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MCBRYDE v. COMMITTEE TO REV. CIR. COUNCIL CONDUCT

December 30, 1999

HON. JOHN H. MCBRYDE, PLAINTIFF,
v.
COMMITTEE TO REVIEW CIRCUIT COUNCIL CONDUCT AND DISABILITY ORDERS OF THE JUDICIAL CONFERENCE OF THE UNITED STATES, HON. WILLIAM J. BAUER, THE JUDICIAL COUNCIL OF THE FIFTH JUDICIAL CIRCUIT, HON. HENRY A. POLITZ, DEFENDANTS, AND THE UNITED STATES OF AMERICA, INTERVENOR-DEFENDANT.



The opinion of the court was delivered by: Kollar-kotelly, District Judge.

      MEMORANDUM OPINION

This case arises out of an investigation by a Special Committee ("Special Committee") of the Judicial Council of the Fifth Judicial Circuit ("Judicial Council") into the conduct of the Honorable John H. McBryde, United States District Judge for the Northern District of Texas, pursuant to the Judicial Conduct and Disability Act of 1980, 28 U.S.C. § 372(c). The Special Committee's investigation spanned two years, culminating in a 159-page Report containing findings of fact and recommendations to the Judicial Council. On December 31, 1997, upon consideration of the Special Committee's Report and various responses thereto, the Judicial Council publicly reprimanded Judge McBryde for "conduct prejudicial to the effective administration of the business of the courts." As a remedial measure, the Judicial Council ordered that no new cases be assigned to Judge McBryde for a period of one year, and disqualified Judge McBryde from participating in any cases involving certain attorneys for a period of three years. Although the disqualification order took effect immediately, the assignment order was stayed while Judge McBryde sought review from the Judicial Conference of the United States. On September 18, 1998, the Committee to Review Circuit Council Conduct and Disability Orders of the Judicial Conference of the United States ("Review Committee") substantially affirmed the Judicial Council's Order. Upon this affirmance, the assignment order took effect immediately, subject to the Review Committee's proviso that it could be lifted if the Judicial Council found that "Judge McBryde's conduct indicates that he has seized the opportunity for self-appraisal and deep reflection in good faith and that he has made substantial progress toward improving his conduct."

In an eight-count complaint filed on October 15, 1998, Judge McBryde challenges the constitutionality of the Act, both facially and as applied to him, on the grounds that the Act violates the separation of powers doctrine (Counts I, II and III), fails to afford due process (Count VI), and violates the First Amendment (Count VIII). In addition, Judge McBryde claims that the proceedings violated the Act and the Fifth Circuit Complaint Rules (Counts IV, V and VII). Judge McBryde names as defendants the Judicial Council of the Fifth Judicial Circuit and its Chairman, the Honorable Henry A. Politz; and the Committee to Review Circuit Conduct and Disability Orders of the Judicial Conference of the United States ("Judicial Conference") and its Chairman, the Honorable William J. Bauer ("Defendants"). This court granted permission for the United States to intervene as a defendant for the limited purpose of defending the constitutionality of the Act.

Before the Court are cross-motions for summary judgment and/or to dismiss filed by Judge McBryde, the Defendants, and the United States. For the reasons elaborated below, the Court finds that the Act is constitutional, both on its face and as it has been applied to Judge McBryde, except insofar as its confidentiality clause impermissibly inhibits Judge McBryde's ability to speak openly about the proceedings. In particular, the Court finds that the Act does not usurp or encroach upon the power of impeachment that properly resides with the Legislative Branch. Nor does the Act jeopardize the independence of the judiciary, an invaluable facet of our democracy that stands to be enhanced by judicial self-monitoring. Moreover, because the Act authorizes review not of the merits of a judge's legal decisions, but of a judge's alarming or destructive pattern of conduct, it poses no threat to a federal judge's Article III function.

