United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 7, 2000 Decided September 21, 2001

No. 00-5016

The Honorable John H. McBryde,
United States District Judge for the
Northern District of Texas,
Appellant

v.

Committee to Review Circuit Council Conduct and
Disability Orders of the Judicial Conference
of the United States, et al.,
Appellees

Appeal from the United States District Court
for the District of Columbia
(No. 98cv02457)

David Broiles and Arnon D. Siegel argued the cause and
filed the briefs for appellant.

William B. Schultz, Deputy Assistant Attorney General,
U.S. Department of Justice, argued the cause for appellee


United States of America. David W. Ogden, Assistant Attor-
ney General, Mark B. Stern and Scott R. McIntosh, Attor-
neys, and Wilma A. Lewis, U.S. Attorney at the time the
brief was filed, were on the brief. Thomas W. Millet, Attor-
ney, U.S. Department of Justice, entered an appearance.

Robert B. Fiske, Jr. argued the cause for appellees the
Committee to Review Circuit Council Conduct and Disability
Orders of the Judicial Conference of the United States, et al.
With him on the brief was Lowell Gordon Harriss.

Before: Williams and Tatel, Circuit Judges, and
Silberman, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Williams.

Separate opinion filed by Circuit Judge Tatel, concurring
in part and dissenting in part.

Williams, Circuit Judge: On December 31, 1997 the Judi-
cial Council of the Fifth Circuit (the "Judicial Council" or
"Council"), acting under the Judicial Conduct and Disability
Act of 1980, 28 U.S.C. s 372(c) (the "Act"), imposed sanctions
on the Honorable John H. McBryde, United States District
Judge for the Northern District of Texas. The sanctions
followed a two-year investigation by a Special Committee of
the Judicial Council ("Special Committee"), including nine
days of hearings. The Committee took evidence relating to
incidents spanning the entirety of Judge McBryde's judicial
career and involving encounters with judges and lawyers both
inside and outside his courtroom. (We will consider an
example from the exhaustive record when we address Judge
McBryde's argument that the Council illegally considered the
merits of his judicial decisions.)

The investigation culminated in a 159-page report in which
the Special Committee concluded that "Judge McBryde ha[d]
engaged for a number of years in a pattern of abusive
behavior" that was " 'prejudicial to the effective and expedi-
tious administration of the business of the courts.' " Report
of the Special Committee of the Fifth Circuit Judicial Coun-
cil Regarding Complaints Against, and the Investigation


into the Conduct of, Judge John H. McBryde at 150-51 (Dec.
4, 1997) ("Committee Report") (quoting 28 U.S.C. s 372(c)).
The Report also recommended a variety of sanctions based on
the provisions of s 372(c)(6)(B): that Judge McBryde receive
a public reprimand, pursuant to subsection (v); that no new
cases be assigned to him for a year, pursuant to subsection
(iv); and that he not be allowed for three years to preside
over cases involving any of 23 lawyers who had participated in
the investigation, pursuant to subsection (vii) (providing for
"other action" considered appropriate in light of circum-
stances). See Committee Report at 152-58. The Judicial
Council endorsed the recommendations and issued an order
imposing the recommended sanctions. See In re: Matters
Involving United States District Judge John H. McBryde,
Under the Judicial Conduct and Disability Act of 1980, No.
95-05-372-0023 (Jud. Council 5th Cir. Dec. 31, 1997) ("Judi-
cial Council Order"). The lawyer-related disqualification be-
came effective on February 6, 1998, but the Council stayed
the reprimand and the one-year suspension pending review
by the Committee to Review Circuit Council Conduct and
Disability Orders of the Judicial Conference of the United
States (the "Review Committee"). On September 18, 1998
the Review Committee substantially affirmed the Council's
action and lifted the stay. See In re: Complaints of Judicial
Misconduct or Disability, No. 98-372-001 (Jud. Conf. U.S.
Sept. 18, 1998) ("Judicial Conference Report").

Soon thereafter Judge McBryde brought suit in district
court, claiming that the Act, both facially and as applied,
violated the due process clause and the Constitution's separa-
tion of powers doctrine.1 He also claimed that the initiation
and conduct of the investigation against him exceeded the
authority granted by the statute. Finally, he posed a First
Amendment challenge to the Act's restrictions on disclosing

__________
1 Defendants/Appellees in this case are the Review Committee;
Judge William J. Bauer, individually and as Chairman and as
member of the Review Committee; the Judicial Council; and Judge
Henry J. Politz, individually and as Chief Judge of the Court of
Appeals for the Fifth Circuit and as presiding member of the
Judicial Council, at the relevant times.


the record of the proceedings. On cross motions for sum-
mary judgment, the district court agreed with Judge
McBryde's First Amendment argument, McBryde v. Commit-
tee to Review Circuit Council Conduct and Disability Orders,
83 F. Supp. 2d 135, 171-78 (D.D.C. 1999), but rejected the
rest. Only Judge McBryde appealed; here he repeats the
essence of his remaining arguments.

Judge McBryde's claims are moot insofar as they distinc-
tively relate to the one-year suspension, which expired on
September 18, 1999, and the three-year disqualification, which
expired on February 6, 2001. Certain of the non-moot claims
are barred by the Act's preclusion of judicial review, 28
U.S.C. s 372(c)(10), namely the "as applied" and statutory
challenges; the district court was therefore without jurisdic-
tion to hear them. We vacate the district court's judgment
insofar as it addressed the moot or precluded issues. Judge
McBryde's remaining constitutional challenges fail on their
merits; we therefore affirm the district court's ruling. We
address first mootness, then preclusion, and finally the mer-
its.

* * *

Article III, Section 2 of the Constitution permits federal
courts to adjudicate only "actual, ongoing controversies."
Honig v. Doe, 484 U.S. 305, 317 (1988). If events outrun the
controversy such that the court can grant no meaningful
relief, the case must be dismissed as moot. See, e.g., Church
of Scientology of California v. United States, 506 U.S. 9, 12
(1992). This requirement applies independently to each form
of relief sought, see Friends of the Earth v. Laidlaw, 528 U.S.
167, 185 (2000), and "subsists through all stages of federal
judicial proceedings, trial and appellate," Lewis v. Continen-
tal Bank Corp., 494 U.S. 472, 477 (1990).

The one-year and three-year bans have expired. No relief
sought in this case would return to Judge McBryde the cases
he was not assigned or otherwise improve his current situa-
tion. These claims will therefore be moot unless they are
"capable of repetition, yet evading review." Weinstein v.
Bradford, 423 U.S. 147, 149 (1975). Both the Supreme Court


and this court have held that "orders of less than two years'
duration ordinarily evade review." Burlington Northern
R.R. Co. v. Surface Transp. Bd., 75 F.3d 685, 690 (D.C. Cir.
1996); see also Southern Pac. Terminal Co. v. ICC, 219 U.S.
498, 514-16 (1911). So the one-year exclusion safely qualifies.
We will assume in Judge McBryde's favor the same for the
three-year exclusion.

But are the injuries "capable of repetition"? Stated more
formally, this requires "a reasonable expectation that the
same complaining party would be subjected to the same
action again." Weinstein, 423 U.S. at 149. When considering
the likelihood that an injury will be repeated, the Supreme
Court has in general "been unwilling to assume that the party
seeking relief will repeat the type of misconduct that would
once again place him or her at risk of that injury." Honig,
484 U.S. at 320 (citing City of Los Angeles v. Lyons, 461 U.S.
95, 105-06 (1983); Murphy v. Hunt, 455 U.S. 478, 484 (1982);
O'Shea v. Littleton, 414 U.S. 488, 497 (1974)). Honig created
an exception to this general principle on the ground that
there it was the disabled respondent's "very inability to
conform his conduct to socially acceptable norms that ren-
der[ed] him 'handicapped.' " 484 U.S. at 320. We have no
basis for concluding that there is any parallel inability here.

In the cases cited by Honig the parties did not challenge
the underlying laws that proscribed their potential future
conduct. See, e.g., O'Shea, 414 U.S. at 496-97. McBryde
obviously does challenge the Act and the authority of the
defendants to enforce norms of judicial conduct. But he does
not appear to challenge the norms themselves. To be sure,
he asserts that the Special Committee's report is vague and
provides inadequate notice of what actions are prohibited.
But the fundamental standard sought to be enforced by the
defendants can plainly be discerned--that a judge should
demonstrate at least a modicum of civility and respect to-
wards the professionals with whom he or she works. The
standard is also familiar, as it clearly echoes Canon 3(A)(3) of
the Code of Judicial Conduct for Federal Judges. See Code
of Judicial Conduct for United States Judges, Canon 3(A)(3);


Judicial Council Order at 2. Judge McBryde does not, so far
as we can determine, ever challenge this basic notion any-
more than the plaintiff in Lyons claimed a right to engage in
the sort of conduct that (he said) commonly led to police use
of chokeholds. Indeed at oral argument counsel for Judge
McBryde specifically acknowledged that at least some of the
conduct "could be considered inappropriate." See Oral Arg.
Tr. at 80-81. With this decision's confirmation of the Judicial
Council's authority to sanction Judge McBryde for consistent
failure to adhere to this norm, we think the risk of recurrence
fairly slight. We recognize that docket limitations can be a
very serious matter. See Wozniak v. Conry, 236 F.3d 888,
890 (7th Cir. 2001) (holding that depriving a tenured profes-
sor of all teaching and research responsibilities affected a
property interest sufficiently to entitle him to some kind of a
hearing). But here the two restrictions on Judge McBryde's
docket have become moot.

The dispute over the public reprimand, however, remains
alive. Any thought that the reprimand is a past and irrevers-
ible harm is belied by the fact that it continues to be posted
on the web site of the Fifth Circuit Court of Appeals,2 with a
link on the home page alongside items for current use such as
the court's calendar and opinions.3 Even absent that use of
modern technology it would be a part of the historical record.
Were Judge McBryde to prevail on the merits it would be
within our power to declare unlawful the defendants' issuance
of stigmatizing reports and thereby to relieve Judge McBryde
of much of the resulting injury.

No one has suggested that this injury to reputation is not
enough to afford Judge McBryde standing (the three-year
limit was in effect at the time of oral argument). But we
have a duty to be sure of our own jurisdiction, see Bender v.
Williamsport Area School Dist., 475 U.S. 534, 541 (1986), so
we consider the question. The Court has, of course, ruled
that mere injury to reputation is not enough of an impinge-
ment on a person's liberty or property interest to trigger a

__________
2 See <http://www.ca5.uscourts.gov/mcbryde.htm>, last ac-
cessed on June 20, 2001.

3 See <http://www.ca5.uscourts.gov/>, last accessed on June
20, 2001.

requirement of due process. See Paul v. Davis, 424 U.S. 693
(1976). But injury to reputation can nonetheless suffice for
purposes of constitutional standing. Thus, in Meese v. Keene,
481 U.S. 465 (1987), the Court found that a politician and film
distributor had standing to challenge a government agency's
stigmatizing as "political propaganda" foreign films that he
wished to exhibit. The Court rested not only on affidavits
indicating that this branding would affect his chances for
reelection, id. at 473-74, but also on the impact on his
reputation generally, id. Here, the official characterization of
an apparently upstanding federal judge as having "engaged
for a number of years in a pattern of abusive behavior" that
was " 'prejudicial to the effective and expeditious administra-
tion of the business of the courts' " inflicts, we think, enough
injury. Committee Report at 150-51 (quoting 28 U.S.C.
s 372(c)).

At some point, however, claims of reputational injury can
be too vague and unsubstantiated to preserve a case from
mootness. See Advanced Management Technology, Inc. v.
FAA, 211 F.3d 633, 636-37 (D.C. Cir. 2000). Insofar as the
one-year and three-year suspensions may have continuing
reputational effects on top of the defendants' express repri-
mand, they are not enough. The legally relevant injury is
only the incremental effect of a record of the suspensions
(since the fact of the suspensions can no longer be remedied),
over and above that caused by the Council's and the Confer-
ence's explicit condemnations. See Friedman v. Shalala, 46
F.3d 116, 117-18 (1st Cir. 1995). And even as to that
increment the most we could say at McBryde's behest is that
in imposing and affirming the suspension sanction the Judicial
Council and Review Committee performed acts reserved by
the Constitution to the House and a two-thirds majority of
the Senate. We cannot see how this would rehabilitate his
reputation. Moreover, the Supreme Court has strongly sug-
gested, without deciding, that where an effect on reputation is
a collateral consequence of a challenged sanction, it is insuffi-
cient to support standing or, presumably, to escape mootness.
See Spencer v. Kemna, 523 U.S. 1, 16-17 n.8 (1998). In this
circuit, when injury to reputation is alleged as a secondary


effect of an otherwise moot action, we have required that
"some tangible, concrete effect" remain, susceptible to judicial
correction. See Penthouse Int'l, Ltd. v. Meese, 939 F.2d
1011, 1019 (D.C. Cir. 1991).

