UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


JUDICIAL COUNCIL COMPLAINT


99-0011a

D.C. Cir. 1999


*	*	*


Williams, Acting Chief Judge: This matter involves a  complaint of
judicial misconduct, made pursuant to the Judi- cial Councils Reform
and Judicial Conduct and Disability Act  of 1980 ("the Judicial
Councils Act"). The Act seeks to  ensure that federal court of
appeals, district, bankruptcy, and  magistrate judges will not
"engage[ ] in conduct prejudicial to  the effective and expeditious
administration of the business of  the courts." 28 U.S.C. s 372(c)(1)
(1994). "Any person" who  has reason to believe that a judge has
engaged in such  conduct may file a written complaint, along with a
brief  statement of the facts constituting such conduct, with the 
Clerk of the Court of Appeals. Id. The matter is then  referred to the
Chief Judge of the Circuit, who, by written  order, may dismiss the
complaint if it is (i) not in conformity  with section 372(c)(1); (ii)
directly related to the merits of a  decision or procedural ruling; or
(iii) frivolous. See id.  s 372(c)(3)(A); D.C. Cir. Jud. Misconduct R.
4(c). Under  Rule 4(c)(3) of the Rules of the Judicial Council for the
 District of Columbia Circuit Governing Complaints of Judicial 
Misconduct or Disability ("Misconduct Rules"), "frivolous"  complaints
include ones "making charges that are wholly  unsupported." D.C. Cir.


The instant complaint (in the form of a letter dated August  30, 1999
and a Supplement dated September 15, 1999 ("Sup- plement")) involves
charges against nine judges of the United  States District Court for
the District of Columbia, and raises  two distinct allegations of
misconduct. First, in light of press 


reports that eight subject judges, all appointed by President  Clinton,
hold monthly meetings, complainant requests an  investigation of
"[w]hether substantive or procedural case  issues were discussed
concerning lawsuits against or concern- ing the Clinton Administration
during [these meetings] and, if  so, were various courses of action
also discussed and/or  decided upon in an effort to obtain the most
favorable results  for a Democrat/Clinton Administration?" Supplement
at 2-3.  Second, complainant requests an investigation as to whether 
one of the subject judges bypassed the random case- assignment system
usually employed by the District Court in  order to assign two
criminal cases involving friends of Presi- dent William Jefferson
Clinton to Clinton-appointed judges  "because she believed, or had
reason to believe, that recent  Clinton appointees would be more
disposed to render deci- sions favorable to a Democrat/Clinton


I.


According to press reports attached to the complaint, it is  an "open
secret" that the eight subject judges appointed by  President Clinton
meet together regularly. The complaint in  effect contains three
allegations: (1) that the eight subject  judges meet regularly in
private, without the other members  of the District Court; (2) that
"cases concerning alleged  misconduct and illegality in the Clinton
Administration" may  have been topics of discussion; and (3) that such
discussions  may have had improper components, namely, efforts to in-
crease the likelihood that the cases were treated or resolved  in such
a way as "to obtain the most favorable results for a  Democrat/Clinton
Administration." The charge that the sub- ject judges met and
discussed their cases is not in itself  troubling. I am aware of no
rule, nor has any been cited by  complainant, that prohibits District
Court judges from confer- ring with other members of their court about
pending cases,  assuming the other judges are not ones who would have
been  required to recuse themselves as to any of the cases dis-
cussed. Far from constituting misconduct, such discussions  might well
improve the quality of decisionmaking.


The third allegation is quite a different matter. It would  clearly be
an impropriety for judges to meet for the purpose  of making their
judicial rulings provide advantage to any  administration or political
party. See Code of Conduct For  United States Judges, Canon 3(A)(1),
reprinted in 2 Adminis- trative Office of the United States Courts
Guide to Judicia- ry Policies and Procedures, ch. I, at I-4 (1999 ed.)
("A judge  ... should not be swayed by partisan interest...."). As to 
this element, however, the complaint fails to assert facts  supporting
a reasonable inference of the alleged impropriety.  The only fact
seemingly offered is that the discussions alleg- edly occurred during
regular meetings to which only Clinton  appointees were invited.
Apparently implicit in complainant's  readiness to draw the inference
that improper behavior has  occurred is a supposition that the
repeated gathering of  judges appointed by a president of one
political party, and  perhaps themselves belonging to that party, is
improbable in  the absence of an intent to distort the course of law
for the  benefit of that president and that party. But judges appoint-
ed by a single administration are likely to be drawn together  by all
sorts of common interests. Those common interests  may, of course,
include shared political outlooks and interests  in cases pending in
the same court. But the possibility that  judges of a harmonious
political outlook use the alleged  meetings as an occasion for
discussion of cases does not in  itself carry any inference that they
also use them for conver- sations that would violate the canon against
partisan interest.  Thus their meetings are easily understood without