In response to Defendants' contention that the Act's finality clause bars review of Judge McBryde's claims, the Court determines that it retains jurisdiction to consider these claims to the extent they allege facial violations of the statute or violations of Judge McBryde's constitutional rights, whether facial or as-applied. Thus authorized to conduct such a review, the Court concludes that no facial violations of the statute took place, with respect either to the scope of the investigation or to the nature of the material which the Special Committee and the Judicial Council addressed. After evaluating carefully Judge McBryde's assertion that Defendants impermissibly reviewed the merits of his judicial decisions, the Court finds that they confined their investigation to a pattern of behavior toward attorneys and others, which they found demonstrates intemperance and abusiveness. Further, the Court concludes that the sanctions levied against Judge McBryde did not transgress into the forbidden realm of impeachment, but rather were limited in scope and tailored to the problem that his behavior posed. The Court finds against Judge McBryde on his due process claims, since Defendants provided him with the fundamental requirements of due process, including notice and an opportunity to be heard.

The Court is, however, persuaded by Judge McBryde's contention that the Act's confidentiality clause, as it has been applied to him, operates as an impermissible prior restraint on his speech. Now that the proceedings have concluded and the sanctions against him have been imposed, Judge McBryde must enjoy the opportunity to speak openly and freely about those proceedings, absent some sufficiently compelling interest to justify curtailment of this opportunity. Defendants have demonstrated no interest of that magnitude here.

I. BACKGROUND*fn1

The Judicial Council's investigation and subsequent discipline of Judge McBryde represents the most significant application of the Judicial Conduct and Disability Act, 28 U.S.C. § 372, since its enactment in 1980. Congress designed the Act to provide a mechanism whereby the Judicial Branch can systematically investigate and resolve allegations of judicial misconduct or disability. See S.Rep. No. 96-362, at 1, reprinted in 1980 U.S.C.C.A.N. 4315, 4315. In an effort to address "the growing public demand for the accountability of public officials," id. at 5, members of Congress and the Judicial Branch worked together to draft legislation that would provide an alternative means of remedying conduct that is prejudicial to the administration of justice, and yet does not rise to the level of an impeachable offense, criminal infraction, or reversible error. See H. Rep. No. 101-512, at 10, reprinted in 1990 U.S.C.C.A.N. 6879, 6884 (detailing the involvement of the judiciary in drafting the Act). The conduct targeted by the Act ranges from such intangibles as a lack of "judicial temperament" to patterns of abusive behavior that threaten to undermine the integrity of the judiciary as a whole, as well as behavior symptomatic of an underlying disability. While recognizing that cases of judicial misconduct were infrequent, Congress found that these "[r]are instances of judicial misconduct that have gone unchecked prompt the establishment of a procedure within the judiciary for the processing of complaints aimed at a federal judge." S.Rep. No. 96-362, at 5. The ultimate question before the Court is whether these procedures violate the Constitution, both on their face and as they were applied to Judge McBryde.

A. The Statutory Scheme

In this section, the Court shall present a brief overview of those statutory provisions at issue in this litigation. Section 372(c)(1) permits any person alleging that a district judge "has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts" to file a written complaint with the chief judge of the circuit. 28 U.S.C. § 372(c)(1). In the alternative, § 372(c)(1) allows the chief judge to "identify" a complaint on the basis of information available to him or her. Id. Upon expeditious review of a complaint, the chief judge has three options: he may dismiss the complaint, see id. § 372(c)(3)(A); conclude the proceeding, see id. § 372(c)(3)(B); or initiate an investigation by appointing a special committee, see id. § 372(c)(4)(A).

If the chief judge decides to appoint a special committee to investigate the charge, the committee "shall conduct an investigation as extensive as it considers necessary, and shall expeditiously file a comprehensive written report thereon with the judicial council of the circuit." Id. § 372(c)(5). After the special committee files its report, the Act empowers the judicial council to respond in a number of ways. If it appears necessary, the judicial council may conduct an additional investigation pursuant to § 372(c)(6)(A). Alternatively, the judicial council may dismiss the complaint pursuant to § 372(c)(6)(C). If the judicial council decides to act on the special committee's report, the Act directs that the judicial council

  shall take such action as is appropriate to assure
  the effective and expeditious administration of the
  business of the courts within the circuit, including,
  but not limited to, any of the following actions:
  (iv) ordering that, on a temporary basis for a time
  certain, no further cases be assigned to any judge or
  magistrate whose conduct is the subject of a
  complaint;
  (vi) censuring or reprimanding such judge or
  magistrate by means of public announcement; or
  (vii) ordering such other action as it considers
  appropriate under the circumstances.

