professional response 

team to assist in making quick decisions to protect personnel, relocate 

services, and ensure continuity of operations. 

The Administrative Office’s national support system includes the 

provision of remote information technology resources. These resources can 

enable courts to keep case management and electronic filing systems online 

for judges, attorneys, and court personnel, who can continue their work from 

safe locations during and after storms and other emergency events. These 

resources also allow courts with public websites to provide the bar and 

public with critical updates and notices about operations. During Irma, 

Harvey, and Maria, the Administrative Office’s communications team 

monitored the status of all affected courts and provided regular public 

updates on the judiciary’s own central website (http://www.uscourts.gov) 

and on the Administrative Office’s Twitter feed. 

The courts are continuously enhancing and enlarging their response 

capabilities, building on gradual improvements over the past 30 years. The 

Administrative Office and individual courts learned valuable lessons from 

the Loma Prieta earthquake that struck San Francisco in 1989, the 

5 
September 11 terrorist attack in 2001, and Hurricanes Katrina and Rita, 

which devastated the city of New Orleans and other parts of Louisiana and 

Mississippi in 2005. Those upgraded emergency preparedness practices 

were put to the test by the 2008 floods in Cedar Rapids, Iowa, the 2012 

Superstorm Sandy in New York and New Jersey, and the 2016 floods in 

Baton Rouge and surrounding parishes. The severe weather events of this 

past summer, affecting disparate parts of the country so close in time, placed 

unique challenges on our emergency response capabilities. 

The hurricanes brought flooding, power outages, infrastructure 

damage, and individual hardship to Texas and Florida. But the judicial 

districts of the Virgin Islands and Puerto Rico were especially hard hit. 

Judges and court employees responded in dedicated and even heroic fashion. 

They continued to work even in the face of personal emergencies, 

demonstrating their commitment to their important public responsibilities. 

The Judicial Emergency Response Team assisted local judges and 

court employees in finding missing court personnel, securing buildings, and 

continuing or resuming court operations. But the efforts did not stop there. 

The storm also affected persons subject to the courts’ continuing 

jurisdiction. For example, the courts have responsibility to hear legal claims 

of individuals detained in criminal proceedings prior to sentencing, and 

6 
special measures were required for those in custody in Puerto Rico and the 

Virgin Islands. Before Hurricane Maria made landfall, the Justice 

Department’s Bureau of Prisons moved more than 1,200 detained 

individuals to mainland facilities in Mississippi, Florida, Alabama, and 

Georgia. In addition to facilitating secure transport arrangements with the 

U.S. Marshals Service, judicial personnel made arrangements to ensure 

assignment of mainland judges to handle urgent proceedings, the provision 

of necessary language interpreter services, and continued access to lawyers 

in the Federal Defender system. I happened to be in Jackson meeting with 

Mississippi federal judges when word arrived that a large number of the 

detainees would be sent to that state. Many of the judges in the room raised 

their hands on the spot to volunteer to take on the extra work. 

For individuals who had completed terms of imprisonment but were 

serving sentences of supervised release, the Administrative Office’s 

Probation and Pretrial Services Office stepped in to assist. The office joined 

in tracking individuals and responding to location monitoring alerts in every 

district affected by the hurricanes when local staff was unavailable. The 

Probation Office for the Southern District of New York took the initiative to 

help colleagues in the District of Puerto Rico by monitoring electronic arrest 

7 
notices. That office’s generous support freed local probation officers to tend 

to their own families and homes. 

The Administrative Office and affected courts also learned some 

lessons about improving future response. They discovered gaps in our 

communications protocols for Puerto Rico and the Virgin Islands arising 

from widespread power outages, impaired cellular networks, and limited 

internet connectivity. The scope of infrastructure damage on those islands 

impeded efforts to reach key personnel during and immediately after storms. 

Going forward, the Administrative Office will do more to pre-position 

essential equipment, such as satellite telephones, batteries, generators, and 

emergency supplies on islands and other areas susceptible to hurricanes and 

flooding. The Administrative Office will also identify and develop better 

backup communications systems and networks to reach critical personnel 

when routine telecommunications services are down or mainline power is 

lost. 

The most important lesson learned is a gratifying one. Judges and 

court employees responded to daunting challenges with extraordinary 

neighborliness, generosity, and dedication. For example, when the chief 

probation officer for the District of Puerto Rico made it to work on the 

second business day following Hurricane Maria’s destructive passage 

8 
through San Juan, he discovered 25 members of the District’s probation staff 

already at the office, raring to go. They assembled search parties to fan out 

across the city and nearby areas to find the 40 staff members unaccounted 

for at that time. Another example comes from the Virgin Islands. Court 

employees in St. Thomas, who endured catastrophic damage from Hurricane 

Irma, took up a collection to assist their counterparts in St. Croix when it 

was hit by Hurricane Maria two weeks later—even as they themselves coped 

with their own loss of homes, food, clothes, and personal effects. Court 

employees around the country not only assisted with the workloads of the 

affected courts, but also contributed funds and sent care packages to help 

their colleagues struggling with loss or damage to their homes. And many 

other court employees have made generous contributions to disaster relief 

charities, directly or through the Combined Federal Campaign. 

The courts also received critical assistance from our colleagues in the 

Executive Branch. The judiciary owes special thanks to the United States 

Marshals Service and the General Services Administration (GSA). Among 

other duties, the Marshals Service provides security for judges and staff. 

Deputy marshals and court security officers around the country safeguard 

our facilities and our people. The GSA, which manages the hundreds of 

courthouses and other federal buildings, worked with local court employees 

9 
to confront flooding, mold, damage to power generators, and the inherent 

challenge of operating when public electric and water services are 

unavailable. All these public servants helped us restore operations as 

quickly as possible. 

Congress has provided that, “All courts of the United States shall be 

deemed always open for the purpose of filing proper papers, issuing and 

returning process, and making motions and orders.” 28 U.S.C. § 452. On 

fair weather days, it is easy to take that provision for granted. When disaster 

strikes, it can be honored only through the tireless efforts of judges, court 

employees, Administrative Office staff, and the many friends of the 

judiciary. I know full well that many members of the public, including 

members of our court family, continue to face hardship. We should continue 

to keep them in our thoughts and prayers. 

Last year, in my annual report, I noted that federal trial judges must 

often work alone, without the benefit of collegial decision-making or the 

comfort of shared consensus. But this year, we have many rich examples of 

federal judges working together, with the support of court employees and 

Administrative Office staff, to keep courthouses open and operational. 

Those examples are a reminder that we have a national court system that can 

10 
* * * 

work collectively to address challenges that would overwhelm individual 

courts. 

We have a new challenge in the coming year. Events in recent 

months have illuminated the depth of the problem of sexual harassment in 

the workplace, and events in the past few weeks have made clear that the 

judicial branch is not immune. The judiciary will begin 2018 by undertaking 

a careful evaluation of whether its standards of conduct and its procedures 

for investigating and correcting inappropriate behavior are adequate to 

ensure an exemplary workplace for every judge and every court employee. 

I have asked the Director of the Administrative Office to assemble a 

working group to examine our practices and address these issues. I expect 

the working group to consider whether changes are needed in our codes of 

conduct, our guidance to employees—including law clerks—on issues of 

confidentiality and reporting of instances of misconduct, our educational 

programs, and our rules for investigating and processing misconduct 

complaints. These concerns warrant serious attention from all quarters of 

the judicial branch. I have great confidence in the men and women who 

comprise our judiciary. I am sure that the overwhelming number have no 

11 
tolerance for harassment and share the view that victims must have clear and 

immediate recourse to effective remedies. 

Once again, I am privileged and honored to be in a position to thank 

the judges, court staff, and judicial personnel throughout the Nation for their 

continued excellence and dedication. Let’s not forget the victims of the 

disasters that occurred over the past year. I hope we can all find 

opportunities to assist our fellow citizens who remain in need. 

Best wishes to all in the New Year. 

12 
Appendix 

Workload of the Courts 

In the 12-month period ending September 30, 2017, the number of 

cases filed in the Supreme Court decreased. The number of cases filed in the 

regional appellate courts, the district courts, and bankruptcy courts also 

decreased. Cases activated in the pretrial services system declined, as did 

the number of persons under post-conviction supervision. 

The Supreme Court of the United States 

13 

The total number of cases filed in the Supreme Court decreased by 

2.63 percent from 6,475 filings in the 2015 Term to 6,305 filings in the 2016 

Term. The number of cases filed in the Court’s in forma pauperis docket 

decreased by 3.47 percent from 4,926 filings in the 2015 Term to 4,755 

filings in the 2016 Term. The number of cases filed in the Court’s paid 

docket increased from 1,549 filings in the 2015 Term to 1,550 filings in the 

2016 Term. During the 2016 Term, 71 cases were argued and 68 were 

disposed of in 61 signed opinions, compared to 82 cases argued and 70 

disposed of in 62 signed opinions in the 2015 Term. The Court also issued 

one per curiam decision during the 2016 Term in a case that was not argued. 
The Federal Courts of Appeals 

In the regional courts of appeals, filings fell 16 percent to 50,506. 

Appeals involving pro se litigants, which amounted to 50 percent of filings, 

declined 20 percent. Total civil appeals increased one percent. Criminal 

appeals fell 14 percent, appeals of administrative agency decisions decreased 

five percent, and bankruptcy appeals declined four percent. 

Original proceedings in the courts of appeals, which include prisoner 

requests to file successive habeas corpus proceedings in the district court, 

dropped 60 percent this year to 5,486, accounting for most of the overall 

caseload decline. These filings had spiked in 2016, after the Supreme 

Court’s decision in Welch v. United States, No. 15-6418 (Apr. 16, 2016), 

which provided a new basis for certain prisoners convicted under the Armed 

Career Criminal Act to challenge their sentences. 

The Federal District Courts 

Civil case filings in the U.S. district courts fell eight percent to 

267,769. Cases with the United States as defendant decreased 29 percent. 

That reduction returned filings to typical levels, following a spike in 2016 

caused by post-Welch challenges to criminal sentences. Cases with the 

United States as plaintiff increased five percent because of actions related to 

foreclosures. Cases involving diversity of citizenship (i.e., disputes between 

14 
citizens of different states) fell seven percent as personal property damage 

cases dropped 40 percent. 

Filings for criminal defendants (including those transferred from other 

districts) changed little, decreasing less than one percent to 77,018. 

Defendants charged with property offenses fell six percent, mainly in 

response to a five percent drop in defendants charged with fraud. 

Defendants accused of immigration violations declined two percent, with the 

southwestern border districts receiving 77 percent of national immigration 

defendant filings. Drug crime defendants, who accounted for 32 percent of 

total filings, fell one percent, although defendants accused of crimes 

associated with drugs other than marijuana rose four percent. Reductions 

also were reported for filings involving sex offenses, general offenses, and 

violent crimes. Filings for defendants prosecuted for firearms and 

explosives offenses rose 11 percent. Increases also occurred in filings 

related to traffic offenses, regulatory offenses, and justice system offenses. 

The Bankruptcy Courts 

Bankruptcy petition filings decreased two percent to 790,830. Fewer 

petitions were filed in 56 of the 90 bankruptcy courts. Consumer petitions 

dropped two percent, and business petitions fell six percent. Filings of 

petitions declined two percent under Chapter 7 and five percent under 

15 
Chapter 11. Filings under Chapter 13 remained relatively stable, decreasing 

one percent. 

This year’s total for bankruptcy petitions is the lowest since 2007, 

which was the first full year after the Bankruptcy Abuse Prevention and 

Consumer Protection Act of 2005 took effect. From 2007 to 2010, 

bankruptcy filings rose steadily, but they have fallen in each of the last seven 

years. 

The Federal Probation and Pretrial Services System 

A total of 134,731 persons were under post-conviction supervision on 

September 30, 2017, a reduction of two percent from one year earlier. Of 

that number, 116,708 persons were serving terms of supervised release after 

leaving correctional institutions, a one percent decrease from the prior year. 

Cases activated in the pretrial services system, including pretrial 

diversion cases, declined three percent to 88,750. 

16 
APPENDIX 3 

Press Release, Federal Judiciary Workplace Conduct Working Group Formed 

(Jan. 12, 2018) 
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APPENDIX 4 

Letter from James C. Duff, Director of the Administrative Office, to 

Chairman Charles E. Grassley and Ranking Member Dianne Feinstein 

(Feb. 16, 2018) 
ADMINISTRATIVE OFFICE OF THE 

UNITED STATES COURTS 

JAMES C. DUFF 

Director 

Honorable Charles E. Grassley Honorable Dianne Feinstein 

Chairman Ranking Member 

Committee on the Judiciary Committee on the Judiciary 

United States Senate United States Senate 

Washington, DC 20510 Washington, DC 20510 

WASHINGTON, D.C. 20544 

February 16, 2018 

Dear Chairman Grassley and Senator Feinstein: 

Thank you for your letter oflast Friday, February 9, 2018, concerning the status of 

the Federal Judiciary Workplace Conduct Working Group (Working Group). As the 

Chief Justice said in his 2017 year-end report, "Events in recent months have illuminated 

the depth of the problem of sexual harassment in the workplace, and events in the past 

few weeks have made it clear that the Judicial Branch is not immune." We have acted 

quickly on this. At the national level, I established the Working Group. Our group is 

actively examining policies and procedures within the Judiciary to protect employees 

from inappropriate workplace conduct and, where necessary, developing enhancements 

to those protections. Some of the circuits and district courts have similar initiatives in 

progress and we are coordinating closely with them. We, of course, not only share your 

interest in this serious issue, we have been working on it in earnest since the formation of 

the Working Group in January and are pleased to update you on our progress. We 

certainly appreciate your staffs' willingness to discuss these matters with us and look 

forward to continuing that dialogue. We will address your questions in order. 

I. On December 31, 2017, Chief Justice Roberts announced that he was creating 

a working group to examine protections against sexual harassment in the 

Judiciary. The working group was directed to explore whether the Judiciary 

has proper procedures in place that protect law clerks and other courtroom 

employees from sexual harassment. 

A TRADITION OF SERVICE TO THE FEDERAL JUDICIARY 
Honorable Charles E. Grassley and Honorable Dianne Feinstein 

Page2 

a. How were the seven members of the working group chosen? 

Immediately upon receiving direction from Chief Justice Roberts to form a 

working group to examine our practices and address these issues, I identified 

and assembled a diverse team ofleaders in the Federal Judiciary who are 

uniquely qualified for this important task. The seven individuals I appointed to 

the Working Group and the group's counsel have a breadth of experience in a 

wide range of judicial operations, the utmost respect from aHwho work in the 

Judicial Branch, and subject matter experience and expertise in the matters 

before our Working Group. Enclosed is a summary of the credentials of the 

Working Group and its counsel. 

b. How often will the working group meet? 

The Working Group has held one day-long in-person meeting and has 

another in-person meeting scheduled in two weeks. We will meet in person as 

often as needed, and we communicate in between meetings on a regular if not 

daily basis. We have·set a very aggressive schedule to complete our work. 

c. When will the working group begin to make recommendations? 

The answer is immediately. In fact, we already have acted on several 

matters, including: 

• revising the Confidentiality provisions in several employee/law clerk 

handbooks to reflect that nothing in those provisions prevents the filing of a 

complaint; 

• establishing a comment mailbox on the uscourts.gov public website for 

current and former law clerks and other employees to send comments and 

suggestions to the Working Group; 

• removing temporarily the Model Confidentiality Statement from the 

courts' intranet website in order to revise it and clarify that nothing in that 

statement prevents law clerks or employees from reporting sexual 

harassment or other workplace misconduct and.filing a complaint relating 

to that conduct; 

• enhancing and raising awareness of the data the Judiciary collects and 

publishes relating to judicial misconduct complaints under the Judicial 

Conduct and Disability (JC&D) Act to identify specifically any complaints 

filed relating to sexual harassment. (In many years, including 2016, there 

have been zero.) 
Honorable Charles E. Grassley and Honorable Dianne Feinstein 

Page3 

Additional steps will be taken throughout our review and some issues likely 

will be addressed in the form of recommendations to the Judicial 

Conference of the United States. 

d. Will the working group make their recommendations publicly available? 

All final recommendations will be publicly available. We will make some 

recommendations public during our review. Others will be announced after 

the Judicial Conference considers and acts upon them. 

2. Will the working group seek input from current and former law clerks and 

other court employees? · 

Yes, representatives from the group of law clerks, both current and former, 

who wrote to us in January, along with other court employees, will attend our 

next Working Group meeting to provide us with their comments and 

suggestions for improving our policies and processes. We are also soliciting 

comments through the Judiciary's Advisory Groups. Additionally, as 

mentioned above, we are creating a comment mailbox on the uscourts.gov 

website for input from: current and former law clerks and court employees. 

3. Will the working group consider changes in sexual harassment training and 

staff development? 

Yes. The Federal Judicial Center (FJC) has several initiatives underway. There 

are three programs relating to workplace harassment that the FJC conducts in 

courts throughout the country. Preventing Workplace Harassment; Meet on 

Common Ground ( a program about diversity and civility in the workplace); 

and the Code of Conduct for U.S. Judges. These programs use a lesson plan 

developed by the FJC and are conducted by FJC-trained faculty in courts that 

request them. 

