II
Calendar No. 532
107TH CONGRESS
2D SESSION
H. R. 3892
IN THE SENATE OF THE UNITED STATES
JULY 23, 2002
Received; read twice and referred to the Committee on the Judiciary
JULY 31, 2002
Reported by Mr. LEAHY, with an amendment
[Strike out all after the enacting clause and insert the part printed in italic]
AN ACT
To amend title 28, United States Code, to make certain
modifications in the judicial discipline procedures, and
for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Judicial Improvements
Act of 2002’’.
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SEC. 2. JUDICIAL DISCIPLINE PROCEDURES.
(a) IN GENERAL.—Part I of title 28, United States
Code, is amended by inserting after chapter 15 the fol-
lowing new chapter:
‘‘CHAPTER 16—COMPLAINTS AGAINST JUDGES AND
JUDICIAL DISCIPLINE
‘‘Sec.
‘‘351. Complaints; judge defined.
‘‘352. Review of complaint by chief judge.
‘‘353. Special committees.
‘‘354. Action by judicial council.
‘‘355. Action by Judicial Conference.
‘‘356. Subpoena power.
‘‘357. Review of orders and actions.
‘‘358. Rules.
‘‘359. Restrictions.
‘‘360. Disclosure of information.
‘‘361. Reimbursement of expenses.
‘‘362. Other provisions and rules not affected.
‘‘363. Court of Federal Claims, Court of International Trade, Court of Appeals
for the Federal Circuit.
‘‘364. Effect of felony conviction.
‘‘§ 351. Complaints; judge defined
‘‘(a) FILING OF COMPLAINT BY ANY PERSON.—Any
person alleging that a judge has engaged in conduct preju-
dicial to the effective and expeditious administration of the
business of the courts, or alleging that such judge is un-
able to discharge all the duties of office by reason of men-
tal or physical disability, may file with the clerk of the
court of appeals for the circuit a written complaint con-
taining a brief statement of the facts constituting such
conduct.
‘‘(b) IDENTIFYING COMPLAINT BY CHIEF JUDGE.—
In the interests of the effective and expeditious adminis-
tration of the business of the courts and on the basis of
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information available to the chief judge of the circuit, the
chief judge may, by written order stating reasons therefor,
identify a complaint for purposes of this chapter and
thereby dispense with filing of a written complaint.
‘‘(c) TRANSMITTAL OF COMPLAINT.—Upon receipt of
a complaint filed under subsection (a), the clerk shall
promptly transmit the complaint to the chief judge of the
circuit, or, if the conduct complained of is that of the chief
judge, to that circuit judge in regular active service next
senior in date of commission (hereafter, for purposes of
this chapter only, included in the term ‘chief judge’). The
clerk shall simultaneously transmit a copy of the com-
plaint to the judge whose conduct is the subject of the
complaint. The clerk shall also transmit a copy of any
complaint identified under subsection (b) to the judge
whose conduct is the subject of the complaint.
‘‘(d) DEFINITIONS.—In this chapter—
‘‘(1) the term ‘judge’ means a circuit judge, dis-
trict judge, bankruptcy judge, or magistrate judge;
and
‘‘(2) the term ‘complainant’ means the person
filing a complaint under subsection (a) of this sec-
tion.
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‘‘§ 352. Review of complaint by chief judge
‘‘(a) EXPEDITIOUS REVIEW; LIMITED INQUIRY.—
The chief judge shall expeditiously review any complaint
received under section 351(a) or identified under section
351(b). In determining what action to take, the chief
judge may conduct a limited inquiry for the purpose of
determining—
‘‘(1) whether appropriate corrective action has
been or can be taken without the necessity for a for-
mal investigation; and
‘‘(2) whether the facts stated in the complaint
are either plainly untrue or are incapable of being
established through investigation.
For this purpose, the chief judge may request the judge
whose conduct is complained of to file a written response
to the complaint. Such response shall not be made avail-
able to the complainant unless authorized by the judge fil-
ing the response. The chief judge or his or her designee
may also communicate orally or in writing with the com-
plainant, the judge whose conduct is complained of, and
any other person who may have knowledge of the matter,
and may review any transcripts or other relevant docu-
ments. The chief judge shall not undertake to make find-
ings of fact about any matter that is reasonably in dispute.
‘‘(b) ACTION
BY CHIEF JUDGE FOLLOWING RE-
VIEW.—After expeditiously reviewing a complaint under
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subsection (a), the chief judge, by written order stating
his or her reasons, may—
‘‘(1) dismiss the complaint—
‘‘(A) if the chief judge finds the complaint
to be—
‘‘(i) not in conformity with section
351(a);
‘‘(ii) directly related to the merits of
a decision or procedural ruling; or
‘‘(iii) frivolous, lacking sufficient evi-
dence
to
raise
an
inference
that
mis-
conduct has occurred, or containing allega-
tions which are incapable of being estab-
lished through investigation; or
‘‘(B) when a limited inquiry conducted
under subsection (a) demonstrates that the alle-
gations in the complaint lack any factual foun-
dation or are conclusively refuted by objective
evidence; or
‘‘(2) conclude the proceeding if the chief judge
finds that appropriate corrective action has been
taken or that action on the complaint is no longer
necessary because of intervening events.
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The chief judge shall transmit copies of the written order
to the complainant and to the judge whose conduct is the
subject of the complaint.
‘‘(c) REVIEW OF ORDERS OF CHIEF JUDGE.—A com-
plainant or judge aggrieved by a final order of the chief
judge under this section may petition the judicial council
of the circuit for review thereof. The denial of a petition
for review of the chief judge’s order shall be final and con-
clusive and shall not be judicially reviewable on appeal or
otherwise.
