Order Code RS22084
March 18, 2005
CRS Report for Congress
Received through the CRS Web
Judicial Discipline Process: An Overview
Elizabeth B. Bazan
Legislative Attorney
American Law Division
Summary
The current statutory structure with respect to complaints against federal judges and
judicial discipline was enacted on November 2, 2002, as the Judicial Improvements Act
of 2002, P.L. 107-273, 28 U.S.C. §§ 351-364. These provisions are applicable to federal
circuit judges, district judges, bankruptcy judges and magistrate judges. They do not
apply to the justices of the U.S. Supreme Court. The U.S. Court of Federal Claims, the
Court of International Trade and the Court of Appeals for the Federal Circuit are each
directed to prescribe rules consistent with these provisions to address complaints
pertaining to their own judges. The procedures under 28 U.S.C. §§ 351-364 include a
complaint process, review of complaints initially by the Chief Judge of the circuit within
which the judge in question sits, and, if appropriate, referral of the complaint to a special
investigating committee, to a panel of the judicial council of the circuit involved, and,
if needed, to the Judicial Conference of the United States. At any point in the process,
as deemed appropriate, action may be taken on the complaint. Where a complaint
alleges conduct that may rise to the level of impeachable offenses, the Judicial
Conference may certify that the matter may warrant consideration of impeachment and
transmit the determination and the record of proceedings to the House of
Representatives for whatever action the House of Representatives considers necessary.
This report will be updated as needed.
The present statutory structure governing complaints against federal judges and
judicial discipline where appropriate stems from the Judicial Improvements Act of 2002,
P.L. 107-273, Div. C, Title I, Subtitle C, 116 Stat 1856 (Nov. 2, 2002), 28 U.S.C. §§351-
364. It replaced judicial discipline procedures in the Judicial Conduct and Disability Act
of 1980, as amended, codified at the former 28 U.S.C. § 372(c). The current statutory
procedures are applicable to complaints against federal circuit judges, district judges,
bankruptcy judges, and magistrate judges. They are not applicable to justices of the U.S.
Supreme Court. In addition, the U.S. Court of Federal Claims, the Court of International
Trade and the Court of Appeals for the Federal Circuit are each required to prescribe
rules, consistent with the provisions in 28 U.S.C. §§ 351-364, establishing procedures for
the filing of complaints with respect to the conduct of judges of that court, for
investigation of such complaints, and for taking appropriate action with respect to them.
In investigating and taking action regarding complaints brought against their respective
Congressional Research Service ˜ The Library of Congress

---

CRS-2
judges, each of these three courts has the powers granted to a judicial council in dealing
with federal circuit judges, district judges, bankruptcy judges or magistrate judges.1

The judicial discipline process under 28 U.S.C. §§ 351-364 is initiated by the filing
of a complaint by any person, alleging that a judge has engaged in conduct “prejudicial
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 the office by reason of mental or
physical disability.”2 A written complaint containing a brief statement of the pertinent
facts is filed with the clerk of the court for the circuit within which the judge sits.
Alternatively, the chief judge of the circuit, in the interests of effective and expeditious
administration of the business of the courts and based on information available to him or
her, may identify a complaint by written order stating the reasons for the complaint.3 The
clerk of the court receiving a written complaint promptly transmits that complaint to the
chief judge of the circuit unless the complaint concerns the chief judge. In the latter
circumstance, the clerk shall transmit the complaint to the circuit judge in regular service
on the court who is next most senior in date of commission. That circuit judge would
then carry out the responsibilities of the chief judge with respect to that complaint in all
matters under this judicial discipline process.4
Once a complaint is filed or identified, the chief judge must review it expeditiously
to determine whether appropriate corrective action has been or can be taken without the
need for a formal investigation, and whether the facts stated in the complaint are either
plainly untrue or incapable of establishment through investigation. The chief judge may
ask the judge who is the focus of the complaint to file a written response, which is not
shared with the complainant unless the judge responding authorizes its disclosure. The
chief judge or his or her designee may also communicate orally or in writing with the
complainant, the judge who is the focus of the complaint, or anyone else who may have
pertinent information; and may also review any transcripts or documentary evidence. The
chief judge may not make any findings of fact regarding matters reasonably in dispute.
After this review, the chief judge, by written order, may dismiss the complaint if it is not
in conformity with the requirements of 28 U.S.C. § 351(a), or if he or she finds that the
complaint directly relates to the merits of a decision or procedural ruling or that it is
frivolous, that is lacking sufficient evidence to raise an inference that misconduct has
occurred, or that contains allegations that are incapable of being established through
investigation. The chief judge may also conclude the proceeding if he or she finds that
appropriate corrective action has been taken or that action on the complaint is no longer
needed because of intervening events. Copies of the written order are to be transmitted
by the chief judge to the complainant and to the judge involved.5 The complainant or the
judge involved in the complaint may petition the judicial council of the circuit seeking
review of the order of the chief judge. If the petition for review is denied, that decision
1 Action by the judicial council of a circuit is addressed in particular in 28 U.S.C. § 354.
2 28 U.S.C. § 351(a).
3 28 U.S.C. § 351(b).
4 28 U.S.C. § 351(c). For purposes of this discussion, the term “chief judge” will apply to the
chief judge, or in the case of a complaint against the chief judge, to the circuit judge handling the
complaint against the chief judge.
5 28 U.S.C. § 352.

