DRAFT – 9.13.2018

Last revised (Transmittal 02-027) May 4, 2016

1 Guide to Judiciary Policy

2 Vol. 2: Ethics and Judicial Conduct

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

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

5 Proceedings

6 § 310 Overview

7 § 320 Rules for Judicial-Conduct and Judicial-Disability Proceedings

8 Preface

9 ARTICLE I. GENERAL PROVISIONS

10 1. Scope and Covered Judges

11 2. Effect and ConstructionConstruction and Effect

12 3. General Definitions

13 4. Covered Judges

14 ARTICLE II. MISCONDUCT AND DISABILITY

15 4. Misconduct and Disability Definitions

16 ARTICLE III. INITIATION OF COMPLAINT

17 5. Identification of Complaint

18 6. Filing of Complaint

19 7. Where to Initiate Complaint

20 8. Action by Circuit Clerk

21 9. Time for Filing or Identifying Complaint

22 10. Abuse of Complaint Procedure

23 ARTICLE IIIIV. REVIEW OF COMPLAINT BY CHIEF JUDGE

24 11. Chief Judge’s Review

25 ARTICLE IV. INVESTIGATION AND REPORT BY SPECIAL COMMITTEE

26 12. Special Committee’s Composition

27 13. Conduct of Special-Committee Investigation

28 14. Conduct of Special-Committee Hearings

29 15. Subject Judge’s Rights

30 16. Complainant’s Rights in Investigation

31 17. Special-Committee Report

32 ARTICLE VI. REVIEW BY JUDICIAL COUNCIL
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1 18. Petition for Review of Chief-Judge Disposition Under Rule 11(c), (d), 

2 or (e)

3 19. Judicial-Council Disposition of Petition for Review

4 20. Judicial-Council Action Following Appointment of Special Committee

5 ARTICLE VII. REVIEW BY COMMITTEE ON JUDICIAL CONDUCT AND 

6 DISABILITY

7 21. Committee on Judicial Conduct and Disability

8 22. Procedures for Review

9 ARTICLE VIII. MISCELLANEOUS RULES

10 23. Confidentiality

11 24. Public Availability of Decisions

12 25. Disqualification

13 26. Transfer to Another Judicial Council

14 27. Withdrawal of Complaint or Petition for Review

15 28. Availability of Rules and Forms

16 29. Effective Date

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

18 Disability)

19

20 § 310 Overview

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

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

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

24 [DATE].published in final form in May 2016.

25 § 320 Rules for Judicial-Conduct and Judicial-Disability 

26 Proceedings

27 Preface

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

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

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

31 under the Judicial Conduct and Disability Act, 28 U.S.C. §§ 351–364.
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1 ARTICLE I. GENERAL PROVISIONS

2 1. Scope and Covered Judges

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

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

5 whether a covered judge has engaged in conduct prejudicial to the 

6 effective and expeditious administration of the business of the 

7 courts or is unable to discharge the duties of office because of 

8 mental or physical disability.

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

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

11 States district courts, judges of United States bankruptcy courts, 

12 United States magistrate judges, and judges of the courts specified 

13 in 28 U.S.C. § 363. 

14 COMMENTARY ON RULE 1

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

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

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

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

19 §§ 351–364. The Breyer Committee had been formed in response to criticism from the 

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

21 Executive Committee of the Judicial Conference directed its Committee on Judicial 

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

23 report on their implementation to the Conference.

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

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

26 132, and that a major problem faced by chief judges in implementing the Act was the 

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

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

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

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

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

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

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

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

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

36 on Judicial Conduct and Disability proposed rules that were based largely on Appendix 

37 E of the Breyer Committee Report and the Illustrative Rules.
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1 The Illustrative Rules were originally prepared in 1986 by the Special Committee 

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

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

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

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

6 Conduct and Disability Act.

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

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

9 amended on September 17, 2015, and again on [DATE].

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

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

12 bankruptcy judge, or magistrate judge”).

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

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

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

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

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

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

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

20 2. Effect and Construction and Effect

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

22 conflicting judicial-council rules. Judicial councils may promulgate 

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

24 conflict with these Rules.

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

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

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

28 Judicial Conference expressly finds that exceptional circumstances 

29 render application of that Rule in a particular proceeding manifestly 

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

31 COMMENTARY ON RULE 2

32 Unlike the Illustrative Rules, these Rules provide mandatory and nationally 

33 uniform provisions governing the substantive and procedural aspects of misconduct and 

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

35 authorized by 28 U.S.C. § 358(a) and (c). Judicial councils retain the power to 

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

37 the electronic distribution of materials pursuant to Rule 8(b).
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1 Rule 2(b) recognizes that unforeseen and exceptional circumstances may call for 

2 a different approach in particular cases.

3 3. General Definitions

4 The following general definitions apply to these Rules. Cognizable misconduct 

5 and disability are defined in Rule 4.

6

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

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

9 of the United States Court of Federal Claims.

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

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

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

13 circuit executive of the United States Court of Appeals for the 

14 Federal Circuit.

15 (c) Complaint. A “complaint” is:

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

17 behalf of, any person, including a document filed by an in his 

18 or her individual capacity or on behalf of a professional

19 organization; or

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

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

22 a covered judge, as defined in Rule 4 1(b), has engaged in 

23 misconduct or may have a disability, whether or not the 

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

25 misconduct or disability.

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

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

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

29 Court of International Trade, and the judges thereof.

30 (e) Disability. “Disability” is a temporary or permanent impairment, 

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

32 of the particular judicial office. Examples of disability include 

33 substance abuse, the inability to stay awake during court 

34 proceedings, or impairment of cognitive abilities that renders the 

35 judge unable to function effectively.

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

37 appropriate, include any courts designated in 28 U.S.C. § 363.
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1 (gf) Judicial Employee. “Judicial Employee” includes judicial assistants, 

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

3 as interns, externs, and other volunteer employees. 

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

5 special master appointed by the Court of Federal Claims under 

6 42 U.S.C. § 300aa-12(c).

7 (h) Misconduct. Cognizable misconduct:

8 (1) is conduct prejudicial to the effective and expeditious 

9 administration of the business of the courts. Misconduct 

10 includes, but is not limited to:

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

12 friends or relatives;

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

14 to the judicial office;

15 (C) having improper discussions with parties or counsel for 

16 one side in a case;

17 (D) treating litigants, attorneys, Judiciary employees, or 

18 others in a demonstrably egregious and hostile manner;

19 (E) engaging in sexual misconduct or misconduct based on 

20 sex, including sexual harassment or assault, or sex- or 

21 gender- based discrimination; 

22 (F) discriminating against or harassing Judiciary

23 employees or others due to race, color, religion, national 

24 origin, sex, gender, age, or disability;

25 (FG) engaging in partisan political activity or making 

26 inappropriately partisan statements;

27 (FGH) soliciting funds for organizations;

28 (GHI) retaliating against complainants, witnesses, or Judiciary

29 employees, or others for their participation inreporting 

30 or disclosing judicial misconduct, otherwise 

31 participating in this complaint process, or other 

32 impermissible reasons;
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1 (HIJ) refusing, without good cause shown, to cooperate in the 

2 investigation of a complaint or enforcement of a 

3 decision rendered under these Rules; or

4 (IJK) violating other specific, mandatory standards of judicial 

5 conduct, such as those pertaining to restrictions on 

6 outside income and requirements for financial 

7 disclosure.

8 (2) is conduct occurring outside the performance of official duties 

9 if the conduct might have a prejudicial effect on the 

10 administration of the business of the courts, including a 

11 substantial and widespread lowering of public confidence in 

12 the courts among reasonable people.

13 (3) does not include:

14 (A) an allegation that is directly related to the merits of a 

15 decision or procedural ruling. An allegation that calls 

16 into question the correctness of a judge’s ruling, 

17 including a failure to recuse, without more, is 

18 merits-related. If the decision or ruling is alleged to be 

19 the result of an improper motive, e.g., a bribe, ex parte

20 contact, racial or ethnic bias, or improper conduct in 

21 rendering a decision or ruling, such as personally 

22 derogatory remarks irrelevant to the issues, the 

23 complaint is not cognizable to the extent that it attacks 

24 the merits.

25 (B) an allegation about delay in rendering a decision or 

26 ruling, unless the allegation concerns an improper 

27 motive in delaying a particular decision or habitual delay 

28 in a significant number of unrelated cases.

29 (ih) Subject Judge. “Subject judge” means any judge a covered judge, 

30 as described in Rule 4 1(b), who is the subject of a complaint.

31 COMMENTARY ON RULE 3

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

33 Illustrative Rules.

34 Unless otherwise specified or the context otherwise indicates, the term

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

36 under Rule 5 and to complaints filed by a complainant under Rule 6.
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1 Under the Act, a “complaint” may be filed by “any person” or “identified” by a 

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

3 submitted by, or on behalf of, any person, in his or her individual capacity, or by a 

4 professional including a document filed by an organization. Traditional standing 

5 requirements do not apply. Individuals or organizations may file a complaint even if 

6 they have not been directly injured or aggrieved.

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

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

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

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

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

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

13 § 351(b) and Rule 5 — and conduct an investigation without becoming a party. See 28 

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

15 Even when a complaint is filed by someone other than the chief judge, the complainant 

16 lacks many rights that a litigant would have, and the chief judge, instead of being limited 

17 to the “four corners of the complaint,” must, under Rule 11, proceed as though 

18 misconduct or disability has been alleged where Where the complainant reveals 

19 information of misconduct or disability but does not claim it as such, the chief judge is 

20 not limited to the “four corners of the complaint” and should proceed under Rule 5 to 

21 determine whether identification of a complaint is appropriate. See Breyer Committee 

22 Report, 239 F.R.D. at 183–84.

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

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

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

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

27 considering known information and triggering the process when appropriate. 

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

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

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

31 or intended to be, an accusation. This definition is codified in subsection (c)(2).

32 Rule 3(e) relates to disability and provides only the most general definition, 

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

34 could involve cognitive impairment or any psychiatric or psychological condition that 

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

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

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

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

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

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

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

42 statutorily eligible to perform them.
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1 The phrase “prejudicial to the effective and expeditious administration of the 

2 business of the courts” is not subject to precise definition, and subsection (h)(1) 

3 therefore provides some specific examples. Although the Code of Conduct for United 

4 States Judges may be informative, its main precepts are highly general; the Code is in 

5 many potential applications aspirational rather than a set of disciplinary rules. 

6 Ultimately, the responsibility for determining what constitutes misconduct under the 

7 statute is the province of the judicial council of the circuit, subject to such review and 

8 limitations as are ordained by the statute and by these Rules.

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

10 of gifts by judges, outside earned income, and financial disclosure obligations — the 

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

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

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

14 might not rise to the level of misconduct under the statute. By contrast, a pattern of 

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

16 Rule 3(h)(1)(E) provides expressly that a judge’s unwanted or abusive sexual or 

17 sex-based conduct by a judge, including sexual harassment or assault, or sex- or 

18 gender- based discrimination, constitutes cognizable misconduct. The Rule recognizes 

19 that anyone can be a victim of sexual or sex-based misconduct, regardless of their sex

20 and of the sex of the judge engaging in the misconduct.

21 Rules 3(h)(1)(D), (E), and (F) The Rule reflects the Judiciary’s commitment to 

22 maintaining a work environment in which all people are treated with dignity, fairness, 

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

24 for U.S. Judges, Canon 3A(3) cmt. (“The duty to be respectful includes the responsibility 

25 to avoid comment or behavior that could reasonably be interpreted as harassment, 

26 prejudice or bias.”); cf. Guide to Judiciary Policy, vol. 12, ch. 2 § 220(a) (“Discrimination 

27 or harassment directed at a judiciary employee due to race, color, religion, national 

28 origin, sex, age, or disability is prohibited in accordance with the long-standing national 

29 policy of the judiciary to promote equal employment opportunity.”). Judiciary employees 

30 include interns, externs, and other volunteer employees. See Code of Conduct for 

31 Judicial Employees, Overview (“This Code of Conduct applies to all employees of the 

32 judicial branch including interns, externs, and other volunteer court employees . . . .”); 

33 Guide to Judiciary Policy, vol. 12, ch. 5 § 550.45.10(a)(3) ( “A volunteer is to be treated 

34 as an employee of the judiciary, albeit an uncompensated one. This is designed to 

35 protect both the volunteer and the judiciary.”). Other avenues might be available to a 

36 Judiciary employee to address unwanted or abusive conduct by a judge. 

37 Under Rule 3(h)(1)(GHI), a judge’s efforts to retaliate against any person for 

38 reporting or disclosing misconduct, otherwise participatinghis or her involvement in the 

39 complaint process, or other impermissible reasons may constituteconstitutes cognizable 

40 misconduct. Other impermissible reasons include, but are not limited to, an individual’s

41 refusal to submit to an unwanted sexual advance. The Rule makes thisthe prohibition 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 10

1 against retaliation explicit in the interest of promoting public confidence in the complaint 

2 process.

3 Rule 3(h)(1)(HIJ) provides that a judge’s refusal, without good cause shown, to 

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

5 under these Rules may constitute constitutes cognizable misconduct. While the 

6 exercise of rights under the Fifth Amendment to the Constitution would constitute good 

7 cause under Rule 3(h)(1)(HJ), given the fact-specific nature of the inquiry, it is not 

8 possible to otherwise anticipate all circumstances that might also constitute good cause. 

9 The Commentary on Rule 13 provides additional discussion regarding Rule 3(h)(1)(HJ). 

10 The Rules contemplate that judicial councils will not consider commencing proceedings 

11 under Rule 3(h)(1)(HJ) except as necessary after other means to acquire the 

12 information or enforce a decision have been tried or have proven futile.

13 Rule 3(h)(2) reflects that an allegation can meet the statutory standard even 

14 though the judge’s alleged conduct did not occur in the course of the performance of 

15 official duties. And some conduct in the categories listed under subsection (h)(1), or in 

16 categories not listed, might depending on the circumstances amount to “misconduct” 

17 under subsection (h)(2), or under both subsection (h)(1) and subsection (h)(2). Also, 

18 the Code of Conduct for United States Judges expressly covers a wide range of 

19 extra-official activities, and some of these activities may constitute misconduct. For 

20 example, allegations that a judge solicited funds for a charity or participated in a 

21 partisan political event are cognizable under the Act.