‘‘(d) REFERRAL OF PETITIONS FOR REVIEW TO PAN-
ELS OF THE JUDICIAL COUNCIL.—Each judicial council
may, pursuant to rules prescribed under section 358, refer
a petition for review filed under subsection (c) to a panel
of no fewer than 5 members of the council, at least 2 of
whom shall be district judges.
‘‘§ 353. Special committees
‘‘(a) APPOINTMENT.—If the chief judge does not
enter an order under section 352(b), the chief judge shall
promptly—
‘‘(1) appoint himself or herself and equal num-
bers of circuit and district judges of the circuit to
a special committee to investigate the facts and alle-
gations contained in the complaint;
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‘‘(2) certify the complaint and any other docu-
ments pertaining thereto to each member of such
committee; and
‘‘(3) provide written notice to the complainant
and the judge whose conduct is the subject of the
complaint of the action taken under this subsection.
‘‘(b) CHANGE IN STATUS OR DEATH OF JUDGES.—
A judge appointed to a special committee under subsection
(a) may continue to serve on that committee after becom-
ing a senior judge or, in the case of the chief judge of
the circuit, after his or her term as chief judge terminates
under subsection (a)(3) or (c) of section 45. If a judge
appointed to a committee under subsection (a) dies, or re-
tires from office under section 371(a), while serving on
the committee, the chief judge of the circuit may appoint
another circuit or district judge, as the case may be, to
the committee.
‘‘(c) INVESTIGATION
BY SPECIAL COMMITTEE.—
Each committee appointed under subsection (a) shall con-
duct an investigation as extensive as it considers nec-
essary, and shall expeditiously file a comprehensive written
report thereon with the judicial council of the circuit. Such
report shall present both the findings of the investigation
and the committee’s recommendations for necessary and
appropriate action by the judicial council of the circuit.
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‘‘§ 354. Action by judicial council
‘‘(a) ACTIONS UPON RECEIPT OF REPORT.—
‘‘(1) ACTIONS.—The judicial council of a cir-
cuit, upon receipt of a report filed under section
353(c)—
‘‘(A) may conduct any additional investiga-
tion which it considers to be necessary;
‘‘(B) may dismiss the complaint; and
‘‘(C) if the complaint is not dismissed,
shall take such action as is appropriate to as-
sure the effective and expeditious administra-
tion of the business of the courts within the cir-
cuit.
‘‘(2) DESCRIPTION
OF
POSSIBLE
ACTIONS
IF
COMPLAINT NOT DISMISSED.—
‘‘(A) IN GENERAL.—Action by the judicial
council under paragraph (1)(C) may include—
‘‘(i) ordering that, on a temporary
basis for a time certain, no further cases
be assigned to the judge whose conduct is
the subject of a complaint;
‘‘(ii) censuring or reprimanding such
judge by means of private communication;
and
‘‘(iii) censuring or reprimanding such
judge by means of public announcement.
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‘‘(B) FOR
ARTICLE
III
JUDGES.—If the
conduct of a judge appointed to hold office dur-
ing good behavior is the subject of the com-
plaint, action by the judicial council under
paragraph (1)(C) may include—
‘‘(i) certifying disability of the judge
pursuant to the procedures and standards
provided under section 372(b); and
‘‘(ii) requesting that the judge volun-
tarily retire, with the provision that the
length of service requirements under sec-
tion 371 of this title shall not apply.
‘‘(C) FOR
MAGISTRATE
JUDGES.—If the
conduct of a magistrate judge is the subject of
the complaint, action by the judicial council
under paragraph (1)(C) may include directing
the chief judge of the district of the magistrate
judge to take such action as the judicial council
considers appropriate.
‘‘(3) LIMITATIONS ON JUDICIAL COUNCIL RE-
GARDING REMOVALS.—
‘‘(A) ARTICLE III JUDGES.—Under no cir-
cumstances may the judicial council order re-
moval from office of any judge appointed to
hold office during good behavior.
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‘‘(B)
MAGISTRATE
AND
BANKRUPTCY
JUDGES.—Any removal of a magistrate judge
under this subsection shall be in accordance
with section 631 and any removal of a bank-
ruptcy judge shall be in accordance with section
152.
‘‘(4) NOTICE OF ACTION TO JUDGE.—The judi-
cial council shall immediately provide written notice
to the complainant and to the judge whose conduct
is the subject of the complaint of the action taken
under this subsection.
‘‘(b) REFERRAL TO JUDICIAL CONFERENCE.—
‘‘(1) IN GENERAL.—In addition to the authority
granted under subsection (a), the judicial council
may, in its discretion, refer any complaint under sec-
tion 351, together with the record of any associated
proceedings and its recommendations for appropriate
action, to the Judicial Conference of the United
States.
‘‘(2) SPECIAL CIRCUMSTANCES.—In any case in
which the judicial council determines, on the basis of
a complaint and an investigation under this chapter,
or on the basis of information otherwise available to
the judicial council, that a judge appointed to hold
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office during good behavior may have engaged in
conduct—
‘‘(A) which might constitute one or more
grounds for impeachment under article II of the
Constitution, or
‘‘(B) which, in the interest of justice, is
not amenable to resolution by the judicial coun-
cil,
the judicial council shall promptly certify such deter-
mination, together with any complaint and a record
of any associated proceedings, to the Judicial Con-
ference of the United States.
‘‘(3) NOTICE TO COMPLAINANT AND JUDGE.—
A judicial council acting under authority of this sub-
section shall, unless contrary to the interests of jus-
tice, immediately submit written notice to the com-
plainant and to the judge whose conduct is the sub-
ject of the action taken under this subsection.
