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COMMITTEE ON JUDICIAL CONDUCT AND DISABILITY

OF THE JUDICIAL CONFERENCE OF THE UNITED STATES

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C.C.D. No. 18-02

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IN RE: COMPLAINT OF JUDICIAL MISCONDUCT

____________ 

PROCEEDING IN REVIEW OF THE ORDER AND MEMORANDUM

OF THE JUDICIAL COUNCIL OF THE FOURTH CIRCUIT

J.C. Nos. 04-15-90186, 04-15-90195 – 202, 04-15-90209 – 213

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(Filed May 31, 2019 ) 

Present: Judges Anthony J. Scirica, Chair, Sarah Evans Barker, Joel F. Dubina, Joel M. 

Flaum, Thomas F. Hogan, Jon O. Newman, and James E. Gritzner.

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MEMORANDUM OF DECISION

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This matter is before the Judicial Conduct and Disability Committee on a petition for 

review filed by a Complainant. Complainant seeks review of a December 18, 2017, order of the 

Judicial Council of the Fourth Circuit, attached herewith, unanimously adopting the Special 

Committee’s unanimous report and dismissing her complaint, as supplemented, against all the 

judges of a district court under the Judicial Conduct and Disability Act of 1980 (“Act”), 

28 U.S.C. §§ 351–64, and the Rules for Judicial-Conduct and Judicial-Disability Proceedings. 

Complainant — an applicant who was not selected for three magistrate judge positions — alleges 

that the subject judges engaged in judicial misconduct by selecting magistrate judges based on 

favoritism and discrimination against the Complainant as an African-American female magistrate 

judge applicant. 
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The Judicial Conduct and Disability Committee reviews this petition for review under 28 

U.S.C. § 357 and Rules 21(a) and 21(b)(1)(A). For the reasons we explain, we deny this petition 

for review and affirm the Circuit Judicial Council’s order.

I.

Magistrate judges are selected through a multi-step process. First, a district court appoints 

a merit selection panel by a majority vote of district judges. 3 Guide to Judiciary 

Policy § 420.30.10. The panel must have no fewer than seven members, none of whom may be 

district judges or court employees. Id. at §§ 420.30.20(a), (c). Each panel member must be a 

resident of or have significant ties to the district where the appointment will be made, and at least 

two panel members must be non-lawyers. Id. at § 420.30.20(c). The court is also “encouraged to 

appoint a diverse merit selection panel.” Id. at § 420.30.20(e). 

Next, the merit selection panel must “examine all applications” for magistrate judge 

positions and “make an affirmative effort to identify and give due consideration to all qualified 

applicants without regard to race, color, age (40 and over), gender, religion, national origin, or 

disability.” Id. at § 420.30.30(d). The panel “may, in its discretion, personally interview 

applicants,” and then must “designate those individuals whom the panel considers best qualified.” 

Id. at §§ 4202.30.30(d), (e). The district judges must generally select the new magistrate judge

from among the candidates the merit selection panel deems best qualified. Id at § 420.40.10.

Complainant applied for magistrate judge vacancies announced in 2010, 2014, and 2015. 

For each vacancy that Complainant applied for, members of the merit selection panel reviewed 

Complainant’s application. In accordance with the Guide to Judiciary Policy, at least two members 

of each nine-member panel were African American and each panel included at least three women, 
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including at least one African American woman. Two African American women served on the 

2010 and 2015 panels, and the 2014 and 2015 panels included an Asian American member. The 

merit selection panel in each instance did not select Complainant to be interviewed by the panel 

and did not forward her name to the district court for consideration.

Complainant filed a complaint, as supplemented, against all the district court judges

alleging that the judges engaged in judicial misconduct in the appointment of magistrate judges 

for the district. Specifically, Complainant alleges that the court hired magistrate judges “based on 

favoritism” and “routinely disregard[ed] well qualified African American female applicants,” 

including Complainant. She further alleges that the subject judges employed the merit selection 

panel process used for the hiring of magistrate judges as a sham to conceal the judges’ improper 

hiring practices.1

The Circuit Chief Judge referred Complainant’s allegations of improper and discriminatory 

hiring practices to a Special Committee to conduct an investigation and report findings and 

recommendations to the Circuit Judicial Council. See 28 U.S.C. § 353(c); R. 11(f). Professor 

Jeffrey Bellin (William & Mary School of Law) was appointed as Special Counsel to assist the 

Special Committee in its investigation. See R. 13(c). The investigation examined the court’s 

compliance with applicable statutory and regulatory requirements regarding the selection and 

 1 Complainant also alleged that the subject judges retaliated against her by not selecting her for a 

magistrate judge vacancy after she complained about her non-selection for two previous vacancies 

and that the judges deprived her of a remedy by excluding magistrate judge applicants from 

coverage under the district’s Employment Dispute Resolution Plan. The Circuit Chief Judge 

dismissed Complainant’s allegations of retaliation because she was excluded as a candidate from 

the third position before she sought to challenge her non-selection for the first two positions. The 