22 On the other hand, judges are entitled to some leeway in extra-official activities. 

23 For example, misconduct may not include a judge being repeatedly and publicly 

24 discourteous to a spouse (not including physical abuse) even though this might cause 

25 some reasonable people to have diminished confidence in the courts. Rule 3(h)(2) 

26 states that conduct of this sort is covered, for example, when it might lead to a 

27 “substantial and widespread” lowering of such confidence.

28 Rule 3(h)(3)(A) tracks the Act, 28 U.S.C. § 352(b)(1)(A)(ii), in excluding from the 

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

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

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

32 attack the substance of a judge’s ruling. Any allegation that calls into question the 

33 correctness of an official action of a judge — without more — is merits-related. The 

34 phrase “decision or procedural ruling” is not limited to rulings issued in deciding Article 

35 III cases or controversies. Thus, a complaint challenging the correctness of a chief 

36 judge’s determination to dismiss a prior misconduct complaint would be properly 

37 dismissed as merits-related — in other words, as challenging the substance of the 

38 judge’s administrative determination to dismiss the complaint — even though it does not 

39 concern the judge’s rulings in Article III litigation. Similarly, an allegation that a judge 

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

41 under this standard.
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1 Conversely, an allegation — however unsupported — that a judge conspired with 

2 a prosecutor to make a particular ruling is not merits-related, even though it “relates” to 

3 a ruling in a colloquial sense. Such an allegation attacks the propriety of conspiring with 

4 the prosecutor and goes beyond a challenge to the correctness — “the merits” — of the 

5 ruling itself. An allegation that a judge ruled against the complainant because the 

6 complainant is a member of a particular racial or ethnic group, or because the judge 

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

8 attacks the propriety of arriving at rulings with an illicit or improper motive. Similarly, an 

9 allegation that a judge used an inappropriate term to refer to a class of people is not 

10 merits-related even if the judge used it on the bench or in an opinion; the correctness of 

11 the judge’s rulings is not at stake. An allegation that a judge treated litigants or,

12 attorneys, Judiciary employees, or others (including Judiciary employees) in a 

13 demonstrably egregious and hostile manner while on the bench or in chambers is also 

14 not merits-related..

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

16 allegation is merits-related. The merits-related ground for dismissal exists to protect 

17 judges’ independence in making rulings, not to protect or promote the appellate 

18 process. A complaint alleging an incorrect ruling is merits-related even though the 

19 complainant has no recourse from that ruling. By the same token, an allegation that is 

20 otherwise cognizable under the Act should not be dismissed merely because an 

21 appellate remedy appears to exist (for example, vacating a ruling that resulted from an 

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

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

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

25 proceedings are concluded in order to avoid, inter alia, inconsistent decisions.

26 Because of the special need to protect judges’ independence in deciding what to 

27 say in an opinion or ruling, a somewhat different standard applies to determine the 

28 merits-relatedness of a non-frivolous allegation that a judge’s language in a ruling 

29 reflected an improper motive. If the judge’s language was relevant to the case at 

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

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

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

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

34 inquiry under Rule 11 is necessary.

35 With regard to Rule 3(h)(3)(B), a complaint of delay in a single case is excluded 

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

37 official action of the judge — in other words, assigning a low priority to deciding the 

38 particular case. But, by the same token, an allegation of a habitual pattern of delay in a 

39 significant number of unrelated cases, or an allegation of deliberate delay in a single 

40 case arising out of an illicit motive, is not merits-related.

41 The remaining subsections of Rule 3 provide technical definitions clarifying the 

42 application of the Rules to the various kinds of courts covered.
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1 ARTICLE II. MISCONDUCT AND DISABILITY

2 4. Covered Judges

3 A complaint under these Rules may concern the actions or capacity only of 

4 judges of United States courts of appeals, judges of United States district courts, 

5 judges of United States bankruptcy courts, United States magistrate judges, and 

6 judges of the courts specified in 28 U.S.C. § 363.

7 Misconduct and Disability Definitions

8 (a) Misconduct Generally. Cognizable Misconduct: is conduct 

9 prejudicial to the effective and expeditious administration of the 

10 business of the courts. Cognizable Misconduct misconduct

11 includes, but is not limited to, the following:

12 (1) Violation of Specific Standards of Judicial Conduct. 

13 Cognizable misconduct includes:

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

15 friends or relatives;

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

17 to the judicial office;

18 (C) having engaging in improper discussions ex parte 

19 communications with parties or counsel for one side in 

20 a case;

21 (D) treating litigants, attorneys, or others in a demonstrably 

22 egregious and hostile manner;

23 (E)(D) engaging in partisan political activity or making 

24 inappropriately partisan statements;

25 (F)(E) soliciting funds for organizations;

26 (G) retaliating against complainants, witnesses, or others 

27 for their participation in this complaint process;

28 (H) refusing, without good cause shown, to cooperate in the 

29 investigation of a complaint under these Rules; or

30 (I)(F) violating other specific, mandatory rules or standards of 

31 judicial conduct, such as those pertaining to restrictions 

32 on outside income and requirements for financial 

33 disclosure; or
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1 (G) violating requirements for financial disclosure.

2 (2) Abusive or Harassing Behavior. Cognizable misconduct 

3 includes:

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

5 conduct, including sexual harassment or assault;

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

7 others in a demonstrably egregious and hostile manner;

8 or

9 (C) creating a hostile work environment for judicial 

10 employees.

11 (3) Discrimination. Cognizable misconduct includes

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

13 identity, pregnancy, sexual orientation, religion, national 

14 origin, age, or disability;

15 (4) Retaliation. Cognizable misconduct includes retaliation

16 retaliating against complainants, witnesses, judicial 

17 employees, or others for their participation participating in this 

18 complaint process, or for reporting or disclosing judicial 

19 misconduct;

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

21 Cognizable misconduct includes refusing, without good cause 

22 shown, to cooperate in the investigation of a complaint or 

23 enforcement of a decision rendered under these Rules; or

24 (6) Failure to Report or Disclose. Cognizable misconduct 

25 includes failing to call to the attention of the relevant chief 

26 district judge and chief circuit judge information reasonably 

27 likely to constitute judicial misconduct or disability. A judge 

28 who receives such information shall respect a request for 

29 confidentiality but shall disclose the information to the chief 

30 district judge and chief circuit judge, who shall also treat the 

31 information as confidential. Some information will be 

32 protected from disclosure by statute or rule. A judge’s 

33 promise of confidentiality may necessarily yield when there is 

34 information of misconduct that is serious or egregious and 

35 thus threatens the integrity and proper functioning of the 

36 judiciary. This duty to report is included within every judge’s 

37 obligation to assist in addressing allegations of misconduct or 
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1 disability and to take appropriate corrective action as 

2 necessary.

3 (7) Conduct Outside the Performance of Official Duties. 

4 Cognizable misconduct is includes conduct occurring outside 

5 the performance of official duties if the conduct might have a 

6 prejudicial effect on the administration of the business of the 

7 courts, including a substantial and widespread lowering of 

8 public confidence in the courts among reasonable people.

9 (b) Conduct Not Constituting Cognizable Misconduct.

10 (1) Allegations related to the merits of a decision or procedural 

11 ruling. Cognizable misconduct does not include: an 

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

13 ruling, including a failure to recuse, without more, is 

14 merits-related. If the decision or ruling is alleged to be the 

15 result of an improper motive, e.g., a bribe, ex parte contact, 

16 racial or ethnic bias, or improper conduct in rendering a 

17 decision or ruling, such as personally derogatory remarks 

18 irrelevant to the issues, the complaint is not cognizable to the 

19 extent that it attacks calls into question the merits of the 

20 decision.

21 (2) Allegations about delay. Cognizable misconduct does not 

22 include an allegation about delay in rendering a decision or 

23 ruling, unless the allegation concerns an improper motive in 

24 delaying a particular decision or habitual delay in a significant 

25 number of unrelated cases.

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

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

28 of the particular judicial office. Examples of disability include 

29 substance abuse, the inability to stay awake during court 

30 proceedings, or impairment of cognitive abilities that renders the 

31 judge unable to function effectively.

32 COMMENTARY ON RULE 4

33 This Rule tracks the Act. Rule 8(c) and (d) contain provisions as to the handling 

34 of complaints against persons not covered by the Act, such as other court personnel, or 

35 against both covered judges and noncovered persons.

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

37 business of the courts” is not subject to precise definition, and subsection (h)(1) (a) 

38 therefore provides some specific examples. 28 U.S.C. § 351(a). The Code of Conduct 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 15

1 for United States Judges sets forth behavioral guidelines for judges. Although the Code 

2 of Conduct for United States Judges may be informative, its main precepts are highly 

3 general; the Code is in many potential applications aspirational rather than a set of 

4 disciplinary rules. Ultimately, While the Code’s Canons are informative, ultimately the 

5 responsibility for determining what constitutes cognizable misconduct under the statute 

6 is the province of the judicial council of the circuit, subject to such review and limitations 

7 as are ordained by the statute and by is determined by the Act and these Rules, as 

8 interpreted and applied by judicial councils, subject to review and limitations prescribed 

9 by the Act and these Rules.

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

11 of gifts by judges, outside earned income, and financial disclosure obligations — the 

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

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

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

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

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

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

18 conduct by a judge, including sexual harassment or assault, constitutes cognizable 

19 misconduct. The Rule recognizes that anyone can be a victim of unwanted, offensive,

20 or abusive sexual conduct, regardless of their sex and of the sex of the judge engaging 

21 in the misconduct. 

22 The prohibition of discrimination contained in Rule 4(a)(3) includes discrimination 

23 based on race, sex, gender or gender identity, pregnancy, sexual orientation, religion, 

24 national origin, age, or disability. The enumerated grounds for discrimination and

25 harassment contained in Rule 4(a)(3) are not intended to be exhaustive.

26 Under Rule 3(h)(1)(G) 4(a)(4), a judge’s efforts to retaliate against any person for 

27 reporting or disclosing misconduct, or otherwise participating in the his or her 

28 involvement in the complaint process may constitute cognizable misconduct. The Rule 

29 makes this the prohibition against retaliation explicit in the interest of promoting public 

30 confidence in the complaint process.

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

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

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

34 Conduct for U.S. Judges, Canon 3A(3) cmt. (“The duty to be respectful includes the 

35 responsibility to avoid comment or behavior that could reasonably be interpreted as 

36 harassment, prejudice or bias.”); Guide to Judiciary Policy, vol. 12, ch. 2 § 220(a) 

37 (“Discrimination or harassment directed at a judiciary employee due to race, color, 

38 religion, national origin, sex, age, or disability is prohibited in accordance with the long39 standing national policy of the judiciary to promote equal employment opportunity.”). 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 16

1 Rule 3(h)(1)(H) 4(a)(5) provides that a judge’s refusal, without good cause 

2 shown, to cooperate in the investigation of a complaint or enforcement of a decision 

3 rendered under these Rules may constitutes cognizable misconduct. While the 

4 exercise of rights under the Fifth Amendment to the Constitution would constitute good 

5 cause under 3(h)(1)(H) 4(a)(5), given the fact-specific nature of the inquiry, it is not 

6 possible to otherwise anticipate all circumstances that might also constitute good cause. 

7 The Commentary on Rule 13 provides additional discussion regarding Rule 3(h)(1)(H) 

8 4(a)(5). The Rules contemplate that judicial councils will not consider commencing 

9 proceedings under Rule 3(h)(1)(H) 4(a)(5) except as necessary after other means to 

10 acquire the information or enforce a decision have been tried or have proven futile.

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

12 and chief circuit judge information reasonably likely to constitute judicial misconduct or 

13 disability. See Rule 4(a)(6). This duty is included within every judge’s obligation to 

14 assist in addressing allegations of misconduct or disability and to take appropriate 

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

16 judiciary is promoted when judges take appropriate action based on reliable evidence of 

17 likely misconduct. Appropriate action depends on the circumstances, but the 

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

19 misconduct and to prevent recurrence. These Rules incorporate those principles while 

20 allowing for appropriate, expeditious, fair, and effective resolutions of all such 

21 complaints. 

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

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

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

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

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

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

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

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

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

31 promptly as is reasonable under the circumstances. 

32 “A judge, in deciding what action is appropriate, may take into account any 

33 request for confidentiality made by a person complaining of or reporting misconduct.” 

34 Code of Conduct for United States Judges, Canon 3B(6) cmt.

35 Rule 3(h)(2) 4(a)(7) reflects that an allegation can meet the statutory standard for 

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

37 performance of official duties. And some conduct in the categories listed under 

38 subsection (h)(1), or in categories not listed, might depending on the circumstances 

39 amount to “misconduct” under subsection (h)(2), or under both subsection (h)(1) and 

40 subsection (h)(2)). Also, the The Code of Conduct for United States Judges expressly 

41 covers a wide range of extra-official activities, and some of these activities may 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 17

1 constitute misconduct under the Act and these Rules. For example, allegations that a 

2 judge solicited funds for a charity or other organization or participated in a partisan 

3 political event are cognizable under the Act even though they did not occur in the 

4 course of the performance of the judge’s official duties.

5 On the other hand, judges are entitled to some leeway in extra-official activities. 

6 For example, misconduct may not include a judge being repeatedly and publicly 

7 discourteous to a spouse (not including physical abuse) even though this might cause 

8 some reasonable people to have diminished confidence in the courts. Rule 3(h)(2) 

9 states that conduct of this sort is covered, for example, when it might lead to a 

10 “substantial and widespread” lowering of such confidence.

11 Rule 3(h)(3)(A) 4(b)(1) tracks the Act, 28 U.S.C. § 352(b)(1)(A)(ii), in excluding 

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

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

14 exercise of judicial power authority by ensuring that the complaint procedure is not used 

15 to collaterally attack call into question the substance of a judge’s decision or procedural

16 ruling. Any allegation that calls into question the correctness of an official action

17 decision or procedural ruling of a judge — without more — is merits-related. The 

18 phrase “decision or procedural ruling” is not limited to rulings issued in deciding Article 

19 III cases or controversies. Thus, a complaint challenging the correctness of a chief 

20 judge’s determination to dismiss a prior misconduct complaint would be properly 

21 dismissed as merits-related — in other words, as challenging the substance of the 

22 judge’s administrative determination to dismiss the complaint — even though it does not 

23 concern the judge’s rulings in Article III litigation. Similarly, an allegation that a judge 

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

25 this standard.