‘‘§ 355. Action by Judicial Conference
‘‘(a) IN GENERAL.—Upon referral or certification of
any matter under section 354(b), the Judicial Conference,
after consideration of the prior proceedings and such addi-
tional investigation as it considers appropriate, shall by
majority vote take such action, as described in section
354(a)(1)(C) and (2), as it considers appropriate.
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‘‘(b) IF IMPEACHMENT WARRANTED.—
‘‘(1) IN GENERAL.—If the Judicial Conference
concurs in the determination of the judicial council,
or makes its own determination, that consideration
of impeachment may be warranted, it shall so certify
and transmit the determination and the record of
proceedings to the House of Representatives for
whatever action the House of Representatives con-
siders to be necessary. Upon receipt of the deter-
mination and record of proceedings in the House of
Representatives, the Clerk of the House of Rep-
resentatives shall make available to the public the
determination and any reasons for the determina-
tion.
‘‘(2) IN CASE OF FELONY CONVICTION.—If a
judge has been convicted of a felony under State or
Federal law and has exhausted all means of obtain-
ing direct review of the conviction, or the time for
seeking further direct review of the conviction has
passed and no such review has been sought, the Ju-
dicial Conference may, by majority vote and without
referral or certification under section 354(b), trans-
mit to the House of Representatives a determination
that consideration of impeachment may be war-
ranted, together with appropriate court records, for
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whatever action the House of Representatives con-
siders to be necessary.
‘‘§ 356. Subpoena power
‘‘(a) JUDICIAL COUNCILS
AND SPECIAL COMMIT-
TEES.—In conducting any investigation under this chap-
ter, the judicial council, or a special committee appointed
under section 353, shall have full subpoena powers as pro-
vided in section 332(d).
‘‘(b) JUDICIAL CONFERENCE AND STANDING COM-
MITTEES.—In conducting any investigation under this
chapter, the Judicial Conference, or a standing committee
appointed by the Chief Justice under section 331, shall
have full subpoena powers as provided in that section.
‘‘§ 357. Review of orders and actions
‘‘(a) REVIEW OF ACTION OF JUDICIAL COUNCIL.—
A complainant or judge aggrieved by an action of the judi-
cial council under section 354 may petition the Judicial
Conference of the United States for review thereof.
‘‘(b) ACTION OF JUDICIAL CONFERENCE.—The Judi-
cial Conference, or the standing committee established
under section 331, may grant a petition filed by a com-
plainant or judge under subsection (a).
‘‘(c) NO JUDICIAL REVIEW.—Except as expressly
provided in this section and section 352(c), all orders and
determinations, including denials of petitions for review,
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shall be final and conclusive and shall not be judicially
reviewable on appeal or otherwise.
‘‘§ 358. Rules
‘‘(a) IN GENERAL.—Each judicial council and the
Judicial Conference may prescribe such rules for the con-
duct of proceedings under this chapter, including the proc-
essing of petitions for review, as each considers to be ap-
propriate.
‘‘(b)
REQUIRED
PROVISIONS.—Rules
prescribed
under subsection (a) shall contain provisions requiring
that—
‘‘(1) adequate prior notice of any investigation
be given in writing to the judge whose conduct is the
subject of a complaint under this chapter;
‘‘(2) the judge whose conduct is the subject of
a complaint under this chapter be afforded an op-
portunity to appear (in person or by counsel) at pro-
ceedings conducted by the investigating panel, to
present oral and documentary evidence, to compel
the attendance of witnesses or the production of doc-
uments, to cross-examine witnesses, and to present
argument orally or in writing; and
‘‘(3) the complainant be afforded an oppor-
tunity to appear at proceedings conducted by the in-
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vestigating panel, if the panel concludes that the
complainant could offer substantial information.
‘‘(c) PROCEDURES.—Any rule prescribed under this
section shall be made or amended only after giving appro-
priate public notice and an opportunity for comment. Any
such rule shall be a matter of public record, and any such
rule promulgated by a judicial council may be modified
by the Judicial Conference. No rule promulgated under
this section may limit the period of time within which a
person may file a complaint under this chapter.
‘‘§ 359. Restrictions
‘‘(a) RESTRICTION ON INDIVIDUALS WHO ARE SUB-
JECT OF INVESTIGATION.—No judge whose conduct is the
subject of an investigation under this chapter shall serve
upon a special committee appointed under section 353,
upon a judicial council, upon the Judicial Conference, or
upon the standing committee established under section
331, until all proceedings under this chapter relating to
such investigation have been finally terminated.
‘‘(b) AMICUS CURIAE.—No person shall be granted
the right to intervene or to appear as amicus curiae in
any proceeding before a judicial council or the Judicial
Conference under this chapter.
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‘‘§ 360. Disclosure of information
‘‘(a) CONFIDENTIALITY OF PROCEEDINGS.—Except
as provided in section 355, all papers, documents, and
records of proceedings related to investigations conducted
under this chapter shall be confidential and shall not be
disclosed by any person in any proceeding except to the
extent that—
‘‘(1) the judicial council of the circuit in its dis-
cretion releases a copy of a report of a special com-
mittee under section 353(c) to the complainant
whose complaint initiated the investigation by that
special committee and to the judge whose conduct is
the subject of the complaint;
‘‘(2) the judicial council of the circuit, the Judi-
cial Conference of the United States, or the Senate
or the House of Representatives by resolution, re-
leases any such material which is believed necessary
to an impeachment investigation or trial of a judge
under article I of the Constitution; or
‘‘(3) such disclosure is authorized in writing by
the judge who is the subject of the complaint and by
the chief judge of the circuit, the Chief Justice, or
the chairman of the standing committee established
under section 331.
