I
107TH CONGRESS
2D SESSION
H. R. 3892
To amend title 28, United States Code, to make certain modifications in
the judicial discipline procedures, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
MARCH 7, 2002
Mr. COBLE (for himself and Mr. BERMAN) introduced the following bill; which
was referred to the Committee on the Judiciary
A BILL
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’’.
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
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.
‘‘§ 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
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.
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;
‘‘(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.
‘‘§ 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.
‘‘(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.
‘‘(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
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.
‘‘(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
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,
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-
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.
‘‘§ 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
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.
‘‘§ 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
by inserting after the item relating to chapter 15 the fol-
lowing new item:
‘‘16. Judicial discipline ....................................................................
351’’.
SEC. 3. EN BANC HEARINGS OF CIRCUIT JUDGES.
Section 46(c) of title 28, United States Code, is
amended by inserting after the first sentence the fol-
lowing: ‘‘For purposes of determining a majority under the
preceding sentence, there shall be excluded any judge who
is recused from the case or controversy at issue.’’.
SEC. 4. 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).
(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
(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’’.
Æ