26 Conversely, an allegation — however unsupported — that a judge conspired with 

27 a prosecutor to make a particular ruling is not merits-related, even though it “relates” to 

28 a ruling in a colloquial sense. Such an allegation attacks the propriety of conspiring with 

29 the prosecutor and goes beyond a challenge to the correctness — “the merits” — of the 

30 ruling itself. An allegation that a judge ruled against the complainant because the 

31 complainant is a member of a particular racial or ethnic group, or because the judge 

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

33 attacks the propriety of arriving at rulings with an illicit or improper motive. Similarly, an 

34 allegation that a judge used an inappropriate term to refer to a class of people is not 

35 merits-related even if the judge used it on the bench or in an opinion; the correctness of 

36 the judge’s rulings is not at stake. An allegation that a judge treated litigants or,

37 attorneys, judicial employees, or others in a demonstrably egregious and hostile manner

38 while on the bench is also not merits-related. 

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

40 allegation is merits-related. The merits-related ground for dismissal exists to protect 

41 judges’ independence in making rulings, not to protect or promote the appellate 

42 process. A complaint alleging an incorrect ruling is merits-related even though the 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 18

1 complainant has no recourse from that ruling. By the same token, an allegation that is 

2 otherwise cognizable under the Act should not be dismissed merely because an 

3 appellate remedy appears to exist (for example, vacating a ruling that resulted from an 

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

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

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

7 proceedings are concluded to avoid, inter alia, inconsistent decisions.

8 Because of the special need to protect judges’ independence in deciding what to 

9 say in an opinion or ruling, a somewhat different standard applies to determine the 

10 merits-relatedness of a non-frivolous allegation that a judge’s language in a ruling 

11 reflected an improper motive. If the judge’s language was relevant to the case at 

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

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

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

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

16 inquiry under Rule 11(b) is necessary.

17 With regard to Rule 3(h)(3)(B) 4(b)(2), a complaint of delay in a single case is 

18 excluded as merits-related. Such an allegation may be said to challenge the 

19 correctness of an official action of the judge – in other words, i.e., assigning a low 

20 priority to deciding the particular case. But, by the same token, an allegation of a 

21 habitual pattern of delay in a significant number of unrelated cases, or an allegation of 

22 deliberate delay in a single case arising out of an illicit improper motive, is not merits23 related.

24 Rule 3(e) 4(c) relates to disability and provides only the most general definition, 

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

26 could involve cognitive impairment or any psychiatric or psychological condition that 

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

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

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

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

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

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

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

34 statutorily eligible to perform them.

35 Confidentiality as referenced elsewhere in these Rules is directed toward 

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

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

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

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

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

41 judicial employees from reporting or disclosing misconduct. See Rule 23(c).
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 19

1 ARTICLE III. INITIATION OF COMPLAINT

2 5. Identification of Complaint

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

4 reasonable grounds for inquiry into whether a covered judge has 

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

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

7 accuracy of the information even if no related complaint has been 

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

9 misconduct has occurred or that a disability exists may seek an 

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

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

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

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

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

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

16 to identify a complaint merely because the person making the 

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

18 subject to Rule 7.

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

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

21 as possible grounds for the identification of a complaint under Rule 

22 5(a).

23 COMMENTARY ON RULE 5

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

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

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

27 § 351(b). Under Rule 5, when a chief judge becomes aware of information constituting 

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

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

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

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

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

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

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

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

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

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

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

39 clear and convincing evidence of misconduct or a disability, and no satisfactory informal 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 20

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

2 complaint.

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

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

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

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

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

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

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

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

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

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

13 11 provides that once a chief judge has identified a complaint, the chief judge, subject to 

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

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

16 complainant.

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

18 complaint without first seeking an informal resolution (and then, if the circumstances 

19 warrant, dismiss or conclude the identified complaint without appointment of a special 

20 committee) in order to assure the public that the allegations have not been ignored.

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

22 and is subject to Rule 3(h)(3)(A) 4(b)(1), which excludes merits-related complaints from 

23 the definition of misconduct.

24 A chief judge may not decline to identify a complaint solely on the basis that the 

25 unfiled allegations could be raised by one or more persons in a filed complaint, but none 

26 of these persons has opted to do so.

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

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

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

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

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

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

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

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

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

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

37 basis for the identification of a complaint under the process described in Rule 5(a).
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 21

1 6. Filing of Complaint

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

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

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

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

6 obtained from the circuit clerk or any district court or bankruptcy 

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

8 but the complaint must be written and must include the information 

9 described in (b).

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

11 statement that details the specific facts on which the claim of 

12 misconduct or disability is based. The statement of facts should 

13 include a description of:

14 (1) what happened;

15 (2) when and where the relevant events happened;

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

17 facts; and

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

19 basis of that allegation.

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

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

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

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

24 filing.

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

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

27 the statements made in the complaint must be verified in writing 

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

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

30 Rule 5(b).

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

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

33 Each copy should be in an envelope marked “Complaint of 

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

35 show the name of any subject judge.

36 COMMENTARY ON RULE 6
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 22

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

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

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

4 or disclosing misconduct. See Rule 23(c). 

5 7. Where to Initiate Complaint

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

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

8 appeals, a United States district court, a United States 

9 bankruptcy court, or a United States magistrate judge must be 

10 filed with the circuit clerk in the jurisdiction in which the 

11 subject judge holds office.

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

13 International Trade or the United States Court of Federal 

14 Claims must be filed with the respective clerk of that court.

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

16 Appeals for the Federal Circuit must be filed with the circuit 

17 executive of that court.

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

19 misconduct in the course of official business while the subject judge 

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

21 294(d), the complaint may be filed or identified with the circuit clerk 

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

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

24 complaint. The judicial council of the circuit where the complaint 

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

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

27 misconduct occurred, as the case may be.

28 COMMENTARY ON RULE 7

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

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

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

32 throughout these Rules, applies to circuit executives.

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

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

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

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

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

38 administrative perspective of the Act. Given the Act’s emphasis on the future conduct of 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 23

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

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

3 constructive ways.

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

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

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

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

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

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

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

11 the other circuit.

12 8. Action by Circuit Clerk

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

14 filed under Rule 6 or identified under Rule 5, the circuit clerk must 

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

16 numbering scheme promulgated by the Committee on Judicial 

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

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

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

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

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

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

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

24 Any further distribution should be as provided by local rule.

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

26 complaint about a person not holding an office described in Rule 4, 

27 the clerk must not accept the complaint under these Rules.

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

29 circuit clerk receives a complaint about a judge described in Rule 4 

30 and a person not holding an office described in Rule 4, the clerk 

31 must accept the complaint under these Rules only with regard to the 

32 judge and must so inform the complainant.

33 COMMENTARY ON RULE 8

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

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

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

37 One solution may be to provide separate docket numbers for each subject judge. 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 24

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

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

3 Complaints against noncovered persons are not to be accepted for processing 

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

5 procedures for grievances.

6 9. Time for Filing or Identifying Complaint

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

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

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

10 COMMENTARY ON RULE 9

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

12 Illustrative Rules.

13 10. Abuse of Complaint Procedure

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

15 harassing, or frivolous complaints, or has otherwise abused the 

16 complaint procedure, may be restricted from filing further 

17 complaints. After giving the complainant an opportunity to show 

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

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

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

21 Upon written request of the complainant, the judicial council may 

22 revise or withdraw any prohibition, restriction, or condition 

23 previously imposed.

24 (b) Orchestrated Complaints. When many essentially identical 

25 complaints from different complainants are received and appear to 

26 be part of an orchestrated campaign, the chief judge may 

27 recommend that the judicial council issue a written order instructing 

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

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

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

31 complaint was not accepted.

32 COMMENTARY ON RULE 10

33 This Rule is adapted from the Illustrative Rules.

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

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

36 some instances, however, the complaint procedure may be abused in a manner for 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 25

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

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

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

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

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

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

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

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

9 underlying merits.

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

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

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

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

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

15 identical or repetitive complaints, directing the circuit clerk not to accept these 

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

17 putative complainant copies of both orders.

18 ARTICLE IIIIV. REVIEW OF COMPLAINT BY CHIEF JUDGE

19 11. Chief Judge’s Review

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

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

22 chief judge is disqualified under Rule 25, in which case the most23 senior active circuit judge not disqualified will review the complaint. 

24 If a complaint contains information constituting evidence of 

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

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

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

28 reviewing a complaint, the chief judge must determine whether it 

29 should be:

30 (1) dismissed;

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

32 been taken;

33 (3) concluded because intervening events have made action on 

34 the complaint no longer necessary; or

35 (4) referred to a special committee.

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

37 11(a), the chief judge may conduct a limited inquiry. The chief judge, 

38 or a designee, may communicate orally or in writing with the 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 26

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

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

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

4 must not determine any reasonably disputed issue. Any such 

5 determination must be left to a special committee appointed under 

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

7 report.

8 (c) Dismissal.

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

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

11 that the complaint:

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

13 the effective and expeditious administration of the 

14 business of the courts and does not indicate a mental or 

15 physical disability resulting in the inability to discharge 

16 the duties of judicial office;

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

18 procedural ruling;

19 (C) is frivolous;

20 (D) is based on allegations lacking sufficient evidence to 

21 raise an inference that misconduct has occurred or that 

22 a disability exists;

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

24 established through investigation;

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

26 (G) is otherwise not appropriate for consideration under the 

27 Act.

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

29 solely because it repeats allegations of a previously dismissed 

30 complaint if it also contains material information not 

31 previously considered and does not constitute harassment of 

32 the subject judge.

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

34 proceeding in whole or in part if:
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 27

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

2 judge was reached before the complaint was filed under Rule 

3 6; or

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

5 appropriate voluntary corrective action that acknowledges and 

6 remedies the problems raised by the complaint.

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

8 proceeding in whole or in part upon determining that intervening 

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

10 action impossible as to the subject judge.

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

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

13 special committee to investigate the complaint or any relevant 

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

15 Before appointing a special committee, the chief judge must invite 

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

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

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

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

20 single complaint about more than one judge may be severed and 

21 more than one special committee appointed.

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

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

24 judge appoints a special committee, the chief judge must 

25 notify the complainant and the subject judge that the matter 

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

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

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

29 committee must be sent to the Committee on Judicial Conduct 

30 and Disability.

31 (2) When chief judge disposes of complaint without appointing 

32 special committee. If the chief judge disposes of a complaint 

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

34 supporting memorandum that sets forth the reasons for the 

35 disposition. If the complaint was initiated by identification 

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

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

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

39 The order and memoranda incorporated by reference in the 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 28

1 order must be promptly sent to the complainant, the subject 

2 judge, and the Committee on Judicial Conduct and Disability.

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

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

5 subject judge must be notified of the right to petition the 

6 judicial council for review of the disposition, as provided in 

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

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

9 judge must transmit the order and memoranda incorporated 

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

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

12 the subject judge may make a written submission to the 

13 judicial council but will have no further right of review except 

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

15 reviewed by the judicial council, the chief judge must promptly 

16 transmit all materials obtained in connection with the inquiry 

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

18 council.

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

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

21 manner provided in Rule 24.

22 COMMENTARY ON RULE 11

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

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

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

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

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

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

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

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

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

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

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

34 subject judge.

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

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

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

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

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

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

41 is reasonably in dispute.” These two statutory standards should be read together so 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 29

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

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

3 or that they are conclusively refuted by objective evidence.

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

5 determinations of reasonably disputed issues, including reasonably disputed issues as 

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

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

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

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

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

11 in other words, there is simply no other significant evidence of what happened or of the 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

37 (b).

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

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

40 239 F.R.D. at 239–45. Subsection (c)(1)(A) permits dismissal of an allegation that, 

41 even if true, does not constitute misconduct or disability under the statutory standard. 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 30

1 The proper standards are set out in Rule 3 and discussed in the Commentary on that 

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

3 decision by a subject judge; this standard is also governed by Rule 3 and its 

4 accompanying Commentary.

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

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

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

8 established through investigation.” 28 U.S.C. § 352(b)(1)(A)(iii).

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

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

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

12 inquiry is warranted, dismissal under this subsection is appropriate.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

33 witness’s account. Id. The complainant responds that he has spoken with the 

34 unnamed witness, that the unnamed witness is an attorney who practices in federal 

35 court, and that the unnamed witness is unwilling to be identified or to come forward. Id. 

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

37 incapable of being established through investigation. Id.

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

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

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

41 judge denies that the event occurred. Unless the complainant’s allegations are facially 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 31

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

2 11(c)(1)(C), a special committee must be appointed because there is a material factual 

3 question that is reasonably in dispute.

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

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

6 investigation.

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

8 the application of claim preclusion principles where new and material evidence 

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

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

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

12 new evidence.

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

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

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

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

17 § 352(b)(2). Under the Rule, action taken after a complaint is filed is “appropriate” when 

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

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

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

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

22 understanding that voluntary self-correction or redress of minor instances of misconduct 

23 or a disability is preferable to sanctions. Id. The chief judge may facilitate this process 

24 by giving the subject judge an objective view of the appearance of the judicial conduct in 

25 question and by suggesting appropriate corrective measures. Id. Moreover, when 

26 corrective action is taken under Rule 5 satisfactory to the chief judge before a complaint 

27 is filed, that informal resolution will be sufficient to conclude a subsequent complaint 

28 based on identical conduct.

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

30 Committee Report, 239 F.R.D. at 244. A remedial action directed by the chief judge or 

31 by an appellate court without the participation of the subject judge in formulating the 

32 directive or without the subject judge’s subsequent agreement to such action does not 

33 constitute the requisite voluntary corrective action. Id. Neither the chief judge nor an 

34 appellate court has authority under the Act to impose a formal remedy or sanction; only 

35 the judicial council can impose a formal remedy or sanction under 28 U.S.C. 

36 § 354(a)(2). Id. Compliance with a previous judicial-council order may serve as 

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

38 Where a subject judge’s conduct has resulted in identifiable, particularized harm 

39 to the complainant or another individual, appropriate corrective action should include 

40 steps taken by that judge to acknowledge and redress the harm, if possible, such as by 

41 an apology, recusal from a case, or a pledge to refrain from similar conduct in the 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 32

1 future. Id. While the Act is generally forward-looking, any corrective action should, to 

2 the extent possible, serve to correct a specific harm to an individual, if such harm can 

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

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

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

6 a direct communication from the subject judge, or otherwise. Id.

7 Voluntary corrective action should be proportionate to any plausible allegations of 

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

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

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

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

12 dispose of a serious matter. Id.

