Judicial Discipline Process: An Overview
Elizabeth B. Bazan
Legislative Attorney
February 19, 2010
Congressional Research Service
7-5700
www.crs.gov
RS22084
CRS Report for Congress
P
repared for Members and Committees of Congress
Judicial Discipline Process: An Overview
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.
Two such referrals were received by the House in the 111th Congress regarding Judge Samuel B.
Kent of the U.S. District Court for the Southern District of Texas and Judge G. Thomas Porteous
of the U.S. District Court for the Eastern District of Louisiana. Judge Kent was impeached by the
House of Representatives. His Senate impeachment trial was dismissed after he resigned from
office and the House indicated that it did not wish to pursue the matter further. H.Res. 1031, an
impeachment resolution including four articles of impeachment against Judge Porteous, was
introduced on January 21, 2010. Referred to the House Judiciary Committee, the resolution was
ordered to be reported on January 27, 2010, by a unanimous vote of 24-0. The impeachment
proceedings with respect to Judge Porteous are ongoing. This report will be updated as needed.
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Judicial Discipline Process: An Overview
Contents
Introduction ................................................................................................................................ 1
Overview of Statutory Provisions ................................................................................................ 2
Statistical Information ................................................................................................................. 6
Conclusion.................................................................................................................................. 8
Contacts
Author Contact Information ........................................................................................................ 8
Congressional Research Service
Judicial Discipline Process: An Overview
Introduction
In both the 110th and the 111th Congresses, the U.S. House of Representatives received a referral
from the Judicial Conference of the United States reflecting its determination, after completion of
the statutory federal judicial discipline process, that consideration of impeachment might be
warranted with respect to a federal judge. On June 19, 2008, the Speaker of the House of
Representatives received a referral regarding U.S. District Court Judge G. Thomas Porteous of the
Eastern District of Louisiana.1 The House began its impeachment investigation of Judge Porteous
in the 110th Congress, but did not complete it before the end of that Congress.2 The matter was
taken up again in the 111th Congress.3 H.Res. 1031, an impeachment resolution with respect to
Judge Porteous including four articles of impeachment, was introduced on January 21, 2010.
Referred to the House Judiciary Committee, the resolution was ordered to be reported on January
27, 2010, by a unanimous vote of 24-0. The impeachment proceedings with respect to Judge
Porteous are ongoing. On June 10, 2009, the Speaker of the House received a referral regarding
U.S. District Court Judge Samuel B. Kent of the Southern District of Texas.4 Judge Kent was
impeached by the House of Representatives.5 His Senate impeachment trial was dismissed after
he resigned from office and the House indicated that it did not wish to pursue the matter further.
1 See 154 Cong. Rec. H5727-05 (June 19, 2008), 2008 WL 2467232 (Cong.Rec.) (“7225. A letter from the Secretary,
Judicial Conference of the United States, transmitting Judicial Conference determination that United States Judge G.
Thomas Porteous, Jr., of the Eastern District of Louisiana, has engaged in conduct for which consideration of
impeachment may be warranted, pursuant to 28 U.S.C. 355(b)(1); to the Committee on the Judiciary.”) The Order and
Public Reprimand issued by the Judicial Council for the Fifth Circuit concerning Judge G. Thomas Porteous on
September 10, 2008, may be found at http://www.ca5.uscourts.gov/news/news/
GTP%20ORDER%20AND%20PUBLIC%20REPRIMAND.pdf. The certificate with respect to Judge Porteous from
the Judicial Conference of the United States to the Speaker of the House may be found at http://www.ca5.uscourts.gov/
news/news/PorteousOrder/CERTIFICATE%20TO%20THE%20SPEAKER.PDF.
2 See H.Res. 1448 (110th Cong.).
3 H.Res. 15 (111th Cong.).
4 Judge Kent pleaded guilty to obstruction of justice on February 23, 2009. Transcript of Plea Hearing, United States v.
Kent, No. H-08-CR-596 (U.S. District Court, S.D. Tex., Houston Div. Feb 23, 2009), at 17-18, cited at H.Rept. 111-
159 at 10 (June 17, 2009). He was sentenced to 33 months in prison followed by three years of supervised release, a
$1,000 fine, and $6,550 in restitution. United States v. Kent, No. 4:08cr596-001/RV, at 2, 6 (S.D. Tex. May 11, 2009)
(Judgment in a Criminal Case). See H.Rept. 111-159, at 13. Following his conviction, the Judicial Council of the U.S.
Court of Appeals for the Fifth Circuit, on May 27, 2009, recommended impeachment pursuant to 28 U.S.C.