Meet on Common Ground: Speaking Up for Respect in the Workplace 

• FY 16: 3 programs; 

• FY 17: 20 programs; 

• FY 18 (to date): 6 programs 

Code of Conduct 

• FY 16: 14 programs; 

• FY 17: 24 programs; 

• FY 18 (to date): 5 programs 
Honorable Charles E. Grassley and Honorable Dianne Feinstein 

Page4 

Preventing Workplace Harassment 

• 

• 

• 

FY 16: 49 programs; 

FY17: 45 programs; 

FY18 (to date): 24 programs 

The FJC will train additional trainers this spring for the Preventing 

Workplace Harassment program to meet increased demand .. 

For judges, sessions on the Code of Conduct are included in all orientation 

seminars and in general-subject continuing education workshops. Henceforth, 

these seminars and workshops will include sessions specifically devoted to 

workplace harassment; the first one was held in an orientation for new district 

judges earlier this month. Sessions devoted to workplace harassment are also 

scheduled for in-person education programs for chief district and bankruptcy 

judges this spring and for new chief judges of all kinds in the fall. 

An FJC national conference for court unit executives in the fall will include 

workplace harassment training. 

The FJC provides an online orientation for new law clerks each year. This 

is now being revised to include a separate segment on workplace harassment. 

In addition to a change made in the Law Clerk Handbook in December, to 

clarify that law clerks' duty of confidentiality does not extend to misconduct 

by a judge, the FJC will make further revisions in this and other publications to 

address workplace harassment, including reporting procedures. 

The Working Group also has under consideration changes in training for 

EDR counselors and others who may advise or assist court personnel about 

workplace harassment issues. 

4. What action, if any, has the AO taken following the allegations to strengthen 

the employee resolution process? 

The Working Group will be specifically examining all aspects of the 

Employment Dispute Resolution process to look for areas for possible 

enhancements as part of its key objectives. In an example of the Judiciary's 

commitment to this principle, the AO, with direct senior leadership 

involvement, recently finalized a years-long initiative on behalf of the Judicial 
Honorable Charles E. Grassley and Honorable Dianne Feinstein 

Page 5 

Conference to ensure that all courts have protection against retaliation for 

whistleblowers and to incorporate these protections into their local EDR Plans. 

As a result, all circuit courts, all district courts, and all bankruptcy courts have 

whistleblower retaliation prohibitions. 

5. What current policies for sexual harassment training are currently in place 

in the Judiciary? Do law clerks and court employees participate in training? 

Orientation programs for new judges, annual continuing education 

workshops, and periodic ethics advisories from the Code of Conduct 

Committee of the Judicial Conference have for many years included training 

on ethics and the Code of Conduct for judges. 

In our response to Chairman Grassley's letter to me of December 6, 2017, 

we provided a detailed response, including a lengthy chart, outlining numerous 

types of training provided to judges, law clerks, and court staff on a variety of 

management and oversight responsibilities, including training on prohibited 

personnel practices, ethics, and general court management. (See my letter to 

Chairman Grassley, January 12, 2018, response to question 5 (enclosed).) 

This year, the Federal Judiciary's orientation programs for new judges 

include specific training on "Respect in the Workplace" (a program that 

includes the topic of harassment). This training will also be included in 

continuing education workshops for judges, as well as in other programs for 

new and experienced judges. 

Staff training includes Preventing Workplace Harassment, Meet on 

Common Ground (a program about diversity and civility in the workplace); 

and the Code of Conduct for Judiciary Employees. Law clerks are trained on 

the Code of Conduct through in-person and video training. There will also be 

harassment training at upcoming sessions for court unit executives. And there 

will be training for Chief District Judges in a March 2018 training session. 

The FJC is also revising the Law Clerk Handbook and online orientation 

for new law clerks to address harassment directly, including harassment 

reporting procedures. 

The Office of Fair Employment Practices (OFEP) also provides the 

following training: 
Honorable Charles E. Grassley and Honorable Dianne Feinstein 

Page 6 

• "Managing Employee Dispute Resolution Issues in the Judiciary" is webbased training the OFEP created with the Office of Human Resources that 

covers Title VII, sexual harassment, and sex-based harassment as part of the 

discussion of the "Nine Laws" applicable to the EDR Plans. This is typically 

directed at EDR coordinators (who are court employees). 

• "EDR Training for the Judiciary" is in-person training the OFEP provides 

upon request to court units, generally those responsible for overseeing or those 

responsible for carrying out duties in the EDR process. It covers Title VII, 

sexual harassment, and sex-based harassment, as part of the discussion of the 

"Nine Laws" applicable to the EDR Plans. 

• "Harassment in the Workplace" is in-person training or video conference 

training the OFEP provides, upon request, to court units that is customized to 

the needs of the court unit. It has been done, for example, with the FJC, and 

involved preparation of training for all employees, all managers, and judges 

(where the OFEP was responsible for the judges' portion). 

6. Do anti-retaliation statutes protect law clerks or courtroom employees if they 

report sexual harassment against federal judges? 

The Rules for Judicial-Conduct and Judicial-Disability (RJCD) Proceedings, 

which along with the Judicial Conduct and Disability (JC&D) Act of 1980, 

28 U.S.C. §§ 351-364, establish standards and procedures for addressing conduct 

and disability complaints against a federal judge, prohibit retaliation against a law 

clerk or courtroom employee for reporting sexual harassment by a federal judge. 

Specifically, Rule 3(h)(l)(H) provides that "retaliating against complainants, 

witnesses, or others for participating in [the conduct and disability] complaint 

process" constitutes "cognizable misconduct." See Guide to Judiciary Policy, 

Vol. 2, Part E, Ch. 3, § 320, Article I(3)(h)(l )(G). 

As I previously provided to you in correspondence on January 12, 2018, the 

Federal Judiciary also has put in place comprehensive protections for its 

employees generally including law clerks against retaliation (by judges or other 

judiciary employers) that mirror anti-retaliation statutes. Thus, retaliation against 

any Federal Judiciary employee, including law clerks or courtroom employees, for 

reporting sexual harassment by a federal judge is prohibited under the Federal 

Judiciary's policies. Specifically, harassment against any employee based on 

certain protected classes, including sex, or retaliation for engaging in any 

protected activity is expressly prohibited under the Model Employment Dispute 

Resolution Plan ("Model EDR Plan") as adopted by the Judicial Conference of the 
Honorable Charles E. Grassley and Honorable Dianne Feinstein 

Page 7 

United States. See question 7 for a discussion of our efforts to ensure the EDR 

plans cover all law clerks. 

7. Some federal court districts allow law clerks to participate in the 

Judiciary 's employee dispute resolution program. How many districts allow this 

type of dispute resolution? Why might a district not allow their law clerks to 

participate in this program? 

The Judiciary's Model EDR Plan explicitly covers law clerks. Nine of the 

eleven federal circuits have included law clerks in the EDR plans for all of the 

courts within their jurisdiction. The only two federal circuits that do not currently 

cover law clerks within the EDR plans of their individual courts are the Seventh 

and Eleventh circuits. Those circuits have not covered law clerks in their EDR 

process because law clerks may raise allegations regarding harassment by a judge 

through the Judicial Conduct and Disability Act complaint process. Nonetheless, 

the Working Group is encouraging both the Seventh and Eleventh circuits to 

update their EDR plans to include law clerks. Both the Seventh Circuit and the 

Eleventh Circuit are now reviewing their EDR plans and are considering that 

action. 

8. How many complaints alleging sexual harassment or misconduct are filed by 

courtroom staff and federal law clerks each year? How many of these complaints 

are investigated? How many result in findings for and against judges? 

There are two ways in which the Judiciary typically compiles complaints from 

courtroom staff and federal law clerks alleging sexual harassment by a judge: the 

Judicial Conduct and Disability ("JC&D") complaint process and the Employment 

Dispute Resolution ("EDR") program. 

In 2016, there were no complaints alleging sexual harassment by a federal 

judge filed by courtroom staff or law clerks under the JC&D Act procedures. 

In 2016, there was one EDR claim alleging sexual harassment by a judge filed 

by a law clerk. In accordance with the applicable EDR plan, the employee 

initiated an action by requesting counseling. As set forth in the Model EDR Plan, 

which is attached in our response to Question 10, counseling involves a designated 

EDR counselor discussing the employee's concerns, eliciting information 

regarding the matter, advising the employee of his/her rights and responsibilities 

and the procedures applicable to the EDR process, evaluating the matter, and 

assisting the employee in achieving an early resolution of the matter, to the extent 

possible. In this situation from 2016, the employee and the employing office were 
Honorable Charles E. Grassley and Honorable Dianne Feinstein 

Page 8 

able to achieve an equitable resolution of the matter during the EDR counseling 

process, which concluded the matter prior to the initiation of further fact-finding. 

9. Describe the process the Judiciary uses to investigate a claim of 

· misconduct. 

Misconduct claims can be filed under the JC&D Act or under the Model EDR 

Plan. 

Complaints of judicial misconduct are governed by the JC&D Act, 28 U.S.C. 

§§ 351-364, and the JC&D Rules. Any person can file a complaint or a circuit 

chief judge can identify a complaint. Every complaint is reviewed and considered 

by the circuit chief judge. The circuit chief judge must refer a complaint raising 

factual issues to a special committee of district and circuit judges for an 

investigation as extensive as necessary. The special committee then submits a 

report, including fact-finding and recommendations to the judicial council, for 

consideration. A complainant can file a petition for review from a judicial 

council's order following appointment of a special committee to the Judicial 

Conduct & Disability Committee. Where a judicial council determines that a 

subject judge may have engaged in conduct that might constitute grounds for 

impeachment, the judicial council must certify such a determination to the Judicial 

Conference, and the Judicial Conference - if it concurs - must certify and transmit 

the determination and record of the proceeding to the House of Representatives. 

The Model EDR Plan includes a reporting provision that encourages any 

judiciary employee who experiences or observes sexual harassment or other 

wrongful discrimination to report that to one of the court's EDR Coordinators, a 

unit executive or supervisor, a human resource manager or the Chief Judge. Any 

of those persons who receive a report of harassment are obligated to immediately 

notify the Chief Judge, who will then ensure that an appropriate investigation is 

conducted by an impartial investigator. Retaliation against any employee making 

such a report is prohibited. The goal of this reporting provision is to bring to the 

court unit's attention any sexual, racial, or other discriminatory harassment so that 

it can promptly be prevented or corrected. 

I 0. Please supply all rules and procedures that may govern a claim of misconduct 

against a judge. 

Copies of the Model EDR, the JC&D statute, and the RJCD are enclosed with this 

letter. 
Honorable Charles E. Grassley and Honorable Dianne Feinstein 

Page9 

11. News reports have pointed to several specific investigations of judges accused 

of sexual misconduct. For each of the following individuals, please describe what 

action, if any, the Judiciary took to investigate and resolve these claims. 

The following summaries are provided in response to this question. All of the 

judges you have identified are no longer on the bench. Relevant decisions and 

orders are enclosed. 

a. US. District Court Judge Walter Smith on the US. District Court for the 

Western District of Texas, who in 1998 was accused of sexual harassment by a 

deputy court clerk. 

Judge Walter S. Smith, Jr. (W.D. Tex.): Matter Investigated and Judge Resigned. 

On September 8, 2014, attorney Ty Clevenger filed a complaint alleging Judge 

Smith engaged in abusive sexual conduct toward a clerk's office employee on 

January 22, 1998. 

The Chief Judge of the Fifth Circuit appointed a Special Committee on October 

28, 2014. The Special Committee began its investigation in January 2015, and 

interviewed witnesses and took depositions throughout the first part of that year. 

The investigation was completed by mid-May. Judge Smith met with the 

Committee and testified under oath on August 18, 2015. In October 2015, the 

Special Committee provided its Report to the Judicial Council. 

The Judicial Council issued an order on December 3, 2015, finding the following: 

(1) Judge Smith "made inappropriate and unwanted physical and non-physical 

sexual advances toward [the clerk's office employee];" (2) Judge Smith "does not 

understand the gravity of such inappropriate behavior and the serious effect that it 

has on the operations of the courts;" and (3) Judge Smith "allowed false factual 

assertions to be made in response to the complaint, which, together with the 

lateness of his admissions, contributed greatly to the duration and cost of the 

investigation." The Judicial Council issued a reprimand to Judge Smith, instructed 

the Clerk of Court for the Western District of Texas to suspend the assignment of 

new cases to Judge Smith for one year, and directed Judge Smith to complete 

sensitivity training. 

Mr. Clevenger filed a petition for review to the JC&D Committee on January 18, 

2016, in which he requested the Committee "suspend Judge Smith from the bench 

immediately and recommend impeachment." 
Honorable Charles E. Grassley and Honorable Dianne Feinstein 

Page 10 

Mr. Clevenger also noted he submitted "the names of witnesses to other alleged 

incidents wherein Judge Smith sexually harassed women in the courthouse" and 

alleging that "the assault of [the court employee] was [ not] an isolated incident." 

On July 8, 2016, the JC&D Committee issued a decision returning the matter 'to 

the Fifth Circuit Judicial Council to make additional findings related to the other 

individuals who allegedly witnessed other instances of Judge Smith's sexual 

harassment of women in the courthouse, which raised the question whether there 

was a "pattern and practice of such behavior," and requesting "additional findings 

and recommendations as to the manner in which Judge Smith's conduct adversely 

impacted or interfered with the inquiry, if at all." 

The Special Committee re-engaged its prior investigators. In the second 

investigation, over the course of approximately two months, the investigators 

ensured that all witnesses identified by the complainant, as well as all witnesses 

potentially having information relevant to the issues raised in the order of remand, 

were interviewed. The investigators obtained statements or affidavits from, and/or 

conducted depositions of, all people having relevant information. Overall, the 

investigators communicated with, received statements or affidavits, from or 

deposed over 50 people. 

Before the Committee could conduct hearings, Judge Smith retired from office 

under 28 U.S.C. § 371(a) on September 14, 2016. Following Judge Smith's 

retirement, the Judicial Council concluded 

Mr. Clevenger's complaint against Judge Smith on September 28, 2016, on the 

basis that a judge who retires under Section 37l(a) is "no longer a judicial officer" 

and is "no longer subject to the disciplinary procedures of [the Act] and the 

remedies they prescribe." The JC&D Committee denied Mr. Clevenger's 

subsequent petition for review, concluding that "[t]he Circuit Judicial Council 

properly concluded the conduct and disability proceeding was unnecessary 

because Judge Smith ... retired under 28 U.S.C. § 371(a)." 

b. U.S. District Court Judge Edward Nottingham on the U.S. District Court of 

Colorado faced a judicial misconduct complaint involving allegations that he 

spent thousands of dollars at strip clubs and was involved in a prostitution ring. 

Judge Edward W. Nottingham (D. Colo.): Matter Investigated and Judge 

Resigned. In August 2007, following media reports regarding allegations against 

Judge Nottingham, the then Chief Circuit Judge identified a misconduct complaint 

against Judge Nottingham. The complaint alleged that Judge Nottingham spent 

more than $3,000 at a sexually oriented nightclub in one evening, that he could not 
Honorable Charles E. Grassley and Honorable Dianne Feinstein 

Page 11 

remember how he had spent that much money because he had a lot to drink, and 

that this conduct may have brought disrepute to the Judiciary and constituted 

misconduct. Based on other allegations in the news, the complaint also alleged that 

Judge Nottingham may have violated court policy by viewing sexually explicit 

images on his court computer. The Circuit Chief Judge referred the matter to a 

Special Committee. 

On September 19, 2007, a separate misconduct complaint was filed alleging that 

Judge Nottingham had parked illegally in a handicapped parking space and, in an 

ensuing conversation with the complainant, had misused his authority by 

identifying himself as a federal judge and threatening to call the U.S. Marshals. 

The Circuit Chief Judge also referred this complaint to the Special Committee. 

The Special Committee determined that Judge Nottingham may have made false 

statements in his initial response to the allegations regarding computer use and in a 

transcribed interview, and expanded the scope of the complaint to include these 

alleged false statements. 

In March 2008, the Circuit Chief Judge and the Special Committee learned from 

news reports of allegations that Judge Nottingham had solicited prostitutes. 

Following an informal investigation into these allegations and two hearings, the 

Circuit Chief Judge identified a misconduct complaint against Judge Nottingham 

on October 1, 2008, alleging that he had been a client of prostitution businesses in 

violation of Colorado law, had misused his court-owned cell phone in making 

calls to prostitutes, and had made false statements during the investigation. This 

matter was referred to a new Special Committee. On October 8, 2008, the two 

Special Committees submitted a joint report to the Judicial Council. 

On October 10, 2008, another misconduct complaint was filed against Judge 

Nottingham. The complainant alleged that she had been a prostitute and that 

Judge Nottingham had been one of her clients. She further alleged that on 

February 29, 2008, Judge Nottingham asked her to lie to federal investigators 

about the nature of their relationship and not to disclose that she was a prostitute 

whom he paid in exchange for sex. 