Circuit Chief Judge also dismissed her allegations of misconduct with respect to the district’s 

Employment Dispute Resolution Plan because coverage under the district’s plan was modeled after 

the Judicial Conference’s Model Employment Dispute Resolution Plan, which also excludes 

magistrate judge applicants.
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appointment of magistrate judges and looked for any evidence of preselection or discrimination in 

the 2010, 2014, and 2015 hiring processes. See 28 U.S.C. § 631(b)(5); 3 Guide to Judiciary 

Policy §§ 420.10–420.40. As part of the investigation, Professor Bellin interviewed 28 witnesses, 

including the Complainant, Complainant’s suggested witnesses, the chief district judge, the district 

clerk, the district human resources administrator, the attorney members of the merit selection 

panels, and all the judges named in the complaint (with the exception of two retired judges and a 

senior judge who did not participate in any of the selections). He also reviewed the documentary 

records, including written documentation regarding the magistrate judge hiring process.

The Special Committee afforded Complainant and the subject judges an opportunity to 

present any additional written argument they wished the Committee to consider. See R. 15(d), 

16(c). The judges rested on their earlier response to the complaint, while Complainant filed a 

supplemental statement.

Upon review of these interviews and related documentary evidence, as well as 

Complainant’s supplemental statement, the Special Committee found that the subject judges 

complied with the law governing magistrate judge selection, did not preselect candidates, and did 

not engage in discrimination. Special Comm. Rep. 11–19. According to the Special Committee, 

“[t]he judges adhered to the design of this system in all its aspects” and “[a]ll participants in the 

process demonstrated a commitment to performing their responsibilities in accordance with the 

letter and spirit of the law and acted in a manner that promoted public confidence in the integrity 

and impartiality of the judiciary.” Id. at 17. Furthermore, the Special Committee found “no 

evidence” to support Complainant’s claim of preselection and “no evidence of discrimination.” Id. 

at 18–19. The Special Committee unanimously recommended dismissal of the complaint, finding 
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no evidence to support Complainant’s assertion that the merit selection process was a sham used 

to conceal judicial preselection of candidates based on favoritism or discrimination. 

On review of the Special Committee’s findings and recommendations, the Circuit Judicial 

Council agreed, concluding “the subject judges did not engage in preselection, discrimination, or 

any other misconduct in the selection of magistrate judges” and dismissed the complaint for failure 

to establish facts upon which the claims of misconduct were based. Jud. Council Order 3; see 28 

U.S.C. § 354(a)(1)(B); R. 20(b)(1)(A)(iii).

II.

We review circuit judicial council orders for errors of law, clear errors of fact, or abuse of 

discretion. R. 21(a); see also In re Complaint of Judicial Misconduct, 747 F.3d 869, 872 (U.S. Jud. 

Conf. 2014) (finding that circuit judicial council did not abuse its discretion); In re Complaint of 

Judicial Misconduct, 664 F.3d 332, 334–35 (U.S. Jud. Conf. 2011) (deferring to findings of circuit 

judicial council and overturning them only if clearly erroneous). Our review necessarily depends 

on the record before us and gives deference to the circuit judicial council’s consideration of the 

special committee’s review of the evidence. See In re Mem. of Decision of Jud. Conference Comm. 

on Jud. Conduct & Disability, 517 F.3d 563, 569 (U.S. Jud. Conf. 2008) (“[W]e will defer to the 

findings of the Judicial Council and the special committee, and will overturn those findings only 

if, upon examination of the record, they are clearly erroneous.”).

Complainant reasserts her claim of racial discrimination in magistrate judge hiring, but her

primary argument is that she was denied due process “[b]ecause there was no notice or meaningful 

opportunity to be heard.” Pet. for Review 8. Specifically, Complainant argues that she was denied 

the opportunity to “be heard in a hearing on the merits,” id. at 4, including the ability to “present 

credible evidence, including her expert witnesses,” id. at 3, “present and cross examine any 
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witnesses,” id. at 4, and “respond to any results of the investigation or rebut any evidence obtained 

from the investigation,” id. We find Complainant received all the process she was due under the

Judicial Conduct and Disability Act and Rules, including multiple opportunities to present 

evidence for consideration by the Special Committee and Circuit Judicial Council. 