* * *

Although the injury to Judge McBryde's reputation pre-
serves the public reprimand from mootness and affords
standing, yet another question remains about our jurisdiction.
The statute enabling the Judicial Council and Review Com-
mittee to consider Judge McBryde's conduct sets out the
avenues through which a judge may challenge actions taken
against him. 28 U.S.C. s 372(c)(10). It allows a petition to
the Judicial Conference for review of a decision of the judicial
council taken under s 372(c)(6). It then appears to preclude
alternative avenues of review:

Except as expressly provided in this paragraph, all or-
ders and determinations, including denials of petitions for
review, shall be final and conclusive and shall not be
judicially reviewable on appeal or otherwise.

28 U.S.C. s 372(c)(10). Twice in the past this provision has
appeared before us, but on neither occasion did we need to
resolve its meaning. See Hastings v. Judicial Conference of
the United States, 829 F.2d 91, 107 (D.C. Cir. 1987) ("Has-
tings II"); Hastings v. Judicial Conference of the United
States, 770 F.2d 1093, 1103 (D.C. Cir. 1985) ("Hastings I").

There are some claims that this section definitely does not
preclude. The statutory language closely parallels that con-
strued in Johnson v. Robison, 415 U.S. 361 (1974), where
Congress provided that "decisions" of the Veterans Adminis-
tration "on any question of law or fact" under certain laws
"shall be final and conclusive," and expressly withheld juris-
diction from any court to review "any such decision." Id. at
365 n.5 (quoting the then-applicable version of 38 U.S.C.
s 211(a)). The Court held that s 211(a) had no application to
challenges to the constitutionality of the statutes in question,


i.e., challenges to the decisions of Congress, not the Veterans
Administration. See id. at 367. This interpretation allowed
the Court to avoid the " 'serious constitutional question' " that
would be posed "if a federal statute were construed to deny
any judicial forum for a colorable constitutional claim." Web-
ster v. Doe, 486 U.S. 592, 603 (1988) (quoting Bowen v.
Michigan Academy of Family Physicians, 476 U.S. 667, 681
n.12 (1986)). Similarly, the wording of s 372(c)(10) does not
withhold jurisdiction over Judge McBryde's claims that the
Act unconstitutionally impairs judicial independence and vio-
lates separation of powers.

This leaves four claims in addition to the facial constitution-
al challenges. Two of these four also invoke the Constitution,
challenging the actions of the defendants in applying the Act
to Judge McBryde. The first claim is that the defendants
inflicted their sanction without providing him due process.
This claim principally involves an assertion that the whole
project arose out of a conflict between himself and then-Chief
Judge Politz, whose actions furthering the investigation
Judge McBryde regards as "retaliation" and who, he claims,
combined "investigative, charging, prosecutorial and adjudica-
tive functions." Judge McBryde argues, in effect, that he
was denied due process because Judge Politz refused to
recuse himself. The second constitutional claim is somewhat
obscure. He argues, in essence, that the methods used by
the Judicial Council and Judicial Conference in imposing the
sanction, were particularly invasive and therefore violated
judicial independence. He cites two examples. When the
Review Committee amended the Judicial Council's order so as
to permit reinstatement if the council found that Judge
McBryde had "seized the opportunity for self-appraisal and
deep reflection in good faith," Judicial Conference Report at
24, it engaged (he says) in forbidden "judicial behavior modifi-
cation." And the Judicial Council's use of psychiatrists for
advice on Judge McBryde's mental health, and on the possi-
ble causes of his conduct, was "fundamentally destructive of
judicial independence."

Beyond these constitutional claims are two phrased by
Judge McBryde as assertions that the actions of the Special


Committee, the Council and the Review Committee against
him were "Beyond the Agencies' Statutory Jurisdiction."
One of these claims is in fact an attack on the defendants'
procedures, namely an argument that although the investiga-
tive process was launched by complaints formally filed under
s 372, it widened as it went on to encompass conduct not
mentioned in those initial complaints. The other is a claim
that the defendants were without statutory authority to inves-
tigate and penalize Judge McBryde "for" the merits of his
decisions and rulings (his characterization of defendants' ac-
tions). We conclude that s 372(c)(10) bars all four chal-
lenges.

As we said, two of the claims are framed in constitutional
terms. When the Constitution is invoked, a claim of preclu-
sion faces an especially high hurdle. "[W]here Congress
intends to preclude judicial review of constitutional claims its
intent to do so must be clear." Webster, 486 U.S. at 603
(citing Robison, 415 U.S. at 373-74). And a series of cases in
this circuit have held that this special clarity is necessary
even for as applied challenges. See Griffith v. FLRA, 842
F.2d 487, 494-95 (D.C. Cir. 1988); Ungar v. Smith, 667 F.2d
188, 193 (D.C. Cir. 1981); Ralpho v. Bell, 569 F.2d 607, 620-
21 (D.C. Cir. 1977). Under these cases, we find preclusion of
review for both as applied and facial constitutional challenges
only if the evidence of congressional intent to preclude is
"clear and convincing." The preclusive language here is quite
similar to that of 5 U.S.C. s 8128(b), which the Court singled
out in Lindahl v. OPM, 470 U.S 768, 779-80 & n.13 (1985), as
an "unambiguous and comprehensive" preclusion of review.
See also Czerkies v. Department of Labor, 73 F.3d 1435, 1443
(7th Cir. 1996) (Easterbrook, J., concurring). But see id. 73
F.3d at 1442 (majority opinion finding jurisdiction despite
s 8128(b)); Paluca v. Secretary of Labor, 813 F.2d 524, 525
(1st Cir. 1987) (same). But under this court's Ralpho trilogy,
we have not regarded broad and seemingly comprehensive
statutory language as supplying the necessary clarity to bar
as applied constitutional claims. See Griffith, 842 F.2d at 490
(citing 5 U.S.C s 7123(a) (1982)); Ungar, 667 F.2d at 193
(citing 22 U.S.C. s 1631o(c) (1976)); Ralpho, 569 F.2d at 613


(citing s 2020 of the Micronesian Claims Act of 1971). In the
absence of explicit statutory language barring review of con-
stitutional challenges, the opinions studied the legislative
history, finding the clear and convincing standard unsatisfied
in all three cases. Griffith, 842 F.2d at 494-95; Ungar, 667
F.2d at 196; Ralpho, 569 F.2d at 621-22.

We pretermit the possibility that the Supreme Court's
decision in Traynor v. Turnage, 485 U.S. 535, 542-45 (1988),
postdating the last of the circuit trilogy (Griffith), has under-
mined the trilogy's premise. It may have done so by treating
the Robison decision (source of the circuit trilogy) as deriving
more from statutory language allowing review of attacks on
the facial validity of the provision being applied (whether the
attack was statutory or constitutional), and less from ideas of
special status for constitutional claims.

Assuming arguendo the full applicability of the circuit
trilogy, however, we nonetheless find the requisite clarity of
preclusive intent. Of course if the trilogy is read to require
magic words expressly barring as applied constitutional at-
tacks, they are not to be found. But the legislative history
manifests express concern over the Robison issue and what
appears to have been a deliberate congressional effort to
assure that in practice ample review would occur. Congress
vested the authority for implementing the Act exclusively in
the hands of Article III judges, providing for initial action by
one group of such judges and for review by another group.
Having done so, Congress clearly meant to be understood
quite literally when it said in s 372(c)(10) that orders of the
Judicial Conference or relevant standing committee "shall not
be judicially reviewable on appeal."

The Senate bill would have established a special Article III
court for review of misconduct findings--coupled with preclu-
sion of any other review. S. 1873, as reported out of commit-
tee and as passed by the Senate, provided for creation of a
" 'court of record to be known as the Court on Judicial
Conduct and Disability.' " See S. 1873, 96th Cong. s 2(a)
(proposed 28 U.S.C. s 372(g)(1)) (as reported to the full
Senate by the Judiciary Committee on October 10, 1979).


" 'The Court may exercise all appropriate judicial powers
incident or necessary to the jurisdiction conferred upon it.' "
Id. The bill precluded further review of the Court's actions
in language similar to that of the final version: " 'There shall
be no judicial review of any order or action of the Court taken
under this subsection or subsection (h).' " Id. (proposed 28
U.S.C s 278(i)(3)). In discussing the new Court, the Commit-
tee report said:

A national court of stature will help to alleviate the fear
and public perception of a local "whitewash" of a citizen's
complaint. It will also provide a forum for a judge who
believes that the council of his circuit has acted against
him in an unwarranted or unfair manner. In addition, by
providing this court with broad discretionary power to
regulate the number of cases it wishes to hear, the
provision assures that a bureaucratic, excessively formal-
ized procedure will be avoided.

S. Rep. No. 96-362, at 3 (1980), reprinted in 1980 U.S.C.A.A.N.
4315, 4317.

In the Senate debate, Senator DeConcini introduced a
report commissioned by the Judiciary Committee's staff and
prepared by Mr. Johnny H. Killian. The report directly
addressed the Robison issue. After reviewing Supreme
Court authority on whether any right of appeal was required,
the report said:

The Supreme Court in dicta in recent cases has hinted
that preclusion of judicial review of constitutional claims
might raise constitutional questions, Johnson v. Robison,
41[5] U.S. 361, 366-67 (1974); Weinberger v. Salfi, 422
U.S. 749, 761-762 (1975), but its concern appears to be
that litigants at some point have access to an Article III
court, Territory of Guam v. Olsen, 431 U.S. 195, 201-202,
204 (1977), and the Court on Judicial Conduct and Dis-
ability would be an Article III court.

125 Cong. Rec. 30,050/1 (Oct. 30, 1979) (remarks of Sen.
DeConcini).


The House version called instead for review by the Judicial
Conference. When it was returned to the Senate, Senator
DeConcini expressed regret that the "Court" envisaged by
the Senate bill had not survived. But he recognized the close
similarity between review by that "Court" and by the Judicial
Conference (or a standing committee thereof):

Today's compromise substitute amendment is at least
close to what was originally envisioned by the Senate this
Congress, in that a permanent, independent standing
committee of the judicial conference is authorized to be
established. Such a body, while not an independent
review court, will provide for uniformity of decisions and
the building of precedents.

126 Cong. Rec. 28,090/2 (Sept. 30, 1980) (remarks of Sen.
DeConcini).

Indeed, it is not clear whether there is any material
difference between the two. In both cases, of course, the
persons conducting the review are exclusively Article III
judges. In both cases review is discretionary. 126 Cong.
Rec. 28,092/3 (Sept. 30, 1980). Speaking of the Judicial
Conference review, Senator DeConcini observed: "It is envi-
sioned that over the long term these petitions will develop
into something like petitions for writs of certiorari to the
Supreme Court of the United States." Id.

It seems fair to suppose that both houses of Congress
realistically expected that the Judicial Conference would hear
all serious claims. Indeed, explaining its rejection of the
Senate proposal for a new court, the House Judiciary Com-
mittee only expressed concern that its formal character would
unduly invite complaints against judges and thereby threaten
judicial independence:

In essence, the Committee rejected the special court
feature of S. 1873 and certain other of its features
because creation of a system in which complaints against
federal judges could be so easily pressed to a formal
adversary accusatorial proceeding raised the dangers of
a substantial chilling effect on judicial independence, as


well as the danger of infliction of harm and disruption of
the administration of justice.

H.R. Rep. No. 96-1313, at 18 (1979). The only discussion of
the matter on the floor was the observation that "[t]here is
also an appellate procedure which culminates in the Judicial
Conference of the United States." 126 Cong. Rec. 25,370/3
(Sept. 15, 1980) (remarks of Rep. Gudger). Thus the House's
expectations for review appear to be entirely consistent with
those of the Senate. Only the means for providing the review
were altered, and the shift seems to be due to a greater, not
lesser, solicitude for judges' constitutional rights and inter-
ests.