Judge Nottingham resigned his commission as a United States district judge 

effective October 29, 2008. The Judicial Council found that the resignation was in 

the interest of justice and the Judiciary. The Judicial Council further noted that the 

misconduct procedures apply only to federal judges, and determined that the 

misconduct complaints should be concluded because Judge Nottingham's 

resignation made further proceedings unnecessary. 
Honorable Charles E. Grassley and Honorable Dianne Feinstein 

Page 12 

c. U.S. District Court Judge Richard Ce bull on the U.S. District Court of 

Montana, accused of making racist jokes and disparaging statements about 

women and certain allegations. 

Judge Richard F. Cebull (D. Mont.): Matter Investigated and Judge Retired. In 

February 2012, Judge Cebull used his court email account to forward a racist joke 

about President Obama to six acquaintances, which prompted widespread 

reporting in the local and national press. When the incident became public, Judge 

Cebull wrote a letter of apology to the President and asked the Chief Judge of the 

Ninth Circuit to identify a complaint against him. A judge from another circuit 

court also filed a complaint against Judge Cebull based on the same incident. The 

Chief Judge of the Ninth Circuit referred both complaints to a Special Committee. 

The Special Committee issued its Report on December 17, 2012, describing its 

investigation, which included: (1) retrieval, review, and analysis of approximately 

four years of Judge Cebull's emails; (2) interviews with over 25 witnesses; (3) 

analysis of Judge Cebull's cases (with particular attention to sentencing practices, 

civil rights cases, and appeals); and ( 4) an interview with Judge Cebull and 

materials submitted by his counsel. The Special Committee's investigation found 

that there were hundreds of inappropriate emails, including a significant number of 

emails concerning women and/or sexual topics that were disparaging of women. 

The Special Committee's investigation found no evidence of bias in Judge 

Cebull's rulings or in his sentencing practices, and no cases that were "troubling." 

The Order noted the Special Committee interviewed "key individuals in 

Montana's legal community, court staff and Judge Cebull's professional and social 

contacts," and found that "[w]itnesses generally regarded Judge Cebull as a good 

and honest trial lawyer, and an esteemed trial judge." 

On March 15, 2013, the Ninth Circuit Judicial Council issued an Order fmding 

that Judge Cebull engaged in misconduct, as defined under the JC&D Act, and 

violated Canon 2 of the Code of Conduct for U.S. Judges, and issuing sanctions 

against Judge Cebu!!. The Judicial Council issued a public reprimand, ordered 

that no new cases be assigned to Judge Cebull for 180 days, and ordered Judge 

Cebull to complete training on judicial ethics, racial awareness, and elimination of 

bias. Further, the Judicial Council condemned Judge Cebull's initial apology as 

insufficient and required that he issue a second apology, approved by the Judicial 

Council that would "acknowledge the breadth of his behavior and his inattention 

to ethical and practical concerns surrounding personal email." Two members of 

the Judicial Council wrote a concurring statement that "the Judicial Council 

should request that Judge Cebull voluntarily retire from th.e Judiciary under 28 

U.S.C. § 371(a) in recognition of the severity of his violation and the breadth of 

the public reaction." 
Honorable Charles E. Grassley and Honorable Dianne Feinstein 

Page 13 

On April 2, 2013, the Ninth Circuit Judicial Council announced that Judge Cebull 

had decided to retire, effective May 3, 2013. On May 13, 2013, the Judicial 

Council issued an Order vacating its March 15 Order as moot in light of Judge 

Cebull's retirement and stating it would "consider appropriate revisions" at a 

forthcoming meeting. The judge complainant filed a Petition for Review to the 

Judicial Conduct and Disability Committee seeking review of the May 13 vacatur. 

On July 2, 2013, the Judicial Council issued an Order that "dismissed the 

complaints as moot," declared that the "intervening event of Judge Cebull's 

retirement "conclude[d] these proceedings," and that the vacatur of the March 15 

Order had been predicated on "changed circumstances" resulting from Judge 

Cebull's retirement. The July 2 Order presented a truncated version of the March 

15 Order's findings, including the description of the inappropriate emails. The 

judge complainant filed a second Petition for Review on July 23, 2013, 

incorporating the first Petition and requesting review of the July 2 Order based on 

the judge's "concern about the propriety of a Judicial Council issuing a final order 

making detailed findings of extensive judicial misconduct and then, after the 

subject judge retires, sua sponte vacating its own final order and issuing a new 

order that effectively conceals the judicial misconduct that previously had been 

identified and detailed." 

On review, the Judicial Conduct and Disability Committee concluded that the 

March 15 Order was subject to the publication requirements under the JC&D Act 

because it was "a final decision on the merits" and Judge Cebull's retirement was 

not an "intervening event" because it came after the adjudication of the merits. 

The Judicial Conduct and Disability Committee ordered publication of the Judicial 

Council's March 15 Order as the final order disposing of the complaints on the 

merits while recognizing that the provisions commanding Judge Cebull to take 

remedial action were inoperative. 

d. U.S. District Court Judge Samuel Kent on the U.S. District Court for the 

Southern District of Texas, indicted on three counts of abusive sexual cntact and 

attempted aggravated sexual abuse. Judge Kent later pled guilty to a lesser 

offense. 

Judge Samuel B. Kent (S.D. Tex.): Matter Investigated; Judge faced remedial 

action; Matter reinvestigated; Judge pled guilty to criminal charges; Matter 

referred for impeachment; Judge impeached and resigned. A judicial misconduct 

complaint was filed on May 21, 2007, against Judge Kent alleging sexual 

harassment of a judicial employee. The Chief Judge of the Fifth Circuit appointed 

a Special Committee. The Special Committee recommended reprimanding the 
Honorable Charles E. Grassley and Honorable Dianne Feinstein 

Page 14 

judge, as well as other remedial actions. The Judicial Council accepted the 

recommendations of the Special Committee and concluded the proceedings 

because appropriate remedial action had been taken, including the judge's fourmonth leave of absence from the bench, reallocation of the Galveston/Houston 

docket, and other measures. The Judicial Council also reprimanded Judge Kent 

based on the conduct described in the Special Committee report. See September 

28, 2007 Order. 

The complainant filed a motion for reconsideration, seeking a determination that 

Judge Kent may have engaged in conduct in violation of specific federal criminal 

statutes that might constitute one or more grounds for impeachment, and also 

asked the Council to certify such a determination, if made, to the Judicial 

Conference of the United States. The complainant also alleged that there was 

additional evidence of misconduct by Judge Kent, including inappropriate 

behavior toward other judiciary employees. 

The Judicial Council noted that the U.S. Department of Justice had subsequently 

initiated a criminal investigation, with which the Council was cooperating. The 

Council noted that the propriety of further judicial discipline, or a certification to 

the Judicial Conference of the United States, could not be fairly evaluated without 

adversarial proceedings in which the witnesses would be subjected to crossexamination. The Council further determined that conducting adversarial 

proceedings while a criminal investigation was underway could prejudice the 

judicial misconduct investigation. The Council deferred action on the 

complainant's motion for reconsideration in light of the ongoing criminal. 

investigation. During the pendency of the criminal investigation, Judge Kent 

agreed not to handle any civH or criminal cases in which the United States was a 

party or in which sexual misconduct of any kind was alleged. 

See December 20, 2007 Order. 

On August 28, 2008, a United States Grand Jury handed down a three count 

indictment charging Judge Kent with felonies for conduct which had been the 

subject of the misconduct investigation of the Special Committee and the 

sanctions imposed by the Council as a result of that misconduct. On January 6, 

2009, the same Grand Jury issued a superseding indictment charging Judge Kent 

with committing additional misconduct beyond the misconduct the Special 

Committee and the Judicial Council had discovered or considered when issuing its 

earlier sanction. 

Based on these developments, the Judicial Council granted the complainant's 

motion seeking reconsideration of the sanctions imposed against Judge Kent. The 

Judicial Council further determined that, following the trial of the criminal charges 
Honorable Charles E. Grassley and Honorable Dianne Feinstein 

Page 15 

pending against Judge Kent, (including.Kent's obstruction of the Council's own 

investigation) the Council would investigate the additional charges of misconduct 

alleged in the superseding indictment and any supplemental investigation of the 

misconduct alleged in the original indictment. The Judicial Council would then 

consider potential further sanctions in light of the result of the investigation. 

On May 27, 2009, the Judicial Council issued an order noting that Judge Kent "has 

pled guilty to obstruction of justice in violation of 18 U.S.C § 15121(2) and has 

thus by his own admission engaged in conduct which constitutes one or more 

grounds for impeachment under Article II of the Constitution, and so certifies its 

determination to the Judicial Conference of the United States." The Judicial 

Council further determined that "the foregoing events and certification, together 

with the facts that Judge Kent has voluntarily moved out of his chambers and 

ceased handling cases, moot this Council's reopening of the disciplinary 

proceeding against Judge Samuel B. Kent." 

e. U.S. District Court Judge Richard Roberts on the U.S. District Court for 

the District of Columbia, accused of raping a 16 year-old witness while he was a 

prosecutor. 

Matter Investigated as to disability; found not to have committed misconduct as a 

judge; Judge retired on permanent disability. On March 14, 2016, and May 26, 

2016, the Utah Attorney General's Office and Terry Mitchell filed judicial 

misconduct complaints against Judge Richard Roberts (D-DC). Terry Mitchell 

alleged in part that Judge Roberts, prior to his judicial appointment, "used his 

authority and status as a federal prosecutor to manipulate and coerce [then-

]sixteen-year-old Terry Mitchell"-a witness in a 1981 trial-"into numerous sex 

acts before and throughout the trial." The Utah Attorney General made similar 

serious allegations. 

Within a matter of days of the Utah Attorney General's judicial misconduct 

complaint, Judge Roberts retired based on a permanent disability. On March 18, 

2016, the Acting Chief Judge of the DC Circuit dismissed the Utah Attorney 

General's complaint on the ground that Judge Roberts's recent retirement 

"'render[ed] ... the allegations moot or [made] remedial action impossible."' 

The Utah Attorney General filed a Petition for Review of.the Acting Chief Judge's 

dismissal of its complaint. Upon request from the DC Circuit Judicial Council, the 

Chief Justice transferred to the Tenth Circuit the Utah Attorney General's 

complaint and any related matters (including the subsequent complaint filed by 

Ten-y Mitchell). Terry Mitchell's complaint also alleged that Judge Roberts 

dishonestly asserted a disability to retire and avoid the coμsequences of these 
Honorable Charles E. Grassley and Honorable Dianne Feinstein 

Page 16 

allegations. 

The Tenth Circuit Judicial Council granted in part the Utah Attorney General's 

Petition for Review. Specifically, it vacated the dismissal order after determining 

that Judge Roberts's retirement "does not preclude him from coverage under the 

Judicial Conduct and Disability Act," and returned the complaint to the Chief 

Judge of the Tenth Circuit for further action. The Chief Judge of the Tenth Circuit 

consolidated the two complaints and appointed a Special Committee to determine 

whether the claims fell within the scope of the Judicial Conduct and Disability Act 

and, if so, to investigate the allegations and underlying facts. 

Following the Special Committee's investigation and submission of its Report, the 

Tenth Circuit Judicial Council dismissed the Utah Attorney General's and Terry 

Mitchell's judicial misconduct complaints, concluding that Judge Roberts' s preappointment conduct is not justiciable under the Judicial Conduct and Disability 

Act, and further that Judge Roberts did not dishonestly assert a disability. 

Neither the Utah Attorney General nor Terry Mitchell filed a petition for review of 

those determinations. Judge Roberts, however, filed a Petition for Partial Review 

in which he objected to the Judicial Council's inclusion of the medical diagnosis 

underlying his disability retirement. On review, the JC&D Committee denied 

Judge Roberts' s request to strike that specific medical diagnosis from the record 

on the basis that "Judge Roberts's medical diagnosis ha[d] been placed directly at 

issue due to the timing of his departure from judicial office, occurring within days 

of the filing of the Utah Attorney General's judicial misconduct complaint and 

Terry Mitchell's federal civil complaint." JC&D Order at 6. 

On the Judicial Council's request, the JC&D Committee forwarded a copy of.the 

Judicial Council's Order and its Decision denying Judge Roberts's Petition for 

Partial Review to the House Judiciary Committee, the House Oversight 

Committee, the Senate Judiciary Committee, and the Senate Finance Committee in 

recognition of"the importance of ensuring that governing bodfos with clear 

jurisdiction [were] aware of the complaint." 

f U.S. Circuit Court Judge Alex Kozinski on the Ninth Circuit accused of 

sexual harassment and misconduct by several women. 

Judge Alex Kozinski (9th Cir.): Retired immediately following referral for 

investigation. On December 14, 2017, the Chief Judge of the Ninth Circuit 

identified a misconduct complaint against then-Circuit Judge Kozinski "based on 

allegations· contained in a December 8, 2017, Washington Post article entitled 

'Prominent 9th Circuit Judge Accused of Sexual Misconduct' and any other 
Honorable Charles E. Grassley and Honorable Dianne Feinstein 

Page 17 

related articles." On December 15, 2017, the Chief Justice transferred the 

proceeding to the Second Circuit Judicial Council. 

Three days later, on December 18, 2017, then-Judge Kozinski relinquished his 

commission as a United States circuit judge by retiring, effective immediately, 

under 28 U.S.C. § 37l(a). 

On February 5, 2018, the Second Circuit Judicial Council concluded the 

proceeding on the basis of the aforementioned retirement, stating that "Because 

Alex Kozinski has resigned the office of circuit judge, and can no longer perform 

any judicial duties, he does not fall within the scope of persons who can be 

investigated under the Act." Given the seriousness of the conduct alleged, 

however, the Judicial Council "acknowledge[ d] the importance of ensuring that 

governing bodies with clear jurisdiction are aware of the complaint" and requested 

that "the Committee on Judicial Conduct and Disability ... forward a copy of this 

order to any relevant Congressional committees for their information." 

12. A CNN report reviewed 1,303 misconduct complaints filed in 2016. They 

concluded: "of those, only four were referred to special committee for the most 

serious level of investigation." The report found a similar pattern in 2015. 

a. Why were so few complaints fully investigated by the Judiciary? 

See answer to (b) below. 

b. Do these news reports accurately reflect the pervasiveness of sexual 

harassment and misconduct within the Judiciary? 

The media report you cite above is wildly misleading and I am pleased to have 

the opportunity to correct it. Any suggestion that the Judiciary does not take 

sexual misconduct complaints seriously is irresponsible and simply wrong. 

Here are the facts: The Judicial Conduct &nd Disability Act and the Rules do 

not provide for review of case related judicial decisions. Of course, that authority 

resides in the courts of appeals. Nevertheless, the vast majority of the complaints 

we receive under the JC&D Act are complaints related to a judge's decision. Our 

publicly reported data shows that of the 1,303 judicial "misconduct" complaints 

filed nationwide under the JC&D procedures in fiscal year 2016, cited in the 

media report you have referenced, over 1,200 of them were filed by dissatisfied 

litigants and prison inmates. No misconduct complaints were filed under these 

procedures by law clerks or Judiciary employees in 2016, the year cited in the 
Honorable Charles E. Grassley and Honorable Dianne Feinstein 

Page 18 

media report. Moreover, none of the four complaints in 2016 that were referred to 

a special committee for further investigation, as provided under the statute, 

involved sexual misconduct. 

This has been true in most years. And it is a reason we have not created a 

separate category for sexual harassment in our annual published statistical report 

on JC&D complaints - in most years there simply have been no complaints 

· relating to sexual harassment. Nonetheless, we will create a separate statistical 

category for sexual harassment complaints under the JC&D and report that data. 

There are over 30,000 employees in the Federal Judiciary. The sad fact is that, 

just as in other public and private workplaces, sexual harassment issues are often 

not reported. Our Working Group is addressing this issue by removing barriers to 

filing complaints and educating employees about the options they have available. 

. 13. What, if any, statutory recommendations does the Judiciary have for 

improving the current statutes involving the Judiciary 's complaint process, 

codified in 28 U.S.C. §§ 351-353? 

Our Working Group does not have any statutory recommendations concerning 

the Judiciary's complaint process to make to Congress at this time. We will 

continue to examine the statutory framework for judicial misconduct and disability 

complaints. We have preliminarily identified areas of potential modifications and 

clarifications to our codes of conduct guidelines, EDR processes, training and 

orientation programs to address the issues we have seen during our review. 

We will continue to work on these important issues. 

'if:'c&-j 

James C. Duff 

Director 

Enclosure 
APPENDIX 5 

Letter from James C. Duff, Director of the Administrative Office, to 

Chairman Charles E. Grassley and Ranking Member Dianne Feinstein 

(Mar. 8, 2018) 
ADMINISTRATIVE OFFICE OF THE

UNITED STATES COURTS

WASHINGTON, D.C. 20544

March 8, 2018 

JAMES C. DUFF

Director

A TRADITION OF SERVICE TO THE FEDERAL JUDICIARY

Honorable Charles E. Grassley

Chairman 

Committee on the Judiciary 

United States Senate 

Washington, DC 20510 

Honorable Dianne Feinstein

Ranking Member

Committee on the Judiciary 

United States Senate 

Washington, DC 20510 

Dear Chairman Grassley and Senator Feinstein: 

This is a follow up to my letter to you of February 16, 2018, on actions by the 

Judiciary’s Workplace Conduct Working Group (Working Group) in its examination of 

policies and procedures within the Judiciary to protect employees from inappropriate 

workplace conduct and develop enhancements to those protections. 