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

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

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

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

17 member, or court-committee chair does not constitute an event rendering unnecessary 

18 any further action on a complaint alleging judicial misconduct. Breyer Committee 

19 Report, 239 F.R.D. at 245. As long as the subject of a complaint performs judicial 

20 duties,retains the judicial office, a complaint alleging judicial misconduct must be 

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

22 While concluding a complaint proceeding precludes remedial action under the 

23 Act and these Rules as to the subject judge, the Judicial Conference and the judicial 

24 councils have ample authority to assess potential institutional issues related to the 

25 complaint as part of their respective responsibilities to promote “the expeditious conduct 

26 of court business,” 28 U.S.C. § 331, and to “make all necessary and appropriate orders 

27 for the effective administration of justice within [each] circuit.” Id. at § 332(d)(1). Such 

28 an assessment might include an analysis of what conditions may have enabled 

29 misconduct or prevented its discovery, and what precautionary or curative steps could 

30 be undertaken to prevent its recurrence. 

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

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

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

34 was invited.

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

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

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

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

39 accepted as true, and there is no need for the subject judge to devote time to a defense.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 33

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

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

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

4 public, contemplates that the order will be made public, usually without disclosing the 

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

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

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

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

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

10 Rule 24 (dealing with public availability).

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

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

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

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

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

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

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

18 Judicial Conduct and Disability.

19 ARTICLE IV. INVESTIGATION AND REPORT BY SPECIAL COMMITTEE

20 12. Special Committee’s Composition

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

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

23 numbers of circuit and district judges. These judges may include 

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

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

26 members of the special committee must be from districts other than 

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

28 § 363, the special committee must be selected from the judges 

29 serving on the subject judge's court.

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

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

32 committee member as the presiding officer.

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

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

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

36 appointment, ask the chief judge to designate as a committee 

37 adviser another bankruptcy judge or magistrate judge, as the case 

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

39 otherwise use discretion in naming the adviser. Unless the adviser 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 34

1 is a Court of Federal Claims special master appointed under 42 

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

3 the district of the subject bankruptcy judge or subject magistrate 

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

5 special-committee member.

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

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

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

9 other relevant documents on file.

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

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

12 though the member relinquishes the position of chief judge, active 

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

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

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

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

17 member of a special committee can no longer serve because of 

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

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

20 replacement member, either a circuit or district judge as needed 

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

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

23 committee must be unanimous.

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

25 majority of all members of the committee.

26 COMMENTARY ON RULE 12

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

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

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

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

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

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

33 special committee.

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

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

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

37 designate another member of the special committee as the presiding officer.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 35

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

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

3 magistrate subject judge. Subsection (c) also provides that the adviser will have all the 

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

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

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

7 judicial council.

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

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

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

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

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

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

14 the work of such committees.

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

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

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

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

19 desirable in these situations unless the special committee has conducted evidentiary 

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

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

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

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

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

25 essence, operate under a unanimity rule.

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

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

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

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

30 majority of some smaller quorum.

31 13. Conduct of Special-Committee Investigation

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

33 committee should determine the appropriate extent and methods of 

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

35 the committee’s preliminary inquiry. In investigating the alleged 

36 misconduct or disability, the special committee should take steps to 

37 determine the full scope of the potential misconduct or disability, 

38 including whether a pattern of misconduct or a broader disability 

39 exists. The investigation may include use of appropriate experts or 

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

41 committee has cause to believe that the subject judge may have 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 36

1 engaged in misconduct or has a disability that is beyond the scope 

2 of the complaintspecific pending complaint, the committee must 

3 refer the new matter to the chief judge for a determination of whether 

4 action under Rule 5 or Rule 11 is necessary before the committee’s 

5 investigation is expanded to include the new matter.

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

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

8 appropriate prosecutorial authorities to the extent permitted by the 

9 Act to avoid compromising any criminal investigation. The special 

10 committee has final authority over the timing and extent of its 

11 investigation and the formulation of its recommendations.

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

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

14 may hire special staff through the Director of the Administrative 

15 Office of the United States Courts.

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

17 delegate the authority to exercise the subpoena powers of the 

18 special committee. The judicial council or special committee may 

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

20 anyone who fails to comply with a subpoena.

21 COMMENTARY ON RULE 13

22 This Rule is adapted from the Illustrative Rules.

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

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

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

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

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

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

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

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

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

32 afforded at appropriate times to the subject judge.

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

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

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

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

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

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

39 examination. In advance of any such examination, the special committee may enter 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 37

1 into an agreement with the subject judge as to the scope and use that may be made of 

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

3 to review existing records, including medical records.

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

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

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

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

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

9 true of a complaint alleging misconduct.

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

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

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

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

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

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

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

17 believes that the breach may amount to misconduct under Rule 3(h)(1)(H)4(a)(3), it 

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

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

20 also Commentary on Rule 34.

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

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

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

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

25 its activity in light of any criminal investigation.

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

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

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

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

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

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

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

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

34 alone. See Rule 12(g).

35 14. Conduct of Special-Committee Hearings

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

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

38 both. If the special committee is investigating allegations against 

39 more than one judge, it may hold joint or separate hearings.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 38

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

2 committee must obtain material, nonredundant evidence in the form 

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

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

5 Witnesses offering testimonial evidence may include the 

6 complainant and the subject judge.

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

8 The special committee has discretion to decide whether other 

9 witnesses may have counsel present when they testify.

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

11 § 1821.

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

13 affirmation.

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

15 special-committee hearings.

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

17 hearings.

18 COMMENTARY ON RULE 14

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

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

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

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

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

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

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

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

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

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

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

30 seekers of the truth.

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

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

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

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

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

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

37 available, subject to the normal testimonial privileges. Although Rule 15(c) recognizes 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 39

1 the subject judge’s statutory right to call witnesses on his or her own behalf, exercise of 

2 this right should not usually be necessary.

3 15. Subject Judge’s Rights

4 (a) Notice.

5 (1) Generally. The subject judge must receive written notice of:

6 (A) the appointment of a special committee under Rule 

7 11(f);

8 (B) the expansion of the scope of an investigation under 

9 Rule 13(a);

10 (C) any hearing under Rule 14, including its purposes, the 

11 names of any witnesses the special committee intends 

12 to call, and the text of any statements that have been 

13 taken from those witnesses.

14 (2) Suggestion of additional witnesses. The subject judge may 

15 suggest additional witnesses to the special committee.

16 (b) Special-Committee Report. The subject judge must be sent a copy of 

17 the special committee's report when it is filed with the judicial 

18 council.

19 (c) Presentation of Evidence. At any hearing held under Rule 14, the 

20 subject judge has the right to present evidence, to compel the 

21 attendance of witnesses, and to compel the production of 

22 documents. At the request of the subject judge, the chief judge or 

23 the judge’s designee must direct the circuit clerk to issue a 

24 subpoena to a witness under 28 U.S.C. § 332(d)(1). The subject 

25 judge must be given the opportunity to cross-examine 

26 special-committee witnesses, in person or by counsel.

27 (d) Presentation of Argument. The subject judge may submit written 

28 argument to the special committee and must be given a reasonable 

29 opportunity to present oral argument at an appropriate stage of the 

30 investigation.

31 (e) Attendance at Hearings. The subject judge has the right to attend 

32 any hearing held under Rule 14 and to receive copies of the 

33 transcript, of any documents introduced, and of any written 

34 arguments submitted by the complainant to the special committee.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 40

1 (f) Representation by Counsel. The subject judge may choose to be 

2 represented by counsel in the exercise of any right enumerated in 

3 this Rule. As provided in Rule 20(e), the United States may bear the 

4 costs of the representation.

5 COMMENTARY ON RULE 15

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

7 The Act states that these Rules must contain provisions requiring that “the judge 

8 whose conduct is the subject of a complaint . . . be afforded an opportunity to appear (in 

9 person or by counsel) at proceedings conducted by the investigating panel, to present 

10 oral and documentary evidence, to compel the attendance of witnesses or the 

11 production of documents, to cross-examine witnesses, and to present argument orally 

12 or in writing.” 28 U.S.C. § 358(b)(2). To implement this provision, Rule 15(e) gives the 

13 subject judge the right to attend any hearing held for the purpose of receiving evidence 

14 of record or hearing argument under Rule 14.

15 The Act does not require that the subject judge be permitted to attend all 

16 proceedings of the special committee. Accordingly, the Rules do not give a right to 

17 attend other proceedings — for example, meetings at which the special committee is 

18 engaged in investigative activity, such as interviewing persons to learn whether they 

19 ought to be called as witnesses or examining for relevance purposes documents 

20 delivered pursuant to a subpoena duces tecum, or meetings in which the committee is 

21 deliberating on the evidence or its recommendations.

22 16. Complainant’s Rights in Investigation

23 (a) Notice. The complainant must receive written notice of the 

24 investigation as provided in Rule 11(g)(1). When the special 

25 committee’s report to the judicial council is filed, the complainant 

26 must be notified of the filing. The judicial council may, in its 

27 discretion, provide a copy of the report of a special committee to the 

28 complainant.

29 (b) Opportunity to Provide Evidence. If the complainant knows of 

30 relevant evidence not already before the special committee, the 

31 complainant may briefly explain in writing the basis of that 

32 knowledge and the nature of that evidence. If the special committee 

33 determines that the complainant has information not already known 

34 to the committee that would assist in the committee’s investigation, 

35 a representative of the committee must interview the complainant.

36 (c) Presentation of Argument. The complainant may submit written 

37 argument to the special committee. In its discretion, the special 

38 committee may permit the complainant to offer oral argument.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 41

1 (d) Representation by Counsel. A complainant may submit written 

2 argument through counsel and, if permitted to offer oral argument, 

3 may do so through counsel.

4 (e) Cooperation. In exercising its discretion under this Rule, the special 

5 committee may take into account the degree of the complainant's 

6 cooperation in preserving the confidentiality of the proceedings, 

7 including the identity of the subject judge.

8 COMMENTARY ON RULE 16

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

10 In accordance with the view of the process as fundamentally administrative and 

11 inquisitorial, these Rules do not give the complainant the rights of a party to litigation 

12 and leave the complainant’s role largely to the discretion of the special committee. 

13 However, Rule 16(b) gives the complainant the prerogative to make a brief written 

14 submission showing that he or she is aware of relevant evidence not already known to 

15 the special committee. (Such a submission may precede any written or oral argument 

16 the complainant provides under Rule 16(c), or it may accompany that argument.) If the 

17 special committee determines, independently or from the complainant’s submission, 

18 that the complainant has information that would assist the committee in its investigation, 

19 the complainant must be interviewed by a representative of the committee. Such an 

20 interview may be in person or by telephone, and the representative of the special 

21 committee may be either a member or staff.

22 Rule 16 does not contemplate that the complainant will ordinarily be permitted to 

23 attend proceedings of the special committee except when testifying or presenting oral 

24 argument. A special committee may exercise its discretion to permit the complainant to 

25 be present at its proceedings, or to permit the complainant, individually or through 

26 counsel, to participate in the examination or cross-examination of witnesses.

27 The Act authorizes an exception to the normal confidentiality provisions where 

28 the judicial council in its discretion provides a copy of the report of the special 

29 committee to the complainant and to the subject judge. 28 U.S.C. § 360(a)(1). 

30 However, the Rules do not entitle the complainant to a copy of the special committee’s 

31 report.

32 In exercising their discretion regarding the role of the complainant, the special 

33 committee and the judicial council should protect the confidentiality of the complaint 

34 process. As a consequence, subsection (e) provides that the special committee may 

35 consider the degree to which a complainant has cooperated in preserving the 

36 confidentiality of the proceedings in determining what role beyond the minimum required 

37 by these Rules should be given to that complainant.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 42

1 17. Special-Committee Report

2 The special committee must file with the judicial council a comprehensive report 

3 of its investigation, including findings and recommendations for council action. 

4 The report must be accompanied by a statement of the vote by which it was 

5 adopted, any separate or dissenting statements of special-committee members, 

6 and the record of any hearings held under Rule 14. In addition to being sent to 

7 the subject judge under Rule 15(b), a copy of the report and any accompanying 

8 statements and documents must be sent to the Committee on Judicial Conduct 

9 and Disability.

10 COMMENTARY ON RULE 17

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

12 provision for sending a copy of the special-committee report and accompanying 

13 statements and documents to the Committee on Judicial Conduct and Disability was 

14 new at the time the Judicial Conference promulgated the Rules for Judicial-Conduct and 

15 Judicial-Disability Proceedings in 2008.

16 ARTICLE VI. REVIEW BY JUDICIAL COUNCIL

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

18 (a) Petition for Review. After the chief judge issues an order under Rule 

19 11(c), (d), or (e), the complainant or the subject judge may petition 

20 the judicial council of the circuit to review the order. By rules 

21 promulgated under 28 U.S.C. § 358, the judicial council may refer a 

22 petition for review filed under this Rule to a panel of no fewer than 

23 five members of the council, at least two of whom must be district 

24 judges.

25 (b) When to File; Form; Where to File. A petition for review must be filed 

26 in the office of the circuit clerk within 42 days after the date of the 

27 chief judge’s order. The petition for review should be in letter form, 

28 addressed to the circuit clerk, and in an envelope marked 

29 “Misconduct Petition” or “Disability Petition.” The name of the 

30 subject judge must not be shown on the envelope. The petition for 

31 review should be typewritten or otherwise legible. It should begin 

32 with “I hereby petition the judicial council for review of . . . ” and 

33 state the reasons why the petition should be granted. It must be 

34 signed.

35 (c) Receipt and Distribution of Petition. A circuit clerk who receives a 

36 petition for review filed in accordance with this Rule must:

37 (1) acknowledge its receipt and send a copy to the complainant or 

38 subject judge, as the case may be;
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 43

1 (2) promptly distribute to each member of the judicial council, or 

2 its relevant panel, except for any member disqualified under 

3 Rule 25, or make available in the manner provided by local 

4 rule, the following materials:

5 (A) copies of the complaint;

6 (B) all materials obtained by the chief judge in connection 

7 with the inquiry;

8 (C) the chief judge’s order disposing of the complaint;

9 (D) any memorandum in support of the chief judge’s order;

10 (E) the petition for review; and

11 (F) an appropriate ballot; and

12 (3) send the petition for review to the Committee on Judicial

13 Conduct and Disability. Unless the Committee on Judicial 

14 Conduct and Disability requests them, the circuit clerk will not 

15 send copies of the materials obtained by the chief judge.

16 (d) Untimely Petition. The circuit clerk must refuse to accept a petition

17 that is received after the time allowed in (b).