Later developments seem to suggest that the risks the
compromise sought to constrain were indeed substantial. Ac-
cording to the Administrative Office of the U.S. Courts, the
year ending September 30, 2000 saw 696 complaints filed
under s 372(c). During the same period, 715 complaints
were concluded. Chief judges dismissed 359 complaints and
judicial councils dismissed 354 more. Only two resulted in
public censure and 162 remain pending.4 Defending against
these claims is disruptive and potentially expensive. See
App. Br. at 52. Congress sought in the Act to give the
judiciary the power to "keep its own house in order" by
conducting its own investigations of misconduct. See S. Rep.
No. 96-362, at 11, reprinted in 1980 U.S.C.A.A.N. at 4325.
By adding review preclusion, they limited the potential dis-
ruption, while providing for adequate review in those few
cases that might require it.

We note that the Judicial Conference committee has dis-
claimed authority to rule on as applied, as well as facial,
constitutional challenges:

We have no competence to adjudicate the facial consti-
tutionality of the statute or its constitutional application
to the speech of an accused judge, however inappropriate

__________
4 See 2000 Report of the Director, Table S-22, Report of
Complaints Filed and Action Taken Under Authority of Title 28
U.S.C. Section 372(c) available online at <http://www.uscourts.
gov/judbus2000/tables/s22sep00.pdf>, last accessed on June 20,
2001.

or offensive his words may be. We are not a court. Our
decisions are not subject to review by the Supreme Court
of the United States. We sit in review of the action of
the Circuit Council. The courts of the United States are
open for the adjudication of such questions.

Judicial Conference Report at 21, quoting its decision in No.
84-372-001. The committee offered no reason for this posi-
tion. While we apply deference under Chevron, U.S.A., Inc.
v. NRDC, 467 U.S. 837 (1984), to agencies' jurisdictional
decisions, see Transmission Access Policy Study Group v.
F.E.R.C., 225 F.3d 667, 694 (D.C. Cir. 2000); Oklahoma
Natural Gas v. FERC, 28 F.3d 1281, 1283-84 (D.C. Cir. 1994),
the statutory mandate to the committee appears to contain no
language justifying a decision to disregard claims that a
circuit judicial council has violated a judge's constitutional
rights in application of the Act. See s 372(c)(10) (authorizing
"review" by the Judicial Conference or a standing committee
thereof). To be sure, agencies ordinarily lack jurisdiction to
" 'adjudicat[e] ... the constitutionality of congressional enact-
ments,' " Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 215
(1994) (quoting Robison, 415 U.S. at 368), "although the rule
is not mandatory," id. But agencies do have "an obligation to
address properly presented constitutional claims which ... do
not challenge agency actions mandated by Congress." Grace-
ba Total Communications, Inc. v. F.C.C., 115 F.3d 1038, 1042
(D.C. Cir. 1997). See also Meredith Corp. v. F.C.C., 809 F.2d
863, 872-74 (D.C. Cir. 1987). We can see neither any reason
why Congress would have withdrawn that power and obli-
gation from a reviewing "agency" composed exclusively of
Article III judges nor any indication that it has done so.

Thus Congress in the end enabled a sanctioned judge to
seek review by Article III judges of the Judicial Conference
of all claims except (presumably) facial attacks on the statute.
As a result, to read s 372(c)(10) to allow review of constitu-
tional as-applied claims by conventional courts as well would
generate substantial redundancy, an implausible legislative
purpose. Moreover, whereas the legislative history of the
statutes at issue in Griffith and Ungar reflected a "silent" or


unexplained deletion of an exception for constitutional claims,
see Dissent at 9-10, here Congress explained the deletion of
the Senate's formal Article III court. The less formal ver-
sion, the House Judiciary Committee thought, would be more
protective of sanctioned judges, because the Senate solution
risked generation of "formal adversary accusatorial proceed-
ing[s]" that would "raise[ ] the dangers of a substantial chill-
ing effect on judicial independence." H.R. Rep. No. 96-1313,
at 18 (1979). Although the difference in fact seems to us
largely cosmetic, the House-induced change seems entirely
consistent with the Senate's plan that review should cease
once a single Article III panel, drawn from the Judicial
Conference, had passed on the work of the sanctioning circuit.

In short, we find the evidence clear and convincing that
Congress intended s 372(c)(10) to preclude review in the
courts for as applied constitutional claims. Members of Con-
gress were aware of Robison and more generally of doctrines
presuming access to Article III review of decisions impinging
on important interests. Put ultimately to a choice between
review by an Article III "Court" and review by a committee
of Article III judges chosen by and from the Judicial Confer-
ence, they chose the latter. They did so in order to protect
judges from the "chilling" effects of unnecessary complaints,
not with any expectation that the Judicial Conference would
scant judges' rights.

Vesting the power to review facial attacks on the Act in the
courts conforms fully to Robison; but reserving to the Judi-
cial Conference committee exclusive authority over as applied
constitutional challenges fulfills both the presumption in favor
of access to Article III review of constitutional claims and the
norm requiring "agencies" to avoid unconstitutional applica-
tions not mandated by Congress, at the same time as it
prevents undue prolongation of the disciplinary process. Ac-
cordingly, we find that in s 372(c)(10) Congress clearly and
convincingly barred our review of Judge McBryde's claim of
unconstitutional application of the Act.

We are left only with the two claims that defendants
exceeded their statutory authority--the objections that the
investigation impermissibly swelled beyond the scope of the


initial complaints and that the Judicial Council sanctioned
Judge McBryde for the merits of his decisions. Judge
McBryde seeks an exception to the jurisdictional limitation
for these claims under Leedom v. Kyne, 358 U.S. 184 (1958).
But Kyne involved preclusion that had been inferred from the
National Labor Relations Act, and is therefore merely an
application of the familiar requirement that there be "clear
and convincing evidence" of legislative intent to preclude
review. See Board of Governors v. MCorp Financial, Inc.,
502 U.S. 32, 44 (1991) (internal citations omitted). Judge
McBryde also seeks an exception allowing review under Dart
v. United States, 848 F.2d 217 (D.C. Cir. 1988), where this
court reviewed an agency action despite an explicit preclusion
provision. But Dart stands for the exceedingly narrow prop-
osition that a statute precluding review is limited by its
language. "[T]he Veterans' Administrator cannot issue oil
drilling permits--nor can the Secretary of Labor rescind
television licenses--and expect to escape judicial review by
hiding behind a finality clause." Id. at 224. Thus, in Dart
itself we found that the Secretary of Commerce's order
reversing an administrative law judge's decision did not enjoy
the preclusion that the statute afforded an order to "affirm,
modify or vacate" the ALJ's decision. See id. at 227-31. But
Dart cannot mean that statutory insulation of a specific type
of "order" from review is automatically ineffective whenever
the complainant asserts legal error. And that is the most
Judge McBryde claims here.

His complaint expansion theory is that the actions taken
against him were not based on the merits of any properly
filed or identified complaint, as provided for by 28 U.S.C.
s 372(c)(1). Subparagraph (c)(4)(A) gives the chief judge the
power to form a special committee "to investigate the facts
and allegations contained in the complaint." Absent a com-
plaint, we may assume, the Judicial Council could not make a
valid order under paragraph (c)(6). Accordingly, Judge
McBryde argues that Circuit Rule 9(A), which allows a special
committee to expand the scope of an investigation, is invalid;
on that account, he claims, we do not have before us an
"order" of the sort for which judicial review is barred by


s 372(c)(10). But s 372(c)(5) explicitly gives a special com-
mittee the authority to "conduct an investigation as extensive
as it considers necessary," and s 372(c)(1) states that a valid
written complaint may be made by "any person." 28 U.S.C.
ss 372(c)(1) & (5). Thus Judge McBryde's objection reduces
to arguments as to the exact reach of these provisions.
Treating such a claim as involving a deficiency that would
strip the defendants' acts of the character of "orders" for
purposes of s 372(c)(10) would obliterate the section altogeth-
er.

Judge McBryde's statutory merits-relatedness claim also
falls short. The Act itself is permissive when it comes to the
investigation of claims that are related to the merits. The
chief judge, under s 372(c)(3) "may" dismiss a complaint if he
finds the complaint is "directly related to the merits of a
decision or a procedural ruling." A finding of merits relation
does not prohibit the chief judge from appointing a special
committee and therefore does not undermine the validity of
the action of the Special Committee or the Judicial Council
for the purposes of s 372(c)(10). Had the Fifth Circuit
Judicial Conference promulgated a rule specifically calling for
the investigation of the merits of decisions, such a rule might
conceivably be challenged under Traynor, 485 U.S. at 541-45
(allowing review of claim that an agency regulation was
invalidated by a statute not committed to that agency's
exclusive administration). But no such rule exists in this
case, and Judge McBryde has stated his objection only in the
most general terms. Nowhere does he suggest that the
Judicial Council's action has the character of a rule, or
suggest an exception under Traynor, or even suggest which
statutory provision such a rule would run afoul of. Again, it
is plain that the statutory error asserted (if error it be) is not
the sort that under Dart would deprive the defendants'
orders of the status of "orders and determinations" covered
by s 372(c)(10), or otherwise escape its preclusive effect.

* * *

Judge McBryde makes two related facial constitutional
challenges that survive both mootness and preclusion. First,


he reads the clause vesting the impeachment power in Con-
gress as precluding all other methods of disciplining judges;
on this theory, the Act violates separation of powers doctrine.
Second, he says that the principle of judicial independence
implicit in Article III bars discipline of judges for actions in
any way connected to his actions while on the bench.

The issues are of course linked, as the great bulwarks of
judicial independence are the guarantees of life tenure and
undiminished salary during good behavior. For Judge
McBryde, the fact that individual judges are the direct benefi-
ciaries of these guarantees proves that it is the individual
judge that is the relevant unit of judicial independence.
While this perspective has had its supporters, see Chandler v.
Judicial Council of the Tenth Circuit, 398 U.S. 74, 129-43
(1970) (Douglas, J., and Black, J., dissenting); Hastings I, 770
F.2d at 1106-07 (Edwards, J., concurring); but see Harry T.
Edwards, Regulating Judicial Misconduct and Divining
"Good Behavior" for Federal Judges, 87 Mich. L. Rev. 765,
785 (1989), the cases speak almost exclusively to judicial
independence from the influence or control of the legislative
and executive branches. See Mistretta v. United States, 488
U.S. 361, 382 (1989) ("the Framers 'built into the tripartite
Federal Government ... a self-executing safeguard against
the encroachment or aggrandizement of one branch at the
expense of the other.' ") (quoting Buckley v. Valeo, 424 U.S. 1,
122 (1974)); United States v. Will, 449 U.S. 200, 217-18 (1980)
("[a] Judiciary free from control by the Executive and Legis-
lature"); The Federalist No. 78 (Hamilton). After all, "Arti-
cle III creates[ ] not a batch of unconnected courts, but a
judicial department composed of 'inferior Courts' and 'one
supreme Court.' " Plaut v. Spendthrift Farm, Inc., 514 U.S.
211, 227 (1995) (emphasis in original).

That individual judges are direct beneficiaries of the tenure
and salary protections of Article III by itself hardly shows
that the overarching purpose of these provisions was to
insulate individual judges against the world as a whole (in-
cluding the judicial branch itself), rather than, as the cases
above indicate, to safeguard the branch's independence from
its two competitors. For support of his view Judge McBryde


points to a footnote from Northern Pipeline Const. Co. v.
Marathon Pipe Line Co., 458 U.S. 50 (1982), in which the
Court said that the two guarantees "serve other institutional
values as well," among them "insulat[ing] the individual judge
from improper influences not only by other branches but by
colleagues as well." Id. at 59 n.10. But the primary value
the Court asserted was "to ensure the independence of the
Judiciary from the control of the Executive and Legislative
Branches of government." Northern Pipeline, 458 U.S. at 59.
The conclusion that other values are also in play is a far cry
from Judge McBryde's argument that the individual judge
must be constitutionally sheltered not merely from removal
and salary diminution but also from lesser sanctions of every
sort. Lesser sanction are common, as the Court has noted:

Many courts ... have informal, unpublished rules which
... provide that when a judge has a given number of
cases under submission, he will not be assigned more
cases until opinions and orders issue on his 'backlog.'
These are reasonable, proper, and necessary rules, and
the need for enforcement cannot reasonably be doubted.

Chandler, 398 U.S. at 85. As there is no basis for Judge
McBryde's core assumption that judicial independence re-
quires absolute freedom from such lesser sanctions, his two
claims fall swiftly.

Judge McBryde frames his separation of powers claim as
whether the Constitution "allocates the power to discipline
federal judges and, if so, to which branches of government."
App. Br. at 54. Finding that it allocates the power to
Congress in the form of impeachment, he concludes that it
excludes all other forms of discipline. But Judge McBryde's
attempt to fudge the distinction between impeachment and
discipline doesn't work. The Constitution limits judgments
for impeachment to removal from office and disqualification
to hold office. U.S. Const. art. I, s 3, cl. 7. It makes no
mention of discipline generally. The Supreme Court recently
observed that it accepted the proposition that "[w]hen a
statute limits a thing to be done in a particular mode, it
includes a negative of any other mode." Christensen v.