Our Working Group held its second in-person meeting on March 1, 2018. Our 

meeting included productive sessions with representatives from current and former law 

clerks, as well as a cross section of other Judiciary employees. We will meet again in 

about three weeks. 

The Working Group made progress on several initiatives. In addition to actions 

we already have taken to revise law clerk and employee guidelines and handbooks, seek 

online comments from current and former Judiciary employees, and refine our data 

collection relating to misconduct complaints, we resolved to work with the Judicial 

Conference of the United States to: 

1. Improve law clerk and employee orientations with increased training on 

workplace conduct rights, responsibilities, and recourse that will be 

administered in addition to, as well as separately from, other materials given in 

orientations. 

2. Provide “one click” website access to obtain information and reporting 

mechanisms for both Employment Dispute Resolution (EDR) and Judicial 

Conduct and Disability Act (JC&D) claims for misconduct. 
Honorable Charles E. Grassley and Honorable Dianne Feinstein 

Page 2 

3. Create alternative and less formalized options for seeking assistance with 

concerns about workplace misconduct, both at the local level and in a national, 

centralized office at the Administrative Office of the U.S. Courts to enable 

employees to raise concerns more easily. 

4. Provide a simplified flowchart of the processes available under the EDR and 

JC&D. 

5. Create and encourage a process for court employee/law clerk exit interviews to 

determine if there are issues and suggestions to assist court units in identifying 

potential misconduct issues. 

6. Establish a process for former law clerks and employees to communicate with 

and obtain advice from relevant offices and committees of the Judiciary. 

7. Continue to examine and clarify the Codes of Conduct for judges and 

employees. 

8. Improve communications with EDR and JC&D complainants during and after 

the procedures. 

9. Revise the Model EDR Plan to provide greater clarity to employees about how 

to navigate the EDR process. 

10.Establish qualifications and expand training for EDR Coordinators. 

11.Lengthen the time allowed to file EDR complaints. 

12.Integrate sexual harassment training into existing Judiciary programs on 

discrimination and courtroom practices. 

We also have added instructive programs on our policies and procedures for the 

upcoming meetings of the chief district court judges at the Federal Judicial Center (FJC) 

on March 16, 2018, as well as at FJC workshops and upcoming circuit conferences of 

judges throughout the country this spring. There also will be judge training at the FJC 

national workshops for district judges this summer. 
Honorable Charles E. Grassley and Honorable Dianne Feinstein 

Page 3 

Following our March 1, 2018, Working Group meeting we were pleased to meet 

with your respective staff to summarize these developments. We were grateful both for 

their time and helpful suggestions for making further improvements in our policies and 

practices. We will continue to work closely with them and will keep you informed of our 

progress. 

Sincerely, 

James C. Duff 

Director 

 

cc: Judiciary Workplace Conduct Working Group 
APPENDIX 6 

Press Release, Judicial Conference Receives Status Report on 

Workplace Conduct Review (Mar. 13, 2018) 
	









 

	


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APPENDIX 7 

Summary of Judicial Conduct and Disability Act 
1 

EXECUTIVE SUMMARY:

JUDICIAL CONDUCT AND DISABILITY ACT 

Filing a Judicial Conduct or Disability Complaint Against a Federal Judge 

The Judicial Conduct and Disability Act of 1980 (“Act”), 28 U.S.C. §§ 351–364, and the Rules 

for Judicial-Conduct and Judicial-Disability Proceedings (“Rules”) govern the 

complaint process.

Initiation of Complaint

Under the Act and the Rules, any person may file a complaint alleging a federal judge has 

committed misconduct or has a disability that interferes with the performance of his or her 

judicial duties. 28 U.S.C. § 351(a). Alternately, a circuit chief judge may identify a complaint 

where the circuit chief judge finds probable cause to believe that misconduct has occurred or that 

a disability exists and no informal resolution is achieved or is feasible. Id. § 351(a); R. 5(a). A 

circuit chief judge must identify a complaint where the circuit chief judge finds clear and 

convincing evidence that misconduct has occurred or that a disability exists and no informal 

resolution is achieved or is feasible. Id.

Covered Judges

A federal judge includes a judge of a United States district court, a judge of a United States court 

of appeals (including the Court of Appeals for the Federal Circuit), a judge of a United States 

bankruptcy court, United States magistrate judges, a judge of the Court of Federal Claims, and a 

judge of the Court of International Trade. 28 U.S.C. § 351(d)(1); R. 4.

Misconduct

“Misconduct” is “conduct prejudicial to the effective and expeditious administration of the 

business of the courts.” 28 U.S.C. § 351(a); R. 3(h)(1). A “disability” is a temporary or 

permanent condition, either mental or physical, that makes the judge “unable to discharge all the 

duties” of the judicial office. Id.’ R. 3(e). Examples of judicial misconduct may include the 

following: 

•

•

•

•

using the judge’s office to obtain special treatment for friends or relatives; 

accepting bribes, gifts, or other personal favors related to the judicial office; 

having improper discussions with parties or counsel for one side in a case; 

treating litigants, attorneys, or others in a demonstrably egregious and hostile manner; 
2 

•

•

•

•

engaging in partisan political activity or making inappropriately partisan statements; 

soliciting funds for organizations; 

retaliating against complainants, witnesses, or others for their participation this process; 

or 

violating other specific, mandatory standards of judicial conduct, such as those pertaining 

to restrictions on outside income and requirements for financial disclosure. 

R. 3(h)(1). This list does not include all the possible grounds for a complaint. 

Judicial misconduct may also include actions taken by a judge outside his or her official role as a 

judge only if “the conduct might have a prejudicial effect on the administration of the business of 

the courts, including a substantial and widespread lowering of public confidence in the courts 

among reasonable people.” R. 3(h)(2). Judicial misconduct does not include an allegation that is 

directly related to the merits of a decision or procedural ruling. R. 3(h)(3). 

Circuit Chief Judge’s Review

In most instances, the chief judge of the circuit where the complainant filed their complaint will 

consider the complaint. 28 U.S.C. § 352(a); R. 11. A circuit chief judge generally will not 

consider a complaint against him- or herself. R. 25(b). In determining what action to take, the 

circuit chief judge may conduct a limited inquiry into the facts alleged, which may include 

witness interviews and the review of additional information. 28 U.S.C. § 352(a); R. 11(b). After 

considering the complaint, the circuit chief judge will (a) dismiss or conclude the complaint, or 

(b) appoint a special committee of judges to investigate the complaint. 28 U.S.C. § 352(b); R. 

11(c)–(f).

(a) Circuit Chief Judge Dismissal or Conclusion of Complaint; Review by Judicial 

Council

The circuit chief judge must dismiss a complaint where it alleges conduct that, even if true, is not 

prejudicial to the effective and expeditious administration of the business of the courts and does 

not indicate a mental or physical disability resulting in the inability to discharge the duties of 

judicial office; is directly related to the merits of a decision or procedural ruling; is frivolous; is 

based on allegations lacking sufficient evidence to raise an inference that misconduct has 

occurred or that a disability exists; is based on allegations that are incapable of being established 

through investigation; or has been filed in the wrong circuit. 28 U.S.C. § 352(b)(1); R. 11(c). 

There are other circumstances where a circuit chief judge may dismiss a complaint, as explained 

in the Rules and the Commentary on the Rules. See Rule 11(c). The circuit chief judge may 

conclude a complaint if the subject judge voluntarily takes corrective action or if intervening 

events have made further action unnecessary. 28 U.S.C. § 352(b)(2); R. 11(d)–(e).
3 

If the circuit chief judge dismisses or concludes a complaint, the complainant may petition the 

judicial council of the circuit for review of that order. 28 U.S.C. § 352(c); R. 11(g)(3). A 

complainant must petition the judicial council within 42 days from the date of the circuit chief 

judge’s order. R. 18(b). After considering a petition for review, the judicial council can affirm 

the circuit chief judge’s dismissal or conclusion of the complaint, return the matter to the circuit 

chief judge for additional inquiry or for appointment of a special committee, or take other action, 

as discussed in the Rules. R. 19(b). If the judicial council unanimously affirms the circuit chief 

judge’s dismissal or conclusion of a complaint, the complaint is terminated and the complainant 

has no right to further review. 28 U.S.C. § 352(c); R. 19(e). If one or more judicial council 

members dissents from the circuit chief judge’s dismissal or conclusion of a complaint, the 

complainant may request review by the Committee on Judicial Conduct and Disability, as 

discussed in further detail below. R. 19(e). 

(b) Circuit Chief Judge Appointment of Special Committee; Review by Judicial 

Council and Committee on Judicial Conduct and Disability

If the circuit chief judge refers a complaint to a special committee, that special committee will 

investigate the complaint and report on it to the circuit judicial council. 28 U.S.C. § 353(a); R. 

11(g)(1); A special committee generally will consist of the circuit chief judge and an equal 

number of circuit and district judges. R. 12(a). A special committee conducts an investigation as 

extensive as it considers necessary, which may include interviews, hearings and oral arguments, 

and expeditiously files a comprehensive written report with the judicial council of the circuit, 

which presents both the findings of the investigation and the committee’s recommendations for 

necessary and appropriate action by the judicial council. 28 U.S.C. § 353(c); R. 13–17. 

After the judicial council considers a special committee’s report, it will generally issue an order 

on a complaint. 28 U.S.C. § 354(a); R. 20. The order may dismiss the complaint, or the order 

may conclude the complaint because appropriate corrective action has been taken or intervening 

events have made the proceeding unnecessary. 28 U.S.C. § 354(a)(1)(B); R. 20(b)(1)(A)–(B). If 

the order does not dismiss or conclude a complaint, the order may sanction the judge by: 

•

•

•

•

•

censuring or reprimanding the judge, either by private communication or by public 

announcement; 

ordering that no new cases be assigned to the judge for a limited, fixed period; 

in the case of a magistrate judge, ordering the chief judge of the district court to take 

action specified by the judicial council, including the initiation of removal proceedings; 

in the case of a bankruptcy judge, removing the judge from office; 

in the case of a circuit or district judge, requesting the judge to retire voluntarily with the 

provision (if necessary) that ordinary length-of-service requirements be waived; 
4 

•

•

•

in the case of a circuit or district judge who is eligible to retire but does not do so, 

certifying the disability of the judge so that an additional judge may be appointed; 

in the case of a circuit chief judge or district chief judge, finding the judge temporarily 

unable to perform chief-judge duties, with the result that those duties devolve to the next 

eligible judge; and 

recommending corrective action. 

28 U.S.C. § 354(a)(2); R. 20(b)(1)(D). The judicial council may take other action, such as 

requesting the special committee conduct an additional investigation. R. 20(c). 

Federal judges appointed under Article III of the U.S. Constitution hold office for life pending 

good behavior. Only Congress can remove an Article III judge from office. 28 U.S.C. 

§ 354(a)(3)(A). If the judicial council finds an Article III judge’s conduct may warrant 

impeachment, it must refer that finding to the Judicial Conference. 28 U.S.C. § 354(b). On 

referral, the Judicial Conference will determine whether to certify the matter to Congress, which 

will then decide whether to initiate impeachment proceedings. 28 U.S.C. § 355(b).

When a judicial council issues an order after it considers a special committee’s report, in most 

circumstances a complainant may petition the Committee on Judicial Conduct and Disability for 

review of that order. 28 U.S.C. § 357(a); R. 21(b)(1). A complainant must file that petition for 

review within 42 days from the date of the judicial council’s order. R. 22(c). There is ordinarily 

no oral argument or personal appearance before the Committee on Judicial Conduct and 

Disability. R. 21(e). In its discretion, the Committee on Judicial Conduct and Disability may 

permit written submissions. Id. The Committee on Judicial Conduct and Disability will conduct 

further investigation only in extraordinary circumstances. R. 21(d). A complainant has no right to 

review of any order issued by the Committee on Judicial Conduct and Disability. 

Confidentiality and Publication

The complaint process is confidential, with limited exceptions. 28 U.S.C. § 360(a); R. 23. 

Generally, orders regarding a complaint will be made public only after final action on the 

complaint has been taken and the complainant has no additional right of review. Id. § 360(b); R. 

24. Such orders will be made publicly available in the clerk’s office of the relevant regional 

circuit and on that court’s website. Any decision by the Committee on Judicial Conduct and 

Disability will be available on www.uscourts.gov and in the clerk’s office of the relevant 

regional circuit. R. 24(b). Public orders usually will not disclose the name of the complainant and 

will disclose the name of the subject judge only where the complaint is finally disposed of by 

remedial action by the circuit judicial council (other than a private censure or reprimand), as 

described in the Act and the Rules. See R. 24(a). 
APPENDIX 8 

Summary of Model Employment Dispute Resolution Plan 
EXECUTIVE SUMMARY: THE MODEL 

EMPLOYMENT DISPUTE RESOLUTION PLAN

General 

The Model Employment Dispute Resolution (EDR) Plan sets forth the Judicial Conference’s 

recommended policies and procedures for providing judiciary employees with rights, protections, 

and remedies similar to those provided under the Family Medical Leave Act of 1993 (FMLA), 

Uniformed Services Employment and Reemployment Rights Act (USERRA), Title VII of the 

Civil Rights Act of 1964 (Title VII), Age Discrimination in Employment Act of 1967, 

Americans with Disabilities Act (ADA)/Rehabilitation Act of 1973 (Rehab Act), Occupational 

Safety and Health Act of 1970 (OSHA), Worker Adjustment and Retraining Notification Act 

(WARN), and Employee Polygraph Protection Act of 1988 (EPPA). 

Judicial Conference policy requires all courts to adopt and implement a plan based on the Model 

EDR Plan. Although courts are not required to adopt and implement the Model EDR Plan in its 

entirety, any modifications to the Model EDR Plan must be approved by the judicial council of 

its circuit. 

Coverage 

The Model EDR Plan, or similarly adopted plans, are intended to be the Judicial Branch 

employees’ exclusive remedy for alleged violations of the FMLA, USERRA, Title VII, ADEA, 

ADA/Rehab Act, OSHA, WARN, and EPPA. The Model EDR Plan applies to all: 

- Article III judges and other judicial officers of the U.S. courts of appeals, district courts, 

bankruptcy courts, Court of Federal Claims and Court of International Trade, as well as 

to judges of any court created by an Act of Congress in a territory which is invested with 

any jurisdiction of a district court of the United States; 

- Employees of the U.S. courts of appeals, district courts, bankruptcy courts, Court of 

Federal Claims and Court of International Trade, as well as to judges of any court created 

by an Act of Congress in a territory which is invested with any jurisdiction of a district 

court of the United States; and 

- Staff of judges’ chambers, court unit heads and their staffs, circuit executives and their 

staffs, federal public defenders and their staffs, and bankruptcy administrators and their 

staffs (including applicants and former employees). 

The Model EDR Plan does not apply to interns or externs providing gratuitous service, or 

applicants for bankruptcy judge or magistrate judge positions. 
EDR Process 

The Model EDR Plan sets forth the procedural stages1

 of the EDR process, which includes: 

- Informal Dispute Resolution 

o Counseling and/or 

o Mediation 

- Formal Complaint 

- Hearing and Decision 

o Conducted by the chief judge or a designated judicial officer (i.e. a judge 

appointed under Article III of the Constitution, a U.S. bankruptcy judge, a U.S. 

magistrate judge, a judge on the Court of Federal Claims, or a judge of any court 

created by Act of Congress in a territory which is invested with any jurisdiction of 

a district court of the U.S.) including, where appropriate, a judicial officer from 

outside the court where the complaints arose or the parties are employed. 

- Review of the Decision 

o Review of the presiding judicial officer’s decision 

o Review by a judicial officer 

Remedies 

Remedies may be provided to successful complainants. Remedies are tailored as closely as 

possible to the specific violation. Remedies include retrospective relief to correct a past 

violation; and/or prospective relief to ensure compliance with rights protected under the Model 

EDR Plan. Compensatory and punitive damages are prohibited under the Model EDR Plan. 

Payment of attorney’s fees are also impermissible, except as authorized under the Back Pay Act. 

EDR Coordinators 

EDR Coordinators are court employees who are designated by the court to serve as the EDR 

Coordinator for that court. EDR Coordinators are responsible for: 

- Providing information to the court and its employees regarding the rights and protections 

afforded under their EDR Plan; 

- Coordinating and shepherding the proper EDR complaint procedures; 

- Maintaining the court’s official files of claims and related matters initiated and processed 

under the court’s EDR Plan; 

- Coordinating employee counseling, and serving as a counselor, in the initial stage of the 

claims process. The EDR Coordinator’s responsibilities during the counseling stage are: 

 

1

 The procedural rights set out in the Model EDR Plan correspond to those established under the administrative EEO 

process available to federal employees in the executive branch, and are similar to the counseling and mediation 

requirements imposed on legislative branch employees in its administrative hearing process under the Congressional 

Accountability Act of 1995 (CAA). 
o

o

o

o

o

o

o

o

Obtaining preliminary information from the aggrieved employee, including a 

written statement about the allegations, requested relief, and any jurisdictional 

matters; 

Advising the aggrieved employee of his/her rights and responsibilities under the 

EDR Plan; 

Explaining procedures available under the EDR Plan; 

Providing a copy of the request for counseling to the relevant unit executive and 

chief judge of the court; 

Obtaining pertinent information from the employing office or others as needed to 

evaluate the matter, consistent with the employee’s right to confidentiality; 

Making an initial effort to reach a voluntary, mutually satisfactory resolution; 

Reducing to writing record of all contacts made by the EDR Coordinator during 

the counseling phase. 