‘‘(b) PUBLIC AVAILABILITY OF WRITTEN ORDERS.—
Each written order to implement any action under section
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354(a)(1)(C), which is issued by a judicial council, the Ju-
dicial Conference, or the standing committee established
under section 331, shall be made available to the public
through the appropriate clerk’s office of the court of ap-
peals for the circuit. Unless contrary to the interests of
justice, each such order shall be accompanied by written
reasons therefor.
‘‘§ 361. Reimbursement of expenses
‘‘Upon the request of a judge whose conduct is the
subject of a complaint under this chapter, the judicial
council may, if the complaint has been finally dismissed
under section 354(a)(1)(B), recommend that the Director
of the Administrative Office of the United States Courts
award reimbursement, from funds appropriated to the
Federal judiciary, for those reasonable expenses, including
attorneys’ fees, incurred by that judge during the inves-
tigation which would not have been incurred but for the
requirements of this chapter.
‘‘§ 362. Other provisions and rules not affected
‘‘Except as expressly provided in this chapter, noth-
ing in this chapter shall be construed to affect any other
provision of this title, the Federal Rules of Civil Proce-
dure, the Federal Rules of Criminal Procedure, the Fed-
eral Rules of Appellate Procedure, or the Federal Rules
of Evidence.
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‘‘§ 363.
Court
of
Federal
Claims,
Court
of
Inter-
national Trade, Court of Appeals for the
Federal Circuit
‘‘The United States Court of Federal Claims, the
Court of International Trade, and the Court of Appeals
for the Federal Circuit shall each prescribe rules, con-
sistent with the provisions of this chapter, establishing
procedures for the filing of complaints with respect to the
conduct of any judge of such court and for the investiga-
tion and resolution of such complaints. In investigating
and taking action with respect to any such complaint, each
such court shall have the powers granted to a judicial
council under this chapter.
‘‘§ 364. Effect of felony conviction
‘‘In the case of any judge or judge of a court referred
to in section 363 who is convicted of a felony under State
or Federal law and has exhausted all means of obtaining
direct review of the conviction, or the time for seeking fur-
ther direct review of the conviction has passed and no such
review has been sought, that judge shall not hear cases
unless the judicial council of the circuit (or, in the case
of a judge of a court referred to in section 363, that court)
determines otherwise.’’.
(b) CONFORMING AMENDMENT.—The table of chap-
ters for part I of title 28, United States Code, is amended
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by inserting after the item relating to chapter 15 the fol-
lowing new item:
‘‘16. Complaints against judges and judicial discipline ......
351’’.
SEC. 3. TECHNICAL AMENDMENTS.
(a) RETIREMENT FOR DISABILITY.—(1) Section 372
of title 28, United States Code, is amended—
(A) in the section caption by striking ‘‘; judi-
cial discipline’’; and
(B) by striking subsection (c).
(2) The item relating to section 372 in the table of
sections for chapter 17 of title 28, United States Code,
is amended by striking ‘‘; judicial discipline’’.
(b) JUDICIAL CONFERENCE.—Section 331 of title 28,
United States Code, is amended in the fourth undesig-
nated paragraph by striking ‘‘section 372(c)’’ each place
it appears and inserting ‘‘chapter 16’’.
(c) JUDICIAL COUNCILS.—Section 332 of title 28,
United States Code, is amended—
(1) in subsection (d)(2)—
(A) by striking ‘‘section 372(c) of this
title’’ and inserting ‘‘chapter 16 of this title’’;
and
(B) by striking ‘‘372(c)(4)’’ and inserting
‘‘353’’; and
(2) by striking the second subsection designated
as subsection (h).
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(d) RECALL OF BANKRUPTCY JUDGES AND MAG-
ISTRATE JUDGES.—Section 375(d) of title 28, United
States Code, is amended by striking ‘‘section 372(c)’’ and
inserting ‘‘chapter 16’’.
(e) DIRECTOR OF THE ADMINISTRATIVE OFFICE OF
THE UNITED STATES COURTS.—Section 604 of title 28,
United States Code, is amended—
(1) in subsection (a)(20)—
(A)
in
subparagraph
(B),
by
striking
‘‘372(c)(11)’’ and inserting ‘‘358’’; and
(B)
in
subparagraph
(C),
by
striking
‘‘372(c)(15)’’ and inserting ‘‘360(b)’’; and
(2) in subsection (h)—
(A) in paragraph (1), by striking ‘‘section
372’’ each place it appears and inserting ‘‘chap-
ter 16’’; and
(B) in paragraph (2), by striking ‘‘section
372(c)’’ and inserting ‘‘chapter 16’’.
(f) COURT OF APPEALS FOR VETERANS CLAIMS.—
Section 7253(g) of title 38, United States Code, is
amended—
(1) in paragraph (1)—
(A) by striking ‘‘section 372(c)’’ and in-
serting ‘‘chapter 16’’; and
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(B) by striking ‘‘such section’’ and insert-
ing ‘‘such chapter’’;
(2) in paragraph (2)—
(A)
in
the
first
sentence,
by
striking
‘‘paragraphs
(7)
through
(15)
of
section
372(c)’’ and inserting ‘‘sections 354(b) through
360’’; and
(B) in the second sentence, by striking
‘‘paragraph (7) or (8) of section 372(c)’’ and
inserting ‘‘section 354(b) or 355’’; and
(3)
in
paragraph
(3)(B),
by
striking
‘‘372(c)(16)’’ and inserting ‘‘361’’.
Passed the House of Representatives July 22, 2002.
Attest:
JEFF TRANDAHL,
Clerk.
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Judicial Improvements
Act of 2002’’.
