Guarding The Guardians

Operations of Federal Judicial Misconduct Statutes: Hearing Before the Committee on the Judiciary, U.S. House of Representatives

 

OFFICE OF THE CLERK
MARCIA M. WALDRON TELEPHONE
CLERK 215-597-2995

UNITED STATES COURT OF APPEALS
21400 UNITED STATES COURTHOUSE
601 MARKET STREET
PHILADELPHIA, PA 19106-1790
Website: www.ca3.uscourts.gov

November 23, 2010
C ONFI DENTIAL

Honorable Faith S. Hochberg
United States District Court
United States Post Office and Courthouse
Two Federal Square, Room 369
Newark, NJ 07102-3513

Mohamed F. El-Hewie
157B Meriline Avenue
West Paterson, NJ 07424

Re: In the Matter of a Complaint Filed Under
28 U.S.C. §351, et seq.
J. C. No. 03-10-90007

Dear Judge Hochberg and Mr. El-Hewie:

Enclosed please find a copy of a Memorandum Opinion and Order filed in
the above-captioned case. Any petition for review of this decision must be filed in this
office by December 28, 2010 (within 35 days of the date OD, this letter). Rules 1 1(g)(3)
and 18, Rules of the Judicial-Conduct and Judicial-Disability Proceedings.

Very truly yours,

MARCIA M. WALDRON, Clerk
By: /s/ Jeanne T. Donnelly
Jeanne T. Donnelly
Staff Attorney
Enclosures

JUDICIAL COUNCIL OF THE THIRD CIRCUIT
J. C. No. 03-10-90007

IN RE: COMPLAINT OF JUDICIAL MISCONDUCT
OR DISABILITY

ORIGINAL PROCEEDINGS UNDER 28 U.S.C. § 351

ORDER

(Filed: November 23, 2010)
PRESENT: McKEE, Chief Judge.

On the basis of the foregoing opinion entered on this date, it is ORDERED AND
ADJUDGED that the written complaint brought pursuant to 28 U.S.C. § 351 is hereby
dismissed pursuant to 28 U.S.C. §§ 352(b)(1)(A)(ii) and (iii).
This order constitutes a final order under 28 U.S.C. § 352(c). Complainant is
notified in accordance with Rules 11(0(3) and 18, Rules for Judicial-Conduct and
Judicial-Di abili Proceedin s of the right to appeal this decision by the following
procedure:

Rule 18(a) Petition. A complainant or subject judge may petition the Judicial
Council of the Third Circuit for review.
Rule 18(b) Time. A petition for review must be filed in the office of the clerk of
the court of appeals within 35 days of the date on the clerk's letter informing the
parties of the chief judge's order.
•
I8(b) Form. The petition should be in letter form, addressed to the clerk of the
court of appeals, and in an envelope marked "Misconduct Petition" or "Disability
Petition." The name of the subject judge must not be shown on the envelope. The
letter should be typewritten or otherwise legible. It should begin with "I hereby
petition the judicial council for review of . ." and state the reasons why the petition
should be granted. It must be signed. There is no need to enclose a copy of the
original complaint.

The full text of the Rules for Judicial-Conduct and Judicial-Disability Proceedings is
available from the Clerk's Office of the Court of Appeals for the Third Circuit and on the
Court of Appeals' Internet site, www.ca3.uscourts.gov .

Is _Theodore A. McKee
Chief Judge
Dated: November 23, 2010

JUDICIAL COLTS CIL OF THE THIRD CIRCUIT
I.C. No. 03-10-90007

IN RE: COMPLAINT OF JUDICIAL MISCONDUCT
OR DISABILITY

ORIGINAL PROCEEDINGS UNDER 28 U.S.C. § 351

MEMORANDUM OPINION

(Filed: November 23, 2010)

PRESENT: McKEE, Chief Judge.

This complaint is filed under the Judicial Conduct and Disability Act, 28 U.S.C.
§§ 351-64, against a United States District Court Judge ("Subject Judge"). 1 For the
reasons discussed below, the complaints will be dismissed pursuant to 28 U.S.C.
§§ 352(b)(1)(A)(ii) and (iii).