Notifying the employee, in writing, of the end of counseling and of his/her right to 

continue to pursue a claim. 

- Collecting, analyzing, and consolidating statistical data and other information relating to 

the court’s EDR process. 

Wrongful Conduct 

- Under the Model EDR Plan, employees are encouraged to report discrimination, 

harassment, and retaliation though the wrongful conduct process. Chief judges and unit 

executives are to assure that allegations of wrongful conduct are promptly investigated. 
APPENDIX 9 

Federal Judicial Center Trainings Related to Fair Employment Practices and 

Workplace Civility 
The Federal Judicial Center has compiled the following resource list to aid court units in 

training and education related to prohibited discrimination, which includes workplace 

harassment. As we acquire or develop additional relevant resources, we will add them to 

the list. 

The FJC offers several in-district training programs delivered by FJC-trained facilitators. 

Each of the in-district programs listed below addresses, in some way, either sexual 

harassment and other forms of prohibited discrimination or techniques to ensure that 

employees develop the skills to foster a respectful workplace. To schedule an in-district 

training program, contact Phyllis Drum at pdrum@fjc.gov or (202) 502-4134. The FJC 

covers the costs of participant materials and trainer travel and subsistence.

The list also includes training videos that can be used as local resources to hold 

discussions and conduct training on issues related to prohibited discrimination, including 

sexual harassment. In addition, we include a number of video resources that address 

topics such as overcoming bias, valuing diversity, facilitating teamwork, effective 

feedback, leadership in challenging situations, and strategies to enhance respectful 

communications. Efforts to incorporate these behaviors may also serve to foster an 

environment less tolerant of prohibited discrimination. To request a video from the list 

below, click on the hyperlinked title, which will take you to a page where you can read a 

more comprehensive description and place an order. A downloadable version of this list is 

available here.

Sexual and Workplace Harassment

In-District Programs

Preventing Workplace Harassment (Employee Version, 4 hours)

This program focuses on employee awareness of workplace harassment. Participants learn 

what workplace harassment is and what it is not, the kinds of behavior that may be 

interpreted as workplace harassment, how a workplace can become a hostile 

environment, and how to minimize the occurrence of workplace harassment. Participants 

learn how to deal with harassment if it arises and what to do if they are involved in a 

workplace harassment investigation.

Preventing Workplace Harassment (Management Version, 4 hours)

This program emphasizes managers’ responsibility to maintain an environment free of 

hostility, where courtesy and mutual respect are the basis for communication and conflict 

resolution. Participants learn what workplace harassment is and what it is not, the kinds 

of behavior that may be interpreted as workplace harassment, and how a workplace can 

become a hostile environment. Managers also learn how to minimize the occurrence of 

workplace harassment, how to handle an allegation or incident, what to do during an 

investigation, how to handle a false or spiteful claim of workplace harassment, and how 

organizations can minimize the occurrence of harassment.

Videos Available from FJC Current Collection 

Court Web: What You Do Not Know About Harassment Could Hurt You! (2017, 

5523-V/17, 1 hour 12 mins.)

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While covering behaviors that should always be avoided, this webcast focuses heavily on 

some of the gray areas where people without bad intent have offended others. The 

webcast also ad-dresses how employees—including leaders—should respond to harassing 

or other unacceptable behavior.

It's Still Not Just About Sex Anymore: Harassment & Discrimination in the 

Workplace (2016, 5559-V/16, 21 mins.)

This program will educate employees about the many forms of workplace harassment and 

dis-crimination. It provides dramatizations of harassment behaviors, demonstrating how 

these behaviors can lead to formal charges and result in serious consequences for the 

individuals involved. The program also teaches what is and is not acceptable in today’s 

workplace and what each individual’s responsibilities are toward his or her colleagues. 

Sexual Harassment: The "Takeaway" for Managers (2016, 5511-V/16, 12 mins.)

This program for managers defines sexual harassment according to the law and explains 

why it’s important to take a proactive approach to this problem. The program includes 

short vignettes that illustrate and dramatize the material presented. This program focuses 

on four key learning points: the legal definition of sexual harassment; a proactive 

response; the importance of documentation; and the fear of retaliation.

Videos Available from FJC Archives

Harassment and Diversity: Respecting the Differences—Employee Version (2007, 

5163-V/07, 16 mins.)

Harassment is not only about sex and gender. It can also involve various cultural 

differences, race, religion, age, disabilities, and other protected characteristics. The video 

focuses on employee sensitivity and awareness. It teaches why a harassment policy that 

emphasizes a respect for coworker differences is not only required by the law, but is also 

the right thing to do.

Harassment & Diversity: Respecting Differences—Manager Version (2005, 

5164-V/05, 20 mins.)

Managing in a diverse workplace can be a challenge, but every manager has the 

responsibility to maintain a harassment-free workplace. Diversity in business should be 

celebrated, but our differences can carry the potential for harassment. Cultural 

backgrounds, age, religious beliefs, nationalities, and physical abilities are all targets for 

workplace discrimination, but they are also categories that are protected under law. The 

video shows an all-too-common situation, where friction between employees grows from 

“just kidding around” into illegal harassment, and ex-plains that your company should 

have a zero-tolerance harassment policy that protects every employee.

Harassment Hurts: It's Personal (2009, 5100-V/09, 21 mins.)

Harassment Hurts: It's Personal explores the pain and cost of harassment, covering such 

topics as age, race, sexual orientation, political affiliation, pregnancy, ethnicity, and 

sexual harassment. This program explains harassment and uses personalized stories and 

detailed legal and policy definitions to cover all types of harassment in organizations and 

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workplaces. This program explores issues of harassment, their ramifications, and their 

remedies. 

Also included is Opening Lines: Exploring Sexual Harassment, which can be used as a 

new-employee orientation tool or as a meeting opener or closer for any harassment, 

respect, or diversity training. You can use it as a quick and concise refresher course for 

your organization’s anti-harassment policy or to just introduce the fundamental and 

important concepts of respect, diversity, and inclusion in the workplace.

In This Together: An Engaging Look at Harassment and Respect (2000, 5508-V/00, 

18 mins.)

This video looks at harassment and respect in the workplace. Seven front-line employees 

from a variety of organizations speak directly to their peers as they discuss the issues of 

respect and harassment. The program features insightful looks at real situations that will 

help employees to make better choices. 

It’s UP to YOU: Stopping Sexual Harassment for Employees (2005, 5459-V/05, 23 

mins.)

This program uses real-world situations to help employees understand and stop sexual 

harassment behavior. 

It’s UP to YOU: Stopping Sexual Harassment for Managers (2005, 5460-V/05, 27 

mins.)

This program uses real-world situations to help managers understand and stop sexual 

harassment behavior. 

Let’s Get Honest: A Sexual Harassment Training Package (2006, 4992-V/06, 41 

mins.)

Program One: Let's Get Honest. This video offers honest solutions to a variety of 

workplace issues, ranging from flirting and dating to clueless behavior and predatory 

harassment.

Program Two: He Said, She Said. In this video, seven scenarios challenge employees’ 

beliefs and perceptions regarding sexual harassment and inappropriate behavior at work. 

As the stories unfold, employees explore the facts, read between the lines, and hear from 

witnesses and experts. 

The Right Side of the Line: Creating a Respectful and Harassment-Free 

Workplace (2005, 4845-V/05, 22 mins.)

Everyone in an organization is responsible for creating a respectful and harassment-free 

workplace. This program addresses harassment in all its forms, giving employees the 

tools to resolve situations before they escalate. The program helps participants take a 

proactive approach to creating and maintaining respectful organizational cultures in order 

to remain legally compliant, to ensure adherence to organizational policies, and to thrive 

and prosper. The video contains six vignettes that address situations that are 

unprofessional, prohibited by policy, and unlawful. Through these vignettes, employees 

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learn what to do and how to respond if they are victims of, or witnesses to, any form of 

harassment or discrimination.

Respectful Workplaces

In-District Programs

Code of Conduct (2.5 – 3 hours)

This program helps court employees deal with a range of ethical issues. It is divided into 

two segments: a review of the Code of Conduct for Judicial Employees, and discussion of 

ethics scenarios.

Dealing with Difficult Situations (4 hours)

This program helps supervisors and managers decide how to promptly and appropriately 

respond to some difficult employee relations problems. Participants discuss the issues 

involved and evaluate possible responses to a number of situations, including accusations 

of discrimination; charges of sexual harassment; possible substance abuse on the job; 

personal problems that interfere with performance; and equitable allocation of resources. 

Meet on Common Ground: Speaking Up for Respect in the Workplace (4 hours)

This program explores thorny workplace situations that involve disrespect. Participants 

learn a four-step approach to resolving differences and fostering a respectful and tolerant 

workplace: Make time to discuss the situation; Explore differences; Encourage respect; 

and Take responsibility.

Personality Temperament Instrument Training (4 hours) 

In this program, participants complete an instrument that identifies four common 

personality types. Through individual and group exercises, participants explore the four 

personality types and examine ways the different types can communicate and interact 

effectively with each other in the workplace.

Videos Available from FJC Current Collection 

Consciously Overcoming Unconscious Bias (2014, 5512-V/14, 8 mins.)

This program shows how unconscious bias, micro-inequities, and micro-affirmations 

overlap in the workplace and helps participants to recognize their own biases and the 

micro-inequities that express them. The program shares helpful tips, like Listening, 

Including, Valuing, and Engaging, (or L-I-V-E) to improve participants’ workplaces.

Diversity 101: The Complete Series (2016, 5560-V/16, 36 mins.)

This series, composed of eight short vignettes, teaches the core components of diversity, 

inclusion, and respect in the workplace. It covers issues such as unconscious/hidden bias, 

intolerance, crude jokes, and disrespectful comments, which can surface in any 

organization.

Diversity: Respect at Work (2013, 5297-V/13, 16 mins.)

This program helps employees understand, accept, and value differences. The program 

shows participants how to: realize that open-mindedness can benefit the bottom line; 

understand, identify, and manage biases; recognize that disrespect can happen even 

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without the offender knowing it; create a more inclusive workplace; adopt a “think before 

you speak” mindset; and resolve conflicts respectfully.

How To Be a Terrible Team Member (2015, 5507-V/15, 44 mins.) 

Teamwork is defined as the combined actions of a group of people, especially when they 

are effective and efficient. Total harmony is not necessarily a defining trait of the most 

effective teams, as creative conflict about the work, when well managed and focused, has 

a decidedly positive effect on team efforts and outcomes. The trick is learning how to 

identify which traits and behaviors contribute to creative thinking, problem-solving, 

learning, and growth and which hinder those things. This program identifies nine 

damaging work styles that are barriers to effective teamwork.

Leadership Feedback: What employees want to tell you . . . but don’t! (2014, 

5457-V/14, 17 mins.)

This program is based on extensive interviews with actual employees who gave candid 

feedback about the leaders they worked for. Because the interviews were anonymous, 

employees were free to honestly discuss which leadership behaviors were motivating—or 

demotivating. Six key issues of leader–employee interaction emerged from this research 

and are illustrated in the video. For each issue, the video shows two scenarios—one with 

an ineffective leader, the other with an effective one.

Leading More with Less (2011, 5196-V/11, 17 mins.)

This program demonstrates six critical leadership skills that can inspire employees 

through difficult times. The video demonstrates both right and wrong leadership examples 

and the effect they have on employees.

Manager’s Moments: How to Excel in Tricky Situations (2015, 5456-V/15, 34 mins.)

To keep teams motivated and running smoothly, managers need to recognize potentially 

troublesome employee situations and quickly take action. This program offers practical 

wisdom to busy professionals on everyday management challenges. The topics include: 

How to Curb Employee Gossip; How to Deal with Difficult Peers; How to Manage Upward; 

How to Manage Time Thieves; and How and When to Delegate.

Managing the Workplace Bully (2013, 5510-V/13, 19 mins.)

This video addresses the issue of abusive conduct at work, providing practical solutions 

that help managers put an end to bullying behavior in their subordinates—and also in 

themselves. Five realistic scenes in a range of workplaces show what to do when 

someone seeks help or there is repeated conflict among employees. 

Ouch! Your Silence Hurts (2009, 5107-V/09, 10 mins.)

Many people say they want to speak up when they see others stereotyped, disrespected, 

or demeaned, but all too often they stand by silently because of discomfort or the fear of 

saying the wrong thing. This video motivates bystanders to use their voice to speak up 

for respect on behalf of someone else.

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Ready. Set. Change! Reacting Smarter. Adapting Faster. Engaging Together

(2012, 5513-V/12, 29 mins.)

This program helps employees positively and productively navigate through change—big 

or small. 

The Respectful Communicator: The Part You Play (2011, 5294-V/11, 15 mins.)

Effective communication is at the heart of organizational performance. In a diverse 

workplace, a number of things can undermine successful communication, including a 

perceived lack of respect or inclusion. This program shows how taking a few extra steps 

can keep misunderstandings to a minimum. The program includes how improved 

interpersonal communication can improve productivity and morale; provides practical 

learning on the sometimes abstract concepts of respect and inclusion; and illustrates how 

to communicate clearly (without demeaning, devaluing, or offending others)

The Respectful Workplace: It Starts with You (2011, 5295-V/11, 18 mins.)

This program explores respect in the workplace through four important skill points. 

Wrong-way scenes depict the negative impact of disrespect while right-way scenes inspire 

positive, respectful, inclusive behavior.

What To Say When (2012, 5387-V/12, 4–6 mins.)

Problems with workplace communication can lead to low productivity, high stress, and 

tension between coworkers. This four-DVD series includes thirty learning modules. Each 

module offers strategies that participants can use to better manage workplace 

relationship challenges. 

Videos Available from FJC Archives

Drop by Drop (2008, 5102-V/08, 19 mins.)

This program demonstrates how small slights, subtle discriminations, and tiny injustices 

can add up to big problems in your workplace. Minor negative gestures are called “microinequities” and they occur in organizations every day. These small communications of 

disrespect, prejudice, and inequality aren’t overt, but they can be destructive. The video 

instructs how to show regard for all races, religions, cultures, and ages and how to be 

open to information about different cultures, customs, and perspectives.

Generations and Work (2010, 5458-V/10, 34 mins.)

This video addresses accepting people who are different and understanding how to 

interact with them in ways that increase satisfaction and productivity. It contains four 

interactive learning experiences: Working with Millennials; Engaging All the Generations; 

Succeeding with Younger Workers; and Connecting Across Differences. Using workplace 

and on-the-street interviews, vignettes, and expert commentaries, the program addresses 

such topics as, coaching, work processes, technology, feedback, change, productivity, and 

sales.

Not Everyone Gets a Trophy (2010, 5157-V/10, 29 mins.)

This video aims to equip managers with the knowledge and tools they need to effectively 

manage young, inexperienced employees. With humor and entertaining examples, the 

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program addresses the challenges of managing younger workers and defines what it 

means for managers, employees, and organizations when young workers join the team.

Ouch! That Stereotype Hurt (2007, 5034-V/07, 30 mins.)

Staying silent in the face of demeaning comments, stereotypes, or bias allows these 

attitudes and behaviors to thrive, undermining the ability to create an inclusive workplace 

where all employees are welcomed, treated with respect, and able to do their best work. 

This program teaches employees how to speak up.

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APPENDIX 10 

Letters from James C. Duff, Director of the Administrative Office, to 

Chairman Charles E. Grassley (Jan. 12, 2018; Jan. 22, 2018) 
JAMES C. DUFF

Director

ADMINISTRATIVE OFFICE OF THE

UNITED STATES COURTS

WASHINGTON, D.C. 20544

January 12, 2018

A TRADITION OF SERVICE TO THE FEDERAL JUDICIARY

Honorable Charles E. Grassley

Chairman 

Committee on the Judiciary 

United States Senate 

Washington, DC 20510 

Dear Chairman Grassley: 

Thank you for your letter of December 6, 2017, concerning allegations about the 

mechanisms for reporting fraud, waste, or abuse, and prohibited personnel practices at the 

Administrative Office of the United States Courts (AO). Judge Timothy Tymkovich, 

Chief Judge of the Tenth Circuit, and I also thank your staff, Mike Davis, Kasey 

O’Connor, and Steven Kenny, for meeting with us on November 17, 2017, prior to 

receiving your letter to discuss these and other matters, and again with them on 

December 12, 2017, along with Katherine Nikas, after I received your letter, to review 

the subjects of it. I also appreciate the additional time you allowed us over the holidays 

to prepare this response because of the volume of material we are providing. As we 

discussed with your staff, in addition to addressing your questions in this letter, we will 

submit in a separate letter a general discussion of the Judicial Branch’s extensive and 

effective processes and safeguards that already provide, at significant taxpayer expense, 

the protections you propose in S. 2195, the Judicial Transparency and Ethics 

Enhancement Act of 2017. 

At the outset, and as Judge Tymkovich and I raised with your staff in November, 

we appreciate that your interest in the Judiciary’s practices has contributed to 

improvements we have made in our processes and procedures over the years, including in 

the past month since our meetings. 