SEC. 2. JUDICIAL DISCIPLINE PROCEDURES.
(a) IN GENERAL.—Part I of title 28, United States
Code, is amended by inserting after chapter 15 the following
new chapter:
‘‘CHAPTER 16—COMPLAINTS AGAINST JUDGES
AND JUDICIAL DISCIPLINE
‘‘Sec.
‘‘351. Complaints; judge defined.
‘‘352. Review of complaint by chief judge.
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‘‘353. Special committees.
‘‘354. Action by judicial council.
‘‘355. Action by Judicial Conference.
‘‘356. Subpoena power.
‘‘357. Review of orders and actions.
‘‘358. Rules.
‘‘359. Restrictions.
‘‘360. Disclosure of information.
‘‘361. Reimbursement of expenses.
‘‘362. Other provisions and rules not affected.
‘‘363. Court of Federal Claims, Court of International Trade, Court of Appeals
for the Federal Circuit.
‘‘364. Effect of felony conviction.
‘‘§ 351. Complaints; judge defined
‘‘(a) FILING OF COMPLAINT BY ANY PERSON.—Any
person alleging that a judge has engaged in conduct preju-
dicial to the effective and expeditious administration of the
business of the courts, or alleging that such judge is unable
to discharge all the duties of office by reason of mental or
physical disability, may file with the clerk of the court of
appeals for the circuit a written complaint containing a
brief statement of the facts constituting such conduct.
‘‘(b) IDENTIFYING COMPLAINT BY CHIEF JUDGE.—In
the interests of the effective and expeditious administration
of the business of the courts and on the basis of information
available to the chief judge of the circuit, the chief judge
may, by written order stating reasons therefor, identify a
complaint for purposes of this chapter and thereby dispense
with filing of a written complaint.
‘‘(c) TRANSMITTAL OF COMPLAINT.—Upon receipt of
a complaint filed under subsection (a), the clerk shall
promptly transmit the complaint to the chief judge of the
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circuit, or, if the conduct complained of is that of the chief
judge, to that circuit judge in regular active service next
senior in date of commission (hereafter, for purposes of this
chapter only, included in the term ‘chief judge’). The clerk
shall simultaneously transmit a copy of the complaint to
the judge whose conduct is the subject of the complaint. The
clerk shall also transmit a copy of any complaint identified
under subsection (b) to the judge whose conduct is the sub-
ject of the complaint.
‘‘(d) DEFINITIONS.—In this chapter—
‘‘(1) the term ‘judge’ means a circuit judge, dis-
trict judge, bankruptcy judge, or magistrate judge;
and
‘‘(2) the term ‘complainant’ means the person
filing a complaint under subsection (a) of this section.
‘‘§ 352. Review of complaint by chief judge
‘‘(a) EXPEDITIOUS REVIEW; LIMITED INQUIRY.—The
chief judge shall expeditiously review any complaint re-
ceived under section 351(a) or identified under section
351(b). In determining what action to take, the chief judge
may conduct a limited inquiry for the purpose of
determining—
‘‘(1) whether appropriate corrective action has
been or can be taken without the necessity for a for-
mal investigation; and
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‘‘(2) whether the facts stated in the complaint
are either plainly untrue or are incapable of being es-
tablished through investigation.
For this purpose, the chief judge may request the judge
whose conduct is complained of to file a written response
to the complaint. Such response shall not be made available
to the complainant unless authorized by the judge filing the
response. The chief judge or his or her designee may also
communicate orally or in writing with the complainant,
the judge whose conduct is complained of, and any other
person who may have knowledge of the matter, and may
review any transcripts or other relevant documents. The
chief judge shall not undertake to make findings of fact
about any matter that is reasonably in dispute.
‘‘(b) ACTION BY CHIEF JUDGE FOLLOWING REVIEW.—
After expeditiously reviewing a complaint under subsection
(a), the chief judge, by written order stating his or her rea-
sons, may—
‘‘(1) dismiss the complaint—
‘‘(A) if the chief judge finds the complaint
to be—
‘‘(i) not in conformity with section
351(a);
‘‘(ii) directly related to the merits of a
decision or procedural ruling; or
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‘‘(iii) frivolous, lacking sufficient evi-
dence to raise an inference that misconduct
has occurred, or containing allegations
which are incapable of being established
through investigation; or
‘‘(B) when a limited inquiry conducted
under subsection (a) demonstrates that the alle-
gations in the complaint lack any factual foun-
dation or are conclusively refuted by objective
evidence; or
‘‘(2) conclude the proceeding if the chief judge
finds that appropriate corrective action has been
taken or that action on the complaint is no longer
necessary because of intervening events.
The chief judge shall transmit copies of the written order
to the complainant and to the judge whose conduct is the
subject of the complaint.
‘‘(c) REVIEW OF ORDERS OF CHIEF JUDGE.—A com-
plainant or judge aggrieved by a final order of the chief
judge under this section may petition the judicial council
of the circuit for review thereof. The denial of a petition
for review of the chief judge’s order shall be final and con-
clusive and shall not be judicially reviewable on appeal or
otherwise.
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‘‘(d) REFERRAL OF PETITIONS FOR REVIEW TO PAN-
ELS OF THE JUDICIAL COUNCIL.—Each judicial council
may, pursuant to rules prescribed under section 358, refer
a petition for review filed under subsection (c) to a panel
of no fewer than 5 members of the council, at least 2 of
whom shall be district judges.