As support for complainant's inference, then, this leaves  only the
idea that an opportunity for impropriety will in fact  prove the
occasion of impropriety. Implicit in this reasoning  is perhaps a
still broader notion--that judges will commonly  harbor such deep
sympathy or gratitude for the president  that appointed them that they
cannot be impartial in any case  that concerns allegations of
illegality or impropriety by the  executive branch, its officials, or
friends of the president.  Complainant accordingly refers to the fact
that Clinton ap- pointees on the Eighth Circuit recused themselves in


Jones v. Clinton appeal, suggests that a local rule be adopted 
requiring "this practice" in the District of Columbia Circuit,  see
Supplement at 4 n.1, and attaches a list of cases pending  before the
subject judges in which complainant is a party and  in which there are
issues regarding the propriety of conduct  by various government
entities. But although opportunity  for impropriety is essential, it
is far from sufficient. Alone it  is little evidence--certainly not
enough to overcome the as- sumption that judges will honor their oaths
of office to  "administer justice without respect to persons" and to
"faith- fully and impartially discharge and perform all ... duties 
incumbent upon [them] ... under the Constitution and laws  of the
United States." 28 U.S.C. s 453.


Even recast as an assertion of an "appearance of impro- priety" the
charges fail. An appearance of impropriety exists  only when a
reasonable person, "with knowledge of all the  relevant circumstances
that a reasonable inquiry would dis- close," would believe that "the
judge's ability to carry out  [his] responsibilities with integrity,
impartiality, and compe- tence [was] impaired." Code of Conduct for
United States  Judges Canon 2A cmt., reprinted in 2 Administrative
Office  of The United States Courts, Guide to Judiciary Policies And 
Procedures, ch. I at I-3. But reasonable observers do not  take so
cynical a view of the judiciary: they "understand that  federal
judges, ... like the vast majority of unelected public  officials, are
able to disregard the political views of their  friends and carry out
their responsibilities in a fair and  impartial manner." Charge of
Judicial Misconduct or Dis- ability, 85 F.3d 701, 707 (D.C. Cir. Jud.
Council 1996) (Tatel,  J., concurring). Here the facts are too slender
to convince  the reasonable person otherwise--to believe that the
subject  judges have employed their gatherings for the purpose of 
subverting the law to crass political purposes.


As the facts alleged give no reason to infer misconduct, it is 
inappropriate to impose on the court the burdens of an  investigation.
The complaint of misconduct is "wholly unsup- ported" and is dismissed
as frivolous pursuant to 28 U.S.C.  s 372(c)(3). See Charge of
Judicial Misconduct or Disabili- ty, 170 F.3d 1152, 1155 (D.C. Cir.
Jud. Council 1999) (dismiss-


ing as frivolous a claim of bias that was "entirely unsupport- ed");
Complaint of Doe, 2 F.3d 308, 311 (8th Cir. Jud.  Council 1993)
(dismissing as frivolous unsupported allegations  of conspiracy and
bias); Charge of Judicial Misconduct, 691  F.2d 924, 925 (9th Cir.
Jud. Council 1982) (charge of conspira- cy unsupported by specific
factual allegations was properly  dismissed by the chief judge as


I of course express no opinion as to whether the holding of  the
meetings may, as alleged in certain press clippings at- tached to the
complaint, cause a "loss of collegiality" in the  District Court.
Assuming the conduct has such an effect, it  would not thereby
constitute "conduct prejudicial to the effec- tive and expeditious
administration of the business of the  courts." D.C. Cir. Jud.
Misconduct R. 4(c)(1) ("A complaint  will be dismissed if the chief
judge concludes [ ] that the  claimed conduct, even if the claim is
true, is not 'conduct  prejudicial to the effective and expeditious
administration of  the business of the courts.' "). Such prejudicial
conduct  includes the "use of the judge's office to obtain special 
treatment for friends and relatives, acceptance of bribes,  improperly
engaging in discussions with lawyers or parties to  cases in the
absence of representatives of opposing parties,  and other abuses of
judicial office," D.C. Cir. Jud. Misconduct  R. 1(b), and, as
suggested by the Senate Report, "is intended  to include willful
misconduct in office, willful and persistent  failure to perform
duties of the office, habitual intemperance,  and other conduct
prejudicial to the administration of justice  that brings the judicial
office into disrepute." S. Rep. No.  362, 96th Cong., 1st Sess. 9
(1979); see also Hastings v.  Judicial Conf. of the United States, 829
F.2d 91, 106 (D.C.  Cir. 1987) (quoting Senate Report). Conduct that
leads  merely to a "loss of collegiality" falls outside the misconduct


Accordingly, the complaint is dismissed insofar as it alleges  that
meetings of eight specified judges constitute misconduct  or require
investigation for possible misconduct.


II.