I. BACKGROUND OF OVERSIGHT OF JUDICIAL BRANCH PROCESSES

The Federal Judiciary puts very significant resources and effort into 

independent oversight and programs to prevent fraud, waste, or abuse of 
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government resources. The Judicial Branch has processes and procedures for 

individuals to raise claims of fraud, waste, or abuse; judicial misconduct;

discrimination; harassment, or other wrongful conduct. Additionally, the Judicial 

Branch provides non-retaliation protections to its employees. In response to your 

staff’s observations, as of December 20, 2017, the public website (uscourts.gov), 

and the Judiciary’s internal webpages where fraud, waste, or abuse reporting is 

discussed have been updated. We also have published our policies on fraud, 

waste, or abuse reporting and fair employment practices on uscourts.gov. We

appreciate your observations and welcome any others. 

II. RESPONSES TO QUESTIONS

1. Please provide a description of the current process for contractors 

and Pre-Act and Post-Act employees seeking to report waste, fraud, abuse, 

and prohibited personnel practices, including a description of current 

protections for employees who report; and copies of all policies, procedures, 

internal manuals or memoranda, and training guidance related to this 

process and protections. Please explain how conflicts of interest are 

accounted for. 

Fraud, Waste, or Abuse 

As the Director, I am responsible for the operations of the AO and its 

components, including the authority to investigate allegations of fraud, waste, or 

abuse. The policy (enclosure 1) provides for the investigation of allegations made 

by AO employees or contractors of fraud, waste, or abuse regarding AO staff and 

its activities. The Deputy Director of the AO provides initial oversight and 

resolution of AO allegations. As stated in the policy, I report the filing and action 

taken on fraud, waste, or abuse allegations made regarding the AO, courts, and 

federal public defender organizations (FPDO) to the Judicial Conference 

Committee on Audits and AO Accountability (AAOA Committee), thus allowing 

independent review of all such allegations reported to the AO. There are six 

federal judges from six different courts on the AAOA Committee who have no 

management role in the AO and therefore provide an independent oversight role. 

The policy and our process do not distinguish between allegations made by 

AO employees, whether they are Pre- or Post-Act, or contractors. The status of an 

employee’s employment rights has no bearing on fraud, waste, or abuse reporting 

or review. If any conflicts of interest arise, they are handled case by case. We 

have policy and mechanisms to delegate review responsibilities within the AO. 
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When investigating, the AO, pursuant to its policy, offers confidentiality to 

any complainant who reports fraud, waste, or abuse unless disclosure becomes 

unavoidable. If disclosure is unavoidable, the complainant would be notified prior 

to disclosure unless such notification would be contrary to law. Allegations can 

and have been reported anonymously. As described in our policy, we treat all 

allegations according to the same procedures regardless of source. 

There is a page on the AO’s intranet website informing any employee, or 

contractor working for the AO who has access to the Judiciary intranet, how to 

report allegations through an email address or online form. Allegations by an 

employee, contractor or the public can also be reported by using the email link 

found on the public uscourts.gov website. A copy of the webpages and the form 

used for reporting are in enclosure 2. 

Annually, the Deputy Director of the AO sends a memorandum to 

employees reminding them of their responsibility to report fraud, waste, or abuse. 

The AO’s Personnel Act also prohibits (whistleblower) retaliation against 

employees who report fraud, waste, or abuse. 

Prohibited Personnel Practices 

As reflected in the attached sections of the AO Manual, Volume 4, 

Chapter 3 (enclosure 3), individuals have several established, formal processes 

described through which to pursue their concerns. Where prohibited personnel 

practices include a discrimination allegation, employees may use the Fair 

Employment Practices Complaint Process (FEP-CP). The FEP-CP provides 

explicit, clear directions on how to report concerns and how to proceed once a 

claim is filed. In addition to providing sections of the AO Manual describing our 

process, I have attached a flow chart (enclosure 4) outlining the current process for 

filing a claim with the Fair Employment Practices (FEP) Office. 

The FEP-CP allows for informal counseling, an opportunity to file a formal 

complaint, and an opportunity to request a hearing after an investigation. It is 

important to point out that the investigation is conducted by a trained neutral 

investigator from outside the AO and that the hearing officer, if the matter 

proceeds to a hearing, must be an independent, non-government attorney with 

specialized subject matter expertise and must also be a neutral party. Throughout 

the process, professionals are available in multiple AO offices if there are 

questions or concerns. No investigations are closed without thorough review and 

at any time in the process a claimant may be represented by counsel. 
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Although there are not different processes for Pre-Act and Post-Act 

employees seeking to report fraud, waste, or abuse, there are differences in the 

FEP appeal right procedures for Pre-Act employees. These differences are 

provided in the AO Manual, Volume 4, Chapter 3, § 330.60 (see enclosure 3). 

Training 

The table below provides a list of recent and currently available trainings 

and guidance for AO employees seeking to report fraud, waste, or abuse, and 

prohibited personnel practices. 

Trainings and Guidance for Employees Seeking to Report Waste, Fraud, 

Abuse, and Prohibited Personnel Practices

Format;

Target 

Audience

Title Topic(s) Description 

In-Person; 

AO Staff

Fair 

Employment 

Practices 

Process 

Training

Prohibited 

Personnel 

Practices

This town hall focused on the Fair 

Employment Practices process, 

discrimination, harassment, and how 

to report violations. 

In-Person; 

AO Staff

AO Harassment 

Training 

Prohibited 

Personnel 

Practices

This training was provided to AO 

managers and covered sexual 

harassment in the workplace, the 

relevant guidelines, and 

responsibilities of AO managers.

WebBased; AO 

Staff

Virtual Town 

Hall: Updated 

HR Volume of 

AO Manual

General 

Human 

Resources

The virtual town hall was held to 

address questions about the updated 

volume of the AO Manual. Updates to 

the HR volume included: prohibited 

personnel practices, merit principles, 

whistleblowing, and Fair Employment 

Practices procedures.

In-Person; 

AO Staff

Town Hall 

Question and 

Answer Session: 

AO Manual Fair 

Employment 

Practices 

Chapter

Fair 

Employment 

Practices

This town hall featured staff from the 

FEP Office and the Office of General 

Counsel to facilitate discussion and 

answer any questions on the draft Fair 

Employment Practices Chapter of the 

AO Manual. 

WebBased; AO 

Staff

Guidance on 

Sexual 

Harassment

Prohibited 

Personnel 

Practices

This training provides the applicable 

definitions, guidance, and employee 

responsibilities related to sexual 

harassment in the workplace.
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Format;

Target 

Audience

Title Topic(s) Description 

WebBased; AO 

Staff and 

Contractors 

with 

Access to 

AO Web

Guidance on 

Fraud, Waste, 

and Abuse 

Reporting 

Fraud, Waste, 

or Abuse 

This guidance provides an outline of 

policies and procedures for reporting 

fraud, waste, or abuse and the AO’s 

processes for responding to 

complaints, including prohibition 

against retaliation.

WebBased; AO 

Staff

Annual 

Reporting 

Requirements

Fraud, Waste, 

or Abuse 

Annual memorandum from the Deputy 

Director to all employees reminding 

them of their responsibility to report 

fraud, waste, or abuse with links to 

helpful instructions.

2. What internal safeguards exist at the local, regional, and national 

levels to deter waste, fraud, and abuse of judicial resources? Please explain 

and provide all relevant policies or procedures governing the administration 

of these safeguards. 

The Judicial Branch has a wide range of policies and procedures at the 

local, regional, and national levels that deter fraud, waste, or abuse of judicial 

resources. They include broad, organization-wide strategies, national policies, and 

local procedures. These safeguards evolve and improve based on experience and 

ongoing assessment of risks. Informed by the results of past investigations, audits, 

program reviews, and industry and government best practices, we have made 

improvements to reduce the risk for fraud, waste, or abuse. 

The core safeguards are listed below. The first section of the chart 

discusses specific policies and procedures. The second section discusses other, 

more general policies and procedures that also contribute to deterring fraud, waste, 

or abuse. 
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Reporting and Follow-up on Allegations and Other General Safeguards 

Safeguard Description

Core Safeguards

Monitoring of 

Policies, 

Procedures, and 

Internal Controls

See responses to question #3 for details of Financial Audit 

Programs, and question #4 for details of reporting to AAOA 

Committee.

Codes of Conduct The respective codes of conduct for judges, court staff, FPDO, 

and the AO speak to the integrity of the Judiciary, procurement 

integrity, and the use of government property among a number of 

other matters that emphasize accountability and good stewardship 

of Judiciary resources.

Fraud, Waste, or

Abuse Policies

The Judiciary has policies for the courts, the federal public 

defenders, and the AO that address how to report allegations of 

fraud, waste, or abuse (enclosure 5).

Fraud, Waste, or

Abuse Reporting 

Intranet Pages

The Judiciary intranet pages provide information regarding how 

to report fraud, waste, or abuse; points of contact for such 

reporting; and a form to submit concerns regarding fraud, waste, 

or abuse including an option to submit anonymously. Based on 

the concerns your staff raised, we have updated these pages to 

more clearly explain the reporting and investigative procedures. 

Fraud, Waste, or

Abuse Reporting 

Reminders

Annually, the chair of the AAOA Committee sends a 

memorandum to chief judges and all court unit executives asking 

them to remind their staff of the means to report fraud, waste, or 

abuse (enclosure 6). 

The Deputy Director of the AO annually sends a memorandum to 

all AO employees reminding them of their obligation to report 

fraud, waste, or abuse (enclosure 7).

Internal Control 

Policy

The Judiciary’s internal control program requires that the AO and 

each unit have financial and administrative procedures. The 

executive is required to keep the procedures current and conduct 

a comprehensive review annually. The procedures are also 

reviewed by auditors during the organization’s cyclical audit.

Internal Control 

Self Assessments

The Judiciary’s internal control program requires an annual selfassessment of the organization’s internal controls. The auditors 

review the completed assessments during the organization’s 

cyclical audit.

Program Reviews AO staff conduct voluntary and mandatory reviews of Judiciary 

programs (e.g., clerk’s office, jury administration, probation 

office, human resources administration) and such reports serve to 

improve operations in the specific office, and may also identify 

best practices that are shared broadly. These are reported to the 

AAOA Committee and noted in question #4.
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Safeguard Description

Internal Control 

Tools 

The AO has developed guidance systems and best practices to 

help executives and financial managers identify internal control 

risks. 

Reporting & 

Follow-up on 

Allegations

As described in the response to question #4, the AO provides an 

extensive semi-annual report to the judges on the AAOA 

Committee, which has an independent role in monitoring and 

reviewing reports of fraud, waste, or abuse, as well as financial 

audits and special investigations. Their oversight and the judges’ 

expectation that management at the AO and the courts will 

complete appropriate investigative activities is a deterrent. 

The AO also provides investigation reports and other information 

regarding the allegations to the Office of Audit so that the 

relevant internal controls and activities can be reviewed during a 

future audit to ensure that weaknesses in internal controls have 

been addressed. 

Strategic Planning The Judiciary’s Strategic Plan emphasizes standards of conduct; 

self-enforcement of legal and ethical rules; good stewardship of 

public funds and property; and effective and efficient use of 

resources.

The AO’s Strategic Direction emphasizes strengthening AO 

accountability through improvements to internal control, audit, 

and risk management initiatives.

General Safeguards

Financial 

Reporting 

Requirements

Financial reporting requirements are in place and designed to 

ensure accountability for funds, including managing, expending, 

and receipting funds. Monthly, quarterly, and annual reports are 

required to be filed by court units and FPDOs; reports are 

reviewed, and financial statements are audited in accordance with 

Judiciary policy.

Financial System

Controls 

Financial system controls are in place to ensure that only 

authorized persons can process transactions, which are safeguards 

that prevent unauthorized personnel from executing transactions 

outside their approvals. These safeguards also assist executives 

in ensuring the appropriate separations of duties.

Formal 

Delegations of 

Authority 

Delegations are designed to ensure that persons with the 

appropriate training and knowledge carry out certain 

responsibilities. Judiciary delegations are defined for every 

administrative area, including certifying officers, contracting 

officers, and personnel actions. 

Local Budget and 

Financial 

Management 

Policies and 

Procedures

The AO, courts, and FPDOs are required to establish local budget 

and financial management policies and procedures to ensure that 

funds are expended in accordance with local governance rules. 
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Safeguard Description

Local Fraud, 

Waste, or Abuse 

Policies

Courts have implemented local fraud, waste, or abuse policies 

and procedures based on their local governance processes and 

procedures. The AO has posted examples of these policies and 

procedures on the Judiciary’s intranet page for courts to 

reference.

Training Training is provided regarding some of the specific safeguards 

above, some of which is mandatory for certain authorities such as 

certifying officer, contracting officer, etc. For a more extensive 

discussion of training, see response to question #5.

3. Please provide a description of the financial audit processes – 

internal and external – for individual courts and the AOUSC, including the 

frequency of audits and details of the processes utilized.

Judiciary Audit Program 

The Director of the AO has the statutory responsibility under 

28 U.S.C. § 604(a)(8) to disburse appropriations and other funds for the 

maintenance and operations of Judiciary organizations, as well as the 

responsibility under 28 U.S.C. § 604(a)(11) to audit accounts and vouchers of the 

courts. The Director of the AO has assigned the responsibility for administering 

the Judiciary’s audit program to the AO’s Office of Audit. This Office of Audit, 

along with the Office of Management, Planning and Assessment, was once called 

the “Office of Inspector General.” The office titles have changed over time, but 

the important functions remain. 

The Office of Audit is organized as an independent internal audit office as 

defined under the Government Accountability Office’s Generally Accepted 

Government Auditing Standards (GAGAS). The AO’s Office of Audit conducts 

financial-related performance audits and contracts with independent external audit 

firms to perform financial statement audits and other attest engagements that 

require a level of independence, as defined in professional auditing standards, 

which must be provided by independent certified public accounting (CPA) firms. 

Audits are conducted in accordance with GAGAS and Generally Accepted 

Auditing Standards. 

The Judiciary is not only responsible for appropriated funds, but also for 

filing fee receipts and funds held in trust for retirees, crime victims, and parties 

involved in disputes. The Judiciary also makes statutory payments to bankruptcy 

trustees and the recipients of Criminal Justice Act grants. Judiciary 

responsibilities for these funds include the proper handling of transactions 
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involving these funds as well as the safeguarding of these assets while they are 

held. 

The Judiciary’s audit programs reflect its wide-ranging responsibilities for 

the handling of appropriated and non-appropriated funds at the national and local 

levels. The Judiciary produces a series of financial reports and statements 

reflecting these responsibilities, and it audits them on a regular basis. In many 

cases, expenditure transactions will be examined at multiple levels. For example, 

an expenditure may be reviewed at the national level in an appropriations audit 

and at the local level in a cyclical court audit, where the actual disbursement was 

initiated. 

1. Cyclical Financial Audits 

Independent CPA firms conduct cyclical financial audits of court 

units and FPDOs with contractual oversight provided by the Office of 

Audit. The audit cycle is four years for smaller and lower-risk units, and 

two and one-half years for higher-risk units, including large courts. Audit 

reports include an auditor’s opinion on financial statements and a report on 

internal controls over financial reporting and compliance with Judiciary 

policies and procedures for all offices. The audits also review certain 

administrative functions, including procurement, property management, 

financial systems access, and other areas. 

2. Change-of-Court Unit Executive and Other Special Request Audits 

Staff from the AO’s Office of Audit conduct financial-related 

performance audits to document the transfer of accountability when a court 

has a change in its court unit executive, or when there is an executive 

change such as a bankruptcy administrator. Courts may also request audits 

when there is a change in the financial administrator, to follow up on prior 

audit issues, or to examine a particular area or process where a court has 

identified potential risk. 

3. National Financial Statement Audits

The Office of Audit oversees the work of external auditors as they 

conduct financial statement audits, performance audits and other attest 

engagements of certain Judiciary appropriations, AO financial systems, and 

national programs. 

Judiciary Appropriations. The Office of Audit contracts with an 

independent CPA firm to conduct financial audits for Judiciary 
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appropriation accounts, which fund the operations of the U.S. courts, 

defender programs, and the AO. The primary objectives of the audits are 

to: 1) determine whether the financial statements related to these 

appropriation accounts are presented fairly in all material aspects; 2) assess 

internal controls over financial reporting; and 3) assess compliance with 

significant and applicable laws and regulations. To assess internal controls, 

the CPA firm examines key financial reporting internal control policies and 

processes at the AO and at the court unit or federal public defender level, 

and reviews controls over information technology relevant to the 

preparation and presentation of financial statements. Appropriations audits 

are conducted on a two-year cycle. 