‘‘§ 353. Special committees
‘‘(a) APPOINTMENT.—If the chief judge does not enter
an order under section 352(b), the chief judge shall
promptly—
‘‘(1) appoint himself or herself and equal num-
bers of circuit and district judges of the circuit to a
special committee to investigate the facts and allega-
tions contained in the complaint;
‘‘(2) certify the complaint and any other docu-
ments pertaining thereto to each member of such com-
mittee; and
‘‘(3) provide written notice to the complainant
and the judge whose conduct is the subject of the com-
plaint of the action taken under this subsection.
‘‘(b) CHANGE IN STATUS OR DEATH OF JUDGES.—A
judge appointed to a special committee under subsection (a)
may continue to serve on that committee after becoming a
senior judge or, in the case of the chief judge of the circuit,
after his or her term as chief judge terminates under sub-
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section (a)(3) or (c) of section 45. If a judge appointed to
a committee under subsection (a) dies, or retires from office
under section 371(a), while serving on the committee, the
chief judge of the circuit may appoint another circuit or
district judge, as the case may be, to the committee.
‘‘(c) INVESTIGATION BY SPECIAL COMMITTEE.—Each
committee appointed under subsection (a) shall conduct an
investigation as extensive as it considers necessary, and
shall expeditiously file a comprehensive written report
thereon with the judicial council of the circuit. Such report
shall present both the findings of the investigation and the
committee’s recommendations for necessary and appro-
priate action by the judicial council of the circuit.
‘‘§ 354. Action by judicial council
‘‘(a) ACTIONS UPON RECEIPT OF REPORT.—
‘‘(1) ACTIONS.—The judicial council of a circuit,
upon receipt of a report filed under section 353(c)—
‘‘(A) may conduct any additional investiga-
tion which it considers to be necessary;
‘‘(B) may dismiss the complaint; and
‘‘(C) if the complaint is not dismissed, shall
take such action as is appropriate to assure the
effective and expeditious administration of the
business of the courts within the circuit.
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‘‘(2) DESCRIPTION
OF
POSSIBLE
ACTIONS
IF
COMPLAINT NOT DISMISSED.—
‘‘(A) IN GENERAL.—Action by the judicial
council under paragraph (1)(C) may include—
‘‘(i) ordering that, on a temporary
basis for a time certain, no further cases be
assigned to the judge whose conduct is the
subject of a complaint;
‘‘(ii) censuring or reprimanding such
judge by means of private communication;
and
‘‘(iii) censuring or reprimanding such
judge by means of public announcement.
‘‘(B) FOR ARTICLE III JUDGES.—If the con-
duct of a judge appointed to hold office during
good behavior is the subject of the complaint, ac-
tion by the judicial council under paragraph
(1)(C) may include—
‘‘(i) certifying disability of the judge
pursuant to the procedures and standards
provided under section 372(b); and
‘‘(ii) requesting that the judge volun-
tarily retire, with the provision that the
length of service requirements under section
371 of this title shall not apply.
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‘‘(C) FOR
MAGISTRATE
JUDGES.—If the
conduct of a magistrate judge is the subject of the
complaint, action by the judicial council under
paragraph (1)(C) may include directing the chief
judge of the district of the magistrate judge to
take such action as the judicial council considers
appropriate.
‘‘(3) LIMITATIONS
ON
JUDICIAL
COUNCIL
RE-
GARDING REMOVALS.—
‘‘(A) ARTICLE III JUDGES.—Under no cir-
cumstances may the judicial council order re-
moval from office of any judge appointed to hold
office during good behavior.
‘‘(B) 
MAGISTRATE
AND
BANKRUPTCY
JUDGES.—Any removal of a magistrate judge
under this subsection shall be in accordance with
section 631 and any removal of a bankruptcy
judge shall be in accordance with section 152.
‘‘(4) NOTICE OF ACTION TO JUDGE.—The judi-
cial council shall immediately provide written notice
to the complainant and to the judge whose conduct is
the subject of the complaint of the action taken under
this subsection.
‘‘(b) REFERRAL TO JUDICIAL CONFERENCE.—
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‘‘(1) IN GENERAL.—In addition to the authority
granted under subsection (a), the judicial council
may, in its discretion, refer any complaint under sec-
tion 351, together with the record of any associated
proceedings and its recommendations for appropriate
action, to the Judicial Conference of the United
States.
‘‘(2) SPECIAL CIRCUMSTANCES.—In any case in
which the judicial council determines, on the basis of
a complaint and an investigation under this chapter,
or on the basis of information otherwise available to
the judicial council, that a judge appointed to hold of-
fice during good behavior may have engaged in
conduct—
‘‘(A) which might constitute one or more
grounds for impeachment under article II of the
Constitution, or
‘‘(B) which, in the interest of justice, is not
amenable to resolution by the judicial council,
the judicial council shall promptly certify such deter-
mination, together with any complaint and a record
of any associated proceedings, to the Judicial Con-
ference of the United States.
‘‘(3) NOTICE TO COMPLAINANT AND JUDGE.—A
judicial council acting under authority of this sub-
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section shall, unless contrary to the interests of jus-
tice, immediately submit written notice to the com-
plainant and to the judge whose conduct is the subject
of the action taken under this subsection.
‘‘§ 355. Action by Judicial Conference
‘‘(a) IN GENERAL.—Upon referral or certification of
any matter under section 354(b), the Judicial Conference,
after consideration of the prior proceedings and such addi-
tional investigation as it considers appropriate, shall by
majority vote take such action, as described in section
354(a)(1)(C) and (2), as it considers appropriate.
‘‘(b) IF IMPEACHMENT WARRANTED.—
‘‘(1) IN GENERAL.—If the Judicial Conference
concurs in the determination of the judicial council,
or makes its own determination, that consideration of
impeachment may be warranted, it shall so certify
and transmit the determination and the record of
proceedings to the House of Representatives for what-
ever action the House of Representatives considers to
be necessary. Upon receipt of the determination and
record of proceedings in the House of Representatives,
the Clerk of the House of Representatives shall make
available to the public the determination and any
reasons for the determination.
