In its November 10, 2008, order, the Judicial Council 1

determined, under its former rules, that it would disclose the

subject judge’s name “provided that the . . . Judge consents.” 

On December 12, 2008, it proceeded with that disclosure,

inserting Judge Real’s name in the order.

1

COMMITTEE ON JUDICIAL CONDUCT AND DISABILITY

OF THE JUDICIAL CONFERENCE OF THE UNITED STATES

___________

C.C.D. No. 10-01

___________

IN RE: COMPLAINT OF JUDICIAL MISCONDUCT

___________

PROCEEDING IN REVIEW OF THE MEMORANDUM OPINION

AND ORDER OF THE JUDICIAL COUNCIL OF

THE NINTH CIRCUIT J.C. Nos. 07-89000 and 07-89020

___________

MEMORANDUM OF DECISION

___________

(Filed April 12, 2010)

Present: Judges John M. Walker, Jr., Chair, Joseph A. DiClerico,

David M. Ebel, James E. Gritzner, Thomas F. Hogan,

Eugene E. Siler, Jr., Dolores K. Sloviter

This matter is before the Judicial Conduct and Disability

Committee on the complainant’s petition for review of a November

10, 2008, order of the Ninth Circuit Judicial Council dismissing

two complaints, 07-89020 and 07-89000, filed under the Judicial

Conduct and Disability Act, 28 U.S.C. §§ 351-364. Complaint 07-

89020 alleges that District Judge Manuel L. Real committed 1

misconduct by failing in a number of instances to provide reasons
2

for his judicial rulings. Complaint 07-89000 alleges that, in a

single civil case, Judge Real committed misconduct by disobeying

an appellate mandate. This is the complainant’s second petition

for review as to complaint 07-89020. See 28 U.S.C. § 357(a) and

Rule 21(b)(1)(A), Rules for Judicial-Conduct and JudicialDisability Proceedings, 248 F.R.D. 674 (U.S. Jud. Conf. 2008). 

In In re Memorandum of Decision, 517 F.3d 558, 559-560 (U.S. Jud.

Conf. January 14, 2008), we vacated an earlier Council order on

that complaint and remanded the matter to the Council. On

remand, the Council reassigned the complaint to the special

committee that had originally examined it, and assigned complaint

07-89000 to the same body. The special committee recommended

that both complaints be dismissed, and the Council, in the order

here at issue, adopted that recommendation. We approve the

Council’s order. 

Earlier developments regarding complaint 07-89020 are

chronicled in detail in Memorandum of Decision, 517 F.3d at 558-

562, and are here summarized only as relevant to our disposition

of the present petition. In its original investigation of the

complaint, the special committee recommended a finding of

misconduct and a private reprimand. The Ninth Circuit Judicial

Council concurred, and its March 2007 order imposing that

sanction became the subject of the complainant’s first petition

for review. Although the first petition argued that misconduct

had been rightly found (albeit deficiently sanctioned), we
3

concluded that a failure by a judge to state reasons for the

judge’s judicial decisions could be misconduct only if the

failure was wilful — a finding not evident from the Council’s

order. Id. at 562. Remanding, we apprised the Council that a

finding of wilfulness would require “clear and convincing

evidence of a judge’s arbitrary and intentional departure from

prevailing law based on his or her disagreement with, or wilful

indifference to, that law.” Id. We further explained as

follows:

To the extent that such a finding is based simply on a

large number of cases in which reasons were not given

when seemingly required by prevailing law, the conduct

must be virtually habitual to support the required

finding. However, if the judge has failed to give

reasons in particular cases after an appellate remand

directing that such reasons be given, a substantial

number of such cases may well be sufficient to support

such a finding.

517 F.3d at 562 (citation omitted). 

On remand, the special committee filed a new report in which

it applied the wilfulness standard we had set forth in the remand

order. Although the special committee expressed concern about

the conduct at issue, it found that the record as to each

complaint did not offer clear and convincing evidence of

misconduct. Special Committee Report at 39. As to complaint 07-

89020, the special committee found no single instance in which

Judge Real’s failure to state reasons was wilful within the

meaning of our instructions. Id. at 12-35. In addition, it

found neither (1) a “virtually habitual” failure to give reasons,
4

nor (2) a “substantial” number of cases in which such failure

occurred after a remand that had, in the same or a similar case,

directed Judge Real to give reasons. Id. at 23-25. Regarding

the case at issue in complaint 07-89000, the special committee

found no failure to state reasons and no other judicial

misconduct. Id. at 36. 

Adopting the special committee’s findings and report, the

Judicial Council dismissed the complaints. Order at 2. Like the

special committee, however, the Council expressed concern about

the conduct in question. The Council was “troubled by the

District Judge’s failure in many cases to give reasons for his

rulings where the law requires that reasons be given, and by the

District Judge’s obduracy in implementing many directives from

the appellate court.” Id. at 3. That such conduct “was not

found to be ‘virtually habitual’ or . . . found in a ‘substantial

number’ of similar cases,” the Council concluded, “in no way

lessens the importance of and the need to give reasons for a

decision when required by law.” Id.

In his petition challenging the Judicial Council’s order,

the complainant argues that the Council's application of the

terms "substantial" and "habitual" was misguided. He contends,

in substance, that the special committee’s case-by-case analysis

of the record should be disregarded in favor of his own

characterizations — for example, that “[t]he enormous number of

cases in which the Judge refused to give reasons . . . is proof
The complainant submitted with his petition for review a 2

Ninth Circuit order issued after his complaints were dismissed. 