18 (e) Timely Petition Not in Proper Form. When the circuit clerk receives a 

19 petition for review filed within the time allowed but in a form that is 

20 improper to a degree that would substantially impair its 

21 consideration by the judicial council — such as a document that is 

22 ambiguous about whether it is intended to be a petition for review —

23 the circuit clerk must acknowledge its receipt, call the filer’s 

24 attention to the deficiencies, and give the filer the opportunity to 

25 correct the deficiencies within the original time allowed for filing the 

26 petition or within 21 days after the date on which a notice of the 

27 deficiencies was sent to the complainant, whichever is later. If the 

28 deficiencies are corrected within the time allowed, the circuit clerk 

29 will proceed according to paragraphs (a) and (c) of this Rule. If the 

30 deficiencies are not corrected, the circuit clerk must reject the 

31 petition.

32 COMMENTARY ON RULE 18

33 Rule 18 is adapted largely from the Illustrative Rules.

34 Subsection (a) permits the subject judge, as well as the complainant, to petition 

35 for review of the chief judge’s order dismissing a complaint under Rule 11(c), or 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 44

1 concluding that appropriate corrective action or intervening events have remedied or 

2 mooted the problems raised by the complaint pursuant to Rule 11(d) or (e). Although 

3 the subject judge may ostensibly be vindicated by the dismissal or conclusion of a 

4 complaint, the chief judge’s order may include language disagreeable to the subject 

5 judge. For example, an order may dismiss a complaint, but state that the subject judge 

6 did in fact engage in misconduct. Accordingly, a subject judge may wish to object to the 

7 content of the order and is given the opportunity to petition the judicial council of the 

8 circuit for review.

9 Subsection (b) contains a time limit of 42 days to file a petition for review. It is 

10 important to establish a time limit on petitions for review of chief judges’ dispositions in 

11 order to provide finality to the process. If the complaint requires an investigation, the 

12 investigation should proceed; if it does not, the subject judge should know that the 

13 matter is closed.

14 The standards for timely filing under the Federal Rules of Appellate Procedure 

15 should be applied to petitions for review. See Fed. R. App. P. 25(a)(2)(A), (C).

16 Rule 18(e) provides for an automatic extension of the time limit imposed under 

17 subsection (b) if a person files a petition that is rejected for failure to comply with formal 

18 requirements.

19 19. Judicial-Council Disposition of Petition for Review

20 (a) Rights of Subject Judge. At any time after a complainant files a 

21 petition for review, the subject judge may file a written response with 

22 the circuit clerk. The circuit clerk must promptly distribute copies of 

23 the response to each member of the judicial council or of the 

24 relevant panel, unless that member is disqualified under Rule 25. 

25 Copies must also be distributed to the chief judge, to the 

26 complainant, and to the Committee on Judicial Conduct and 

27 Disability. The subject judge must not otherwise communicate with 

28 individual judicial-council members about the matter. The subject 

29 judge must be given copies of any communications to the judicial 

30 council from the complainant.

31 (b) Judicial-Council Action. After considering a petition for review and 

32 the materials before it, the judicial council may:

33 (1) affirm the chief judge’s disposition by denying the petition;

34 (2) return the matter to the chief judge with directions to conduct 

35 a further inquiry under Rule 11(b) or to identify a complaint 

36 under Rule 5;

37 (3) return the matter to the chief judge with directions to appoint a 

38 special committee under Rule 11(f); or
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 45

1 (4) in exceptional circumstances, take other appropriate action.

2 (c) Notice of Judicial-Council Decision. Copies of the judicial council’s 

3 order, together with memoranda incorporated by reference in the 

4 order and separate concurring or dissenting statements, must be 

5 given to the complainant, the subject judge, and the Committee on 

6 Judicial Conduct and Disability.

7 (d) Memorandum of Judicial-Council Decision. If the judicial council’s 

8 order affirms the chief judge’s disposition, a supporting 

9 memorandum must be prepared only if the council concludes that 

10 there is a need to supplement the chief judge’s explanation. A 

11 memorandum supporting a judicial-council order must not include 

12 the name of the complainant or the subject judge.

13 (e) Review of Judicial-Council Decision. If the judicial council’s 

14 decision is adverse to the petitioner, and if no member of the council 

15 dissented, the complainant must be notified that he or she has no 

16 right to seek review of the decision. If there was a dissent, the 

17 petitioner must be informed that he or she can file a petition for 

18 review under Rule 21(b).

19 (f) Public Availability of Judicial-Council Decision. Materials related to 

20 the judicial council’s decision must be made public to the extent, at 

21 the time, and in the manner set forth in Rule 24.

22 COMMENTARY ON RULE 19

23 This Rule is adapted largely from the Act and is self-explanatory.

24 The judicial council should ordinarily review the decision of the chief judge on the 

25 merits, treating the petition for review for all practical purposes as an appeal. The 

26 judicial council may respond to a petition for review by affirming the chief judge’s order, 

27 remanding the matter, or, in exceptional cases, taking other appropriate action. A 

28 petition for review of a judicial council’s decision may be filed under Rule 21(b) in any 

29 matter in which one or more members of the council dissented from the order.

30 Under Rule 19(b), after considering a petition for review and the materials before 

31 it, a judicial council may return a matter to the chief judge to take various actions, 

32 including conducting further inquiry under Rule 11(b), identifying a complaint under Rule 

33 5, or appointing a special committee under Rule 11(f).

34 A petition for review of a judicial council’s decision under this Rule may be filed in 

35 any matter in which one or more members of the council dissented from the order. See

36 Rule 21(b).
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 46

1 20. Judicial-Council Action Following Appointment of Special Committee

2 (a) Subject Judge’s Rights. Within 21 days after the filing of the report 

3 of a special committee, the subject judge may send a written 

4 response to the members of the judicial council. The subject judge 

5 must also be given an opportunity to present argument, personally 

6 or through counsel, written or oral, as determined by the judicial 

7 council. The subject judge must not otherwise communicate with 

8 judicial-council members about the matter.

9 (b) Judicial-Council Action.

10 (1) Discretionary actions. Subject to the subject judge’s rights set 

11 forth in subsection (a), the judicial council may:

12 (A) dismiss the complaint because:

13 (i) even if the claim is true, the claimed conduct is 

14 not conduct prejudicial to the effective and 

15 expeditious administration of the business of the 

16 courts and does not indicate a mental or physical 

17 disability resulting in inability to discharge the 

18 duties of office;

19 (ii) the complaint is directly related to the merits of a 

20 decision or procedural ruling;

21 (iii) the facts on which the complaint is based have 

22 not been established; or

23 (iv) the complaint is otherwise not appropriate for 

24 consideration under 28 U.S.C. §§ 351–364.

25 (B) conclude the proceeding because appropriate corrective 

26 action has been taken or intervening events have made 

27 the proceeding unnecessary.

28 (C) refer the complaint to the Judicial Conference with the 

29 judicial council’s recommendations for action.

30 (D) take remedial action to ensure the effective and 

31 expeditious administration of the business of the courts, 

32 including:

33 (i) censuring or reprimanding the subject judge, 

34 either by private communication or by public 

35 announcement;
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 47

1 (ii) ordering that no new cases be assigned to the 

2 subject judge for a limited, fixed period;

3 (iii) in the case of a magistrate judge, ordering the 

4 chief judge of the district court to take action 

5 specified by the council, including the initiation of 

6 removal proceedings under 28 U.S.C. § 631(i) or 

7 42 U.S.C. § 300aa-12(c)(2);

8 (iv) in the case of a bankruptcy judge, removing the 

9 judge from office under 28 U.S.C. § 152(e);

10 (v) in the case of a circuit or district judge, 

11 requesting the judge to retire voluntarily with the 

12 provision (if necessary) that ordinary 

13 length-of-service requirements be waived; 

14 (vi) in the case of a circuit or district judge who is 

15 eligible to retire but does not do so, certifying the 

16 disability of the judge under 28 U.S.C. § 372(b) so 

17 that an additional judge may be appointed; and

18 (vii) in the case of a circuit chief judge or district chief 

19 judge, finding that the judge is temporarily unable 

20 to perform chief-judge duties, with the result that 

21 those duties devolve to the next eligible judge in 

22 accordance with 28 U.S.C. § 45(d) or § 136(e).

23 (E) take any combination of actions described in (b)(1)(A)-–

24 (D) of this Rule that is within its power.

25 (2) Mandatory actions. A judicial council must refer a complaint 

26 to the Judicial Conference if the council determines that a 

27 circuit judge or district judge may have engaged in conduct 

28 that:

29 (A) might constitute ground for impeachment; or

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

31 by the judicial council.

32 (c) Inadequate Basis for Decision. If the judicial council finds that a 

33 special committee’s report, recommendations, and record provide an 

34 inadequate basis for decision, it may return the matter to the 

35 committee for further investigation and a new report, or it may 

36 conduct further investigation. If the judicial council decides to 

37 conduct further investigation, the subject judge must be given 

38 adequate prior notice in writing of that decision and of the general 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 48

1 scope and purpose of the additional investigation. The judicial 

2 council’s conduct of the additional investigation must generally

3 accord with the procedures and powers set forth in Rules 13 through 

4 16 for the conduct of an investigation by a special committee.

5 (d) Judicial-Council Vote. Judicial-council action must be taken by a 

6 majority of those members of the council who are not disqualified. A 

7 decision to remove a bankruptcy judge from office requires a 

8 majority vote of all the members of the judicial council.

9 (e) Recommendation for Fee Reimbursement. If the complaint has been 

10 finally dismissed or concluded under (b)(1)(A) or (B) of this Rule, and 

11 if the subject judge so requests, the judicial council may recommend 

12 that the Director of the Administrative Office use funds appropriated 

13 to the judiciary to reimburse the judge for reasonable expenses 

14 incurred during the investigation, when those expenses would not 

15 have been incurred but for the requirements of the Act and these 

16 Rules. Reasonable expenses include attorneys’ fees and expenses 

17 related to a successful defense or prosecution of a proceeding under 

18 Rule 21(a) or (b).

19 (f) Judicial-Council Order. Judicial-council action must be by written 

20 order. Unless the judicial council finds that extraordinary reasons 

21 would make it contrary to the interests of justice, the order must be 

22 accompanied by a memorandum setting forth the factual 

23 determinations on which it is based and the reasons for the council 

24 action. Such a memorandum may incorporate all or part of any 

25 underlying special-committee report. If the complaint was initiated 

26 by identification under Rule 5, the memorandum must so indicate. 

27 The order and memoranda incorporated by reference in the order

28 must be provided to the complainant, the subject judge, and the 

29 Committee on Judicial Conduct and Disability. The complainant and 

30 the subject judge must be notified of any right to review of the 

31 judicial council's decision as provided in Rule 21(b). If the complaint 

32 was identified under Rule 5 or filed by its subject judge, the judicial 

33 council must transmit the order and memoranda incorporated by 

34 reference in the order to the Committee on Judicial Conduct and 

35 Disability for review in accordance with Rule 21. In the event of such 

36 a transmission, the subject judge may make a written submission to 

37 the Committee on Judicial Conduct and Disability but will have no 

38 further right of review. 

39 COMMENTARY ON RULE 20

40 This Rule is largely adapted from the Illustrative Rules.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 49

1 Rule 20(a) provides that within 21 days after the filing of the report of a special 

2 committee, the subject judge may address a written response to all of the members of 

3 the judicial council. The subject judge must also be given an opportunity to present 

4 argument to the judicial council, personally or through counsel, or both, at the direction 

5 of the council. Whether that argument is written or oral would be for the judicial council 

6 to determine. The subject judge may not otherwise communicate with judicial-council 

7 members about the matter.

8 Rule 20(b)(1)(B) allows a judicial council to conclude a proceeding where 

9 appropriate corrective action has been taken or intervening events have made the 

10 proceeding unnecessary. This provision tracks Rules 11(d) and (e), which provide for 

11 similar action by the chief judge. As with Rule 11(d), appropriate corrective action must

12 acknowledge and remedy the problem raised by the complaint. Breyer Committee 

13 Report, 239 F.R.D. at 244. And similar to Rule 11(e), although “action on the complaint 

14 is no longer necessary because of intervening events,” the judicial council may 

15 nonetheless be able to take action on potential institutional issues related to the 

16 complaint (such as an analysis of what conditions may have enabled misconduct or 

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

18 to prevent its recurrence). 28 U.S.C. § 352(b)(2).

19 Rule 20(b)(1)(D) recites the remedial actions enumerated in 28 

20 U.S.C. § 354(a)(2) while making clear that this list is not exhaustive. A judicial council 

21 may consider lesser remedies. Some remedies may be unique to senior judges, whose 

22 caseloads can be modified by agreement or through statutory designation and 

23 certification processes.

24 Under 28 U.S.C. §§ 45(d) and 136(e), which provide for succession where “a 

25 chief judge is temporarily unable to perform his duties as such,” the determination 

26 whether such an inability exists is not expressly reserved to the chief judge. Nor, 

27 indeed, is it assigned to any particular judge or court-governance body. Clearly, 

28 however, a chief judge’s inability to function as chief could implicate “the effective and 

29 expeditious administration of justice,” which the judicial council of the circuit must, under 

30 28 U.S.C. § 332(d)(1), “make all necessary and appropriate orders” to secure. For this 

31 reason, such reassignment is among a judicial council’s remedial options, as subsection 

32 (b)(1)(D)(vii) makes clear. Consistent with 28 U.S.C. §§ 45(d) and 136(e), however, any 

33 reassignment of chief-judge duties must not outlast the subject judge’s inability to 

34 perform them. Nor can such reassignment result in any extension of the subject judge’s 

35 term as chief judge.

36 Rule 20(c) provides that a judicial council may return a matter to a special 

37 committee to augment its findings and report of its investigation to include additional 

38 areas of inquiry and investigation to allow the judicial council to reach a complete and 

39 fully informed judgment. Rule 20(c) also provides that if the judicial council decides to 

40 conduct an additional investigation, the subject judge must be given adequate prior 

41 notice in writing of that decision and of the general scope and purpose of the additional 

42 investigation. The conduct of the investigation will be generally in accordance with the 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 50

1 procedures set forth in Rules 13 through 16 for the conduct of an investigation by a 

2 special committee. However, if hearings are held, the judicial council may limit 

3 testimony or the presentation of evidence to avoid unnecessary repetition of testimony 

4 and evidence before the special committee.