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‘‘(2) IN
CASE
OF
FELONY
CONVICTION.—If a
judge has been convicted of a felony under State or
Federal law and has exhausted all means of obtaining
direct review of the conviction, or the time for seeking
further direct review of the conviction has passed and
no such review has been sought, the Judicial Con-
ference may, by majority vote and without referral or
certification under section 354(b), transmit to the
House of Representatives a determination that consid-
eration of impeachment may be warranted, together
with appropriate court records, for whatever action
the House of Representatives considers to be nec-
essary.
‘‘§ 356. Subpoena power
‘‘(a) JUDICIAL COUNCILS
AND SPECIAL COMMIT-
TEES.—In conducting any investigation under this chapter,
the judicial council, or a special committee appointed under
section 353, shall have full subpoena powers as provided
in section 332(d).
‘‘(b) JUDICIAL CONFERENCE AND STANDING COMMIT-
TEES.—In conducting any investigation under this chapter,
the Judicial Conference, or a standing committee appointed
by the Chief Justice under section 331, shall have full sub-
poena powers as provided in that section.
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‘‘§ 357. Review of orders and actions
‘‘(a) REVIEW OF ACTION OF JUDICIAL COUNCIL.—A
complainant or judge aggrieved by an action of the judicial
council under section 354 may petition the Judicial Con-
ference of the United States for review thereof.
‘‘(b) ACTION OF JUDICIAL CONFERENCE.—The Judi-
cial Conference, or the standing committee established
under section 331, may grant a petition filed by a com-
plainant or judge under subsection (a).
‘‘(c) NO JUDICIAL REVIEW.—Except as expressly pro-
vided in this section and section 352(c), all orders and de-
terminations, including denials of petitions for review, shall
be final and conclusive and shall not be judicially review-
able on appeal or otherwise.
‘‘§ 358. Rules
‘‘(a) IN GENERAL.—Each judicial council and the Ju-
dicial Conference may prescribe such rules for the conduct
of proceedings under this chapter, including the processing
of petitions for review, as each considers to be appropriate.
‘‘(b) REQUIRED PROVISIONS.—Rules prescribed under
subsection (a) shall contain provisions requiring that—
‘‘(1) adequate prior notice of any investigation
be given in writing to the judge whose conduct is the
subject of a complaint under this chapter;
‘‘(2) the judge whose conduct is the subject of a
complaint under this chapter be afforded an oppor-
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tunity to appear (in person or by counsel) at pro-
ceedings conducted by the investigating panel, to
present oral and documentary evidence, to compel the
attendance of witnesses or the production of docu-
ments, to cross-examine witnesses, and to present ar-
gument orally or in writing; and
‘‘(3) the complainant be afforded an opportunity
to appear at proceedings conducted by the inves-
tigating panel, if the panel concludes that the com-
plainant could offer substantial information.
‘‘(c) PROCEDURES.—Any rule prescribed under this
section shall be made or amended only after giving appro-
priate public notice and an opportunity for comment. Any
such rule shall be a matter of public record, and any such
rule promulgated by a judicial council may be modified by
the Judicial Conference. No rule promulgated under this
section may limit the period of time within which a person
may file a complaint under this chapter.
‘‘§ 359. Restrictions
‘‘(a) RESTRICTION ON INDIVIDUALS WHO ARE SUB-
JECT OF INVESTIGATION.—No judge whose conduct is the
subject of an investigation under this chapter shall serve
upon a special committee appointed under section 353,
upon a judicial council, upon the Judicial Conference, or
upon the standing committee established under section 331,
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until all proceedings under this chapter relating to such in-
vestigation have been finally terminated.
‘‘(b) AMICUS CURIAE.—No person shall be granted the
right to intervene or to appear as amicus curiae in any
proceeding before a judicial council or the Judicial Con-
ference under this chapter.
‘‘§ 360. Disclosure of information
‘‘(a) CONFIDENTIALITY OF PROCEEDINGS.—Except as
provided in section 355, all papers, documents, and records
of proceedings related to investigations conducted under this
chapter shall be confidential and shall not be disclosed by
any person in any proceeding except to the extent that—
‘‘(1) the judicial council of the circuit in its dis-
cretion releases a copy of a report of a special com-
mittee under section 353(c) to the complainant whose
complaint initiated the investigation by that special
committee and to the judge whose conduct is the sub-
ject of the complaint;
‘‘(2) the judicial council of the circuit, the Judi-
cial Conference of the United States, or the Senate or
the House of Representatives by resolution, releases
any such material which is believed necessary to an
impeachment investigation or trial of a judge under
article I of the Constitution; or
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‘‘(3) such disclosure is authorized in writing by
the judge who is the subject of the complaint and by
the chief judge of the circuit, the Chief Justice, or the
chairman of the standing committee established under
section 331.
‘‘(b) PUBLIC AVAILABILITY OF WRITTEN ORDERS.—
Each written order to implement any action under section
354(a)(1)(C), which is issued by a judicial council, the Ju-
dicial Conference, or the standing committee established
under section 331, shall be made available to the public
through the appropriate clerk’s office of the court of appeals
for the circuit. Unless contrary to the interests of justice,
each such order shall be accompanied by written reasons
therefor.