Retirement Funds. The Office of Audit contracts with independent 

CPA firms to conduct annual financial statement audits of the Judiciary’s 

four retirement funds: the Judicial Survivors’ Annuities System, which 

provides death benefit coverage for survivors of participating justices and 

judges; the Judicial Officers’ Retirement Fund, which provides retirement 

and disability benefits for participating federal bankruptcy and magistrate 

judges; the Court of Federal Claims Judges’ Retirement System, which 

provides retirement benefits for participating United States Court of Federal 

Claims judges; and the Judicial Retirement System, which provides 

retirement benefits to participating Article III judges retiring under 

28 U.S.C. §§ 371(a) and 372(a), and judges of the territories.

Registry Investments. Courts are required to deposit and invest 

registry funds safely until the resolution of a case, at which time the courts 

return the deposits, plus interest, to the appropriate parties. The Court 

Registry Investment System (CRIS) was established by a district court in 

1988 to relieve individual courts from the risks and administrative burdens 

associated with investment of registry funds locally. This voluntary 

program was transferred to the AO in 2011 and the AO now manages 

registry funds for 166 district and bankruptcy courts. Financial statements 

for CRIS are audited annually by an independent CPA firm under contract 

with the Office of Audit. 

Public Access to Court Electronic Records (PACER). The Office of 

Audit contracts with an independent CPA firm to perform annual financial 

audits of the PACER program receipts. PACER is an electronic public 

access service that allows registered users to obtain case and docket 

information online from federal appellate, district, and bankruptcy courts 

and the PACER Case Locator. As mandated by Congress, the Judiciary’s 
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electronic public access program is funded entirely through user fees set by 

the Judicial Conference. 

Central Violations Bureau (CVB). The Office of Audit contracts 

with an independent CPA firm to perform annual financial audits of CVB 

receipts. The CVB is a national center responsible for processing violation 

notices (tickets) issued and payments received for most petty offenses and 

some misdemeanor cases charged on a federal violation notice. 

4. Audit of AO Administrative Functions

Contract Audits. The Office of Audit contracts with independent 

CPA firms to conduct performance audits of the AO’s contract 

administration and reporting functions. The primary objectives of the 

reviews are to determine whether (1) operational safeguards and internal 

controls over the contracting process were adequate to ensure compliance 

with procurement and programmatic requirements of the contract, and (2) 

costs charged to the contract were allowable and supported. A selection of 

contracts are audited in most years. 

Other Administrative Functions. Office of Audit staff or 

independent CPA firms may conduct audits of other AO administrative 

functions, such as procurement or property management. 

5. Audits of Community Defender Organization Grantees 

An independent CPA firm under contract with the Office of Audit 

conducts financial audits of Criminal Justice Act (CJA) grants to the 17 

community defender organizations (CDOs). Each CDO is audited 

annually. The objectives of the audits are to: 

•

•

•

•

•

•

•

evaluate internal accounting controls; 

evaluate grant activity for compliance with grant agreements, 

Judiciary policy, and other relevant policies; 

assure that personnel are authorized and paid at authorized levels; 

review property inventory and procurements; 

review reporting to the AO’s Defender Services Office; 

review budgetary restrictions; and 

review the return of unused funds. 
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6. Audits of Chapter 7 Bankruptcy Trustees 

The Office of Audit also contracts with an independent CPA firm to 

conduct performance audits of Chapter 7 bankruptcy trustees. The audits 

are performed with oversight provided by the Office of Audit in support of 

the bankruptcy administrators located only in the states of North Carolina 

and Alabama, which are under the Judicial Branch. This audit program 

began in fiscal year 1994 and is similar to the Department of Justice’s 

program for audits of Chapter 7 trustees in the other 48 states which are 

under the United States Trustee Program. The audits are conducted on a 

three-year cycle. The primary objectives are to evaluate whether the 

trustees have a system of internal controls to protect estate funds and assets, 

adhere to specific case administration and financial compliance 

requirements, and present financial information in accordance with Judicial 

Conference policy. 

7. Audits of Chapter 13 Bankruptcy Trustees 

Financial audits and agreed-upon procedures (AUP) engagements of 

Chapter 13 bankruptcy trustees are conducted by another independent CPA 

firm under contract with the Office of Audit in support of the bankruptcy 

administrators in North Carolina and Alabama. The audits evaluate 

whether the trustee’s annual report fairly presents the position of the 

trusteeship during the audit period. Chapter 13 bankruptcy trustees are 

audited annually. The audit reports include the auditor’s opinion on the 

trustee’s annual report, and a report on internal controls and compliance 

with relevant laws, regulations, and Judiciary policy. This centrally 

managed audit process is similar to the Department of Justice’s program for 

audits of Chapter 13 trustees in the other 48 states. 

Chapter 13 bankruptcy trustees also undergo AUP engagements each 

year. The AUP engagements are an other attest engagement provided by 

independent public accounting firms, and a separate report is issued for 

these engagements. AUPs report on various prescribed procedures as 

developed by management to assess the Chapter 13 trustee’s compliance 

with relevant program policy and requirements. AUPs have a lesser scope 

than an audit, because they provide no assurance on the processes or items 

under review. 
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8. Debtor Audit Program 

The Office of Audit contracts with an independent CPA firm to 

conduct debtor audits of Chapter 7 and Chapter 13 bankruptcy filings by 

individuals in the states of North Carolina and Alabama. Some filings 

selected for audit are randomly selected from filings, while others are 

selected from cases with debtors who have high incomes or high expenses, 

compared to the statistical norm in the district. A filing may also be 

targeted for audit by a bankruptcy administrator if it exhibits characteristics 

that may be associated with fraud or undisclosed assets. 

9. Previous Audits or Attestation Engagement Follow-Up Activities

As outlined in the GAGAS standards, auditors should evaluate and 

determine whether audited entities have taken appropriate corrective 

actions to address prior findings. The Office of Audit tracks and follows up 

on implementing corrective actions in court units, defender organizations, 

and the AO to ensure that audit findings are addressed. Findings identified 

in final audit reports are tracked and listed as “open” until documentation is 

submitted that describes actions implemented to address the issue. The 

tracking system also includes the audit recommendations associated with 

each finding. One finding may have multiple recommendations. The Office 

of Audit marks the item as “closed” if the implemented actions as described 

address all of the related recommendations and would resolve the 

condition. 

4. Please provide all financial audits, program reviews, and special 

investigations reported by the AOUSC to the Judicial Conference Committee 

on Audits and Administrative Office Accountability from FY 2013 – FY 2017.

The AAOA Committee meets twice per year to oversee and review the 

AO’s audit, review, and investigative assistance activities. At each meeting, the 

AO reports on all audits, program reviews, and investigative activities for the 

period ending March 31 (for the Committee’s June meetings) or September 30 (for 

the Committee’s January meetings). Attached are ten summaries of the reports 

that have been provided to the AAOA Committee for its January 2013 meeting 

through its June 2017 meeting (enclosure 8). 
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5. Please provide a description of all in-person or web-based training 

for chief judges and unit executives offered by the Federal Judicial Center 

(FJC) and the AOUSC on their management and oversight responsibilities.

The AO and the FJC regularly provide a broad range of training and 

educational programs to Federal Judiciary staff on judicial administration, court 

administration, and organizational leadership and management topics. 

The AO delivers online and in-person training programs on topics 

pertaining to the administrative responsibilities of judges, court unit executives 

(CUEs), and other Judiciary staff. Staff at the AO also appear at forums of 

private, affiliated organizations such as the Federal Court Clerks Association and 

the National Conference of Bankruptcy Clerks to discuss court administration 

topics. Because the AO develops and administers new procedures pertaining to 

court administration, it is primarily responsible for training in the management and 

oversight responsibilities requested in your letter. Typical training topics include 

budget management, internal controls, information technology and security, 

procurement, and human resources management. 

The FJC was established in 1967 with the mandate to provide orientation 

and continuing education programs on judicial administration, specialized areas of 

the law, and organizational leadership and management skills. The FJC regularly 

provides online and in-person orientation and continuing education programs to 

judges and employees of the federal courts. FJC programs cover certain judicial 

administration topics (e.g., criminal litigation and procedure, complex litigation, 

case management, alternative dispute resolution, and juries), court management 

and leadership topics (e.g., court administration, change leadership, and 

organizational culture), and specialized areas of the law (e.g., national security, 

law and technology, and the environment). The FJC also coordinates educational 

programs for federal public defenders and probation and pretrial services officers. 

The following table is a list of in-person and web-based trainings offered by 

the AO and the FJC in 2016 and 2017 for chief judges and court unit executives in 

their management and oversight responsibilities. As described above, 

“management” training is offered in many forms, but in responding to this 

question, we focused on training that emphasized “management and oversight” in 

administrative responsibilities and accountability. 
Honorable Charles E. Grassley

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Core Management and Oversight Trainings

Format; 

Target 

Audience

Title Topic(s) Description 

InPerson; 

Court 

Unit 

Executive 

Court Unit 

Executives and 

Chief Deputies 

Training 

General Court 

Management 

This four-day training 

convened CUEs and chief 

deputies for a biennial 

conference. Topics included 

records management, court 

reporting, public access to 

court electronic records, 

audit issues and top audit 

findings, maintaining a 

robust internal control 

environment, travel policy, 

procurement and contract 

management, property 

management, budget 

execution, human resources 

and employee relations, 

work measurement, and 

information technology 

topics. 

InPerson; 

Court 

Unit 

Executive 

New Court 

Unit Executive 

and Chief 

Deputy 

Orientation 

General Court 

Management 

This orientation is held 

annually to familiarize new 

CUEs and chief deputies 

with the AO and the FJC, 

and the myriad of services 

provided. Participants have 

the opportunity to meet 

directly with AO staff and 

attend topic-specific 

breakout sessions with AO 

subject matter experts. 

Topics included finance and 

budget, human resources, 

internal control and audit, 

and the court review 

program. 
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Core Management and Oversight Trainings

Format; 

Target 

Audience

Title Topic(s) Description 

InPerson; 

Court 

Unit 

Executive 

Internal 

Control SelfAssessment 

Tool Training 

Internal 

Controls 

The Internal Control 

Evaluation (ICE) System is 

a software application that 

helps court unit executives 

and federal public defenders 

evaluate compliance with 

specific internal control 

requirements. In-person 

training on this system takes 

1.5 days and is designed to 

introduce the system to new 

staff and instruct them on 

how the tool can be used to 

support a sound internal 

control environment.

InPerson; 

Court 

Unit 

Executive 

Financial 

Forum 

Budget 

Management, 

Internal 

Controls 

The Financial Forum is a 

recurring event, hosted by 

the AO, that provides 

training to financial 

personnel, unit executives, 

and staff in the areas of 

financial management, 

accounting and software 

programs used within the 

Judiciary, and fosters 

working relationships 

between AO and court staff. 

Recent topics have 

included: applying internal 

controls in a court 

environment; audit basics 

and lessons learned; and 

protecting your customers’ 

credit card information.
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Core Management and Oversight Trainings

Format; 

Target 

Audience

Title Topic(s) Description 

InPerson; 

Court 

Unit 

Executive 

District and 

Bankruptcy 

Operational 

Practices 

Forum 

Internal 

Controls 

AO staff delivered a 

presentation at this forum 

on internal controls, the 

self-assessment tool 

developed by the AO, and 

the roles of judges and unit 

executives in the 

maintaining effective 

internal controls. 

InPerson; 

Court 

Unit 

Executive 

New Federal 

Defender and 

Administrative 

Officer 

Orientation 

General Court 

Management; 

Internal 

Controls 

This multi-day training 

includes management, 

human resources, budget 

and accounting, audit issues 

and top audit findings, 

internal controls, travel, 

procurement and contract 

management, property 

management, human 

resources and employee 

relations, work 

measurement, code of 

conduct, and information 

technology topics. It 

includes meetings with each 

offices assigned budget 

analyst and other AO staff. 

InPerson; 

Court 

Unit 

Executive 

Resources, 

Budget, and 

Finance 

Educational 

Workshop 

Internal 

Controls 

AO staff delivered a 

presentation on audit 

processes, internal control 

policy, and internal control 

tools to a joint conference 

of the Federal Court Clerks 

Association and the 

National Conference of 

Bankruptcy Clerks in 

Washington DC. 
Honorable Charles E. Grassley

Page 18 

Core Management and Oversight Trainings

Format; 

Target 

Audience

Title Topic(s) Description 

InPerson; 

Court 

Unit 

Executive 

Federal 

Defender 

Conference 

General Court 

Management; 

Internal 

Controls 

The annual three-day 

federal defender conference 

includes sessions on 

management and internal 

controls. Previous agendas 

have included sessions on 

audit compliance, employee 

disputes resolution, 

developing FPDO internal 

policy manuals, Community 

Defender Organization 

(CDO) employment law, 

fair employment practices, 

and managing FPDO 

budgets.

InPerson; 

Court 

Unit 

Executive 

Human 

Resource 

LeadershipEmployee 

Relations 

Prohibited 

Personnel 

Practices

This in-person course uses 

workplace scenarios to 

reinforce concepts and 

principles related to 

managing employee 

relations and human 

resources policies and best 

practices. 

Webbased; 

Court 

Unit 

Executive 

Appropriations 

Law for US 

Courts 

Procurement This course introduces the 

basic principles of 

appropriations law and 

Judiciary policy for 

spending appropriated 

funds. 

Webbased; 

Court 

Unit 

Executive 

Judiciary 

Executive 

Procurement 

Oversight 

Seminar 

Procurement This course provides an 

overview of procurement in 

the Judiciary. Topics 

include key procurement 

policies, procedures, 

guidance, tools, and 

minimum internal control 

requirements. 
Honorable Charles E. Grassley

Page 19 

Core Management and Oversight Trainings

Format; 

Target 

Audience

Title Topic(s) Description 

Webbased; 

Court 

Unit 

Executive 

Internal 

Control SelfAssessment 

Tool Training 

Internal 

Controls 

The ICE System is a 

software application that 

helps court unit executives 

and FPDOs evaluate 

compliance with specific 

internal control 

requirements. In addition to 

in-person training on this 

system, there are four 

electronic learning modules 

that guide the participant 

through exercises using key 

system functionality and 

measures user 

comprehension after each 

module.

WebBased; 

Court 

Unit 

Executive 

Court Registry 

Investment 

System

Financial 

Management 

The CRIS is a national 

investment program 

managed by the AO for 

Registry Funds. CRIS is 

designed to manage risks to 

the clerks of court charged 

with investing and 

protecting the funds. The 

AO makes available 

resources and tutorials on 

managing these funds.
Honorable Charles E. Grassley

Page 20 

Core Management and Oversight Trainings

Format; 

Target 

Audience

Title Topic(s) Description 

Webbased; 

Court 

Unit 

Executive 

Managing 

Employee 

Dispute 

Resolution 

Issues in the 

Judiciary 

Prohibited 

Personnel 

Practices

Employment Dispute 

Resolution (EDR) 

coordinators perform an 

important role in the courts. 

They serve as the conduit 

for reporting, processing, 

and conducting 

investigations for some 

types of employee disputes. 

Unlike standard human 

resource procedures, the 

EDR coordinator handles 

claims where bias, 

retaliation, harassment, and 

other fair employment 

practices become involved. 

This course addresses the 

nine laws covered by the 

EDR Plan, provides 

resources for an EDR 

coordinator, including a 

checklist of duties, and 

provides real-life case 

scenarios with follow-up 

question and answers.
Honorable Charles E. Grassley

Page 21 

Core Management and Oversight Trainings

Format; 

Target 

Audience

Title Topic(s) Description 

WebBased; 

Court 

Staff

Individualized 

Guidance on 

Prohibited 

Personnel 

Practices

Prohibited 

Personnel 

Practices

The FEP Office prepares 

individualized guidance to 

courts on a weekly basis on 

topics related to equal 

employment opportunity, 

EDR claim processing, 

implicit bias, court 

demographics, and related 

topics. This was 

accomplished in direct court 

–to-FEP Office

consultations with legal

staff; judicial orientation

sessions for new chief

judges and judicial

nominees; and in-person

and videoconference

training sessions for court

personnel.
Honorable Charles E. Grassley

Page 22 

Core Management and Oversight Trainings

Format; 

Target 

Audience

Title Topic(s) Description 

InPerson; 

Chief 

Judge 

New Chief 

Judge 

Orientation 

General Court 

Management 

The AO sponsors a 1.5 day 

New Chief Judge 

Orientation Program that 

addresses the 

administrative, 

management, and 

governance responsibilities 

of a chief judge and 

introduces the chief judge to 

the AO and FJC staff and 

resources available to assist 

them. During the program, 

the FEP Office reviews the 

court's employee dispute 

resolution plan and the 

Office of Audit reviews the 

court's last audit report. 

Staff from the Budget, 

Accounting, and 

Procurement Office, and the 

Human Resources Office 

also provide briefings. 

Court unit executives are 

invited to attend the 

program with their chief 

judge.

InPerson; 

Chief 

Judge 

Chief Judge 

Education 

Program 

General Court 

Management 

The FJC’s chief judge 

education programs 

emphasize the leadership 

and management roles of 

chief judges, as well as 

topics that relate to specific 

administrative 

responsibilities, including 

internal controls.
Honorable Charles E. Grassley

Page 23 

Core Management and Oversight Trainings

Format; 

Target 

Audience

Title Topic(s) Description 

InPerson; 

Chief 

Judge 

Conference for 

Chief Judges of 

the U.S. 

District Courts 

General Court 

Management 

This two-day FJC 

conference examined the 

leadership and management 

roles of chief district judges. 

The conference also gave 

the chief judges the 

opportunity to learn about 

best practices from their 

peers and distinguished 

speakers. The conference 

agenda was developed in 

collaboration with a 

planning committee of 

current and former chief 

judges. 