5 Rule 20(d) provides that judicial-council action must be taken by a majority of 

6 those members of the council who are not disqualified, except that a decision to remove 

7 a bankruptcy judge from office requires a majority of all the members of the council as 

8 required by 28 U.S.C. § 152(e). However, it is inappropriate to apply a similar rule to 

9 the less severe actions that a judicial council may take under the Act. If some members 

10 of the judicial council are disqualified in the matter, their disqualification should not be 

11 given the effect of a vote against council action.

12 With regard to Rule 20(e), the judicial council, on the request of the subject 

13 judge, may recommend to the Director of the Administrative Office that the subject 

14 judge be reimbursed for reasonable expenses incurred, including attorneys’ fees. The 

15 judicial council has the authority to recommend such reimbursement where, after 

16 investigation by a special committee, the complaint has been finally dismissed or 

17 concluded under subsection (b)(1)(A) or (B) of this Rule. It is contemplated that such 

18 reimbursement may be provided for the successful prosecution or defense of a 

19 proceeding under Rule 21(a) or (b), in other words, one that results in a Rule 

20 20(b)(1)(A) or (B) dismissal or conclusion.

21 Rule 20(f) requires that judicial-council action be by order and, normally, that it be 

22 supported with a memorandum of factual determinations and reasons. Notice of the 

23 action must be given to the complainant and the subject judge, and must include notice 

24 of any right to petition for review of the judicial council’s decision under Rule 21(b). 

25 Because an identified complaint has no “complainant” to petition for review, a judicial 

26 council’s dispositive order on an identified complaint on which a special committee has 

27 been appointed must be transmitted to the Committee on Judicial Conduct and 

28 Disability for review. The same will apply where a complaint was filed by its subject 

29 judge.

30 ARTICLE VII. REVIEW BY COMMITTEE ON JUDICIAL CONDUCT AND 

31 DISABILITY

32 21. Committee on Judicial Conduct and Disability

33 (a) Committee Review. The Committee on Judicial Conduct and 

34 Disability, consisting of seven members, considers and disposes of 

35 all petitions for review under (b) of this Rule, in conformity with the 

36 Committee’s jurisdictional statement. Its review of judicial-council 

37 orders is for errors of law, clear errors of fact, or abuse of discretion. 

38 Its disposition of petitions for review is ordinarily final. The Judicial 

39 Conference may, in its sole discretion, review any such Committee 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 51

1 decision, but a complainant or subject judge does not have a right to 

2 this review.

3 (b) Reviewable Matters.

4 (1) Upon petition. A complainant or subject judge may petition 

5 the Committee for review of a judicial-council order entered in 

6 accordance with:

7 (A) Rule 20(b)(1)(A), (B), (D), or (E); or

8 (B) Rule 19(b)(1) or (4) if one or more members of the 

9 judicial council dissented from the order.

10 (2) Upon Committee’s initiative. At its initiative and in its sole 

11 discretion, the Committee may review any judicial-council 

12 order entered under Rule 19(b)(1) or (4), but only to determine 

13 whether a special committee should be appointed. Before 

14 undertaking the review, the Committee must invite that judicial 

15 council to explain why it believes the appointment of a special 

16 committee is unnecessary, unless the reasons are clearly

17 stated in the council’s order denying the petition for review. If 

18 the Committee believes that it would benefit from a 

19 submission by the subject judge, it may issue an appropriate 

20 request. If the Committee determines that a special committee 

21 should be appointed, the Committee must issue a written 

22 decision giving its reasons.

23 (c) Committee Vote. Any member of the Committee from the same 

24 circuit as the subject judge is disqualified from considering or voting 

25 on a petition for review related to that subject judge. Committee 

26 decisions under (b) of this Rule must be by majority vote of the 

27 qualified Committee members. Those members hearing the petition 

28 for review should serve in that capacity until final disposition of the 

29 petition, whether or not their term of committee membership has 

30 ended. If only six members are qualified to consider a petition for 

31 review, the Chief Justice shall select an additional judge to join the 

32 qualified members to consider the petition. If four or fewer members 

33 are qualified to consider a petition for review, the Chief Justice shall 

34 select a panel of five judges, including the qualified Committee 

35 members, to consider it.

36 (d) Additional Investigation. Except in extraordinary circumstances, the 

37 Committee will not conduct an additional investigation. The 

38 Committee may return the matter to the judicial council with 

39 directions to undertake an additional investigation. If the Committee 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 52

1 conducts an additional investigation, it will exercise the powers of 

2 the Judicial Conference under 28 U.S.C. § 331.

3 (e) Oral Argument; Personal Appearance. There is ordinarily no oral 

4 argument or personal appearance before the Committee. In its 

5 discretion, the Committee may permit written submissions.

6 (f) Committee Decision. A Committee decision under this Rule must be 

7 transmitted promptly to the Judicial Conference. Other distribution 

8 will be by the Administrative Office at the direction of the Committee 

9 chair.

10 (g) Finality. All orders of the Judicial Conference or of the Committee 

11 (when the Conference does not exercise its power of review) are 

12 final.

13 COMMENTARY ON RULE 21

14 This Rule is largely self-explanatory.

15 Rule 21(a) is intended to clarify that the delegation of power to the Committee on 

16 Judicial Conduct and Disability to dispose of petitions for review does not preclude 

17 review of such dispositions by the Judicial Conference. However, there is no right to 

18 such review in any party.

19 Rules 21(b)(1)(B) and (b)(2) are intended to fill a jurisdictional gap as to review of 

20 a dismissal or a conclusion of a complaint under Rule 19(b)(1) or (4). Where one or 

21 more members of a judicial council reviewing a petition have dissented, the complainant 

22 or the subject judge has the right to petition for review by the Committee. Under Rule 

23 21(b)(2), the Committee may review such a dismissal or conclusion in its sole 

24 discretion, whether or not a dissent occurred, and only as to the appointment of a 

25 special committee. Any review under Rule 21(b)(2) will be conducted as soon as 

26 practicable after the dismissal or conclusion at issue. No party has a right to such 

27 review, and such review will be rare.

28 Rule 21(c) provides for review only by Committee members from circuits other 

29 than that of the subject judge. The Rule provides that every petition for review must be 

30 considered and voted on by at least five, and if possible by seven, qualified Committee 

31 members to avoid the possibility of tie votes. If six, or four or fewer, members are 

32 qualified, the Chief Justice shall appoint other judges to join the qualified members to 

33 consider the petition for review. To the extent possible, the judges whom the Chief 

34 Justice selects to join the qualified members should be drawn from among former 

35 members of the Committee.

36 Under this Rule, all Committee decisions are final in that they are unreviewable 

37 unless the Judicial Conference, in its discretion, decides to review a decision. 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 53

1 Committee decisions, however, do not necessarily constitute final action on a complaint 

2 for purposes of Rule 24.

3 22. Procedures for Review

4 (a) Filing Petition for Review. A petition for review of a judicial-council 

5 decision on a reviewable matter, as defined in Rule 21(b)(1), may be 

6 filed by sending a brief written statement to the Committee on 

7 Judicial Conduct and Disability at 

8 JCD_PetitionforReview@ao.uscourts.gov or to:

9 Judicial Conference Committee on Judicial Conduct and 

10 Disability

11 Attn: Office of General Counsel

12 Administrative Office of the United States Courts

13 One Columbus Circle, NE

14 Washington, D.C. 20544

15 The Administrative Office will send a copy of the petition for review 

16 to the complainant or the subject judge, as the case may be.

17 (b) Form and Contents of Petition. No particular form is required. The 

18 petition for review must contain a short statement of the basic facts 

19 underlying the complaint, the history of its consideration before the 

20 appropriate judicial council, a copy of the council’s decision, and the 

21 grounds on which the petitioner seeks review. The petition for 

22 review must specify the date and docket number of the 

23 judicial-council order for which review is sought. The petitioner may 

24 attach any documents or correspondence arising in the course of the 

25 proceeding before the judicial council or its special committee. A 

26 petition for review should not normally exceed 20 pages plus 

27 necessary attachments. A petition for review must be signed by the 

28 petitioner or his or her attorney.

29 (c) Time. A petition for review must be submitted within 42 days after 

30 the date of the order for which review is sought.

31 (d) Action on Receipt of Petition. When a petition for review of a 

32 judicial-council decision on a reviewable matter, as defined in Rule 

33 21(b)(1), is submitted in accordance with this Rule, the 

34 Administrative Office shall acknowledge its receipt, notify the chair 

35 of the Committee on Judicial Conduct and Disability, and distribute 

36 the petition to the members of the Committee for their deliberation.

37 COMMENTARY ON RULE 22

38 Rule 22 is self-explanatory.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 54

1 ARTICLE VIII. MISCELLANEOUS RULES

2 23. Confidentiality

3 (a) Confidentiality Generally. Confidentiality as referenced in these 

4 Rules is directed toward protecting the fairness and thoroughness of 

5 the process by which a complaint is filed or initiated, investigated (in 

6 specific circumstances), and ultimately resolved, as specified under 

7 these Rules.

8 (b) Confidentiality in the Complaint Process.

9 (a1) General Rule. The consideration of a complaint by a chief 

10 judge, a special committee, a judicial council, or the 

11 Committee on Judicial Conduct and Disability is confidential. 

12 Information about this consideration must not be publicly 

13 disclosed by any judge or judicial employee, of the judiciary

14 or by any person who records or transcribes testimony except 

15 as allowed by these Rules. A chief judge, a judicial council, or 

16 the Committee on Judicial Conduct and Disability may 

17 disclose the existence of a proceeding under these Rules 

18 when necessary or appropriate to maintain public confidence 

19 in the judiciary’s ability to redress misconduct or disability.

20 (b2) Files. All files related to a complaint must be separately 

21 maintained with appropriate security precautions to ensure 

22 confidentiality.

23 (c3) Disclosure in Decisions. Except as otherwise provided in Rule 

24 24, written decisions of a chief judge, a judicial council, or the 

25 Committee on Judicial Conduct and Disability, and dissenting 

26 opinions or separate statements of members of a council or 

27 the Committee may contain information and exhibits that the 

28 authors consider appropriate for inclusion, and the 

29 information and exhibits may be made public.

30 (d4) Availability to Judicial Conference. On request of the Judicial 

31 Conference or its Committee on Judicial Conduct and 

32 Disability, the circuit clerk must furnish any requested records 

33 related to a complaint. For auditing purposes, the circuit clerk 

34 must provide access to the Committee on Judicial Conduct 

35 and Disability to records of proceedings under the Act at the 

36 site where the records are kept.

37 (e5) Availability to District Court. If the judicial council directs the 

38 initiation of proceedings for removal of a magistrate judge 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 55

1 under Rule 20(b)(1)(D)(iii), the circuit clerk must provide to the 

2 chief judge of the district court copies of the report of the

3 special committee and any other documents and records that 

4 were before the council at the time of its decision. On request 

5 of the chief judge of the district court, the judicial council may 

6 authorize release to that chief judge of any other records 

7 relating to the investigation.

8 (f6) Impeachment ProceedingsCommunications with the House of 

9 Representatives. If the Judicial Conference determines that 

10 consideration of impeachment may be warranted, it must 

11 transmit the record of all relevant proceedings to the Speaker 

12 of the House of Representatives. The Secretary of the Judicial 

13 Conference may authorize disclosure of the existence of a 

14 complaint or proceeding to the appropriate officials in the 

15 House of Representatives.

16 (g7) Subject Judge’s Consent. If both the subject judge and the 

17 chief judge consent in writing, any materials from the files may 

18 be disclosed to any person. In any such disclosure, the chief 

19 judge may require that the identity of the complainant, or of 

20 witnesses in an investigation conducted under these Rules, 

21 not be revealed.

22 (h8) Disclosure in Special Circumstances. The Judicial 

23 Conference, its Committee on Judicial Conduct and Disability, 

24 or a judicial council, or a chief judge may authorize disclosure 

25 of information about the consideration of a complaint, 

26 including the papers, documents, and transcripts relating to 

27 the investigation, to the extent that disclosure is justified by 

28 special circumstances and is not prohibited by the Act. For 

29 example, Ddisclosure may be made to judicial researchers 

30 engaged in the study or evaluation of experience under the Act 

31 and related modes of judicial discipline, but only where the 

32 study or evaluation has been specifically approved by the 

33 Judicial Conference or by the Committee on Judicial Conduct 

34 and Disability. Appropriate steps must be taken to protect the 

35 identities of the subject judge, the complainant, and witnesses 

36 from public disclosure. Other appropriate safeguards to 

37 protect against the dissemination of confidential information 

38 may be imposed.

39 (i9) Disclosure of Identity by Subject Judge. Nothing in this Rule 

40 precludes the subject judge from acknowledging that he or 

41 she is the judge referred to in documents made public under 

42 Rule 24.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 56

1 (j10) Assistance and Consultation. Nothing in this Rule prohibits a 

2 chief judge, a special committee, a judicial council, or the 

3 Judicial Conference or its Committee on Judicial Conduct and 

4 Disability, in the performance of any function authorized under 

5 the Act or these Rules, from seeking the help of qualified staff 

6 or experts or from consulting other judges who may be helpful 

7 regarding the performance of that function.

8 k(c) Disclosure of Misconduct and Disability. Nothing in these Rules and 

9 Commentary concerning the confidentiality of the complaint 

10 process, or in the Code of Conduct for Judicial Employees 

11 concerning the use or disclosure of confidential information received 

12 in the course of official duties, prevents a judicial employee from 

13 reporting or disclosing misconduct.

14 COMMENTARY ON RULE 23

15 Rule 23 was adapted from the Illustrative Rules.

16 The Act applies a rule of confidentiality to “papers, documents, and records of 

17 proceedings related to investigations conducted under this chapter” and states that they 

18 may not be disclosed “by any person in any proceeding,” with enumerated exceptions. 

19 28 U.S.C. § 360(a). Three questions arise: Who is bound by the confidentiality rule, 

20 what proceedings are subject to the rule, and who is within the circle of people who may 

21 have access to information without breaching the rule?

22 With regard to the first question, Rule 23(ab)(1) provides that judges, employees 

23 of the judiciary, and those persons involved in recording proceedings and preparing 

24 transcripts are obliged to respect the confidentiality requirement. This of course 

25 includes subject judges who do not consent to identification under Rule 23(i).

26 With regard to the second question, Rule 23(ab)(1) applies the rule of 

27 confidentiality broadly to consideration of a complaint at any stage.