Harris County, 529 U.S. 576, 583 (2000) (internal citations
omitted). But application of the maxim depends on the
"thing to be done." Here the thing to be done by impeach-
ment is removal and disqualification, not "discipline" of any
sort.

The Constitution itself preserves criminal prosecution, see
U.S. Const. art. I, s 3, cl. 7 ("the Party convicted shall
nevertheless be liable and subject to Indictment, Trial, Judg-
ment and Punishment, according to Law"), and at least three
circuits have held that prosecution of judges can precede
impeachment. See United States v. Claiborne, 727 F.2d 842,
845 (9th Cir. 1984); United States v. Hastings, 681 F.2d 706,
710 (11th Cir. 1982); United States v. Isaacs, 493 F.2d 1124,
1140-44 (7th Cir. 1974). Even Justices Douglas and Black,
who dissented in Chandler from the Court's narrowly framed
denial of relief for a district judge whose colleagues had
limited his case assignments, acknowledged that judges were
subject to criminal prosecution. See Chandler 398 U.S. at
140 ("If they break a law, they can be prosecuted. If they
become corrupt or sit in cases in which they have a personal
or family stake, they can be impeached by Congress.") (Doug-
las, J., dissenting); id. at 141-42 ("[J]udges, like other people,
can be tried, convicted, and punished for crimes.") (Black, J.,
dissenting).

Judge McBryde accepts that judges are subject to prosecu-
tion, but argues that impeachment nonetheless excludes disci-
pline of judges by judges. In yet another attempt to prove
his individualized idea of judicial independence, he points to
Hamilton's statement in Federalist No. 79 that: "The precau-
tions for [judges'] responsibility are comprised in the article
respecting impeachments.... This is the only provision on
the point, which is consistent with the necessary indepen-
dence of the judicial character, and is the only one which we
find in our own Constitution in respect to our own judges."
The Federalist No. 79 at 532-33 (Hamilton) (Jacob E. Cooke,
ed., 1961) (emphasis added). But even if we assume the
remark embraces not merely removal and disqualification but
lesser forms of discipline, it does not seem likely to have been
aimed at intra-branch constraints. Hamilton's concern with


judicial independence seems largely to have been directed at
the threat from the two other branches. "I agree that 'there
is no liberty, if the power of judging be not separated from
the legislative and executive powers.' " The Federalist No.
78 at 523 (Hamilton) (Jacob E. Cooke, ed.) (quoting Montes-
quieu). And he famously characterized the judiciary as "the
least dangerous" branch. Id. at 522. Thus it seems natural
to read Hamilton as seeing the guarantees of life tenure and
undiminished compensation, and the limited means for deny-
ing a judge their protection, simply as assuring independence
for the judiciary from the other branches. The Supreme
Court has considered the same passage as Judge McBryde
invokes and so interpreted it: "In our constitutional system,
impeachment was designed to be the only check on the
Judicial branch by the Legislature." Nixon v. United States,
506 U.S. 224, 235 (1993) (some emphasis added).

Indeed, the Hamiltonian concern for protecting the judicia-
ry from other branches argues for internal disciplinary pow-
ers. Arrogance and bullying by individual judges expose the
judicial branch to the citizens' justifiable contempt. The
judiciary can only gain from being able to limit the occasions
for such contempt. See In re Certain Complaints Under
Investigation by an Investigating Committee of the Judicial
Council of the Eleventh Circuit, 783 F.2d 1488, 1507-08 (11th
Cir. 1986)

Judge McBryde invokes another element of constitutional
history--the framers' consideration and rejection of the pro-
posal to vest the impeachment power in the courts, or in some
combination of judicial and legislative officers. But, as was
true of the effort to find a negative implication in the Consti-
tution itself, this tells us only what we already knew: that the
framers lodged the powers of removal and disqualification
solely in Congress, in the form of impeachment.

Judge McBryde acknowledges, as he must, that in other
contexts the impeachment power does not exclude all intra-
branch discipline. In Myers v. United States, 272 U.S. 52
(1926), the Supreme Court found (in the strongest form--
against a contrary decision by Congress) that the President


had power to remove civil officers, excluding judges, even
though Congress would have been able to remove some of the
same officers only through impeachment. While that power
is not absolute, its limitation does not depend on the exclusive
power of Congress to impeach. See Morrison v. Olson, 487
U.S. 654, 691 (1988)

Judge McBryde would have us write off the Court's en-
dorsement of executive branch discipline as peculiar to and
dependent on the executive's hierarchical structure. But the
question is the implication from the Constitution's vesting of
impeachment power in Congress. The Constitution makes no
distinction between judges and other officers. It provides
only that "all civil Officers of the United States, shall be
removed from Office on Impeachment." U.S. Const. art. II,
s 4.

In short, the claim of implied negation from the impeach-
ment power works well for removal or disqualification. But it
works not at all for the reprimand sanction, which bears no
resemblance to removal or disqualification and is the only
sanction in the case that remains unmoot.5 Thus Judge
McBryde's textual argument fails. Given the benefits to the
judiciary from intra-branch efforts to control the self-
indulgence of individual judges, we see no basis for inferring
structural limits on Congress's enabling such efforts.

Judge McBryde's second facial claim is that the Constitu-
tion, even assuming it does not altogether bar intra-judicial
sanctions (other than by appeal, mandamus, etc.), flatly bars
any such sanction for "anything to do with anything that
happened when the judge ... was acting and deciding cases
or in any phase of the decisional function." Oral Arg. Tr. at
17-18. His counsel was quite explicit that this would include
a judge's nakedly racist disparagement of counsel, id. at 9,
indeed, "anything that the judge does verbally or physically
in the course of adjudication," id. at 8. Asked whether this
would include punching counsel, Judge McBryde's counsel

__________
5 Obviously, we do not decide whether a long-term disqualifica-
tion from cases could, by its practical effect, affect an unconstitu-
tional "removal."


suggested that criminal proceedings at state law would supply
an ample remedy. Id. at 9.

It may help put Judge McBryde's theory in perspective to
look at one of the many episodes that led to the present
sanctions. In 1992, Judge McBryde sanctioned a lawyer
appearing before him for failing to have her client attend a
settlement conference in violation of Judge McBryde's stan-
dard pretrial order, which required all principals to attend
the conferences. Counsel represented a corporation and its
employee, defendants in a suit in which plaintiffs, a woman
and her 10-year old daughter, had alleged sexual harassment.
One of the allegations was that the individual defendant "had
terrorized the 10-year old ... by popping out his glass eye
and putting it in his mouth in front of her." Committee
Report at 19. The lawyer thought the presence of the
individual defendant would be counter-productive to settle-
ment efforts; the individual had no assets and had given her
full authority to settle. See id. at 20.

After chastising the lawyer, Judge McBryde required that
she attend a reading comprehension course and submit an
affidavit swearing to her compliance. See id. at 20. The
attorney submitted an affidavit attesting to the fact that she
found a course and attended for three hours a week for five
weeks. Judge McBryde challenged her veracity and required
that she submit a supplemental affidavit "listing 'each day
that she was in personal attendance at a reading comprehen-
sion course in compliance with [the] court's order; the place
where she was in attendance on each date; the course title of
each course; how long she was in attendance on each day;
and the name of a person who can verify her attendance for
each day listed.' " Id. at 22. She complied. The Special
Committee characterized this incident as reflecting a "gross
abuse of power and a complete lack of empathy." Id. at 18.
Judge McBryde tells us that the defendants unconstitutional-
ly impugn judicial independence when they express a formal,
institutional condemnation of this sort.

We assume arguendo that the procedures of the Act may
not constitutionally be used as a substitute for appeal. But


Judge McBryde's theory plainly goes well beyond judicial
acts realistically susceptible of correction through the avenues
of appeal, mandamus, etc. Appeal is a most improbable
avenue of redress for someone like the hapless counsel blud-
geoned into taking reading comprehension courses and into
filing demeaning affidavits, all completely marginal to the
case on which she was working. Possibly she could have
secured review by defying his orders, risking contempt and
prison. But we are all at a loss to see why those should be
the only remedies, why the Constitution, in the name of
"judicial independence," can be seen as condemning the judi-
ciary to silence in the face of such conduct. Counsel punched
out by the judge could not even pursue a remedy by risking
contempt, of course, since the punch involves no judicial order
that he could disobey.

The Court said in Chandler, in dictum to be sure:

There can, of course, be no disagreement among us as to
the imperative need for total and absolute independence
of judges in deciding cases or in any phase of the
decisional function. But it is quite another matter to say
that each judge in a complex system shall be the absolute
ruler of his manner of conducting judicial business.

398 U.S. at 84. As we noted above, we see nothing in the
Constitution requiring us to view the individual Article III
judge as an absolute monarch, restrained only by the risk of
appeal, mandamus and like writs, the criminal law, or im-
peachment itself. We thus reject Judge McBryde's facial
constitutional claims.

* * *

The process of construing s 372(c)(10) led us to raise and
answer the question whether the Review Committee was
authorized to entertain Judge McBryde's constitutional as-
applied challenges, and we concluded that it was. The Com-
mittee, as we noted, has given a contrary answer. As we
read s 372(c)(10) to deny us the authority to review any
aspect of the decisions about Judge McBryde other than the
facial constitutional claims, we have no authority to mandate


the Committee's consideration of the as applied claims. We
believe, nonetheless, that the Review Committee should re-
consider its view in light of our opinion and we therefore
request it to do so.

* * *

Accordingly, the judgment of the district court as to the
one-year and three-year suspensions is vacated and the judg-
ment as to the reprimand is affirmed.

So ordered.


Tatel, Circuit Judge, concurring in part and dissenting in
part: I agree with the court in many respects: that Judge
McBryde's challenge to the reprimand is not moot; that the
Judicial Councils Reform and Judicial Conduct and Disability
Act of 1980 is not facially unconstitutional; and that the Act
bars us from reviewing Judge McBryde's statutory claims. I
do not agree, however, that the Act precludes us from review-
ing Judge McBryde's as-applied constitutional claims. I
would therefore have reached those claims and, because I
think one claim has merit, reversed the district court and
directed that the matter be remanded to the Fifth Circuit
Judicial Council for further proceedings. Although the Coun-
cil's Report finds that Judge McBryde engaged in some
clearly egregious and sanctionable conduct, the Report also
describes judicial conduct that was either less clearly abusive
or apparently quite appropriate, and the Report never ade-
quately explains how--or even in some instances whether--
such behavior rises to the level of a clear abuse of judicial
power. The Report thus leaves open the possibility that
Judge McBryde was sanctioned in part for behavior that was
not at all abusive. In addition, because the Report is impre-
cise and leaves much conduct unexplained, using the Report
as a basis for sanctions risks chilling other district judges'
ability to manage their courtrooms effectively. I thus believe
that the Council's actions amounted to an unconstitutional
infringement of judicial independence.

I

This case has its origins in a prior dispute between Judge
McBryde and his colleagues over certain case assignments.
In late April and early May of 1995, Chief Judge Buchmeyer
of the Northern District of Texas reassigned two cases,
United States v. Satz, No. 4:94-CR-094-R (N.D. Tex.) and
Torres v. Trinity Industries, Inc., No. CA4-90-812-A (N.D.
Tex.), from Judge McBryde to himself. The reassignments
responded to Judge McBryde's allegedly "unwarranted" and
"abusive" treatment of attorneys and court personnel. See In
re John H. McBryde, 117 F.3d 208, 215-18 (5th Cir. 1997).
In Satz, Judge McBryde had found an Assistant United
States Attorney in contempt of court for, among other things,
stating that a sealing order in a related federal case prevent-


ed her from answering certain of Judge McBryde's questions.
Judge McBryde believed, erroneously as it turned out, that
no such order existed. Id. at 213. Torres involved corre-
spondence between Judge McBryde and the clerk of the court
over an administrative error that had resulted in a court-
approved settlement not being implemented. Judge
McBryde wrote that a letter from the clerk had been "so
unprofessional and so disrespectful ... that it borders on, if it
does not constitute, contempt of court." Id. at 215.

