The Honorable John H. McBryde v. Committee to Review Circuit Council

• Decision Date: 25 September 2001
• Docket Number: No. 00-5016,00-5016
• Citation: The Honorable John H. McBryde v. Committee to Review Circuit Council, 264 F.3d 52 (D.C. Cir. 2001)
• Parties: (D.C. Cir. 2001) 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
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 52

264 F.3d 52 (D.C. Cir. 2001)

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

No. 00-5016

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 7, 2000

Decided September 21, 2001

Corrected September 25, 2001

Appeal from the United States District Court for the District of Columbia(No. 98cv02457)[Copyrighted Material Omitted]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 Attorney General, Mark B. Stern and Scott R. McIntosh, Attorneys, and Wilma A. Lewis, U.S. Attorney at the time the brief was filed, were on the brief.Thomas W. Millet, Attorney, 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 Judicial Council of the Fifth Circuit(the "Judicial Council" or "Council"), acting under the Judicial Conduct and Disability Act of 1980, 28 U.S.C. § 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 haengaged for a number of years in a pattern of abusive behavior" that was " 'prejudicial to the effective and expeditious administration of the business of the courts.' "Report of the Special Committee of the Fifth Circuit Judicial Council Regarding Complaints Against, and the Investigation into the Conduct of, Judge John H. McBrydeat 150-51(Dec. 4, 1997)("Committee Report")(quoting28 U.S.C. § 372(c)).The Report also recommended a variety of sanctions based on the provisions of § 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 circumstances).SeeCommittee Reportat 152-58.The Judicial Council endorsed the recommendations and issued an order imposing the recommended sanctions.SeeIn 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)("Judicial Council Order").The lawyer-related disqualification became 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.SeeIn 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 separation of powers doctrine.¹He 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 the record of the proceedings.On cross motions for summary judgment, the district court agreed with Judge McBryde's First Amendment argument, McBryde v. Committee 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 distinctively 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. § 372(c)(10), namely the "as applied" and statutory challenges; the district court was therefore without jurisdiction 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 merits.

* * *

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, seeFriends 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. Continental 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 caseshe was not assigned or otherwise improve his current situation.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 alsoSouthern 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(citingCity 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 render[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 towards the professionals with whom he or she works.The standard is also familiar, as it clearly echoes Canon3(A)(3) of the Code of Judicial Conduct for Federal Judges.SeeCode of Judicial Conduct for United States Judges, Canon3(A)(3);Judicial Council Orderat 2.Judge McBryde does not, so far as we can determine, ever challenge this basic notion anymore 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."SeeOral 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.SeeWozniak v. Conry, 236 F.3d 888, 890(7th Cir.2001)(holding that depriving a tenured professor 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...