---

CRS-3
is final and not subject to review.6 The judicial council may refer a petition for review
to a panel of at least 5 members of the judicial council, 2 of whom must be U.S. district
judges.7
If the chief judge does not dismiss the complaint or conclude the proceedings under
28 U.S.C. § 352(b), then he or she must promptly appoint himself or herself, along with
equal numbers of circuit judges and district judges, to a special committee to investigate
the facts and allegations in the complaint. The chief judge must also promptly certify the
complaint and any other pertinent documents to each member of the special committee,
and provide written notice of this action to the complainant and the judge involved. The
committee must conduct such investigation as it finds necessary and then expeditiously
file a comprehensive written report of its investigation with the judicial council of the
circuit involved. In conducting its investigation, the special committee has full subpoena
powers.8 The report of the committee must present both findings of the investigation and
recommendations for necessary and appropriate action by the judicial council.9
Upon receipt of such a report, the judicial council of the circuit involved has several
options available to it. It may conduct any additional investigation it deems necessary,
and it may dismiss the complaint.10 If the complaint is not dismissed, it shall take
appropriate action to assure effective and expeditious administration of the business of
the courts in the circuit, including 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;
censuring or reprimanding the judge by means of private communication; and censuring
and reprimanding the judge by means of public announcement.11 Like the special
committee, the judicial council may exercise full subpoena powers in conducting its
investigation.12

If the judge who is the subject of the complaint holds his or her office during good
behavior, action taken by the judicial council may include certifying disability of the judge
pursuant to procedures and standards under 28 U.S.C. § 372(b); and requesting that the
judge voluntarily retire, with the provision that the length of service requirements under
6 28 U.S.C. § 352(c).
7 28 U.S.C. § 352(d). The rules governing the conduct of judicial discipline proceedings by each
judicial council or by the Judicial Conference of the United States, including a referral of a chief
judge’s order for review by a panel of a judicial council, are prescribed by that judicial council
or by the Judicial Conference, respectively, under 28 U.S.C. § 358.
8 28 U.S.C. § 356(a), relying upon subpoena powers under 28 U.S.C. § 332(d).
9 28 U.S.C. § 353.
10 28 U.S.C. §§ 354(a)(1)(A) and 354(a)(1)(B). If the complaint has been finally dismissed under
28 U.S.C. § 354(a)(1)(B), then, under 28 U.S.C. § 361, upon the request of the judge who is the
subject of the complaint, the judicial council may recommend to the Director of the
Administrative Office of the U.S. Courts that he award reimbursement for those reasonable
expenses, including attorneys’ fees, incurred by the judge during the investigation which would
not have been incurred but for the requirements of the judicial discipline process. The
reimbursement would be drawn from funds appropriated to the Federal judiciary.
11 28 U.S.C. §§ 354(a)(1)(C) and 354(a)(2).
12 28 U.S.C. § 356(a), citing subpoena powers under 28 U.S.C. § 332(d).