In recognition that special committee proceedings are primarily inquisitorial rather than 

adversarial, see R. 14 cmt.; In re Mem. of Decision of Jud. Conference Comm. on Jud. Conduct & 

Disability, 517 F.3d at 567 (“Fundamentally, . . . misconduct proceedings are inquisitorial and 

administrative.”), the Judicial Conduct and Disability Act and Rules provide special committees

with substantial discretion to determine the nature and scope of their investigations. A special 

committee is tasked with conducting an investigation “as extensive as it considers necessary” and 

presenting a report including its findings and recommendations for consideration by the circuit 

judicial council. 28 U.S.C. § 353(c); see also R. 13(a) (“A special committee should determine the 

appropriate extent and methods of its investigation in light of the allegations in the complaint and 

the committee’s preliminary inquiry.”). As part of its investigation, a special committee may —

but is not required to — hold hearings to take testimony, receive evidence, or hear arguments. 

R. 14(a). A complainant does not have “the rights of a party to litigation” and “the complainant’s 

role [is left] largely to the discretion of the special committee.” R. 16 cmt. 

We find no error of law or abuse of discretion in the Special Committee’s investigatory 

process. The Special Committee conducted a thorough investigation. The Special Committee 

interviewed 28 witnesses, including the Complainant, Complainant’s suggested witnesses, the 

chief district judge, the district clerk, the district human resources administrator, all attorney 

members of the merit selection panels, and all the judges named in the complaint (with the 

exception of two retired judges and a senior judge who did not participate in any of the selections).
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The Special Committee also reviewed documentary evidence, including the applicable statutory 

and regulatory requirements for magistrate judge selection. 

The Special Committee afforded Complainant all the rights to which she was entitled under 

the Judicial Conduct and Disability Act and the Rules, as well as additional opportunities to present 

evidence in support of her complaint. Complainant submitted a complaint, which she 

supplemented. As noted, Special Counsel interviewed Complainant and two witnesses suggested 

by Complainant. In addition, the Special Committee provided Complainant an opportunity to 

present any additional written argument she wished the Committee to consider, and Complainant 

filed a supplemental statement. See R. 16(c). Despite multiple opportunities to present information 

to the Special Committee, the Special Committee concluded — and the Judicial Council affirmed 

— that Complainant provided no evidence of preselection or discrimination in the merit selection 

process.

In addition to challenging the process she was afforded, Complainant also argues that she

“has . . . proven her case” and should have been granted the magistrate judge position, including 

back pay and employment benefits. Pet. for Review at 4. The Committee must disagree.

The merit selection panels reviewed dozens of applications, and the finalists they 

recommended all “possessed impressive qualifications in terms of academic background and 

relevant experience.” Special Comm. Rep. 10. The Special Counsel’s interviews revealed “[n]one 

of the merit selection panelists believed race or gender discrimination played any role in the 

process.” Id. at 15. “An African-American female panelist who served on all three panels saw it 

as part of her duty to make sure that women and people of color were not being overlooked based 

on implicit bias or on the ground that they were not part of the club. Other panelists confirmed that 

race and gender played no role in their deliberations.” Id. at 18. Further, “[n]one of the judges 
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observed any signs” of discrimination, either in the merit selection panels or the district judge 

selection process, and “many judges indicated they were conscious of the need for a diverse 

bench.” Id. at 15–16. The judges, including female judges and judges who are themselves members 

of racial minority groups, uniformly described the process as fair, effective, and 

nondiscriminatory. Id. at 16. The Special Committee then adopted the Special Counsel’s thorough 

findings, concluding “[t]he investigation failed to disclose any evidence of discrimination in the 

selection process.” Id. at 18. 

In light of our review for errors of law, clear errors of fact, or abuse of discretion, see R. 

21(a), and deference to the circuit judicial council’s consideration of the special committee’s 

review of the evidence, see In re Memorandum of Decision, 517 F.3d at 569, we affirm the Circuit 

Judicial Council’s unanimous decision to dismiss the complaint based on the unanimous findings 

of the Special Committee that the subject judges did not deviate from procedural requirements and 

did not engage in preselection or discrimination in the selection of magistrate judge applicants.

III.

For these reasons, we deny Complainant’s petition for review and affirm the Circuit 

Judicial Council’s order.
FILED: December 18, 2017

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JUDICIAL COUNCIL

In the Matter of

Judicial Complaints

Under 28 U.S.C. §351

Nos. 04

04.

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04

04.

04

04.

04.

04.

04.

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04

04

15-90186

15-90195

15-90196

15-90197

15-90198

15-90199

15-90200

15-90201

15-90202

15-90209

15-90210

15-90211

15-90212

15-90213

ORDER

Complainant filed these judicial complaints against all the district judges in a district,

alleging they engaged in judicial misconduct by selecting magistrate judges based on

favoritism and by discriminating against the complainant as an African-American female

candidate. Complainant alleged that the subject judges employed the merit selection panel

process as a sham to conceal their improper hiring practices. She further alleged that the

judges retaliated against her by not selecting her for a third magistrate judge vacancy after