354(b)(2)(A). The Judicial Council’s recommendation may be accessed at http://www.ca5.uscourts.gov/news/news/
SBK%20Certification.pdf. See also, H.Rept. 111-159, at 32-33. The matter was referred to the Judicial Conference of
the United States. In a letter to the Speaker of the House of Representatives dated June 9, 2009, the Judicial Conference
transmitted the certification of its determination that impeachment might be warranted. See 154 Cong. Rec. H6536-04
(June 10, 2009), 2009 WL 1617545 (Cong.Rec.) (“2103. A letter from the Secretary, Judicial Conference of the United
States, transmitting a Judicial Conference determination that United States Judge Samuel B. Kent of the Southern
District of Texas, has engaged in conduct for which consideration of impeachment may be warranted, pursuant to 28
U.S.C. 355(b)(1)-(2); to the Committee on the Judiciary.”) See also, H.Rept. 111-159, at 29-31.
5 H.Res. 424 (111th Cong.), authorizing and directing the House Committee on the Judiciary to inquire whether the
House should impeach Judge Kent, was introduced on May 12, 2009, and agreed to without objection the same day.
H.Res. 520 (111th Cong.), a resolution impeaching Judge Kent and setting forth four articles of impeachment, was
introduced June 9, 2009. H.Rept. 111-159, accompanying H.Res. 520, noted the referral to the House from the Judicial
Conference, quoted the basis of the Judicial Conference’s determination that consideration of impeachment may be
warranted, id. at 21-22, and included a copy of the transmittal letter from the Judicial Conference to the Speaker of the
House and the certificate of the Judicial Conference setting forth its determination. Id. at 29-31. The recommendation
of the Judicial Council for the Fifth Circuit is included as an attachment to the certification. Id. at 32-33. The House
agreed to H.Res. 520 (111th Cong.) on June 19, 2009, voting separately on each of the four articles of impeachment
(Roll No. 415, Roll No. 416, Roll No. 417, and Roll No. 418).
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Overview of Statutory Provisions
This report will discuss the present statutory structure governing complaints against federal
judges, and judicial discipline where appropriate. The statutory framework 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 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.6
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.”7 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.8 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.9
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
6 Action by the judicial council of a circuit is addressed in particular in 28 U.S.C. § 354.
7 28 U.S.C. § 351(a). The websites of each of the judicial circuits provide access to the complaint form that must be
used in filing a complaint and copies of the RULES FOR JUDICIAL-CONDUCT AND JUDICIAL-DISABILITY PROCEEDINGS
adopted by the Judicial Council of the United States on March 11, 2008. Links to these websites may be found at
http://www.uscourts.gov/library/judicialmisconduct/index.html. Links to Opinions of the Committee on Judicial
Conduct and Disability of the Judicial Conference of the United States may also be found on this website.
8 28 U.S.C. § 351(b).
9 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.
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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.10 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 is final and not subject to review.11 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.12
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.13 The report of the committee must present both findings of
the investigation and recommendations for necessary and appropriate action by the judicial
council.14
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.15 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
10 28 U.S.C. § 352.
11 28 U.S.C. § 352(c).
12 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.
13 28 U.S.C. § 356(a), relying upon subpoena powers under 28 U.S.C. § 332(d).
14 28 U.S.C. § 353.
15 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.
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private communication; and censuring and reprimanding the judge by means of public
announcement.16 Like the special committee, the judicial council may exercise full subpoena
powers in conducting its investigation.17
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 28 U.S.C. § 371 shall not
apply.18 The judicial council may not order removal from office of any judge appointed to hold
office during good behavior.19
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.20 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. § 152.21 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.22
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.23 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
16 28 U.S.C. §§ 354(a)(1)(C) and 354(a)(2).
17 28 U.S.C. § 356(a), citing subpoena powers under 28 U.S.C. § 332(d).
18 28 U.S.C. § 354(a)(2)(B).
19 28 U.S.C. § 354(a)(3). Cf., U.S. Const., Art. III, Sec. 1 (life tenure during good behavior.)
20 28 U.S.C. § 354(a)(2)(C).
21 28 U.S.C. § 354(a)(3)(B).
22 28 U.S.C. § 354(a)(4).