InPerson; 

Chief 

Judge 

Conference for 

Chief Judges of 

the U.S. 

Bankruptcy 

Courts 

General Court 

Management 

The FJC held this two-day 

program for chief judges of 

bankruptcy courts to equip 

bankruptcy judges to best 

lead their courts now and in 

the future through 

competency in key 

management areas. 

InPerson; 

Chief 

Judge 

Leadership 

Seminar for 

New Chief 

Judges 

Ethics; 

General Court 

Management 

This FJC program is a fourday leadership seminar held 

biannually for chief judges 

who have held that position 

for less than two years. It 

covers leadership and 

management topics, 

including court leadership, 

strategic planning, and 

organizational culture. 
Honorable Charles E. Grassley

Page 24 

Core Management and Oversight Trainings

Format; 

Target 

Audience

Title Topic(s) Description 

InPerson; 

Judge 

New Judge 

Nominee 

Orientation 

Ethics, 

General Court 

Management, 

Prohibited 

Personnel 

Practices

The AO sponsors a one day 

Article III Judge Nominee 

Orientation Program that 

addresses the 

administrative, 

management, and 

governance responsibilities 

of a judge and introduces 

the judge to the AO and 

FJC staff and resources 

available to assist them. 

During the program, the 

FEP Office reviews the 

court's employee dispute 

resolution plan. 

Thank you for the opportunity to set forth our oversight processes and procedures 

both at the AO and throughout the Judicial Branch as a whole to expose and prevent 

fraud, waste, or abuse and prohibited personnel practices. We will be pleased to meet 

with you and your staff to answer further questions or respond to suggestions for 

improvements you may have as we have done in the past. 

Sincerely, 

James C. Duff 

Director 

Enclosures 

cc: Honorable Dianne Feinstein

Honorable John G. Roberts, Jr. 

Honorable Timothy M. Tymkovich 
ADMINISTRATIVE OFFICE OF THE

UNITED STATES COURTS

WASHINGTON, D.C. 20544

January 22, 2018 

JAMES C. DUFF

Director

A TRADITION OF SERVICE TO THE FEDERAL JUDICIARY

Honorable Charles E. Grassley

Chairman 

Committee on the Judiciary 

United States Senate 

Washington, DC 20510 

Dear Chairman Grassley: 

During productive meetings Chief Judge Timothy Tymkovich and I had with your 

staff in November and December, we were encouraged to write to you to address 

generally the Judicial Branch’s opposition both to S. 2195, the Judicial Transparency and 

Ethics Enhancement Act of 2017 (IG bill), which was introduced on December 6, 2017, 

and to previous whistleblower proposals that would allow aggrieved employees to file 

lawsuits directly into federal district courts to address retaliation. 

At the outset, I want to thank you for your and the Judiciary Committee’s attention 

to the management of the Judicial Branch. Your observations and questions over the 

years have contributed to improvements we have made within the Judicial Branch. For 

example, and as described in more detail below, after meetings with your staff in 2015, 

the Judicial Branch ensured that all 94 districts and all 13 of its circuits now include 

whistleblower protection in their Employment Dispute Resolution (EDR) Plans that 

prohibit any retaliatory action against employees who report violations of laws or 

regulations, waste, or gross mismanagement. These improvements, along with existing 

practices and procedures, are among the many reasons – in addition to our Constitutional 

concerns – why we believe an Inspector General (IG) over the Judicial Branch and yet 

additional whistleblower litigation options are not only unnecessary, but would 

themselves constitute an unwarranted and unjustifiable expense of public funds. 

As set forth in detail in my separate letter to you of January 12, 2018, the Judicial 

Branch devotes tremendous resources and effort each year to provide for external, 

independent auditing of its finances and to provide mechanisms for exposing fraud, 

waste, or abuse. Given that the extensive internal controls are already in place in the 

Judicial Branch, any other approach would not improve oversight and would only create 
Honorable Charles E. Grassley

Page 2 

substantial additional public expense. In short, we have the same goals as you do and we 

already have in place effective and cost efficient methods of achieving those goals. 

I. THE ADMINISTRATIVE OFFICE PERFORMS CORE FUNCTIONS OF AN

INSPECTOR GENERAL WITH INDEPENDENT OVERSIGHT.

Some historical perspective of financial oversight mechanisms within the Judicial 

Branch may be helpful. Prior to the Administrative Office’s (AO) creation, the 

Department of Justice handled administrative matters and legislative issues before 

Congress on behalf of the Judicial Branch. As the federal Judiciary grew, the inherent 

conflicts of interests between the branches in administering the courts became more 

evident and problematic. When Congress created the AO in 1939, it provided the 

framework for independent management oversight of the Judicial Branch. Since the 

creation of the AO, the administrative management and legislative interface for the 

Judicial Branch has been handled within the Judicial Branch, in coordination with the 

Judicial Conference of the United States and its committees of judges. In December 

1984, Chief Justice Warren E. Burger and AO Director William E. Foley designated what 

had been the “Office of Management Review” in the AO as the “Office of Inspector 

General.” In October 1985, the office was again renamed to the Office of Audit and 

Review. The oversight functions of that office have largely remained in place ever since 

and are now performed by the AO’s Office of Audit, Office of the Deputy Director and 

other offices within the AO. 

The Director of the AO has the statutory responsibility under 28 U.S.C. 

§ 604(a)(8) to disburse appropriations and other funds for the maintenance and operations

of Judiciary organizations, as well as the responsibility under 28 U.S.C. § 604(a)(11) to

audit accounts and vouchers of the courts. As Director of the AO, I have assigned the

responsibility for administering the Judiciary’s audit program to the AO’s Office of

Audit. Additionally, the Audits and Administrative Office Accountability (AAOA)

Committee of the Judicial Conference of the United States provides independent

oversight of the AO’s Office of Audit and the Judiciary’s auditing.

Specifically, the Office of Audit is organized as an independent internal audit 

office as defined under the Government Accountability Office’s Generally Accepted 

Government Auditing Standards (GAGAS). The AO’s Office of Audit conducts 

financial-related performance audits and contracts with independent external audit firms 

to perform financial statement audits and other attest engagements that require a level of 

independence, as defined in professional auditing standards, which must be provided by 

independent certified public accounting (CPA) firms. Audits are conducted in 

accordance with GAGAS and Generally Accepted Auditing Standards. 
Honorable Charles E. Grassley

Page 3 

The Judiciary’s audit programs reflect its wide-ranging responsibilities for the 

handling of appropriated and non-appropriated funds at the national and local levels. The 

Judiciary produces a series of financial reports and statements reflecting these 

responsibilities, and it audits them on a regular basis. In many cases, expenditure 

transactions will be examined at multiple levels. For example, an expenditure may be 

reviewed at the national level in an appropriations audit and at the local level in a cyclical 

court audit where the actual disbursement was initiated. 

My letter of January 12, 2018, provides not only details of specific types of audits 

performed, but also details of our program reviews, special investigations, fraud, waste, 

or abuse procedures and our fair employment practices, procedures and protections. As 

also stated in that letter, after conversations with your staff, we have made improvements 

in publicizing those procedures on our website, at uscourts.gov. There is no need to 

create another IG over the already existing functions performed at the AO with 

independent outside auditors and, as explained below, by the Judicial Conference 

committees. 

II. THE JUDICIARY HAS IMPLEMENTED WIDESPREAD WHISTLEBLOWER

PROTECTION FOR ITS EMPLOYEES.

In 2012, the Judicial Conference of the United States adopted changes to its Model 

Employment Dispute Resolution Plan to include specific protections against 

whistleblower retaliation. Every judicial district and judicial circuit has now adopted 

whistleblower protections, and similar whistleblower protections are also in place for 

employees of the AO and Federal Judicial Center (FJC). These provisions allow for 

employees who allege whistleblower retaliation to obtain review and employment 

remedies (such as reinstatement and back pay) through an administrative process within 

the Judicial Branch, generally culminating in review by the chief judge of the court in 

which the retaliation is alleged to have occurred, with review of that ruling by the Circuit 

Judicial Council. These protections are parallel to those provided to Executive Branch 

employees, whose sole remedy is also administrative (through the Merit Systems 

Protection Board (MSPB) and then the appellate courts). Thus, court employees who 

believe they have been retaliated against for whistleblowing may seek redress under the 

EDR Plans through a process that entitles court employees to a hearing before an Article 

III judicial officer. 

In addition to providing a forum for relief for employees alleging retaliatory 

action, the establishment of this formal process also allows us to better assess the scale of 

perceived whistleblower retaliation in our branch. As we expected, that scale is small: 

since the model whistleblower protection plan was promulgated in 2013, only two 

whistleblower complaints have been asserted under EDR and in neither case was there a 

finding that retaliatory action was taken against a whistleblower. 
Honorable Charles E. Grassley

Page 4 

Therefore, we are concerned that the IG bill contains a provision which would 

create a private civil cause of action for Judicial Branch personnel who assert that they 

suffered employment retaliation as a result of having been a “whistleblower” 

(whistleblower litigation option)1

. This proposal would be unprecedented. It is not 

consistent with the treatment of whistleblowers in either of the other branches of 

government, and it may disrupt Judicial Branch operations. A separate, simultaneous 

path of litigation could lead to conflicting, wasteful, and duplicative proceedings. 

A. THE PROPOSAL IS UNNECESSARY: THERE ARE EXISTING EDR

WHISTLEBLOWER PROTECTIONS.

When you first introduced this provision years ago, many court employees lacked 

whistleblower protection equivalent to that provided in the Executive Branch through the 

Merit Systems Protection Board. A statutory whistleblower provision is now duplicative, 

and thus unnecessary, because Judicial Branch employees already have whistleblower 

protection with all of the due process and procedural protections available in a civil 

action, including the right to have their claim heard by an Article III judicial officer. 

Substantively, the Judicial Branch modeled its EDR whistleblower protection provision 

directly on the Whistleblower Protection Act of 1989, 5 U.S.C. § 2302(b)(8) (WPA) 

covering Executive Branch employees.2

 The EDR provision prohibits retaliation against 

1 The proposed language in a succession of prior legislation, reads:

Whistleblower protection. – 

(1) IN GENERAL.-

No officer, employee, agent, contractor, or subcontractor of the judicial branch may discharge, demote, threaten,

suspend, harass, or in any other manner discriminate against an employee in the terms and conditions of

employment because of any lawful act done by the employee to provide information, cause information to be

provided, or otherwise assist in an investigation regarding any possible violation of Federal law or regulation, or

misconduct, by a judge, justice, or any other employee in the judicial branch, which may assist in the investigation

of the possible violation or misconduct.

(2) CIVIL ACTION. -

An employee injured by a violation of paragraph (1) may seek appropriate relief in a civil action.

Similar language is proposed in S. 2195, the Judicial Transparency and Ethics Enhancement Act and its iterations in 

prior Congresses.

2 The Judicial branch EDR provision reads:

Any employee who has authority to take, direct others to take, recommend, or approve any personnel action shall 

not, with respect to such authority, take or threated to take an adverse employment action with respect an employee 

(excluding applicants for employment) because of any disclosure of information to (A) the appropriate federal law 

enforcement authority, or (B) a supervisory or managerial official of the employing office, a judicial officer of the 

court, or the Administrative Office of the United States Courts, by the latter employee, which that employee

reasonably and in good faith believes evidences a violation of any law, rule or regulation, or other conduct that 

constitutes gross mismanagement, a gross waste of funds, or a substantial and specific danger to public health or 

safety, provided that such disclosure of information (1) is not specifically prohibited by law, (2) does not reveal 

case-sensitive information, sealed material, or the deliberative processes of the federal judiciary (as outlined in 

Guide to Judiciary Policy, Vol. 20, Ch. 8), and (3) does not reveal information that would endanger the security of 

any federal judicial officer.
Honorable Charles E. Grassley

Page 5 

an employee who reports violations of law, gross mismanagement or waste of funds, or 

health and safety violations. It does require that the employee appropriately report the 

misconduct to an appropriate authority: law enforcement, the Administrative Office, a 

judicial officer, or a supervisor. The EDR provision does not protect an employee who 

wrongfully discloses judicial deliberations, case-sensitive information, or sealed material. 

This is a crucial omission in the proposed whistleblower litigation option. 

Procedurally, the EDR claims process is modeled directly on the Congressional 

Accountability Act. An aggrieved employee is entitled to conduct discovery, to have a 

transcribed hearing before an Article III judicial officer, and to seek appellate review by 

the Article III judicial officers of the Circuit’s Judicial Council. Employees may seek to 

disqualify the presiding judicial officer if they have any concerns about a potential 

conflict of interest. To ensure impartiality and that potential misconduct is investigated, 

any EDR allegation against a judicial officer must be handled by the circuit Judicial 

Council. Providing a statutory right to bring a civil action simply replicates these rights 

and protections already afforded Judicial Branch employees – without any obvious 

benefit to either party. 

Our objections to the whistleblower litigation option are focused on this 

duplication as well as the need to protect the independence of the Judicial Branch. The 

language in the provision covering Judicial Branch employees fails to provide the 

Judicial Branch with the following protections necessary to its essential functions (though 

these same protections are afforded to the Executive Branch in the WPA). 

B. THE PROPOSAL FAILS TO REQUIRE EXHAUSTION OF ADMINISTRATIVE

REMEDIES.

The whistleblower litigation option fails to require Judicial Branch employees first 

to exhaust their EDR administrative remedies, though all federal courts have EDR 

whistleblower protection and claim procedures. The Judicial Branch is a co-equal branch 

of government and is entitled to mutual recognition and congressional respect of its 

internal administration and employment procedures. The Executive Branch has been 

afforded such respect: In contrast to the whistleblower litigation option, the WPA 

covering the Executive Branch requires employees to exhaust administrative procedures 

by first bringing whistleblowing claims to the Office of Special Counsel. 

5 U.S.C. § 1214(a)(3). Principles of comity require that the Judicial Branch be entitled to 

the same respect. 
Honorable Charles E. Grassley

Page 6 

C. THE PROPOSAL FAILS TO REQUIRE GOOD FAITH OR REASONABLE BELIEF.

The whistleblower litigation option lacks any requirement that the employee act in 

good faith or possess a reasonable belief they are reporting illegality or misconduct. The 

WPA requires that the whistleblower “reasonably believes” his or her disclosure 

evidences a violation of law or misconduct. 5 U.S.C. § 2302(b)(8)(A). Indeed, we are 

aware of no federal whistleblower protection provision that does not include a 

requirement that the employee have a good faith or reasonable belief they are disclosing a 

violation of law or misconduct. Yet the whistleblower litigation option for the Judicial 

Branch contains no similar protection for the Judicial Branch. 

In sum, we oppose the proposed statutory whistleblower litigation option because 

it is unnecessarily superfluous to the existing Judicial Branch EDR whistleblower 

protection, it fails to require exhaustion of administration remedies, and it does not 

require the employee to have any good faith or reasonable belief the disclosure evidences 

wrong-doing. 

III. CIRCUIT COUNCILS AND JUDICIAL CONFERENCE COMMITTEES CAREFULLY

ADMINISTER LEGAL PROCESS WITH STATUTORY GUIDELINES FOR

ADDRESSING JUDGES’ MISCONDUCT.

With regard to the oversight of judicial conduct matters, the Judicial Conference’s 

Judicial Conduct and Disability Committee operates under a statutory structure created in 

the Judicial Conduct and Disability Act of 1980. The structure functions efficiently and 

effectively as witnessed in recent incidents involving allegations of judicial misconduct. 

The structure provides for an investigatory process that protects privacy interests while 

the alleged wrong-doing is investigated. It also provides for several stages of review by 

up to four separate bodies of judges, which protects against the possibility of any 

politically motivated charges or outcomes. 

Under the Judicial Conduct and Disability Act, any person may file a misconduct 

complaint with the Chief Judge of a circuit, who in turn may appoint an investigatory 

committee of judges to examine the allegations and make a recommendation for 

independent consideration by the Circuit’s Judicial Council. In matters involving an 

investigation, the complainant may then seek review by the Judicial Conference’s 

Judicial Conduct and Disability Committee, which may then refer the matter to the entire 

Judicial Conference for a determination of whether the matter needs to be referred to the 

Congress for consideration of impeachment. The Chief Justice of the United States can 

resolve any potential conflicts by transferring complaints to different circuits. There are 

numerous examples of how complaints under the Judicial Conduct and Disability Act are 

addressed thoroughly and expeditiously. 
Honorable Charles E. Grassley

Page 7 

The imposition of an Inspector General’s investigatory powers and procedures 

overlapping the Judicial Branch’s already functioning process is unnecessary and would 

only add procedural and constitutional attacks in collateral litigation by investigated 

judicial officers. 

* * * *

We would be pleased to talk with you, your staff, and the Committee to answer 

any questions you may have or to clarify further these policies and practices within the 

Judicial Branch. We have found that increased dialogue with your staff about these 

issues has been productive and helpful. We all have the same interests in providing the 

best, most efficient services to the American people and, in doing so, protecting both the 

employees of the Judicial Branch and the independence of the Judicial Branch. 

Sincerely, 

James C. Duff 

Director 

cc: Honorable Dianne Feinstein

Honorable Timothy M. Tymkovich