Although this order was not presented “in the course of the

proceeding before the judicial council or its special committee”

and for that reason need not be considered by this Committee, see

Rule 22(b), we will exercise our discretion to take notice of it

because it is a reported court decision of which we could take

independent notice. The order in question vacated a sentence

imposed by Judge Real and remanded the case for resentencing by a

different judge. United States v. Murillo, 548 F.3d 1256 (9th

Cir. 2008). It contains nothing that would alter the outcome of

our review, and we find no “extraordinary circumstances” that

would allow us to conduct our own investigation in this matter. 

See Rule 21(d).

5

of misconduct, and the misconduct is habitual.” Also, he asserts

that the Council improperly limited the types of failure-to-givereasons cases that could, if “substantial” in number, establish

wilfulness. 

DISCUSSION

In reviewing the actions of the Judicial Council, we defer

to its findings, overturning them only if they are clearly

erroneous. In re Memorandum of Decision, 517 F.3d 563, 569 (U.S.

Jud. Conf. January 14, 2008). Having reviewed the record and

considered the petition, we discern no clear error in the

Council’s factual findings on remand, and no error in the

Council’s application of the standard set forth in our previous

order. In contrast to the complainant’s bare assertions, the

special committee made an individualized assessment of 38 cases2

in which Judge Real arguably had failed to give reasons for his

judicial acts. Special Committee Report at 13. In each instance

it examined Judge Real’s order or opinion, along with any context
6

of which he would have been aware, for clear and convincing

evidence of a failure that meets our test of wilfulness. The

special committee considered not only whether Judge Real had

failed to provide reasons, but also whether this failure

reflected an arbitrary and deliberate disregard of a requirement

rooted in either an appellate mandate or prevailing legal

standards. Id. at 12-36. And, far from narrowing the range of

failure-to-give-reasons cases actionable in “substantial number,”

the special committee construed this category as broadly as our

instructions would allow, assessing not only whether a failure to

give reasons occurred in a case that had been remanded for that

purpose, but also whether one occurred in later cases of the same

type as such a case. Id. at 7. 

In applying our standard to the matters it had previously

screened for misconduct, the special committee employed, in

essence, three exclusionary criteria: (1) a statement of reasons

that is present but inadequate will not, without more, trigger a

finding of misconduct for failure to give reasons, id. at 19, 28;

(2) no finding of misconduct can be made if the prevailing legal

standard or appellate directive does not articulate a statementof-reasons requirement clearly and unambiguously, id. at 17, 26;

and (3) even where a failure to give reasons is found, it cannot

be considered wilful if a justification for the judge’s action is

discernible in the record, “thus suggesting that [the judge]

likely assumed that [the judge’s] reason was sufficiently
7

understood by the parties,” id. at 23. These criteria, we find,

comport with our guidance that evidence of wilfulness must be

clear and convincing, and that “great care” must be taken in

finding it. See Memorandum of Decision, 517 F.3d at 562. 

The special committee identified eight criminal cases,

spanning twenty years, in which Judge Real failed to give reasons

where they were required to be given. It determined that these

failures did not individually reflect wilfulness because, in each

case, a justification for the judge’s action could be discerned

in the record. To be sure, the special committee deemed the

failures “clearly in violation of an established requirement” and

thus “arguably deliberate and arbitrary.” Id. at 22-24. It

concluded, however, that eight criminal cases over a twenty-year

period do not amount to “a ‘substantial number’” warranting a

finding of misconduct. Id. The special committee next found

that four civil cases it had identified were too few to be

“substantial” in number, id. at 24-25, and were each

distinguished by either a statement of reasons (albeit an

insufficient one) or the absence of a clear requirement that

reasons be given. Id. at 24-34. In sum, then, the special

committee — and, likewise, the Council — found no misconduct as

to either complaint 07-89020 or 07-89000. Order at 3.

The careful analysis embodied in both the Council order and

the special committee report was faithful to our instructions on

remand. Approving the Council’s order as to both complaints, we
Judge Real demonstrated that he knew of this concern when, 3

in a February 8, 2007 letter to the special committee’s presiding

officer, he pledged to use his best efforts to state reasons when

required to do so. See Special Committee Report at 4-5. No such

efforts were evident, however, in an order he issued several

months later, in which he refused to certify a settlement class. 

That order, the Ninth Circuit found, offered “almost no analysis”

and thus was unentitled to “the traditional deference given to

class certification decisions.” Narouz v. Charter Communications,

LLC, 591 F.3d 1261, 1266-67 (9 Cir. 2010). The court ordered th

the case reassigned on remand to a different judge.

8

deny the petition. Yet we share the Council’s concerns about the

conduct at issue. We, too, are troubled by the instances in

which Judge Real failed to give reasons where the law requires

that they be given, and in which he acted obdurately regarding

appellate directives. The Council, unable to find wilfulness as

to any one of those instances, rightly proceeded to assess

whether wilfulness was inferable from a pattern of them. But if

Judge Real were to continue such conduct, a future Council would

no longer need to seek a pattern: this Memorandum of Decision

places Judge Real on notice that a judge must state reasons for

any judicial decision for which the law requires the giving of

reasons. In view of this notice, any future instance in which 3

Judge Real fails to give reasons as required by law may be “clear

and convincing evidence” of his “arbitrary and intentional

departure from prevailing law based on his . . . disagreement

with, or wilful indifference to, that law.” See Memorandum of

Decision, 517 F.3d at 562.
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CONCLUSION

For the reasons set forth above, we deny the petition for

review.

Respectfully Submitted,

Hon. John M. Walker, Jr., Chair

Hon. Joseph A. DiClerico

Hon. David M. Ebel

Hon. James E. Gritzner

Hon. Thomas F. Hogan

Hon. Eugene E. Siler, Jr.,

Hon. Dolores K. Sloviter