---

CRS-4
28 U.S.C. § 371 shall not apply.13 The judicial council may not order removal from office
of any judge appointed to hold office during good behavior.14
If the focus of the complaint is a magistrate judge, the action taken by the judicial
council may include directing the chief judge of the district of the magistrate judge to take
such action as the judicial council considers appropriate.15 Any removal of a magistrate
judge by the judicial council must be in accordance with 28 U.S.C. § 631, while any
removal by the judicial council of a bankruptcy judge must be in accordance with 28
U.S.C. § 152.16 The judicial council must provide immediate written notice of the action
taken to the complainant and to the judge whose conduct is the subject of the complaint.17
The judicial council may also, in its discretion, refer any complaint under 28 U.S.C.
§ 351, along with the record of any associated proceedings and its recommendations for
appropriate action, to the Judicial Conference of the United States. If the judicial council
determines, based on a complaint and related investigation or on other information
available to the judicial council, that a judge holding office during good behavior may
have engaged in conduct which might constitute one or more grounds for impeachment
under Article II, Sec. 4 of the U.S. Constitution, the judicial council must promptly certify
its determination, together with any complaint and a record of any associated proceedings
to the Judicial Conference of the United States. The judicial council must also promptly
certify its determination, along with any complaint and a record of any associated
proceedings, to the Judicial Conference if the council determines that a judge holding
office during good behavior may have engaged in conduct which, in the interest of justice,
is not amenable to resolution by the judicial council. If the judicial council makes a
referral to the Judicial Conference of the United States, the judicial council must, unless
contrary to the interests of justice, immediately provide written notice of its action to the
complainant and to the judge involved.18 If dissatisfied with an action of the judicial
council, the complainant or the judge may petition the Judicial Conference for review of
that action. The Judicial Conference, or, should the Conference so choose, a standing
committee appointed by the Chief Justice under 28 U.S.C. § 331 to exercise its authority
under the judicial discipline process, may grant a petition filed by a complainant or a
judge aggrieved by an action of the judicial council. If a petition for review is denied, that
decision is final and conclusive and not subject to judicial review.19
Upon receipt of a referral or certification, the Judicial Conference considers any prior
proceedings and engages in such further investigation as it deems appropriate. The
Judicial Conference may exercise its authority under the judicial discipline provisions as
a Conference, or through a standing committee appointed by the Chief Justice under 28
U.S.C. § 331. In conducting any investigation under the judicial discipline process, the
13 28 U.S.C. § 354(a)(2)(B).
14 28 U.S.C. § 354(a)(3). Cf., U.S. Const., Art. III, Sec. 1 (life tenure during good behavior.)
15 28 U.S.C. § 354(a)(2)(C).
16 28 U.S.C. § 354(a)(3)(B).
17 28 U.S.C. § 354(a)(4).
18 28 U.S.C. § 354(b).
19 28 U.S.C. § 357.

---

CRS-5
Judicial Conference, or a standing committee appointed by the Chief Justice for the
purpose, may exercise full subpoena power under 28 U.S.C. § 356(b). After having
reviewed the information before it, the Judicial Conference, by majority vote, may, if the
complaint is not dismissed, take such action as is appropriate to assure the effective and
expeditious administration of the business of the courts. This may include ordering that,
on a temporary basis for a time certain, no further cases be assigned to the judge involved;
censuring or reprimanding the judge by means of private communication; and
reprimanding the judge by means of public communication. If the judge involved holds
his or her office during good behavior, the options available to the Judicial Conference
may include certifying disability of the judge under 28 U.S.C. § 372(b); and requesting
the judge voluntarily retire, with the provision that the length of service requirements
under 28 U.S.C. § 371 not apply. If the judge is a magistrate judge, the Judicial
Conference may direct the chief judge of the district of the magistrate judge to take such
action as the Judicial Conference deems appropriate.20
If the Judicial Conference concurs in the judicial council’s determination that
impeachable offenses may be involved, or if the Judicial Conference makes its own
determination that consideration of impeachment may be warranted, the Conference must
certify and transmit the determination and the record of proceedings to the House of
Representatives for whatever action the House considers necessary. When the Judicial
Conference’s determination and record of proceedings are received by the House of
Representatives, the Clerk of the House must make that determination and any reasons
for the determination available to the public.21
If a judge has been convicted of a felony under federal or state law and has exhausted
all avenues of direct review of that conviction, or if the time for direct review has passed
and no review has been sought, the Judicial Conference, by majority vote and without any
referral or certification from the relevant judicial council under 28 U.S.C. § 354, may
transmit a determination that impeachment may be warranted, together with relevant court
records, to the House of Representatives for whatever action the House deems necessary.22
If a judge has been convicted of a federal or state felony and has exhausted direct appeals
of the conviction or if the time to seek further direct review has passed and no such
review has been sought, then that judge shall not hear or decide cases unless the judicial
council of the circuit in the case of federal circuit judges, district judges, bankruptcy
judges or magistrate judges; or the U.S. Court of Federal Claims, the Court of
International Trade, or the Court of Appeals of the Federal Circuit, respectively, in the
case of a judge of one of those courts, determines otherwise. No service of such a
convicted judge, once the conviction is final and the time for appeals has expired, may be
included for purposes of determining years of service under 28 U.S.C. §§ 371(c), 377, or
178, or creditable service under 5 U.S.C., chapter 83, subchapter III, or chapter 84.23
No judge whose conduct is the subject of an investigation under 28 U.S.C. §§ 351-
364 may serve on a special committee under 18 U.S.C. § 353, upon a judicial council,
20 28 U.S.C. § 355(a), cross-referencing 28 U.S.C. §§ 354(a)(1)(C) and 354(a)(2).
21 28 U.S.C. § 355(b)(1).
22 28 U.S.C. § 355(b)(2).
23 28 U.S.C. § 364.