After Chief Judge Buchmeyer reassigned the two cases,
Judge McBryde filed a Request for Assistance with the Fifth
Circuit Judicial Council. Id. at 217. Fifth Circuit Chief
Judge Politz referred the matter to a Special Investigatory
Committee composed of himself, two fellow circuit judges,
and two district judges. Id. Following several days of
hearings, the Special Committee, relying on section 332 of the
Act, upheld the reassignment, finding that "Judge McBryde's
conduct in both cases was unwarranted." Id. Judge
McBryde's attack on the AUSA and a second government
official involved in Satz "and his accusations against them of
lying and contempt of court," the Committee concluded,
"were baseless, threatening irreparable damage to [their]
professional reputations and careers." Id. His attack on the
clerk of the court was likewise "unwarranted [and] abusive,
and threatened to damage [her] professional reputation." Id.

Almost two years later, the Fifth Circuit vacated the
reassignment order. According to the court, the Council had
no authority "to censure a judge under [section] 332" of the
Act or to "order a case reassigned based on its disagreement
with the district judge's factual findings." McBryde, 117
F.3d at 229. In reaching its conclusion, the court noted that
"finders of fact could reasonably defend either side" of the
dispute, stating explicitly that Judge McBryde "could piece
together a number of facts that pointed to the larger conclu-
sion that [the AUSA involved in the Satz case] was lying,"
that the Judge "delivered a cogent statement of his reasons
for rejecting [the AUSA's] reliance on a broad sealing order,"
that "[w]e need not attribute paranoia or irrationality to
Judge McBryde to explain his view that [the AUSA's] conten-


tions about the sealing order were untruthful," and that
"Judge McBryde's understanding of the factual basis for
suspecting that [the court clerk in Torres] was on the verge of
contempt was similarly within the bounds of reason." Id. at
218-19.

Meanwhile, shortly after Judge McBryde had requested
the Judicial Council's assistance and long before the Fifth
Circuit vacated the Special Committee's reassignment deci-
sion, Chief Judge Politz referred two complaints of miscon-
duct against Judge McBryde (one of which involved the
Judge's conduct in Satz) to the Special Committee, with
directions to investigate and report on them. Report of the
Special Committee of the Fifth Circuit Judicial Council
Regarding Complaints Against, and the Investigation into
the Conduct of, Judge John H. McBryde at 1 (Dec. 4, 1997).
According to the Committee's eventual Report, Committee
members were from the outset "concerned about two things:
first, that Judge McBryde [might] have a health problem
(physical or mental) which affect[ed] his activities as a judge,
and second, that Judge McBryde ha[d] engaged in a pattern
of abusive behavior as a federal judge." Id. at 3.

Pursuing its suspicions that Judge McBryde might suffer
from a psychiatric disorder, the Committee submitted certain
materials concerning Judge McBryde to two psychiatrists,
asking the doctors whether a psychiatric examination of the
Judge was warranted. Report at 3. When both doctors
answered yes, the Council engaged in a series of ultimately
unsuccessful efforts to get Judge McBryde to undergo such
an examination. Id. In the meantime, the Special Commit-
tee learned about "more and more instances of allegations of
repetitive, abusive and excessive conduct by Judge McBryde
beyond the allegations in the ... complaints." Id. at 8.
Therefore, invoking section 372(c)(5) of the statute, the Spe-
cial Committee "decided to broaden its investigation" to en-
compass incidents from throughout Judge McBryde's judicial
career. Id. In August, September, and October of 1997, the
Committee held nine days of evidentiary hearings in New
Orleans and Fort Worth. Id. at 9. Fifty-five witnesses


testified, including federal district court judges, a state court
judge, government and private attorneys who had practiced
before or had contact with Judge McBryde, court personnel,
former jurors who had served in Judge McBryde's courtroom,
and current and former members of the Judge's staff. Id. at
9-10.

Based on this evidence, the Committee prepared a Report,
the bulk of which set forth details concerning twenty-two
separate incidents involving Judge McBryde's dealings with
lawyers, fellow judges, a state judge, and the clerk of the
court. Report at 10-107. Although these include some obvi-
ously abusive and serious incidents, see, e.g., Maj. Op. at 24,
the Report also includes several incidents that appear to be
relatively trivial examples of a judge controlling a trial or of
friction among judicial colleagues. For example, the Report
describes an incident in which Judge McBryde, responding to
defense counsel's claim that a prosecutor should have dis-
closed certain financial schedules, accused the prosecutor of
adopting "a sort of cat-and-mouse approach to discovery."
Id. at 50. The judge neither dwelled on the matter nor
imposed sanctions. Id. In another incident (that occurred in
a parking lot), Judge McBryde became angry and lashed out
at a fellow judge who had joked about the Judge's impatience.
Id. at 101-03. On still another occasion (at a judges' meet-
ing), Judge McBryde called two fellow judges "despicable."
Id. at 103-04. Similar incidents appear throughout the Re-
port: Judge McBryde was "not always solicitous of his fellow
judges' needs or feelings" with respect to use of courtrooms,
id. at 106; on learning that the lead public defender on a case
was engaged in another courtroom, Judge McBryde attempt-
ed to proceed with the case "[r]ather than calling another
matter on the docket," id. at 24; in a private, one-on-one
meeting with the Federal Public Defender, Judge McBryde
stated that he was "concerned" about the relationship be-
tween public defenders and U.S. Attorneys, indicating that he
"suspected" that defenders and U.S. Attorneys were engaged
in a " 'collusive effort' to subvert the Sentencing Guidelines,"
id. at 42.


The Report describes other conduct that, though apparent-
ly more abusive, might nonetheless be entirely appropriate
under certain circumstances. For example, the Report re-
counts several instances in which Judge McBryde accused
attorneys of bad faith, sometimes sanctioning them and some-
times not. See, e.g., Report at 10-15, 15-18, 36-42. The
Report also mentions two occasions on which Judge McBryde
criticized an entire office. See id. at 17-18 ("I have perceived
on more than one occasion recently that members of the
Federal Public Defender's Office are less than candid with
the court."); id. at 38 ("I just have the feeling that the Civil
Section of the U.S. Attorney's office here in Fort Worth is not
always candid with the Court....").

The Report also examines Judge McBryde's trial rules and
enforcement techniques. According to the Report, the Judge
uses strict trial rules, including "the requirement that parties
enter into ... stipulation[s] with respect to ... every uncon-
tested fact in [a] case," which are then "read seriatim to the
jury at the beginning of the case and may not be referred to
again later in the proceeding," and a "prohibition on asking
questions on cross-examination similar to questions asked of
[witnesses] on direct examination." Report at 107-08. Quot-
ing from transcripts in two cases, the Report states that
"Judge McBryde's manner of enforcing his rules is harsh and
often humiliating." Id. at 110. The Report describes the
testimony of several witnesses who stated that the combina-
tion of Judge McBryde's rules and his manner of enforcing
them creates an "oppressive and intimidating atmosphere
that pervades Judge McBryde's courtroom," id. at 116, and
has a "chilling effect" on these lawyers' ability to present
their cases effectively, id. at 121. This kind of enforcement,
the Report says, formed a "pattern" that had not changed
despite appellate criticism. Id. at 122. Because of the
chilling effect of Judge McBryde's rules and his manner of
enforcement, the Report concludes that attorneys, fearing
humiliation or embarrassment, forego actions they believe are
in their clients' best interests and fail to preserve issues for
appeal. These problems, the Report notes, are difficult to
correct through the appellate process. Id. at 121-22.


The Report acknowledges that some of Judge McBryde's
former staff testified that he was "cordial and considerate in
his dealings with them," and that several lawyers who testi-
fied on the Judge's behalf stated that he "prepares thorough-
ly, addresses motions promptly, ... writes scholarly opinions
on difficult legal questions," and moves cases through his
docket expeditiously. Report at 123-24. Although acknowl-
edging that these witnesses were comfortable practicing in
front of Judge McBryde and thought that he was fair, id. at
113-15, the Committee concluded that just because "it is
possible for some attorneys ... to adapt to Judge
McBryde's rules is not a vindication of these rules. The
weight of evidence presented during the hearings convinces
the Committee that Judge McBryde imposes unduly stringent
rules on advocates and enforces these rules in an often harsh
manner." Id. at 115-16.

Based on all of this evidence, the Report concludes (1) that
"many of these individual instances, together with the pat-
terns demonstrated over the years surveyed," indicate that
Judge McBryde had "engaged in conduct prejudicial to the
effective administration of the business of the courts," and (2)
that Judge McBryde's "pattern of abusive behavior ... has
brought disrepute upon the federal judiciary." Report at 150.
The Report recommends that the Council ask Judge
McBryde to resign, and if he refused, that it impose the three
sanctions--a reprimand and two suspensions--described in
the court's opinion. Maj. Op. at 3. The recommended repri-
mand states that Judge McBryde's "intemperate, abusive and
intimidating treatment of lawyers, fellow judges, and others
ha[d] detrimentally affected the effective administration of
justice ... in the Northern District of Texas," and that
Judge McBryde had "abused judicial power, imposed unwar-
ranted sanctions on lawyers, and repeatedly and unjustifiably
attacked individual lawyers and groups of lawyers and court
personnel," thus having a "negative and chilling impact on the
Fort Worth legal community," among other things "prevent-
ing lawyers and parties from conducting judicial proceedings
in a manner consistent with the norms and aspirations of our


system" and "harm[ing] the reputation of the court." Id. at
154.

Invoking section 372(c)(6) of the Act, the Council imposed
the three recommended sanctions. Six of the nineteen Coun-
cil members voted against imposing the one-year suspension;
two voted against the public reprimand; one voted against
the three-year recusal. Order of the Judicial Council of the
Fifth Circuit at 1, In re John H. McBryde (Jan. 7, 1998) (No.
95-05-372-0023).

Pursuant to the Act, Judge McBryde petitioned the Review
Committee of the Judicial Conference for review of the
Council's order. Granting "substantial deference" to the
Judicial Council's findings of fact, Memorandum and Order of
the Judicial Conference of the United States at 6, In re
Complaints of Judicial Misconduct or Disability (Sept. 18,
1998) (No. 98-372-001), and expressly declining to review any
of Judge McBryde's constitutional claims, id. at 21, the
Review Committee rejected the Judge's remaining procedural
and substantive complaints. Finding the one-year suspension
justified as a remedial, rather than a punitive, measure, the
Review Committee revised the Council's sanction in one
respect: it ordered the suspension terminated if Judge
McBryde demonstrates that he had "seized the opportunity
for self-appraisal and deep reflection in good faith and ...
made substantial progress toward improving his conduct."
Id. at 27.

II

My main disagreement with the court centers on section
372(c)(10)'s last sentence--the Act's review preclusion clause.
Unlike my colleagues, I do not believe that this clause pre-
vents us from reaching Judge McBryde's as-applied constitu-
tional claims.

As the court points out, under both Supreme Court and
D.C. Circuit precedent, we construe review preclusion clauses
to prevent review of constitutional claims only when we find
"clear and convincing" evidence of congressional intent to do
so. Maj. Op. at 10. Even outside the constitutional context,


a "general presumption favor[s] judicial review in the absence
of 'clear and convincing evidence of a contrary legislative
intent.' " Griffith v. Fed. Labor Relations Auth., 842 F.2d
487, 490 (D.C. Cir. 1988) (quoting Abbott Labs. v. Gardner,
387 U.S. 136, 141 (1967)). "The maxim that congressional
preclusion of judicial review must be 'clear and convincing'
applies in a particularly rigorous fashion ... when constitu-
tional claims are at stake." Id. at 494. As we said in Ungar
v. Smith, "[w]hen ... [a] plaintiff seeks to invoke the aid of
the judicial branch on constitutional grounds, the Supreme
Court and this court have both indicated that only the clear-
est evocation of congressional intent to proscribe judicial
review of constitutional claims will suffice to overcome the
presumption that the Congress would not wish to court the
constitutional dangers inherent in denying a forum in which
to argue that government action has injured interests that
are protected by the Constitution." 667 F.2d 188, 193 (D.C.
Cir. 1981). See also Webster v. Doe, 486 U.S. 592, 603 (1988)
("We require this heightened showing in part to avoid the
'serious constitutional question' that would arise if a federal
statute were construed to deny any judicial forum for a
colorable constitutional claim.") (quoting Bowen v. Michigan
Academy of Family Physicians, 476 U.S. 667, 681 n.12
(1986)).

In my view, the requisite "clear and convincing" evidence of
intent is absent here. As my colleagues acknowledge, section
372(c)(10) contains no language expressly barring constitu-
tional challenges. See Maj. Op. at 11. Indeed, Congress
knows how to preclude review of constitutional claims when it
wants to. For example, the federal statute governing depor-
tation and denaturalization provides that "[j]udicial review of
all questions of law and fact, including interpretation and
application of constitutional and statutory provisions, ...
shall be available only in judicial review of a final order under
this section." 8 U.S.C. s 1252(b)(9) (emphasis added).