Id. § 372(c)(6)(B). Although a complainant or judge aggrieved by the judicial council's action may petition the Judicial Conference of the United States for review, in all other respects, any orders and determinations "shall be final and conclusive and shall not be judicially reviewable on appeal or otherwise." Id. § 372(c)(10).

Judge McBryde has also challenged the Act's confidentiality clause, id. § 372(c)(14), which renders confidential "all papers, documents, and records of proceedings related to investigations conducted under this subsection." These materials "shall not be disclosed by any person in any proceeding," unless "such disclosure is authorized in writing by the judge . . . who is the subject of the complaint and by the chief judge of the circuit, the Chief Justice, or the chairman of the standing committee. . . ." Id. § 372(c)(14)(C). The confidentiality clause features certain other exceptions, but § 372(c)(14)(C) is the only one that is at issue here.

B. The Special Committee's Investigation and Report

In July 1995, an attorney filed a complaint describing Judge McBryde's "obstructive, abusive, and hostile conduct" during trial.*fn2 Id. ¶ 20. While the controversy over Satz and Torres continued to develop, Chief Judge Politz "identified" other complaints about Judge McBryde. See 28 U.S.C. § 372(c)(1) (authorizing the Chief Judge to identify complaints). On September 13, 1995, Chief Judge Politz appointed a Special Committee pursuant to 28 U.S.C. § 372(c) to investigate the allegations of misconduct that had been levied against Judge McBryde. Pl.'s 108(h) ¶ 24(u). This same committee was also charged with the task of investigating Judge McBryde's request for assistance with Satz and Torres. Id. ¶ 27. The Special Committee held a hearing on Judge McBryde's request for assistance on October 19, 1995.*fn3 Id. ¶ 29. Although the Judicial Council denied Judge McBryde's request for assistance, id. ¶ 44, the United States Court of Appeals for the Fifth Circuit ultimately granted Judge McBryde's petition for a writ of mandamus and vacated Chief Judge Buchmeyer's reassignment orders. See McBryde I, 117 F.3d at 231.*fn4

During the nineteen months between the denial of Judge McBryde's request for assistance and the Fifth Circuit's decision in McBryde I, the Special Committee continued to spar with Judge McBryde. The members of the Special Committee were "concerned about two things: first, that Judge McBryde may have a health problem (mental or physical) which affects his activities as a judge, and second, that Judge McBryde has engaged in a pattern of abusive behavior as a federal judge." Report at 3. These concerns led the Special Committee to seek the advice of two psychiatrists, without Judge McBryde's knowledge or consent. Pl.'s 108(h) ¶¶ 51-54. On the recommendation of the two psychiatrists, the Special Committee asked Judge McBryde to submit to a psychiatric evaluation. Id. ¶ 55. Judge McBryde refused. On July 31, 1996, the Special Committee obtained an order from the Judicial Council requiring Judge McBryde to undergo a full psychiatric examination. Id. ¶ 73. After Judge McBryde initiated a lawsuit challenging the order, the Judicial Council sought a contempt finding against Judge McBryde for violating the order. Id. ¶¶ 76-79. Concerned that the 372(c) investigation was becoming mired in controversy over the psychiatric examination, the Special Committee obtained a stay of these proceedings. Id. ¶ 81.*fn5

Two other significant developments occurred during this period. Reacting to the mounting allegations of "repetitive, abusive, and excessive conduct by Judge McBryde beyond the allegations in the five complaints," Chief Judge Politz decided to expand the scope of the investigation pursuant to § 372(c)(5), and Judge McBryde engaged in a series of legal skirmishes with the Judicial Council and the Fifth Circuit over the appropriate forum for subpoenas ad testificandum and duces tecum. See Report at 8; see generally In re McBryde, 120 F.3d 519 ("McBryde II").