1
To the extent Complainant's allegations concern individuals not covered by the
Judicial Conduct and Disability Act (including attorneys, public officials, and others), the
allegations will not be addressed in this opinion. See 28 U.S.C. §§ 351, 352(b)(1)(A)(i);
Rule 4 Rules for Judicial Conduct and Judicial-Disabilit Proceedin • s

The Judicial Conduct and Disability Act provides a remedy if a federal judicial
officer "has engaged in conduct prejudicial to the effective and expeditious administration
of the business of the courts." 28 U.S.C. § 351(a). A chiefjudge may dismiss a complaint
if, after review, he or she finds it is not cognizable under the statute, is directly related to the
merits of a decision or procedural ruling, or is frivolous or lacks sufficient evidence to raise
an inference of misconduct. 28 U.S.C. §§ 352(b)(1)(A)(i)-(iii). The "misconduct
procedure [under the Act] is not designed as a substitute for, or supplement to, appeals or
motions for reconsideration. Nor is it designed to provide an avenue for collateral attacks
or other challenges to judges' rulings." In re Memorandum of Decision of Judicial
Conference Committee on Judicial Conduct and Disability, 517 F.3d 558, 561 (U.S. Jud.
Conf. 2008).

Complainant was a pro se plaintiff in an employment related-action before the
Subject Judge. In the instant complaint, Complainant primarily argues the merits of his
claims in the District Court action. He disputes the Subject Judge's adverse decisions and
procedural rulings, including decisions to dismiss the underlying complaint, to deny leave
to amend the complaint, and to deny a motion for reconsideration. Complainant alleges,
among other things, that the Subject Judge made "[Nabitual misrepresentation of irrelevant
caselaws . and reach[ed] outrageous conclusions," "refus[ed] to reverse her errors after
being notified with her failure in judgment and authority," "unreasonabl[y] delay[ed]" the
proceedings," and "lackredi capacity to deal with" Complainant's claims and issues.
Complainant takes issue with the soundness of the Subject Judge's legal analysis and
2

conclusions by accusing her of "a state of tyranny and defiance" and "unreasonable
judgment." As support for these allegations, Complainant has provided numerous and
lengthy quotations from case law, and has appended to his complaint various materials,
including copies of opinions issued by the Subject Judge in the course of the underlying
proceedings.

"An allegation that calls into question the correctness of a judge's ruling ... is
merits-related" and is not cognizable misconduct. Rule 3(h)(3)(A), Rules for
Judicial-Conduct and Judicial-Disability Proceedings. Similarly, a claim of delay is not
cognizable misconduct, "unless the allegation concerns an improper motive in delaying a
particular decision or habitual delay in a significant number of unrelated cases." Rule
3(h)(3)(B), Rules for Judicial-Conduct and Judicial-Disability Proceedings. Thus,
virtually none of Complainant's allegations is cognizable in these proceedings. See 28
U.S.C. § 352(b)(1)(A)(ii); Rule 11(c)(1)(B), Rules for Judicial-Conduct and
Judicial-Disability Proceedings.

Next, Complainant vaguely alleges that the Subject Judge "engaged in conduct
prejudicial to the effective and expeditious administration of the business of the courts,
including a substantial and widespread lowering of public confidence in the courts among
reasonable people." Apart from his disagreement with the Subject Judge's decisions and
rulings, however, Complainant fails to provide any support for this claim. To the extent
these allegations reiterate Complainant's basic disagreement with the Subject Judge's
decisions, they are dismissed as merits-related. See 28 U.S.C.§ 352(b)(1)(A)(ii).
3

Moreover, I have reviewed the decisions and conclude that, without more, they do not
demonstrate that the Subject Judge engaged in any form of judicial misconduct.
Complainant's allegations are therefore subject to dismissal as frivolous and unsupported by
any evidence that would raise an inference that misconduct occurred. 28 U.S.C.
§ 352(b)(1)(A)(iii); Rule 11(c)(1)(C), (D), Rules for Judicial-Conduct and
Judicial-Disability Proceedings.
For the foregoing reasons, the complaint is dismissed under 28 U.S.C.
§§ 352(b)(1)(A)(ii) and (iii).

/s/ Theodore A. McKee
Chief Judge


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