‘‘§ 361. Reimbursement of expenses
‘‘Upon the request of a judge whose conduct is the sub-
ject of a complaint under this chapter, the judicial council
may, if the complaint has been finally dismissed under sec-
tion 354(a)(1)(B), recommend that the Director of the Ad-
ministrative Office of the United States Courts award reim-
bursement, from funds appropriated to the Federal judici-
ary, for those reasonable expenses, including attorneys’ fees,
incurred by that judge during the investigation which
would not have been incurred but for the requirements of
this chapter.
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‘‘§ 362. Other provisions and rules not affected
‘‘Except as expressly provided in this chapter, nothing
in this chapter shall be construed to affect any other provi-
sion of this title, the Federal Rules of Civil Procedure, the
Federal Rules of Criminal Procedure, the Federal Rules of
Appellate Procedure, or the Federal Rules of Evidence.
‘‘§ 363. Court of Federal Claims, Court of Inter-
national Trade, Court of Appeals for the
Federal Circuit
‘‘The United States Court of Federal Claims, the Court
of International Trade, and the Court of Appeals for the
Federal Circuit shall each prescribe rules, consistent with
the provisions of this chapter, establishing procedures for
the filing of complaints with respect to the conduct of any
judge of such court and for the investigation and resolution
of such complaints. In investigating and taking action with
respect to any such complaint, each such court shall have
the powers granted to a judicial council under this chapter.
‘‘§ 364. Effect of felony conviction
‘‘In the case of any judge or judge of a court referred
to in section 363 who is convicted of a felony under State
or Federal law and has exhausted all means of obtaining
direct review of the conviction, or the time for seeking fur-
ther direct review of the conviction has passed and no such
review has been sought, the following shall apply:
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‘‘(1) The judge shall not hear or decide cases un-
less the judicial council of the circuit (or, in the case
of a judge of a court referred to in section 363, that
court) determines otherwise.
‘‘(2) Any service as such judge or judge of a
court referred to in section 363, after the conviction
is final and all time for filing appeals thereof has ex-
pired, shall not be included for purposes of deter-
mining years of service under section 371(c), 377, or
178 of this title or creditable service under subchapter
III of chapter 83, or chapter 84, of title 5.’’.
(b) CONFORMING AMENDMENT.—The table of chapters
for part I of title 28, United States Code, is amended by
inserting after the item relating to chapter 15 the following
new item:
‘‘16. Complaints against judges and judicial discipline .....
351’’.
SEC. 3. TECHNICAL AMENDMENTS.
(a) RETIREMENT FOR DISABILITY.—(1) Section 372 of
title 28, United States Code, is amended—
(A) in the section caption by striking ‘‘; judi-
cial discipline’’; and
(B) by striking subsection (c).
(2) The item relating to section 372 in the table of
sections for chapter 17 of title 28, United States Code, is
amended by striking ‘‘; judicial discipline’’.
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(b) JUDICIAL CONFERENCE.—Section 331 of title 28,
United States Code, is amended in the fourth undesignated
paragraph by striking ‘‘section 372(c)’’ each place it ap-
pears and inserting ‘‘chapter 16’’.
(c) JUDICIAL COUNCILS.—Section 332 of title 28,
United States Code, is amended—
(1) in subsection (d)(2)—
(A) by striking ‘‘section 372(c) of this title’’
and inserting ‘‘chapter 16 of this title’’; and
(B) by striking ‘‘372(c)(4)’’ and inserting
‘‘353’’; and
(2) by striking the second subsection designated
as subsection (h).
(d) RECALL
OF BANKRUPTCY JUDGES
AND MAG-
ISTRATE JUDGES.—Section 375(d) of title 28, United
States Code, is amended by striking ‘‘section 372(c)’’ and
inserting ‘‘chapter 16’’.
(e) DIRECTOR OF THE ADMINISTRATIVE OFFICE OF
THE UNITED STATES COURTS.—Section 604 of title 28,
United States Code, is amended—
(1) in subsection (a)(20)—
(A) in subparagraph (B), by striking
‘‘372(c)(11)’’ and inserting ‘‘358’’; and
(B) in subparagraph (C), by striking
‘‘372(c)(15)’’ and inserting ‘‘360(b)’’; and
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(2) in subsection (h)—
(A) in paragraph (1), by striking ‘‘section
372’’ each place it appears and inserting ‘‘chap-
ter 16’’; and
(B) in paragraph (2), by striking ‘‘section
372(c)’’ and inserting ‘‘chapter 16’’.
(f) COURT OF APPEALS FOR VETERANS CLAIMS.—Sec-
tion 7253(g) of title 38, United States Code, is amended—
(1) in paragraph (1)—
(A) by striking ‘‘section 372(c)’’ and insert-
ing ‘‘chapter 16’’; and
(B) by striking ‘‘such section’’ and inserting
‘‘such chapter’’;
(2) in paragraph (2)—
(A) in the first sentence, by striking ‘‘para-
graphs (7) through (15) of section 372(c)’’ and
inserting ‘‘sections 354(b) through 360’’; and
(B) in the second sentence, by striking
‘‘paragraph (7) or (8) of section 372(c)’’ and in-
serting ‘‘section 354(b) or 355’’; and
(3) 
in 
paragraph 
(3)(B), 
by 
striking
‘‘372(c)(16)’’ and inserting ‘‘361’’.
SEC. 4. SEVERABILITY.
If any provision of this Act, an amendment made by
this Act, or the application of such provision or amendment
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to any person or circumstance is held to be unconstitu-
tional, the remainder of this Act, the amendments made by
this Act, and the application of the provisions of such to
any person or circumstance shall not be affected thereby.
Calendar No. 532
107TH CONGRESS
2D SESSION
H. R. 3892
AN ACT
To amend title 28, United States Code, to make
certain modifications in the judicial discipline
procedures, and for other purposes.
JULY 31, 2002
Reported with an amendment