On August 25, 1997, the Special Committee's evidentiary hearings finally commenced. Report at 9. The Special Committee Report summarized these proceedings as follows:

  The Special Committee conducted evidentiary hearings
  in New Orleans on August 25 through August 29, 1997
  and in Forth Worth on September 29 through October 2,
  1997. During the nine days of hearings, the Special
  Committee received in evidence hundreds of exhibits,
  mostly court records and transcripts in matters
  before Judge McBryde. Among the witnesses presented
  by Special Counsel were four federal District Court
  Judges; one Texas State Court Judge; a former U.S.
  Attorney for the Northern District of Texas; the
  Director of Enforcement of the Securities and
  Exchange Commission; the head of the Public
  Defender's Office in Fort Worth; Assistant U.S.
  Attorneys and Federal Public Defenders; the Clerk of
  the District Court for the Northern District of
  Texas; and private attorneys who practiced before
  Judge McBryde. Judge McBryde's witnesses included
  private and public attorneys who practiced before
  him; court personnel; employees of the General
  Services Administration ("GSA"); former members of
  juries which decided cases over which he presided;
  and present and former members of his staff.

Report at 9-10. After digesting evidence about numerous discrete incidents and events spanning Judge McBryde's tenure as a federal judge, the Special Committee concluded that "[w]hen viewed in isolation, the incidents described above run the gamut from outrageous to inappropriate. When viewed together, the incidents bespeak several alarming patterns of conduct exhibited by Judge McBryde over the course of his tenure on the bench." Id. at 124. These patterns fall into five categories: "Proclivity to Question Integrity," id. at 124-27, "Overreactions and Abusive Sanctions," id. at 127-28, "Obsessive Need to Control," id. at 128, "Inappropriate Conduct Toward Fellow Judges," id. at 130-31, and "Effect on the Legal Community," id. at 132-37. On December 4, 1997, the Special Committee published its findings in an extensive and detailed Report. Without repeating every detail of the Special Committee's extensive findings, which comprise over 100 pages of the Report, the Court will briefly recount some of the representative events of Judge McBryde's behavior.*fn6

On another occasion, a criminal defense attorney declined to answer a question which Judge McBryde posed because he believed erroneously that his response would waive his client's privilege and redound to his client's detriment. Judge McBryde refused to recess the proceeding to allow the attorney an opportunity to consult with his client or to research the issue before responding to Judge McBryde. Instead, Judge McBryde ordered in open court that the attorney be incarcerated until he agreed to answer the question, holding the attorney in civil contempt of court for not responding to his question. See id. at 57-59. The Special Committee did not focus on whether or not the claimed attorney-client privilege was valid — and the Court of Appeals later found that it was not — but on Judge McBryde's treatment of the attorney. For instance, in reference to Judge McBryde's unwillingness to recess the proceedings to allow the attorney to research an issue which had arisen unexpectedly, the Committee wrote: "There was no exigency warranting this treatment of [the attorney], other than the self-defined exigency of Judge McBryde to complete the proceeding once it had begun." Id. at 59.

In a different case, an attorney received a call from chambers at 4:50 p.m. to inform him that, in response to his motion to continue a sentencing, the court had scheduled a hearing for 9:00 a.m. the following morning, and would require the physician to testify live at the hearing as to his client's medical condition necessitating continuance of the sentencing. The attorney was able only to arrange for the physician to participate in a telephone conference call before the physician left town. Judge McBryde first ordered the attorney ejected from the courtroom, and later, upon permitting him to reenter, questioned the attorney in a belittling fashion about his knowledge of the use of subpoenas. See id. at 89-91.

These and other such examples describe incidents in which counsel appearing before Judge McBryde attempted to explain, on the record, why they had been unable to comply with the Court's orders. Judge McBryde, however, refused to listen to the attorneys' explanations, cut them off, and dealt with them in a humiliating and sarcastic manner. Without commenting on the merits of the lawyers' explanations, the Special Committee found that the sanctions Judge McBryde meted out were disproportionate to the perceived infractions, and that "this tendency to overreact and to impose disproportionate sanctions makes conducting trials or other proceedings before Judge McBryde extremely stressful on some lawyers." Id. at 127-28. As all attorneys and judges are aware, collateral consequences involving the state bar association attach when a judge finds an attorney in contempt of court. Moreover, federal prosecutors in particular bear an obligation to report to the Office of Professional Responsibility of the Department of Justice when a federal judge accuses them of dishonesty. See id. at 82 n. 33.