---

CRS-6
upon the Judicial Conference, or upon a standing committee established under 28 U.S.C.
§ 331, until all proceedings relating to that investigation have been completed. Nor may
anyone intervene or appear as amicus curiae in any judicial discipline proceeding before
a judicial council or the Judicial Conference.24
Except for the public disclosure, under 28 U.S.C. § 355, by the Clerk of the House
of Representatives of a determination by the Judicial Conference in a given case that
impeachment may be warranted and any reasons for that determination, all papers,
documents, and records of proceedings related to judicial discipline proceedings under 28
U.S.C. §§ 351-364 are to be kept confidential and not disclosed to any person in any
proceeding unless certain criteria are met. Disclosure is permitted to the extent that (1)
the judicial council of the circuit in its discretion releases a copy of a report of a special
committee under 28 U.S.C. § 353(c) to the complainant and to the judge who is the
subject of the complaint; (2) the judicial council of the circuit, the Judicial Conference of
the United States, or the Senate or the House by resolution, releases any such material
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 28 U.S.C. § 331. Each written
order to implement any action on a complaint under 28 U.S.C. § 354(a)(1)(C), which is
issued by a judicial council, the Judicial Conference, or the standing committee
established under 28 U.S.C. § 331, is to be made available to the public through the
clerk’s office of the court of appeals for the circuit involved. Unless contrary to the
interests of justice, each order must be accompanied by written reasons supporting it.25
Statistical information is available regarding judicial complaints filed and action
taken on them under “Judicial Business of the United States Courts” in the Annual Report
of the Director of the Administrative Office of the United States Courts. In FY2004, 712
complaints were filed, 784 were concluded, and 177 were pending at the end of the fiscal
year. Of those concluded, chief judges terminated 449 complaints, while judicial councils
terminated 335. Of those concluded by chief judges, 66 percent were found not covered
by 28 U.S.C. §§ 351-364 because they were directly related to the merits of decisions or
procedural rulings. The remainder were terminated because they “did not conform with
the statute, they were frivolous, appropriate action already had been taken, action was no
longer necessary, or the complaint had been withdrawn.”26 Of the complaints that were
addressed by judicial councils, all but two were terminated following review of a chief
judge’s dismissal, while the two remaining were concluded after reports made by an
investigative committee. All of the complaints addressed by judicial councils in FY2004
were dismissed.27
24 28 U.S.C. § 359.
25 28 U.S.C. § 360.
26 2004 Annual Report of the Director of the Administrative Office of the United States Courts
at 32-33. The annual reports from 1997-2004 may be accessed on line at
[http://www.uscourts.gov/judbususc/judbus.html]. Those reports predating passage of 28 U.S.C.
§§ 351-364, deal with complaints under former 28 U.S.C. § 372(c).
27 Id.

---