23 See, e.g., In re: Samuel B. Kent, United States District Judge, Southern District of Texas, Docket No. 07-05-351-
0086 (Judicial Council of the Fifth Circuit May 27, 2009), the certification, under 28 U.S.C. § 354(b)(2)(A), by the
Judicial Council for the Fifth Circuit to the Judicial Conference of the United States that Judge Samuel B. Kent, of the
U.S. District Court for the Southern District of Texas, had engaged in conduct which constituted one or more grounds
for impeachment under Article II of the Constitution. This certification may be found at http://www.ca5.uscourts.gov/
news/news/SBK%20Certification.pdf. See also, In re: Complaint of Judicial Misconduct against United States District
Judge G. Thomas Porteous, Jr. under the Judicial Conduct and Disability Act of 1980, Docket No. 07-05-351-0085, at
4-5 (Judicial Council of the Fifth Circuit December 20, 2007) (Memorandum and Order), certifying to the Judicial
Conference of the United States, pursuant to 28 U.S.C. § 354(b)(2)(A), “its determination that United States District
Judge G. Thomas Porteous, Jr. has engaged in conduct ... which might constitute one or more grounds for impeachment
under Article II of the Constitution.” This certification may be found at http://www.ca5.uscourts.gov/news/news/
PorteousOrder/MEMORANDUM%20ORDER%20AND%20CERTIFICATION.PDF.
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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.24 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.25
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 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.26
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.27
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
24 28 U.S.C. § 354(b).
25 28 U.S.C. § 357.
26 28 U.S.C. § 355(a), cross-referencing 28 U.S.C. §§ 354(a)(1)(C) and 354(a)(2).
27 28 U.S.C. § 355(b)(1). See, e.g., the certificate from the Judicial Conference to the Speaker of the U.S. House of
Representatives regarding Judge Kent, which may be found at H.Rept. 111-159, 29-33; the certificate from the Judicial
Conference to the Speaker of the U.S. House of Representatives regarding Judge Porteous, which may be found at
http://www.ca5.uscourts.gov/news/news/PorteousOrder/CERTIFICATE%20TO%20THE%20SPEAKER.PDF.
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Representatives for whatever action the House deems necessary.28 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 84.29
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, 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.30
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.31
Statistical Information
Statistical information is available in the Annual Report of the Director of the Administrative
Office of the United States Courts under the heading “Judicial Business of the United States
Courts”with respect to complaints filed against federal judges under this statutory framework and
28 28 U.S.C. § 355(b)(2).
29 28 U.S.C. § 364.
30 28 U.S.C. § 359.
31 28 U.S.C. § 360.
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action taken on them.32 The most recent information available from these Annual Reports pertains
to FY2008.33 In FY2008, there were changes in the reporting requirements with respect to
complaints against judges, resulting in two separate sets of statistical tables.34
According to the 2008 Annual Report of the Director of the Administrative Office of the United
States Courts, 333 complaints were pending at the end of September 2007. Between October 1,
2007, and May 10, 2008, 491 complaints were filed. Of complaints filed before May 11, 2008,
which appear to include these 491 plus the complaints pending at the end of the previous fiscal
year, 552 were concluded before September 30, 2008, while 272 remained pending at the end of
FY2008. Of those concluded, 288 were terminated by circuit chief judges or were withdrawn
before chief judges could complete action on them, while 264 were terminated by circuit judicial
councils. Of those concluded by chief judges, 82 percent were dismissed, having been found not
to be covered by 28 U.S.C. §§ 351-364 because they were directly related to the merits of
decisions or procedural rulings.35 The remainder “were withdrawn, were dismissed when chief
judges determined that the allegations were frivolous or failed to conform to the Judicial Conduct
and Disability Act, or were concluded by chief judges who found that appropriate action already
had been taken or no longer was necessary.”36 Of the 264 complaints that were addressed by
judicial councils, all but one were terminated by the denial of petitions for review of a chief
judge’s dismissal. The one remaining complaint resulted in disciplinary action in the form of
public censure by the reviewing judicial council.37 During the period prior to May 11, 2008, one
special investigating committee was appointed in the Seventh Circuit and another was appointed
in the Tenth Circuit.38
32 The annual reports from FY1997-FY2008 may be accessed at http://www.uscourts.gov/judbususc/judbus.html.
Those reports predating passage of 28 U.S.C. §§ 351-364 in 2002 deal with complaints under former 28 U.S.C.
§ 372(c).
33 See http://www.uscourts.gov/judbus2008/JudicialBus2008.pdf.
34 2008 Annual Report of the Director of the Administrative Office of the United States Courts at 35; see also, id.,
Tables 10 and S-22A (before May 11, 2008), 11 and S-22B (on or after May 11, 2008), found in the 2008 Annual
Report of the Director of the Administrative Office of the United States Courts at 36, 73-74, 37, and 75-77, respectively.