The remaining allegation is that a subject judge bypassed  the random
case-assignment system usually employed by the  District Court in
order to assign two criminal cases involving  friends of President
Clinton to Clinton-appointed judges "be- cause she believed, or had
reason to believe, that recent  Clinton appointees would be more
disposed to render deci- sions favorable to a Democrat/Clinton
Administration." Sup- plement at 2. Although random case assignment is
the norm,  District Court Local Criminal Rule 57.10(c) (then Local
Rule  403(g)), provides that "[i]f the Chief Judge determines at the 
time an indictment is returned that the case will be protract- ed and
that the expeditious and efficient disposition of the  court's
business requires assignment of the case on a non- random basis, the
Chief Judge may specially assign that case  to any active judge or to


Complainant does not contend that this local rule is unlaw- ful or in
any way improper. Rather it questions the way in  which the subject
judge exercised her discretion in applying  the rule. Complainant
points to the fact that, in bypassing  the random case-assignment
system, the subject judge select- ed two judges who were appointed by
President Clinton. But  that fact alone does not support an inference
of impropriety.  In a two-party system where judges are appointed by
the  President, every available judge will have been appointed by 
either a President of the same party or by one of the  opposing party.
Thus any remotely discretionary case as- signment system will, in any
case involving an ally of a  President, past or present, entail a
choice among those alter- natives; accordingly, the choice itself, one
way or the other,  can hardly be said to show impropriety or its
appearance.  That both selected judges were Clinton-appointees is
neither  damning nor surprising, given that at the time the second 
case was assigned only four active judges in the District  Court
(excluding the subject judge) were appointed by a  president other


The subject judge's decision is, moreover, entirely consis- tent with
the local rule's preference for "the expeditious and  efficient
disposition of the court's business." The two cases  at issue were
high-profile and the judges selected to oversee 


the trials were capable of providing a timely resolution.  These judges
were, as the subject judge has attested in  letters filed in answer to
my request for a response, "known  to be efficient and they assured
[the subject judge] that their  dockets would permit the intense
preparation required by  these high profile cases." Confidential
Addendum to Re- sponse of Subject Judge, filed November 5, 1999
("Confiden- tial Addendum"). The docket statistics from the relevant 
time period bear out this point. See Confidential Supplement  to
Response of Subject Judge, filed November 8, 1999. In  January 1998,
when the first of the two cases was assigned,  the assigned judge had
only six criminal cases on his docket,  second fewest of all active
judges and far fewer than the  judge with the heaviest docket (19
cases). Similarly, in April  1998, when the second case was assigned,
the selected judge  had nine criminal cases on his docket, third
lowest among  active judges (with the January selectee being one of
the two  with fewer cases). By May, the April selectee had reduced 
his criminal docket to seven cases; for that month, the two  selected
judges had the lowest criminal caseloads on the  court.


In determining whether a complaint is "frivolous," the chief  judge is
authorized to conduct an inquiry to determine  "whether the facts
stated in the complaint are either plainly  untrue or are incapable of
being established through investi- gation." D.C. Cir. Jud. Misconduct
R. 4(b). Having con- ducted this inquiry, I conclude that the relative
size of the  selected judges' criminal dockets, and the make-up of the
 District Court (in terms of the presidents who made the 
appointments) at the time these judges were selected, rebut  any
reasonable inference of impropriety. Moreover, the al- leged
impropriety is "incapable of being established through 
investigation." The subject judge has asserted an acceptable 
justification in support of her action, and in light of the broad 
discretion that the local rule affords, only the proverbial  "smoking
gun" would suggest any improper activity to the  contrary. As noted
above, we generally assume that judges  will honor their oaths of
office to "administer justice without  respect to persons" and to


charge and perform all ... duties incumbent upon [them] ...  under the
Constitution and laws of the United States." 28  U.S.C. s 453. The
Misconduct Rules, moreover, express the  policy that "[t]he formal
investigatory procedures are to be  regarded as a last resort." D.C.
Cir. Jud. Misconduct R. 4  cmt. In the circumstances presented here, a
purely concluso- ry allegation, supported only by facts that in
context are  entirely consistent with honorable and correct behavior,
is not  enough to justify a search for such evidence. Accordingly, 
the complaint is dismissed as frivolous pursuant to 28 U.S.C.  s


In dismissing the complaint as unsupported, however, I do  not intend
to imply that the local rule allowing non-random  assignment of cases
is beyond criticism. The lack of objective  standards to govern the
rule's use makes possible both actual  and perceived abuses, and the
subject judge notes that per- haps "our special assignment system
needs to be reexamined  and more precise standards need to be
adopted." Confiden- tial Addendum at 1. Moreover, it would seem that
the very  legitimate concerns about undue delay can be resolved by 
special provisions simply precluding assignment of any cases  to a
judge manifestly behind in his or her docket. But the  trade-offs
between retention and elimination of the rule, and  between all the
imaginable variations by which it might be  replaced, are for another


For the reasons stated above, the complaint is dismissed as  frivolous
under 28 U.S.C. s 372(c)(3)(A)(iii).1


1 Pursuant to 28 U.S.C. s 372(c)(10) (1994) and D.C. Cir. Jud. 
Misconduct R. 5, complainant may file a petition for review by the 
Judicial Council for the District of Columbia Circuit. Any petition 
must be filed in the Office of the Clerk of the Court of Appeals 
within 30 days of the date of the Clerk's letter transmitting the 
dismissal Order and this Opinion. See D.C. Cir. Jud. Misconduct R.