Judicial Discipline Process: An Overview

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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.

he 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 T

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 ¹
federal circuit judges, district judges, bankruptcy judges or magistrate judges.
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 ²
is unable to discharge all the duties of the office by reason of mental or physical disability.” 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 ³
for the complaint. 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 ⁴
judicial discipline process.
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

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²^{28 U}^.^S.C^.^§³⁵¹⁽^a⁾^.
³^{28 U}^.^S.C^.^§³⁵¹⁽^b)^.
⁴^{28 U}^.^S.C.^§³⁵^1(c⁾^{. F}^o^r^pur^pose^s^of^{this d}ⁱ^sc^ussion^{, t}^h^e^te^rm^“^c^h^ie^f^judg^e^”^w^{ill a}^pply^{to the}^c^h^ie^f^judg^e^,^{or i}ⁿ^t^h^e^c^a^s^e
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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 ⁵
to the complainant and to the judge involved. 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 ⁶
judge. If the petition for review is denied, that decision is final and not subject to review. The
judicial council may refer a petition for review to a panel of at least 5 members of the judicial ⁷
council, 2 of whom must be U.S. district judges.
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 ⁸
committee has full subpoena powers. The report of the committee must present both findings of
the investigation and recommendations for necessary and appropriate action by the judicial ⁹
council.
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 ¹⁰
the complaint. 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 ¹¹
announcement. Like the special committee, the judicial council may exercise full subpoena ¹²
powers in conducting its investigation.

⁵^{28 U}^.^S.C^.^§³⁵^2.
⁶^{28 U}^.^S.C^.^§³⁵²⁽^c⁾^.
⁷²⁸^U^.^S^.^{C. §}³⁵²⁽^d⁾^.^T^h^{e r}^u^l^e^{s gover}ⁿⁱⁿ^{g t}^h^{e co}^nd^u^c^t^o^f^j^u^di^ci^al^dⁱ^sci^p^lⁱⁿ^{e p}^r^o^ceedⁱⁿ^{gs b}^y^each^j^u^dⁱ^ci^al^c^ounc^{il or}^by
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⁹^{28 U}^.^S.C^.^§³⁵^3.
¹⁰^{28 U}^.^S.C^.^§^§³⁵⁴⁽^a⁾⁽¹⁾⁽^A⁾^a^{nd 3}⁵⁴⁽^a⁾⁽¹⁾⁽^B⁾^.^I^f^the^c^o^m^p^la^int^ha^s^be^eⁿ^fⁱ^na^lly^dism^is^s^e^{d unde}^r²⁸^U^.^S.C^.^§
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¹¹^{28 U}^.^S.C^.^§^§³⁵⁴⁽^a⁾⁽¹⁾⁽^C⁾^aⁿ^{d 3}⁵⁴⁽^a⁾⁽²⁾^.
¹²^{28 U}^.^S.C^.^§³⁵⁶⁽^a⁾^{, c}^iti^ng^s^u^b^p^o^e^na^pow^e^r^s^unde^r^{28 U}^.^S.C^.^§³³²⁽^d)^.

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 ¹³
apply. The judicial council may not order removal from office of any judge appointed to hold ¹⁴
office during good behavior.
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 ¹⁵
judicial council considers appropriate. 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 ¹⁶
bankruptcy judge must be in accordance with 28 U.S.C. § 152. The judicial council must
provide immediate written notice of the action taken to the complainant and to the judge whose ¹⁷
conduct is the subject of the complaint.
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 ¹⁸
to the judge involved. 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 ¹⁹
review is denied, that decision is final and conclusive and not subject to judicial review.
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

¹³^{28 U}^.^S.C^.^§³⁵⁴⁽^a⁾⁽²⁾⁽^B⁾^.
¹⁴^{28 U}^.^S.C^.^§³⁵⁴⁽^a⁾⁽³⁾^.^Cf.^{, U}^.^S.^Coⁿ^s^t.,^A^r^{t. III, Sec. 1}^(lif^{e ten}^u^r^e^d^u^rⁱⁿ^g^g^o^o^d^b^e^h^a^vⁱ^o^r^.)
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^.^§³⁵^7.

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 ²⁰
Conference deems appropriate.
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 ²¹
determination and any reasons for the determination available to the public.
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 ²²
Representatives for whatever action the House deems necessary. 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 ²³
creditable service under 5 U.S.C., chapter 83, subchapter III, or chapter 84.
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

²⁰^{28 U}^.^S.C^.^§³⁵⁵⁽^a⁾^{, c}^r^os^s^-^r^e^f^e^r^e^nc^ing^{28 U}^.^S.C^.^§§³⁵⁴⁽^a⁾⁽¹⁾⁽^C⁾^a^nd³⁵⁴⁽^a⁾⁽²⁾^.
²¹^{28 U}^.^S.C^.^§³⁵⁵⁽^b)⁽¹⁾^.
²²^{28 U}^.^S.C^.^§³⁵⁵⁽^b)⁽²⁾^.
²³^{28 U}^.^S.C^.^§³⁶^4.

appear as amicus curiae in any judicial discipline proceeding before a judicial council or the ²⁴
Judicial Conference.
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 ²⁵
supporting it.
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 ²⁶
had been taken, action was no longer necessary, or the complaint had been withdrawn.” 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 ²⁷
dismissed.

²⁴^{28 U}^.^S.C^.^§³⁵^9.
²⁵^{28 U}^.^S.C^.^§³⁶^0.
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