In Ungar as well as in Ralpho v. Bell, we found statutes
containing language just as preclusive as section 372(c)(10)'s
insufficient to bar review of as-applied constitutional claims.
The statute in Ungar provided that administrative decisions
are "final" and "not ... subject to review by any court." 667


F.2d at 193 (internal quotation marks omitted). In Ralpho,
the statute provided that "[administrative decisions] shall be
final and conclusive for all purposes, notwithstanding any
other provision of law to the contrary[,] and not subject to
review." 569 F.2d 607, 613 (1977). Using equally preclusive
language, section 372(c)(10) provides that "[a]ll orders and
determinations [of the Judicial Conference] ... shall be final
and conclusive and shall not be judicially reviewable on appeal
or otherwise." 28 U.S.C. s 372(c)(10).

As my colleagues also note, see Maj. Op. at 11, absent
express statutory language, our prior opinions have "studied
the legislative history" in search of a "clear expression of
Congress's desire to prevent the courts from passing upon
... constitutional claims," Ungar, 667 F.2d at 196, or an
"affirmative statement addressed to preclusion of constitu-
tional claims." Griffith, 842 F.2d at 494. Here, as in Ral-
pho, Ungar, and Griffith, the legislative history includes no
direct comment at all about whether the Act's review preclu-
sion language was meant to cover constitutional challenges.
See Maj. Op. at 11 ("Of course if the [Griffith] trilogy is read
to require magic words expressly barring as applied constitu-
tional attacks, they are not to be found.").

Lacking a clear affirmative statement in the statute's text
or legislative history, my colleagues infer from the defunct
Senate version of the Act and its accompanying legislative
history that Congress intended the preclusion clause to cover
as-applied constitutional challenges. See Maj. Op. at 11-16.
Although this is certainly a plausible interpretation of the
legislative history, both Griffith and Ungar declined to treat
such inferences from prior versions of bills as sufficiently
clear evidence of congressional intent to preclude judicial
review of as-applied claims. In Griffith, the original Senate
bill provided that most decisions of the Federal Labor Rela-
tions Authority would be "final and conclusive" and not
subject to further judicial review, but provided an exception
for "questions arising under the Constitution." 842 F.2d at
495. The conference committee, rejecting the House's pro-
posal for expansive judicial review and generally adopting the
Senate's more restrictive approach, dropped "without expla-


nation" the exception for constitutional questions. Id. Nev-
ertheless, observing that circuit precedent required an "affir-
mative statement addressed to preclusion of constitutional
claims," id. at 494, we held that "[t]his silent deletion [was]
not enough, under our cases, to support an inference of intent
to preclude constitutional claims." Id.

The statute at issue in Ungar provided that Justice Depart-
ment decisions regarding claims for the return of assets
vested in the Office of Alien Property were not subject to
judicial review. Deciding that this provision did not preclude
review of as-applied constitutional claims, we noted that "[a]n
earlier version of the bill ... included an elaborate scheme
for trial of just-compensation claims in the Court of Claims,"
which was "deleted on the House floor for reasons that are
not wholly plain." We were nonetheless "not willing to
regard this as clear evidence of Congressional intent...."
667 F.2d at 195 n.2.

The evidence of legislative intent to preclude judicial review
that we declined to credit in Griffith and Ungar was, if
anything, stronger than in this case. In those cases, we
found legislative history insufficiently clear and convincing to
preclude as-applied challenges even though the original ver-
sions of the statutes at issue allowed review of constitutional
questions, while the final versions eliminated such provisions,
suggesting a movement toward precluding such review.
Here, by contrast, the legislative history suggests movement
away from preclusion. Senator DeConcini, one of the Act's
primary sponsors, introduced a Report prepared by Johnny
H. Killian, an American law specialist at the Library of
Congress, suggesting that under Supreme Court precedent,
Congress can safely preclude judicial review of constitutional
claims so long as "litigants at some point [have] access to an
Article III court." 125 Cong. Rec. 30,050 (1979) (statement of
Sen. DeConcini). Senator DeConcini's bill provided for re-
view of disciplinary decisions by a newly created, five-judge
Article III Court of Judicial Conduct and Disability. Id.
Later House revisions shifted review from the five-judge
court to the Judicial Conference. In doing so, the House
Judiciary Committee emphasized that it was moving from a


"court" to an "administrative model." Compare H.R. Rep.
No. 96-1313, at 4 (1980) ("[R]ather than creat[ing] luxurious
mechanisms such as special courts and commissions--with all
the trappings of the adversary process, including legal coun-
sel, written transcripts, discovery and cross examination--the
[House version of the bill] emphasize[s] placing primary
administrative responsibility within the judicial branch of
government.") with id. at 14 (stating that this "legislation
creates much more of an 'inquisitorial-administrative' model
than an 'accusatorial-adversary' one"). When the Act re-
turned to the Senate, Senator DeConcini made the same
point, explaining to his colleagues that the Judicial Confer-
ence, unlike the five-judge court proposed in the Senate
version of the bill, was "not an independent review court."
126 Cong. Rec. 28,090 (1980) (statement of Sen. DeConcini,
quoting the Killian Report); see also Chandler v. Judicial
Council of the Tenth Circuit, 398 U.S. 74, 86 n.7 ("[T]he
Judicial Council was intended to be ... an administrative
body functioning in a very limited area in a narrow sense as a
'board of directors' for the circuit."). Because Congress had
been informed by the Killian Report that it could safely
preclude review of constitutional questions only if such review
was available in an Article III court, and because it had also
been advised by both Senator DeConcini and the House
Judiciary Committee that the Judicial Conference was not an
Article III court, Congress would have understood that vest-
ing power to review disciplinary decisions in the Judicial
Conference opened those decisions to constitutional attack in
the federal courts.

Under all of these circumstances, I do not see how the
evidence of Congress's intent to preclude as-applied constitu-
tional challenges can be considered clear and convincing--or,
as we required of legislative history in Griffith, "unusually
clear." 842 F.2d at 494. Not only did both Griffith and
Ungar find similar inferences from legislative history insuffi-
cient to meet the clear and convincing standard, but in this
case, there is an equally plausible--if not more plausible--
interpretation of the legislative history that suggests Con-


gress did not intend to preclude review of as-applied constitu-
tional challenges.

My colleagues' observation about "substantial redundancy"
between review performed by the Judicial Conference and
Article III courts, see Maj. Op. at 15-16, is interesting, but I
think not dispositive. For one thing, while it is true that the
two forms of review are both performed by Article III judges,
I do not agree that they are entirely redundant: decisions of
Article III courts are reviewable on certiorari by the Su-
preme Court, a distinction of particular importance given the
constitutional interests at stake here. Even assuming they
were identical, moreover, such functional redundancy would
be convincing evidence of Congressional intent only if it were
the sole form of evidence available, and it isn't. In view of
Senator DeConcini's statement and the House Judiciary Com-
mittee Report, Congress most likely thought shifting review
from an Article III court to the Judicial Conference opened
decisions of the latter to as-applied constitutional challenges
in the federal courts. In my view, this primary evidence of
legislative intent outweighs any inferences that might be
drawn from whatever functional redundancy may exist.

Finally, my colleagues believe that preclusion of constitu-
tional claims would serve the statutory purpose of "pre-
vent[ing] undue prolongation of the disciplinary process."
Maj. Op. at 16. But we have twice found review preclusion
statutes designed to accomplish similar goals insufficient to
establish clear congressional intent to bar review of as-
applied constitutional claims. See Griffith, 842 F.2d at 495
(Congress's scheme to limit judicial review of FLRA decisions
was meant to promote "finality, speed[,] and economy," and
thus barred district court review of FLRA decisions on
statutory grounds, but review of as-applied constitutional
claims nonetheless was not precluded); Ungar, 667 F.2d at
195-96 (legislative history indicating that review preclusion
provision was "intended to reduce ... delay in adjudicating
claims under the Trading with the Enemy Act" was not a
"clear expression of Congress's desire to prevent the courts
from passing upon ... constitutional claims").


III

Having found no "clear and convincing" evidence that
Congress intended to preclude review of as-applied constitu-
tional challenges to judicial council sanctions, I would have
considered the merits of Judge McBryde's as-applied claims.
In addition to the challenges discussed by the court, see Maj.
Op. at 18-25, Judge McBryde raises the question whether the
Judicial Council unconstitutionally interfered with his judicial
independence by punishing him because it disagrees with his
judicial philosophy and acts: "Purportedly pursuant to the
Act, defendants investigated Judge McBryde's performance
of his judicial functions, requiring him to defend his perfor-
mance and disrupting his judicial activities. They then pun-
ished him, and changed his judicial status, because they
disapproved of his judicial performance, depriving him of all
new cases for one year ... and issuing a damning public
reprimand. Does the Act violate the judicial independence
doctrine of Article III on its face and as applied?" Appel-
lant's Opening Br. at 2. Answering this question, Judge
McBryde argues that "the Constitution does not allow agen-
cies to supervise his judging, disagree with his rulings, and
punish him because his rulings do not meet some 'norm' of
acceptable judicial conduct." Id. at 52-53. The Judicial
Conference disagrees: "Given the conduct engaged in and the
adverse effects on the judicial system in Fort Worth, Texas,
that conduct had, Appellees submit that it was not unconstitu-
tional to suspend assignment of new cases for up to one year
for [the Judge] to reflect and to change his conduct." Appel-
lees' Br. at 68-69.

I agree with my colleagues that the principle of judicial
independence does not "constitutionally shelter[ ]" Judge
McBryde from "sanctions of every sort." Maj. Op. at 20. I
also agree that the creation of a mechanism enabling Judicial
Councils to sanction judges for things that happened when
they were "acting and deciding cases" or engaged in some
other "phase of the decisional function" does not render the
Act facially unconstitutional. Cf. Chandler, 398 U.S. at 85
("Many courts--including federal courts--have informal, un-
published rules.... These are reasonable, proper, and nec-
essary rules, and the need for enforcement cannot reasonably


be doubted. [I]f one judge in any system refuses to abide by
such reasonable procedures, it can hardly be that the extraor-
dinary machinery of impeachment is the only recourse.").
For reasons I will explain, however, I do believe that the
principle of judicial independence permits sanctions to be
imposed only for conduct that is clearly abusive or clearly
prejudicial to the adversarial process, and in this case, I think
that Judge McBryde's conduct, as described in the Council's
Report, does not uniformly meet this standard.

As an initial matter, I believe the principle of judicial
independence guarantees to individual Article III judges a
degree of protection against interference with their exercise
of judicial power, including interference by fellow judges. As
my colleagues note, the Supreme Court expressly stated in
Northern Pipeline that the constitutional guarantee of life
tenure "insulates the individual judge from improper influ-
ences not only by other branches but by colleagues as well,
and thus promotes judicial individualism." Northern Pipe-
line Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 59
n.10 (1982). Similarly, in Chandler, a case involving intra-
judicial discipline, the Supreme Court stated that "[t]here
can, of course, be no disagreement among us as to the
imperative need for total and absolute independence of judges
in deciding cases or in any phase of the decisional function."
398 U.S. at 84. See also In re Certain Complaints Under
Investigation by an Investigating Committee of the Judicial
Council of the Eleventh Circuit, 783 F.2d 1488, 1506-07 (11th
Cir. 1986) (noting, in the context of adjudicating the facial
constitutionality of certain provisions of the Act, that "the
majority [in Chandler] located a judge's protected indepen-
dence ... 'in deciding cases or in any phase of the decisional
function,' " and then framing its basic inquiry as "whether
[the] direct or indirect effects ... the Act may have on an
individual judge's independence are within proper toler-
ances").

The notion that individual judges enjoy a sphere of protect-
ed independence finds support in the cases establishing that
judges cannot be held liable for damages arising out of
performance of their judicial duties. "[I]t is a general princi-
ple of the highest importance to the proper administration of
justice," the Supreme Court stated in Bradley v. Fisher, "that


a judicial officer, in exercising the authority vested in him,
shall be free to act upon his own convictions, without appre-
hension of personal consequences to himself. Liability to
answer to every one who might feel himself aggrieved by the
action of the judge, would be inconsistent with the possession
of this freedom, and would destroy that independence without
which no judiciary can be either respectable or useful." 80
U.S. 335, 347 (1871). Similarly, in Pierson v. Ray, the Court
stated that "[f]ew doctrines were more solidly established at
common law than the immunity of judges from liability for
damages for acts committed within their judicial jurisdic-
tion.... This immunity applies even when the judge is
accused of acting maliciously and corruptly, and it is not for
the protection or benefit of a malicious or corrupt judge, but
for the benefit of the public, whose interest it is that the
judges should be at liberty to exercise their functions with
independence and without fear of consequences." 386 U.S.
547, 553-54 (1967). Cf. Quercia v. United States, 289 U.S.
466, 469 (1933) ("Under the Federal Constitution the essential
prerogatives of the trial judge as they were secured by the
rules of the common law are maintained in the federal
courts.").