28 With regard to the third question, there is no barrier of confidentiality among a 

29 chief judge, a judicial council, the Judicial Conference, and the Committee on Judicial 

30 Conduct and Disability. Each may have access to any of the confidential records for 

31 use in their consideration of a referred matter, a petition for review, or monitoring the 

32 administration of the Act. A district court may have similar access if the judicial council 

33 orders the district court to initiate proceedings to remove a magistrate judge from office, 

34 and Rule 23(eb)(5) so provides.

35 In extraordinary circumstances, a chief judge may disclose the existence of a 

36 proceeding under these Rules. The disclosure of such information in high-visibility or 

37 controversial cases is to reassure the public that the judiciary is capable of redressing 

38 judicial misconduct or disability. Moreover, the confidentiality requirement does not 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 57

1 prevent the chief judge from “communicat[ing] orally or in writing with . . . [persons] who 

2 may have knowledge of the matter,” as part of a limited inquiry conducted by the chief 

3 judge under Rule 11(b).

4 Rule 23 recognizes that there must be some exceptions to the Act’s 

5 confidentiality requirement. For example, the Act requires that certain orders and the 

6 reasons for them must be made public. 28 U.S.C. § 360(b). Rule 23(cb)(3) makes it 

7 explicit that written decisions, as well as dissenting opinions and separate statements, 

8 may contain references to information that would otherwise be confidential and that 

9 such information may be made public. However, subsection (cb)(3) is subject to Rule 

10 24(a), which provides the general rule regarding the public availability of decisions. For 

11 example, the name of a subject judge cannot be made public in a decision if disclosure 

12 of the name is prohibited by that Rule.

13 The Act makes clear that there is a barrier of confidentiality between the judicial 

14 branch and the legislative branch. It provides that material may be disclosed to 

15 Congress only if it is believed necessary to an impeachment investigation or trial of a 

16 judge. 28 U.S.C. § 360(a)(2). Accordingly, Section 355(b) of the Act requires the 

17 Judicial Conference to transmit the record of a proceeding to the House of 

18 Representatives if the Conference believes that impeachment of a subject judge may be 

19 appropriate. Rule 23(fb)(6) implements this requirement.

20 The Act provides that confidential materials may be disclosed if authorized in 

21 writing by the subject judge and by the chief judge. 28 U.S.C. § 360(a)(3). Rule 

22 23(bg)(7) implements this requirement. Once the subject judge has consented to the 

23 disclosure of confidential materials related to a complaint, the chief judge ordinarily will 

24 refuse consent only to the extent necessary to protect the confidentiality interests of the 

25 complainant or of witnesses who have testified in investigatory proceedings or who 

26 have provided information in response to a limited inquiry undertaken pursuant to Rule 

27 11. It will generally be necessary, therefore, for the chief judge to require that the 

28 identities of the complainant or of such witnesses, as well as any identifying information, 

29 be shielded in any materials disclosed, except insofar as the chief judge has secured 

30 the consent of the complainant or of a particular witness to disclosure, or there is a 

31 demonstrated need for disclosure of the information that, in the judgment of the chief 

32 judge, outweighs the confidentiality interest of the complainant or of a particular witness 

33 (as may be the case where the complainant is delusional or where the complainant or a 

34 particular witness has already demonstrated a lack of concern about maintaining the 

35 confidentiality of the proceedings).

36 Rule 23(bh)(8) permits disclosure of additional information in circumstances not 

37 enumerated. For example, disclosure may be appropriate to permit a prosecution for 

38 perjury based on testimony given before a special committee. Another example might, 

39 where a special committee discovers involve evidence of a judge’s criminal conduct

40 conduct by a judge discovered by a special committee, to permit disciplinary action by a 

41 bar association or other licensing body, or in other appropriate circumstances.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 58

1 Under subsection (b)(8), where a complainant or other person has publicly 

2 released information regarding the existence of a complaint proceeding, the Judicial 

3 Conference, the Committee on Judicial Conduct and Disability, a judicial council, or a 

4 chief judge may authorize the disclosure of information about the consideration of the 

5 complaint, including orders and other materials related to the complaint proceeding, in 

6 the interest of assuring the public that the judiciary is acting effectively and expeditiously 

7 in addressing the relevant complaint proceeding.

8 Subsection (hb)(8) also permits the authorization of disclosure of information 

9 about the consideration of a complaint, including the papers, documents, and transcripts 

10 relating to the investigation, to judicial researchers engaged in the study or evaluation of 

11 experience under the Act and related modes of judicial discipline. The Rule envisions 

12 disclosure of information from the official record of a complaint proceeding to a limited 

13 category of persons for appropriately authorized research purposes only, and with 

14 appropriate safeguards to protect individual identities in any published research results. 

15 In authorizing disclosure, a judicial council may refuse to release particular materials 

16 when such release would be contrary to the interests of justice, or when those materials

17 constitute purely internal communications. The Rule does not envision disclosure of 

18 purely internal communications between judges and their colleagues and staff.

19 Under Rule 23(jb)(10), any of the specified judges or entities performing a 

20 function authorized under these Rules may seek expert or staff assistance or may 

21 consult with other judges who may be helpful regarding performance of that function; 

22 the confidentiality requirement does not preclude this. A chief judge, for example, may 

23 properly seek the advice and assistance of another judge who the chief judge deems to 

24 be in the best position to communicate with the subject judge in an attempt to bring 

25 about corrective action. As another example, a new chief judge may wish to confer with 

26 a predecessor to learn how similar complaints have been handled. In consulting with 

27 other judges, of course, a chief judge should disclose information regarding the 

28 complaint only to the extent the chief judge deems necessary under the circumstances.

29 Rule 23(c) provides that confidentiality as referenced in these Rules and 

30 Commentary is directed toward protecting the fairness and thoroughness of the process 

31 by which a complaint is filed or initiated, investigated (in specific circumstances), and 

32 ultimately resolved, as specified under these Rules. Nothing in these Rules concerning 

33 the confidentiality of the complaint process or the Code of Conduct for Judicial 

34 Employees concerning use or disclosure of confidential information received in the 

35 course of official duties prevents judicial employees from reporting or disclosing 

36 misconduct. Judges should bring such matters to the attention of an appropriate judge 

37 or other official. See Rule 4(a)(6). Judges should be mindful of Canon 3(B)(6) of the 

38 Code of Conduct for United States Judges, which provides in part that a judge “should 

39 take appropriate action upon learning of reliable evidence indicating the likelihood that a 

40 judge’s conduct contravened this Code.”
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 59

1 24. Public Availability of Decisions

2 (a) General Rule; Specific Cases. When final action has been taken on a 

3 complaint and it is no longer subject to review as of right, all orders 

4 entered by the chief judge and judicial council, including memoranda 

5 incorporated by reference in those orders and any dissenting 

6 opinions or separate statements by members of the judicial council, 

7 but excluding any orders under Rule 5 or 11(f), must be made public, 

8 with the following exceptions:

9 (1) if the complaint is finally dismissed under Rule 11(c) without 

10 the appointment of a special committee, or if it is concluded 

11 under Rule 11(d) because of voluntary corrective action, the 

12 publicly available materials must generally should not disclose 

13 the name of the subject judge without his or her consent.

14 (2) if the complaint is concluded because of intervening events, or 

15 dismissed at any time after a special committee is appointed, 

16 the judicial council must determine whether the name of the 

17 subject judge should be disclosed.

18 (3) if the complaint is finally disposed of by a privately 

19 communicated censure or reprimand, the publicly available 

20 materials must not disclose either the name of the subject 

21 judge or the text of the reprimand.

22 (4) if the complaint is finally disposed of under Rule 20(b)(1)(D) by 

23 any remedial action other than private censure or reprimand, 

24 the text of the dispositive order must be included in the 

25 materials made public, and the name of the subject judge must 

26 be disclosed.

27 (5) the name of the complainant must not be disclosed in 

28 materials made public under this Rule unless the chief judge 

29 or the judicial council orders disclosure.

30 (b) Manner of Making Public. The orders described in (a) must be made 

31 public by placing the orders on the court’s public website and by 

32 placing them in a publicly accessible file in the office of the circuit 

33 clerk and by placing the orders on the court’s public website. If the 

34 orders appear to have precedential value, the chief judge may cause 

35 them to be published. In addition, the Committee on Judicial 

36 Conduct and Disability will make available on the judiciary’s website, 

37 www.uscourts.gov, selected illustrative orders described in 

38 paragraph (a), appropriately redacted, to provide additional 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 60

1 information to the public on how complaints are addressed under the 

2 Act.

3 (c) Orders of Committee on Judicial Conduct and Disability. Orders of 

4 the Committee on Judicial Conduct and Disability constituting final 

5 action in a complaint proceeding arising from a particular circuit will 

6 be made available to the public in the office of the circuit clerk of the 

7 relevant court of appeals. The Committee on Judicial Conduct and 

8 Disability will also make such orders available on the judiciary’s 

9 website, www.uscourts.gov. When authorized by the Committee on 

10 Judicial Conduct and Disability, other orders related to complaint 

11 proceedings will similarly be made available.

12 (d) Complaints Referred to Judicial Conference. If a complaint is 

13 referred to the Judicial Conference under Rule 20(b)(1)(C) or 20(b)(2), 

14 materials relating to the complaint will be made public only if ordered 

15 by the Judicial Conference.

16 COMMENTARY ON RULE 24

17 Rule 24 is adapted from the Illustrative Rules and the recommendations of the 

18 Breyer Committee.

19 The Act requires the circuits to make available only written orders of a judicial 

20 council or the Judicial Conference imposing some form of sanction. 28 U.S.C. § 360(b). 

21 The Judicial Conference, however, has long recognized the desirability of public 

22 availability of a broader range of orders and other materials. In 1994, the Judicial 

23 Conference “urge[d] all circuits and courts covered by the Act to submit to the West 

24 Publishing Company, for publication in Federal Reporter 3d, and to Lexis all orders 

25 issued pursuant to [the Act] that are deemed by the issuing circuit or court to have 

26 significant precedential value to other circuits and courts covered by the Act.” Report of 

27 the Proceedings of the Judicial Conference of the United States, Mar. 1994, at 28. 

28 Following this recommendation, the 2000 revision of the Illustrative Rules contained a 

29 public availability provision very similar to Rule 24. In 2002, the Judicial Conference 

30 again voted to encourage the circuits “to submit non-routine public orders disposing of 

31 complaints of judicial misconduct or disability for publication by on-line and print 

32 services.” Report of the Proceedings of the Judicial Conference of the United States, 

33 Sept. 2002, at 58. The Breyer Committee Report further emphasized that “[p]osting 

34 such orders on the judicial branch’s public website would not only benefit judges 

35 directly, it would also encourage scholarly commentary and analysis of the orders.” 

36 Breyer Committee Report, 239 F.R.D. at 216. With these considerations in mind, Rule 

37 24 provides for public availability of a wide range of materials.

38 Rule 24 provides for public availability of orders of a chief judge, a judicial 

39 council, and the Committee on Judicial Conduct and Disability, as well as the texts of 

40 memoranda incorporated by reference in those orders, together with any dissenting 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 61

1 opinions or separate statements by members of the judicial council. No memoranda 

2 other than those incorporated by reference in those orders shall be disclosed. 

3 However, these orders and memoranda are to be made public only when final action on 

4 the complaint has been taken and any right of review has been exhausted. The 

5 provision that decisions will be made public only after final action has been taken is 

6 designed in part to avoid public disclosure of the existence of pending proceedings. 

7 Whether the name of the subject judge is disclosed will then depend on the nature of 

8 the final action. If the final action is an order predicated on a finding of misconduct or 

9 disability (other than a privately communicated censure or reprimand) the name of the 

10 subject judge must be made public. If the final action is dismissal of the complaint, the 

11 name of the subject judge must not be disclosed. Rule 24(a)(1) provides that where a 

12 proceeding is concluded under Rule 11(d) by the chief judge on the basis of voluntary 

13 corrective action, the name of the subject judge must generally should not be disclosed, 

14 except where the complainant or another person has disclosed the existence of a 

15 complaint proceeding to the public. Shielding the name of the subject judge in this 

16 circumstance should encourage informal disposition. 

17 If a complaint is dismissed as moot, or because intervening events have made 

18 action on the complaint unnecessary, after appointment of a special committee, Rule 

19 24(a)(2) allows the judicial council to determine whether the subject judge will be 

20 identified. In such a case, no final decision has been rendered on the merits, but it may 

21 be in the public interest — particularly if a judicial officer resigns in the course of an 

22 investigation — to make the identity of the subject judge known.

23 Once a special committee has been appointed, and a proceeding is concluded 

24 by the full judicial council on the basis of a remedial order of the council, Rule 24(a)(4) 

25 provides for disclosure of the name of the subject judge.

26 Rule 24(a)(5) provides that the identity of the complainant will be disclosed only if 

27 the chief judge so orders. Identifying the complainant when the subject judge is not 

28 identified would increase the likelihood that the identity of the subject judge would 

29 become publicly known, thus circumventing the policy of nondisclosure. It may not 

30 always be practicable to shield the complainant’s identity while making public disclosure 

31 of the judicial council’s order and supporting memoranda; in some circumstances, 

32 moreover, the complainant may consent to public identification.

33 Rule 24(b) makes clear that circuits must post on their external websites all 

34 orders required to be made public under Rule 24(a). Individual circuits should seek 

35 ways to make decisions on complaints filed in their courts more readily accessible to the 

36 public through searchable electronic indices.

37 Matters involving orders issued following a special-committee investigation often 

38 involve highly sensitive situations, and it is important that judicial councils have every 

39 opportunity to reach a correct and just outcome. This would include the ability to reach 

40 informal resolution before a subject judge’s identity must be released. But there must 

41 also come a point of procedural finality. The date of finality — and thus the time at 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 62

1 which other safeguards and rules such as the publication requirement are triggered —

2 is the date on which the judicial council issues a Final Order. See In re Complaint of 

3 Judicial Misconduct, 751 F.3d 611, 617 (2014) (requiring publication of a judicial council 

4 order “[e]ven though the period for review had not yet elapsed” and concluding that “the 

5 order was a final decision because the Council had adjudicated the matter on the merits 

6 after having received a report from a special investigating committee”). As determined 

7 in the cited case, modifications of this kind to a final order are subject to review by the 

8 Committee on Judicial Conduct and Disability. 

9 25. Disqualification

10 (a) General Rule. Any judge is disqualified from participating in any 

11 proceeding under these Rules if the judge, in his or her discretion,

12 concludes that circumstances warrant disqualification. If a

13 complaint is filed by a judge, that judge is disqualified from 

14 participating in any consideration of the complaint except to the 

15 extent that these Rules provide for a complainant’s participation. A 

16 chief judge who has identified a complaint under Rule 5 is not 

17 automatically disqualified from considering the complaint.