Tables 10 and 11 and a discussion of their contents are available at http://www.uscourts.gov/judbus2008/
JudicialBus2008.pdf; while tables S-22A and S-22B are available at http://www.uscourts.gov/judbus2008/tables/
S22ASep08.pdf and http://www.uscourts.gov/judbus2008/tables/S22BSep08.pdf, respectively. The complaints from
October 1, 2007, through May 10, 2008, covered in table S-22A concerned 112 Circuit Judges, 344 District Judges, 24
Bankruptcy Judges, and 105 Magistrate Judges. The complaints from May 11, 2008, through September 30, 2008,
covered in table S-22B concerned 165 Circuit Judges, 382 District Judges, 2 Court of Federal Claims Judges, 16
Bankruptcy Judges, and 107 Magistrate Judges.
35 Table S-22A describes the nature of the allegations in the complaints from October 1, 2007, through May 10, 2008,
and the number of each such allegations as follows: Mental Disability, 16; Physical Disability, 4; Demeanor, 5; Abuse
of Judicial Power, 242; Prejudice/Bias, 232; Conflict of Interest, 25; Bribery/Corruption, 51; Undue Decisional Delay,
45; Incompetence/Neglect, 46; and Other, 225. The table indicates that each complaint may involve multiple
allegations against numerous judges.
36 2008 Annual Report of the Director of the Administrative Office of the United States Courts at 35-36.
37 Id. at 36.
38 For the period from May 11, 2008, through September 30, 2008, Table S-22B describes the nature of the allegations
and the number of allegations under each category as follows: Erroneous Decision, 338; Delayed Decision, 104; Failure
to Give Reasons for Decision, 18; Improper Discussions With Party or Counsel, 29; Hostility Toward Litigant or
Attorney, 69; Racial, Religious, or Ethnic Bias, 93; Personal Bias Against Litigant or Attorney, 116; Conflict of Interest
(Including Refusal to Recuse), 46; Failure to Meet Financial Disclosure Requirements, 0; Improper Outside Income, 0;
Partisan Political Activity or Statement, 3; Acceptance of Bribe, 21; Effort to Obtain Favor for Friend or Relative, 0;
Solicitation of Funds for Organization, 1; Violation of Other Standards, 55; Other Misconduct, 262; Disability, 30.
Table S-22B indicates that each complaint may involve multiple allegations.
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Judicial Discipline Process: An Overview
From May 11, 2008, to September 30, 2008, 672 complaints were filed, 207 were concluded in
whole or in part during the fiscal year, and 465 remained pending at the end of the fiscal year. 39
Eighty-four percent of 199 complaints which were dismissed in whole or in part by chief judges
involved allegations directly related to the merits of decisions or procedural rulings. Other
grounds for dismissal included “allegations lacking sufficient evidence,” “frivolousness,” or
“allegations not constituting misconduct or disability.”40 In some instances, there were multiple
reasons for a given dismissal. Four complaints during this period were withdrawn by the
complainant.41 In the May 11, 2008, to September 30, 2008, period, judicial councils denied
petitions for review of dismissals by chief judges in connection with all 77 complaints.42 In the
period from May 11, 2008, the September 30, 2008, a special investigating committee was
appointed in the Second Circuit and in the Third Circuit.43
Conclusion
The federal judicial discipline framework under 28 U.S.C. §§ 351-364 provides a mechanism for
consideration of complaints against federal circuit judges, district judges, bankruptcy judges and
magistrate judges. It does not apply to U.S. Supreme Court justices. Nor does it apply to the U.S.
Court of Federal Claims, the Court of International Trade, or the Court of Appeals for the Federal
Circuit, each of which is 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. The statutory structure under 28 U.S.C. §§ 351-364 provides a means for each
complaint to be explored and for disciplinary action to be taken where warranted by the facts
involved. As in the recent cases of Judge G. Thomas Porteous and Judge Samuel B. Kent, where
an investigation under this judicial discipline process uncovers conduct which may rise to the
level of an impeachable offense, the matter may be referred by the Judicial Conference of the
United States to the Speaker of the U.S. House of Representatives for the House to consider
whether to pursue impeachment of the judge involved.
Author Contact Information
Elizabeth B. Bazan
Legislative Attorney
ebazan@crs.loc.gov, 7-7202
39 2008 Annual Report of the Director of the Administrative Office of the United States Courts at 77, table S-22B.
40 Id. at 37.
41 Id.
42 Id.
43 Id.
Congressional Research Service
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