Of particular relevance to this case, I believe the sphere of
individual judicial independence--the protected "decisional
function," as Chandler puts it, 398 U.S. at 84--includes not
only judges' freedom to reach their own conclusions about
questions of fact and law, but also a margin of discretion to
manage and control the adversarial process within their
courtrooms. "Courts of justice," the Supreme Court has
explained, "are universally acknowledged to be vested, by
their very creation, with power to impose silence, respect, and
decorum, in their presence, and submission to their lawful
mandates. These powers are governed not by rule or statute
but by the control necessarily vested in courts to manage
their own affairs so as to achieve the orderly and expeditious
disposition of cases." Chambers v. Nasco, Inc., 501 U.S. 32,
43 (1991) (internal citations and quotations omitted). And as
we have recognized, the exercise of this power requires that
"a district judge ha[ve] wide discretion in monitoring the flow


of a criminal trial. It is well within her discretion to rebuke
an attorney, sometimes harshly, when that attorney asks
inappropriate questions, ignores the court's instructions, or
otherwise engages in improper or delaying behavior....
There is a 'modicum of quick temper that must be allowed
even judges.' " United States v. Donato, 99 F.3d 426, 434
(D.C. Cir. 1997) (quoting Offutt v. United States, 348 U.S. 11,
17 (1954)).

A judge's authority to control the courtroom is essential to
the exercise of judicial power. Unlike legislative and execu-
tive power, the judicial power created by Article III can be
exercised only on the basis of a factual record developed
pursuant to established standards of relevance and authentici-
ty. See Fed. R. Evid. 402 (requiring that evidence be relevant
to be admissible), 901 (requiring that evidence be authentic to
be admissible). Critical to the development of a proper
record is a well-functioning adversarial process in which
lawyers serve both as zealous representatives of their clients
and as officers of the court with responsibilities for fairness
and disclosure that transcend their clients' interests. Unless
judges can manage this process, if necessary by using both
formal and informal disciplinary measures to ensure that
lawyers perform their dual functions effectively and in accor-
dance with established rules of practice and procedure, they
may lack the fully developed record needed to exercise their
judicial authority.

Judges' power to control the adversarial process, of course,
is not absolute. Inappropriate trial management, for exam-
ple, can undermine a trial's fairness. See, e.g., Offutt, 348
U.S. at 17 (explaining that trial judge's becoming personally
embroiled with defense counsel compromised the court's "at-
mosphere of austerity" that is "consonant with a fair trial");
Donato, 99 F.3d at 291-92 (finding that judge's failure to
provide counsel with bench conference outside the jury's
presence violated Federal Rule of Criminal Procedure 30 and
constituted prejudicial error); Santa Maria v. Metro-North
Commuter RR, 81 F.3d 265, 273 (2d Cir. 1996) (finding that a
trial judge's expressed antipathy toward and removal of trial
counsel sufficiently prejudiced a defendant so as to require a


new trial). A judge's abusive treatment of attorneys can
prevent them from effectively defending their clients' inter-
ests. See In re McConnell, 370 U.S. 230 at 236 (1962)
("While we appreciate the necessity for a judge to have the
power to protect himself from actual obstruction in the court-
room ... it is also essential to a fair administration of justice
that lawyers be able to make honest good-faith efforts to
present their clients' cases."). Abusive treatment of lawyers
can undermine the judiciary's reputation, threatening its in-
tegrity in the eyes of the public. Cf. In re Certain Com-
plaints, 783 F.2d at 1507 ("The judiciary as a whole ... has a
interest in seeing that non-frivolous complaints are looked
into, to the end that the judge, and the system he exemplifies,
be exonerated or, if not that the public perceive that the
system has undertaken to police itself, within constitutional
limits, of course."); S. Rep. No. 96-362, at 7 (1979), reprinted
in 1980 U.S.C.C.A.N. 4315, 4321 ("The perception of a viable
healthy judiciary is of critical importance to our system of
justice."). As the Supreme Court has said, "an independent
judiciary and a vigorous, independent bar are both indispens-
able parts of our system of justice." McConnell, 370 U.S. at
236 (emphasis added).

It is thus appropriate for Judicial Councils, acting pursuant
to their general disciplinary power under section 372(c), to
ensure that judges' trial management techniques do not inter-
fere with the "effective and expeditious administration of the
business of the courts." 28 U.S.C. s 372(c)(1). After all,
Congress has authority to "limit[ ]" courts' inherent powers--
including their power to manage trials--"by statute and rule,
for these courts were created by act of Congress." Cham-
bers, 501 U.S. at 47 (internal quotation marks omitted); see,
e.g., McConnell, 370 U.S. at 233-34 (noting that Congress has
limited courts' inherent powers to sanction attorney contempt
by requiring such sanctions to be no more severe than
necessary).

This does not mean that Congress may infringe--or autho-
rize Judicial Councils to infringe--upon judges' trial manage-
ment authority in any manner it sees fit. It is a familiar
principle that even though Congress has the power to create


lower federal courts and organize their functioning in certain
respects, it can neither interfere with nor alter essential
features of their operation. See, e.g., Plaut v. Spendthrift
Farms, 514 U.S. 211, 240 (holding that Congress may not
pass legislation that reopens final judgments of federal
courts). Having vested authority to conduct trials in individ-
ual district judges, Congress cannot grant Judicial Councils
the power to interfere with those judges' trial management
authority to such an extent that judges cannot exercise it
effectively. Cf. In re Holloway, 995 F.2d 1080, 1088 (D.C.
Cir. 1993) (observing that absent a judge's ability to control a
trial with enforceable sanctions, "trials would wander down
every by-way, no matter how impermissible, in a sprawling
chaos that would render the adjudication close to random. In
the long run, such chaos is hardly in the interests of defen-
dants as a whole, much less in the interest of society.").
Congressional delegation of such authority would also violate
the principle of separation of powers, which prevents not only
the aggrandizement of one branch of government at the
expense of another, but also the disruption by one branch of
another's essential functions. See Morrison v. Olson, 487
U.S. 654, 675 (1988) (noting that "separation-of-powers con-
cerns ... would arise" if Congress's power to provide for
interbranch appointments of inferior officers "had the poten-
tial to impair the constitutional functions assigned to one of
the branches"); Mistretta v. United States, 488 U.S. 361, 404
(1989) (stating that the "ultimate inquiry" whether executive
appointment of Article III judges to administrative posts
violated separation of powers principles turned on whether
the "particular extrajudicial assignment undermines the in-
tegrity of the Judicial Branch").

Thus, while I agree that in order to discourage the improp-
er use of judicial power, protect the fairness of trials, and
safeguard the integrity and reputation of the judiciary, it is
appropriate to allow judicial councils to sanction judges for
abusing their trial management power, I also believe that, to
prevent such disciplinary action from encroaching upon legiti-
mate and necessary uses of that power, such sanctions should
be employed only for conduct that, viewed from the perspec-


tive of reasonable judges and lawyers, is clearly abusive
toward counsel or clearly prejudicial to the adversarial pro-
cess.

A rigorous standard of this kind is essential for several
reasons. First, absent such a standard, judicial councils could
more easily use their disciplinary authority to sanction non-
abusive judicial behavior. Federal judges are not all alike:
there are as many appropriate courtroom management tech-
niques as there are judges. In any given situation, moreover,
there will generally be more than one appropriate way to
manage a trial or demand attorney compliance with court
orders and rules. One judge may use a light touch to get an
aggressive lawyer to end an entirely inappropriate line of
questioning; another judge may threaten sanctions. Allow-
ing judges to punish each other absent evidence of clear
abuse of counsel or clear damage to the adversarial process
risks turning judicial discipline into a vehicle for sanctioning
stylistic disagreements over trial techniques.

Second, some Judicial Council members, such as appellate
judges, may have little or no experience dealing with aggres-
sive trial lawyers who routinely test the limits of proper
advocacy. To such judges, the trial management techniques
needed to control these lawyers may seem harsh, even abu-
sive. A rigorous standard that restricts sanctions to instanc-
es of clearly abusive behavior will reduce the likelihood that
councils will sanction appropriate behavior out of inexperi-
ence. And quite apart from the problem of inexperience,
even judges can act unfairly--indeed vindictively--towards
colleagues. A rigorous standard will reduce, though of course
it cannot eliminate, the possibility that judicial discipline will
be used to sanction unpopular judges engaged in appropriate
behavior.

Third, judicial discipline, like civil liability for judicial acts,
can chill the proper exercise of judicial discretion. See Pier-
son v. Ray, 386 U.S. 547, 553-54 (1967) (holding that imposing
civil liability for acts committed to judicial discretion "would
contribute not to principled and fearless decisionmaking but
to intimidation"); cf. Williams v. United States, 156 F.3d 86,


91-92 (1st Cir. 1998) ("If chastened attorneys can enlist
appellate courts to act as some sort of civility police charged
with enforcing an inherently undefinable standard of what
constitutes appropriate judicial comment on attorney perfor-
mance, trial judges are more likely to refrain from speaking
and writing candidly. In our view, this chilling effect carries
with it risks that are far greater than those associated with
the evil of occasional overheated judicial commentary."). If
judges can be sanctioned for conduct that is only arguably or
possibly--as opposed to clearly--abusive, they may be reluc-
tant to employ stern measures even when necessary to keep
control of the adversarial process. This is especially true
because a trial judge's harsh words or tough sanctions, entire-
ly appropriate in the heat of a tense and hard-fought trial,
may seem abusive when viewed in retrospect through the
pages of a cold record.

The possibility of chilling legitimate judicial behavior also
means that, in cases like this one where judges are sanctioned
in part for the effect their behavior has on lawyers who
practice before them, judicial councils should apply an objec-
tive standard, asking not just what complaining lawyers felt,
but also how the judge's conduct would have affected reason-
able lawyers under similar circumstances. It is only natural
for lawyers to feel slightly constrained and irritated when
judges try to control them. If judicial councils fail to apply
an objective standard when evaluating lawyer reactions and
complaints, judges might fear discipline if enough disgruntled
lawyers file complaints or testify against them. Judges might
thus calibrate courtroom discipline to avoid displeasing law-
yers, refraining from strict measures even when necessary
and appropriate.

Finally, we have previously adopted a rigorous standard
where, as here, sanctions could damage an individual's repu-
tation. In Shepherd v. ABC, we held that courts cannot
impose discovery sanctions based on attorney misconduct
without clear and convincing evidence of the predicate wrong-
doing. 62 F.3d 1469, 1476-78 (D.C. Cir. 1995); see also
Addington v. Texas, 441 U.S. 418, 424 (U.S. 1979) (stating
that reputational interests "are deemed to be more substan-


tial than mere loss of money and some jurisdictions accord-
ingly reduce the risk to the defendant of having his reputa-
tion tarnished erroneously by increasing the plaintiff's burden
of proof"). If, because of the risk of imposing reputational
harm, Article III courts must apply a heightened standard
when sanctioning lawyers, a similar obligation should apply to
judicial councils when considering disciplining fellow judges.
Suspensions and, in particular, reprimands can cast long-
lasting shadows over a judge's career.

With these principles in mind, I return to the facts of this
case.

IV

Several incidents described in the Council's Report, such as
the episode my colleagues recount, e.g., Maj. Op. at 24, are so
extreme and clearly abusive that, as the Special Committee
concludes in one instance, they speak for themselves. See
Report at 23 ("No more need be said with regard to this
incident."); see also, e.g., id. at 26-30 (describing Judge
McBryde's sanctioning the entire Federal Public Defender's
Office because a single attorney could not be reached for
forty-five minutes due to a misunderstanding); id. at 51-55
(describing Judge McBryde's berating an Assistant United
States Attorney and holding him in contempt of court because
a secretary had trouble connecting all of the parties to a
conference call); id. at 55-59 (describing Judge McBryde's
jailing an Assistant Public Defender who refused to answer a
question he believed might compromise attorney-client privi-
lege); id. at 60-65 (describing Judge McBryde's removing a
state court judge from McBryde's chambers without inquiring
why the state court judge was there). Had the Council
restricted its report to incidents like these, I would have no
trouble rejecting Judge McBryde's as-applied challenge, for
no reasonable judge would think behavior like this appropri-
ate.