18 (b) Subject Judge. A subject judge, including a chief judge, is 

19 disqualified from considering a complaint except to the extent that 

20 these Rules provide for participation by a subject judge.

21 (c) Chief Judge Disqualified from Considering Petition for Review of 

22 Chief Judge’s Order. If a petition for review of the chief judge’s order 

23 entered under Rule 11(c), (d), or (e) is filed with the judicial council in 

24 accordance with Rule 18, the chief judge is disqualified from

25 participating in the council’s consideration of the petition.

26 (d) Member of Special Committee Not Disqualified. A member of the 

27 judicial council who serves on a special committee, including the 

28 chief judge, is not disqualified from participating in council

29 consideration of the committee’s report.

30 (e) Subject Judge’s Disqualification After Appointment of Special 

31 Committee. Upon appointment of a special committee, the subject 

32 judge is disqualified from participating in the identification or 

33 consideration of any complaint, related or unrelated to the pending 

34 matter, under the Act or these Rules. The disqualification continues 

35 until all proceedings on the complaint against the subject judge are 

36 finally terminated with no further right of review.

37 (f) Substitute for Disqualified Chief Judge. If the chief judge is 

38 disqualified from performing duties that the Act and these Rules 

39 assign to a chief judge (including where a complaint is filed against a 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 63

1 chief judge), those duties must be assigned to the most-senior active 

2 circuit judge not disqualified. If all circuit judges in regular active 

3 service are disqualified, the judicial council may determine whether 

4 to request a transfer under Rule 26, or, in the interest of sound 

5 judicial administration, to permit the chief judge to dispose of the 

6 complaint on the merits. Members of the judicial council who are 

7 named in the complaint may participate in this determination if 

8 necessary to obtain a quorum of the council.

9 (g) Judicial-Council Action When Multiple Judges Disqualified. 

10 Notwithstanding any other provision in these Rules to the contrary,

11 (1) a member of the judicial council who is a subject judge may 

12 participate in its disposition if:

13 (A) participation by one or more subject judges is 

14 necessary to obtain a quorum of the judicial council;

15 (B) the judicial council finds that the lack of a quorum is 

16 due to the naming of one or more judges in the 

17 complaint for the purpose of disqualifying that judge or 

18 those judges, or to the naming of one or more judges 

19 based on their participation in a decision excluded from 

20 the definition of misconduct under Rule 3(h)(3); and

21 (C) the judicial council votes that it is necessary, 

22 appropriate, and in the interest of sound judicial 

23 administration that one or more subject judges be 

24 eligible to act.

25 (2) otherwise disqualified members may participate in votes taken 

26 under (g)(1)(B) and (g)(1)(C).

27 (h) Disqualification of Members of Committee on Judicial Conduct and 

28 Disability. No member of the Committee on Judicial Conduct and 

29 Disability is disqualified from participating in any proceeding under 

30 the Act or these Rules because of consultations with a chief judge, a 

31 member of a special committee, or a member of a judicial council 

32 about the interpretation or application of the Act or these Rules, 

33 unless the member believes that the consultation would prevent 

34 fair-minded participation.

35 COMMENTARY ON RULE 25

36 Rule 25 is adapted from the Illustrative Rules.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 64

1 Subsection (a) provides the general rule for disqualification. Of course, a judge 

2 is not disqualified simply because the subject judge is on the same court. However, this 

3 subsection recognizes that there may be cases in which an appearance of bias or 

4 prejudice is created by circumstances other than an association with the subject judge 

5 as a colleague. For example, a judge may have a familial relationship with a 

6 complainant or subject judge. When such circumstances exist, a judge may, in his or 

7 her discretion, conclude that disqualification is warranted.

8 Subsection (e) makes it clear that the disqualification of the subject judge relates 

9 only to the subject judge’s participation in any proceeding arising under the Act or these 

10 Rules. For example, the subject judge cannot initiate complaints by identification, 

11 conduct limited inquiries, or choose between dismissal and special-committee 

12 investigation as the threshold disposition of a complaint. Likewise, the subject judge 

13 cannot participate in any proceeding arising under the Act or these Rules as a member 

14 of any special committee, the judicial council of the circuit, the Judicial Conference, or 

15 the Committee on Judicial Conduct and Disability. The Illustrative Rule, based on 

16 Section 359(a) of the Act, is ambiguous and could be read to disqualify a subject judge 

17 from service of any kind on each of the bodies mentioned. This is undoubtedly not the 

18 intent of the Act; such a disqualification would be anomalous in light of the Act’s 

19 allowing a subject judge to continue to decide cases and to continue to exercise the 

20 powers of chief circuit or district judge. It would also create a substantial deterrence to 

21 the appointment of special committees, particularly where a special committee is 

22 needed solely because the chief judge may not decide matters of credibility in his or her 

23 review under Rule 11.

24 While a subject judge is barred by Rule 25(b) from participating in the disposition 

25 of the complaint in which he or she is named, Rule 25(e) recognizes that participation in 

26 proceedings arising under the Act or these Rules by a judge who is the subject of a 

27 special committee investigation may lead to an appearance of self-interest in creating 

28 substantive and procedural precedents governing such proceedings. Rule 25(e) bars 

29 such participation.

30 Under the Act, a complaint against the chief judge is to be handled by “that circuit 

31 judge in regular active service next senior in date of commission.” 28 U.S.C. § 351(c). 

32 Rule 25(f) provides that seniority among judges other than the chief judge is to be 

33 determined by date of commission, with the result that complaints against the chief 

34 judge may be routed to a former chief judge or other judge who was appointed earlier 

35 than the chief judge. The Rules do not purport to prescribe who is to preside over 

36 meetings of the judicial council. Consequently, where the presiding member of the 

37 judicial council is disqualified from participating under these Rules, the order of 

38 precedence prescribed by Rule 25(f) for performing “duties that the Act and these Rules 

39 assign to a chief judge” does not apply to determine the acting presiding member of the 

40 council. That is a matter left to the internal rules or operating practices of each judicial 

41 council. In most cases the most senior active circuit judge who is a member of the 

42 judicial council and who is not disqualified will preside.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 65

1 Sometimes a single complaint is filed against a large group of judges. If the 

2 normal disqualification rules are observed in such a case, no court of appeals judge can 

3 serve as acting chief judge of the circuit, and the judicial council will be without appellate 

4 members. Where the complaint is against all circuit and district judges, under normal 

5 rules no member of the judicial council can perform the duties assigned to the council 

6 under the statute.

7 A similar problem is created by successive complaints arising out of the same 

8 underlying grievance. For example, a complainant files a complaint against a district 

9 judge based on alleged misconduct, and the complaint is dismissed by the chief judge 

10 under the statute. The complainant may then file a complaint against the chief judge for 

11 dismissing the first complaint, and when that complaint is dismissed by the next senior 

12 judge, still a third complaint may be filed. The threat is that the complainant will bump 

13 down the seniority ladder until, once again, there is no member of the court of appeals 

14 who can serve as acting chief judge for the purpose of the next complaint. Similarly, 

15 complaints involving the merits of litigation may involve a series of decisions in which 

16 many judges participated or in which a rehearing en banc was denied by the court of 

17 appeals, and the complaint may name a majority of the judicial council as subject 

18 judges.

19 In recognition that these multiple-judge complaints are virtually always meritless, 

20 the judicial council is given discretion to determine: (1) whether it is necessary, 

21 appropriate, and in the interest of sound judicial administration to permit the chief judge 

22 to dispose of a complaint where it would otherwise be impossible for any active circuit 

23 judge in the circuit to act, and (2) whether it is necessary, appropriate, and in the 

24 interest of sound judicial administration, after appropriate findings as to need and 

25 justification are made, to permit subject judges of the judicial council to participate in the 

26 disposition of a petition for review where it would otherwise be impossible to obtain a 

27 quorum.

28 Applying a rule of necessity in these situations is consistent with the appearance 

29 of justice. See, e.g., In re Complaint of Doe, 2 F.3d 308 (8th Cir. Jud. Council 1993) 

30 (invoking the rule of necessity); In re Complaint of Judicial Misconduct, No. 91-80464 

31 (9th Cir. Jud. Council 1992) (same). There is no unfairness in permitting the chief judge 

32 to dispose of a patently insubstantial complaint that names all active circuit judges in the 

33 circuit.

34 Similarly, there is no unfairness in permitting subject judges, in these 

35 circumstances, to participate in the review of the chief judge’s dismissal of an 

36 insubstantial complaint. The remaining option is to assign the matter to another body. 

37 Among other alternatives, the judicial council may request a transfer of the petition 

38 under Rule 26. Given the administrative inconvenience and delay involved in these 

39 alternatives, it is desirable to request a transfer only if the judicial council determines 

40 that the petition for review is substantial enough to warrant such action.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 66

1 In the unlikely event that a quorum of the judicial council cannot be obtained to 

2 consider the report of a special committee, it would normally be necessary to request a 

3 transfer under Rule 26.

4 Rule 25(h) recognizes that the jurisdictional statement of the Committee on 

5 Judicial Conduct and Disability contemplates consultation between members of the 

6 Committee and judicial participants in proceedings under the Act and these Rules. 

7 Such consultation should not automatically preclude participation by a member in that 

8 proceeding.

9 26. Transfer to Another Judicial Council

10 In exceptional circumstances, a chief judge or a judicial council may ask the 

11 Chief Justice to transfer a proceeding based on a complaint identified under Rule 

12 5 or filed under Rule 6 to the judicial council of another circuit. The request for a 

13 transfer may be made at any stage of the proceeding before a reference to the 

14 Judicial Conference under Rule 20(b)(1)(C) or 20(b)(2) or a petition for review is 

15 filed under Rule 22. Upon receiving such a request, the Chief Justice may refuse 

16 the request or select the transferee judicial council, which may then exercise the 

17 powers of a judicial council under these Rules.

18 COMMENTARY ON RULE 26

19 Rule 26 implements the Breyer Committee’s recommended use of transfers. 

20 Breyer Committee Report, 239 F.R.D. at 214–15.

21 Rule 26 authorizes the transfer of a complaint proceeding to another judicial 

22 council selected by the Chief Justice. Such transfers may be appropriate, for example, 

23 in the case of a serious complaint where there are multiple disqualifications among the 

24 original judicial council, where the issues are highly visible and a local disposition may 

25 weaken public confidence in the process, where internal tensions arising in the council 

26 as a result of the complaint render disposition by a less involved council appropriate, or 

27 where a complaint calls into question policies or governance of the home court of 

28 appeals. The power to effect a transfer is lodged in the Chief Justice to avoid disputes 

29 in a judicial council over where to transfer a sensitive matter and to ensure that the 

30 transferee council accepts the matter.

31 Upon receipt of a transferred proceeding, the transferee judicial council shall 

32 determine the proper stage at which to begin consideration of the complaint — for 

33 example, reference to the transferee chief judge, appointment of a special committee, 

34 etc.

35 27. Withdrawal of Complaint or Petition for Review

36 (a) Complaint Pending Before Chief Judge. With the chief judge’s 

37 consent, the complainant may withdraw a complaint that is before 

38 the chief judge for a decision under Rule 11. The withdrawal of a 
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 67

1 complaint will not prevent the chief judge from identifying or having 

2 to identify a complaint under Rule 5 based on the withdrawn 

3 complaint.

4 (b) Complaint Pending Before Special Committee or Judicial Council. 

5 After a complaint has been referred to the special committee for 

6 investigation and before the committee files its report, the 

7 complainant may withdraw the complaint only with the consent of 

8 both the subject judge and either the special committee or the 

9 judicial council.

10 (c) Petition for Review. A petition for review addressed to the judicial 

11 council under Rule 18, or the Committee on Judicial Conduct and 

12 Disability under Rule 22, may be withdrawn if no action on the 

13 petition has been taken.

14 COMMENTARY ON RULE 27

15 Rule 27 is adapted from the Illustrative Rules and treats the complaint 

16 proceeding, once begun, as a matter of public business rather than as the property of 

17 the complainant. Accordingly, the chief judge or the judicial council remains responsible 

18 for addressing any complaint under the Act, even a complaint that has been formally 

19 withdrawn by the complainant.

20 Under subsection (a), a complaint pending before the chief judge may be 

21 withdrawn if the chief judge consents. Where the complaint clearly lacked merit, the 

22 chief judge may accordingly be saved the burden of preparing a formal order and 

23 supporting memorandum. However, the chief judge may, or be obligated under Rule 5, 

24 to identify a complaint based on allegations in a withdrawn complaint.

25 If the chief judge appoints a special committee, Rule 27(b) provides that the 

26 complaint may be withdrawn only with the consent of both the body before which it is 

27 pending (the special committee or the judicial council) and the subject judge. Once a 

28 complaint has reached the stage of appointment of a special committee, a resolution of 

29 the issues may be necessary to preserve public confidence. Moreover, the subject 

30 judge is given the right to insist that the matter be resolved on the merits, thereby 

31 eliminating any ambiguity that might remain if the proceeding were terminated by 

32 withdrawal of the complaint.

33 With regard to all petitions for review, Rule 27(c) grants the petitioner unrestricted 

34 authority to withdraw the petition. It is thought that the public’s interest in the 

35 proceeding is adequately protected, because there will necessarily have been a 

36 decision by the chief judge and often by the judicial council as well in such a case.
Guide to Judiciary Policy, Vol. 2E, Ch. 3 Page 68

1 28. Availability of Rules and Forms

2 These Rules and copies of the complaint form as provided in Rule 6(a) must be 

3 available without charge in the office of the circuit clerk of each court of appeals, 

4 district court, bankruptcy court, or other federal court whose judges are subject 

5 to the Act. Each court must also make these Rules, the complaint form, and 

6 complaint-filing instructions available on the court’s website, or provide an 

7 Internet link to these items on the appropriate court of appeals website or on 

8 www.uscourts.gov. 

9 29. Effective Date

10 These Rules will become effective 30 days after promulgation by the Judicial 

11 Conference of the United States. Any amendments to these Rules will become 

12 effective upon promulgation by the Judicial Conference.

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

14 Disability)