Not all of the conduct described in the Report, however,
falls so clearly outside the bounds of appropriate judicial
behavior. The Report's main deficiency is that it never


adequately explains how such apparently less abusive con-
duct--ranging from the "cat-and-mouse" comment to accusa-
tions of lawyer bad faith to Judge McBryde's trial practice
rules--amounts to a clear abuse, or in some instances even an
abuse at all, of judicial power. The Report itself acknowl-
edges that at least one incident was "fairly trivial," but
suggests that "along with other incidents" it was "illustrative
of a pattern of conduct." Id. at 23. I recognize that trivial
conduct that would not be abusive if it happened once might
become so if repeated consistently over time. I also under-
stand that intra-judicial discipline may be an important means
of addressing patterns of behavior that cannot be corrected
through informal mechanisms or appellate review. See id. at
122; Carol Rieger, The Judicial Councils Reform and Judi-
cial Conduct and Disability Act: Will Judges Judge Judges?,
37 Emory L.J. 45, 78-80 (1988). That said, it is not at all clear
to me that the more trivial incidents the Report describes,
even if they occurred persistently, amounted to abuses of
judicial power. For example, I think it not at all obvious that
a judge who consistently employed phrases like "cat-and-
mouse approach to discovery," had difficult relations with
colleagues, or was "not always solicitous of his fellow judges'
needs or feelings" in the use of courtrooms, would be guilty of
abusing his judicial power. Although I understand the Com-
mittee's desire to include a sufficient number of incidents to
establish patterns of conduct, because I think that judicial
discipline must not interfere with judicial independence, the
Committee should have restricted its Report to incidents that,
if occurring repeatedly, would represent clear abuses of judi-
cial power. As it stands, the Report leaves unclear whether
the patterns formed by these more trivial incidents were at
all abusive, let alone clearly abusive. If they were abusive,
the Committee failed to explain why. The Report thus leaves
open the possibility that Judge McBryde was sanctioned in
part for legitimate judicial behavior. And absent an explana-
tion of how such conduct constitutes a clear abuse of judicial
power, imposing sanctions based on this record risks chilling
legitimate conduct by other judges.


In the second category of incidents presented in the Re-
port--those involving conduct that, although more clearly
bordering on the abusive, might nonetheless be entirely ap-
propriate under some circumstances, see supra at 5--I think
the Committee similarly failed to explain adequately what
made Judge McBryde's conduct clearly abusive, and thus
sanctionable. Consider, for example, the Report's description
of instances in which Judge McBryde accused attorneys of
bad faith. According to the Report, these incidents form a
pattern that reveals Judge McBryde's "proclivity to question
the integrity of attorneys appearing before him." Report at
124. Yet the Committee fails to establish that these inci-
dents, taken together, were clearly abusive. Much of the
Report's discussion simply recounts that on several occasions
Judge McBryde "exhibited distrust of attorneys' motives" and
"often directly accus[ed] them of lying or conspiring to de-
ceive him." Id. at 124-25. This in itself is unremarkable,
since evaluating attorney good faith is one of a trial judge's
functions.

The Report does suggest, however, that what sets these
incidents apart is that Judge McBryde's suspicions were
"unfounded," id. at 150, and that the Judge had "refus[ed] to
take simple steps to verify whether or not his suspicion of bad
faith on the part of others [was] justifiable." Id. at 126. I
agree that a pattern of consistent, unfounded accusations of
bad faith might well represent a clear, sanctionable abuse of
judicial power. In explaining why these accusations were
"unfounded" or otherwise problematic, however, the Commit-
tee gives little or no weight to how things would have looked
to an objectively reasonable judge in Judge McBryde's posi-
tion. In one case, for example, the Report states that "[w]e
believe [that an attorney accused of bad faith] told the Special
Committee the truth" when he testified that he had not lied
to Judge McBryde, Report at 17 n.4; yet the Report never
explicitly says whether Judge McBryde himself lacked any
reasonable basis for believing the lawyer was deceiving him.
Likewise, when describing the Torres incident, the Report
criticizes Judge McBryde's treatment of the clerk of the court
without considering whether the Judge had a reasonable


basis for thinking the clerk's conduct verged on contempt.
See id. at 72-78; cf. In re McBryde, 117 F.3d 208, 219 (5th
Cir. 1997) ("Judge McBryde's understanding of the factual
basis for suspecting that Clerk Doherty was on the verge of
contempt was similarly within the bounds of reason."). How
can conduct amount to a clear abuse of judicial power unless
that conduct seemed abusive to an objectively reasonable
judge? Put differently, it seems absurd to say that conduct is
clearly abusive if a reasonable judge under the circumstances
would have thought it appropriate.

The Report's discussion of the manner in which Judge
McBryde enforces his trial rules is similarly flawed. I agree
that if a judge "imposes unduly stringent rules on advocates
and enforces these rules in an often harsh manner," and if as
a result those rules "so restrict cross-examination that they
impede the effective administration of justice," that conduct
should be sanctionable. Report at 116. Yet the Report's
description of Judge McBryde's rules and their enforcement
includes many phrases and characterizations that encompass
perfectly legitimate trial practices: Judge McBryde's cases
are "replete with [the Judge's] constant admonishments to
counsel to move on to something else; not to allude to a
stipulated fact; and orders to (or threats to order) lawyers to
sit down during openings of the examination of witnesses," id.
at 110; "Judge McBryde ultimately uses the threat of con-
tempt and sarcasm to enforce his rules," id. at 111; "[t]he
Committee heard numerous additional examples of Judge
McBryde's interrupting a lawyer during the questioning of a
witness or conduct of the trial to enforce one or more of his
rules, sometimes in a harsh, threatening, or sarcastic man-
ner," id. at 113. To be sure, the Report also states that the
Committee was "fully cognizant of the notion that a trial
judge should be afforded broad discretion to manage and
conduct trials," and that Judge McBryde's "extreme and
unduly restrictive rules" and manner of enforcement were
"different not only in degree but also in kind from the wide
array of acceptable trial management rules." Id. at 121-22.
But simply stating this conclusion provides insufficient guid-
ance about why in Judge McBryde's case "admonishments to


counsel to move on," "the threat of contempt and sarcasm," or
other routine conduct amounted to a clear abuse of judicial
power. Because this section of the Report contains too much
general language that could describe any judge's appropriate
courtroom conduct, resting sanctions on these descriptions
could chill the legitimate exercise of judicial power.

The Council failed in other ways to take sufficient account
of the Report's chilling effect. In its discussions of Judge
McBryde's accusations of attorney bad faith, for example, the
Report never acknowledges that judges must often assess
attorney good faith, or that it is not necessarily out of order
for a judge to attempt to send a message to an entire office
that has given him problems in the past. See Bonds v.
District of Columbia, 93 F.3d 801, 805 n.7 (D.C. Cir. 1996)
("If they [the District's counsel] don't show, you proceed
without them. If the witnesses don't show, I'll hold them in
contempt. That's the only way I can deal with the District of
Columbia Government these days.") (quoting trial transcript).
Nor does the Report sufficiently acknowledge that district
judges need a reasonable margin of error in making findings
of bad faith, especially when presiding over tense trials
calling for quick decisions to control the behavior of aggres-
sive lawyers. Nor, finally, does the Report recognize that
assessments of attorney bad faith are not necessarily abusive
even if later set aside on appeal. See Report at 14-15 ("The
Fifth Circuit ... noted that there was no evidence of bad
faith on the [accused party's] part."). To avoid chilling
appropriate judicial conduct, I think the Committee should
have explained more thoroughly and more explicitly how
Judge McBryde's behavior differed from permissible exercis-
es of judicial power.

The Council's insensitivity to the potentially chilling effect
of its Report is likewise apparent in its discussion of the
impact Judge McBryde's behavior had on others. Describing
the effect of Judge McBryde's enforcement of his trial rules
upon the adversarial process, as well as the impact of the
Judge's abusive treatment of attorneys upon the Fort Worth
legal community as a whole, the Committee often seems to
credit the views of witnesses who testified before it without
ever determining whether those views represented what rea-


sonable lawyers would have felt in similar circumstances.
The Report explains, for example, that the prosecutor Judge
McBryde accused of using a "cat-and-mouse approach to
discovery" left legal practice in part as a result of that
incident, quoting at length the attorney's explanation of why
the threat of Judge McBryde's treatment led him to leave his
job. See Report at 51. Similarly, the Report cites the
testimony of numerous lawyers who stated that they felt
oppressed, harassed, afraid to ask questions, and generally
unable to function effectively in Judge McBryde's courtroom.
See id. at 116-21, 132-37.

I agree that a judge whose harsh management of trials
makes it impossible for lawyers to practice in front of him
creates a serious problem. I also understand that proving
that a judge had such an effect requires testimony from
lawyers who practice before the judge. But in examining the
testimony of such lawyers, the Committee should have at-
tempted to discern not simply whether Judge McBryde had a
disruptive effect on the Fort Worth legal community, but also
whether his conduct would clearly prejudice the ability of
reasonably resilient and thick-skinned lawyers to present
their cases effectively.

In sum, I have no doubt that several of Judge McBryde's
actions were clearly sanctionable: they were flagrant abuses
of judicial power. In its understandable desire to be thor-
ough, however, the Committee included in its Report many
actions and incidents which either seem to be entirely appro-
priate or involve conduct that might have been appropriate
under some circumstances. I understand that even actions
which are not obviously and flagrantly abusive on their face
can be abusive either in context or as part of a pattern.
Because of the fundamental importance of judicial indepen-
dence and the risk that sanctions could punish or chill legiti-
mate judicial behavior, however, I think that sanctioning such
conduct requires judicial councils to explain precisely how and
why it rises to the level of a clear abuse of judicial power.
Here, the Committee's Report falls far short of this standard.
I would therefore have remanded the case to the Council with
instructions to limit its Report to evidence that, when viewed


objectively, demonstrates a pattern of conduct that amounts
to a clear abuse of judicial power, or a pattern of conduct
clearly prejudicial to the adversarial process, and then in
light of this sharpened record, to re-evaluate the appropriate-
ness of the sanctions and to impose those sanctions deemed
necessary to deter future misconduct by Judge McBryde and
other judges and to preserve the reputation and integrity of
the federal judiciary.

V

Because my colleagues recognize that Judge McBryde's
challenge to the reprimand is not moot, the substance of the
foregoing analysis is largely unaffected by their view that his
challenge to the suspensions is moot. But because under my
colleagues' theory of mootness, a judge suspended for only a
few years but not reprimanded would never be able to
challenge the suspension, I respectfully register my disagree-
ment with this aspect of the court's opinion. In my view,
Judge McBryde's challenge to his suspensions is not moot for
two independent reasons. First, the suspensions--which re-
main published on the Fifth's Circuit's web site, see
http://www.ca5.uscourts.gov/mcbryde/council.htm (last visited
Sept. 6, 2001)--give rise to ongoing stigmatic and reputational
injury at least as serious as that of the reprimand. Second,
Judge McBryde raises an issue that seems "capable of repeti-
tion yet evading review." Weinstein v. Bradford, 423 U.S.
147, 149 (1975). Although this court's opinion puts Judge
McBryde on notice that his peers can constitutionally sanction
him for some inappropriate in-court conduct, see Maj. Op. at
25, the opinion leaves unclear precisely what kind of conduct
would trigger sanctions. The court never decides whether it
was constitutional for the Judicial Council to have sanctioned
Judge McBryde for the conduct described in the Report, and
I do not think informing Judge McBryde in the abstract that
he must give his colleagues at least a "modicum of civility and
respect," id., provides much guidance about what kind of
conduct is constitutionally sanctionable. Thus, even assuming
that Judge McBryde accepts the court's conclusion that his
peers can punish him for some in-court conduct, he will not
know whether it is constitutional for his peers to sanction him


for behavior like that described in the Report. See Report at
59 (stating that Judge McBryde believed his incarceration of
a lawyer for refusal to answer a question was "appropriate
under the circumstances"); id. 63-64 (quoting transcript of
Committee hearing suggesting that Judge McBryde thought
it was appropriate under the circumstances to have a state
court judge removed from his chambers without asking the
state judge why he had come to see Judge McBryde). Given
this uncertainty, and given Judge McBryde's aggressive judi-
cial style, there is ample reason to suspect that his behavior
might again provoke sanctions.