The Special Committee also found that Judge McBryde exhibited a tendency to accuse attorneys of mendacity without taking even the most rudimentary "steps to verify whether or not his suspicion of bad faith on the part of others is justifiable." Id. at 126.*fn7 In one such incident, he accused government counsel of negotiating in bad faith in violation of a local rule during a settlement discussion, and threatened sanctions against the attorney solely on the basis that counsel would not agree to a provision in the settlement agreement that the enforcement order be sealed from public view. Id. at 12. On the record, Judge McBryde berated counsel and disparaged his position that the need for public disclosure was a principle of law enforcement critical to the government agency. Id. at 12-14. When the attorney steadfastly adhered to the principle of full disclosure, Judge McBryde reacted in such an angry and accusatory manner that government counsel met with his colleagues to discuss his fear that he might be held in contempt and incarcerated. Id. at 14. Again, the Special Committee focused on Judge McBryde's treatment of this and other attorneys rather than on whether or not Judge McBryde was correct on the merits of his determination that the order should be sealed.*fn8

In a similar incident, Judge McBryde again concluded that government counsel were not acting in good faith in settlement proceedings when they failed to make a monetary settlement offer to a plaintiff. Id. at 38. He issued a show cause order as to why they should not be held in contempt and conducted a lengthy hearing to inquire into the attorneys' reasoning for not making such an offer, the transcript of which the Special Committee found to include "dozens of pages of invective" by Judge McBryde. Id. at 37-39. Characterizing the government's motion for summary judgment in this case as "an affront to the Court," Judge McBryde "issued a broad attack on the integrity of the entire [office]," suggesting that its attorneys were "`not always candid with the Court.'" Id. at 38. Without regard to the accuracy of Judge McBryde's allegations, the Special Committee found that "the sarcastic and abusive language used by Judge McBryde is itself a cause of concern. There was simply no good reason to belittle and attack [the attorneys] in such a repetitive and relentless manner." Id. at 39.*fn9

On another occasion, Judge McBryde ordered on the record in open court that an attorney attend fifteen hours of a remedial reading course — and submit an affidavit attesting to her compliance with this mandate — because of her failure to adhere to Judge McBryde's standing order that each party appear in person at settlement conferences. Id. at 21-22. After imposing this humiliating sanction, he rejected her initial affidavit of compliance, questioning her integrity, and required that she submit a new one which set out in detail the dates, times, and places of attendance. Id. at 22. A separate incident involved one trial attorney's failure to remain in continuous contact with the court during jury deliberations. When Judge McBryde's chambers informed the attorney that the deliberating jury had recessed for lunch, the attorney left the courthouse. Id. at 26-27. Chambers had advised the attorney in error, though, as the jury had decided to forgo lunch and to continue to deliberate, reaching a verdict while the attorney remained unavailable for 45 minutes. Id. at 27. As a result, Judge McBryde ordered that the delinquent attorney and every attorney in his office wait, without exception, on the fourth floor of the courthouse throughout jury deliberations in any case before him, including through any lunch break or recess of the deliberations. This order remained in effect for sixteen months. Id. at 27-30. It was lifted only when an attorney from that office had to try a case before Judge McBryde on another floor while simultaneously required to wait on the fourth floor in compliance with Judge McBryde's order. Id. at 28-29. The Special Committee found that these incidents and others reflect "an abusive tendency," a "lack of judicial temperament," id. at 127, and an "obsessive need to control" other persons and proceedings, id. at 129.

Additionally, the Special Committee listened to testimony suggesting that attorneys who otherwise would have asked certain questions or marshaled certain arguments in order to make their record felt so intimidated by Judge McBryde, and so fearful that he would undermine them openly before a jury, that they stifled their better litigation judgment. For example, one attorney testified that, when trying a case before Judge McBryde, he and others in his office generally declined to pose questions during jury voir dire out of fear that Judge McBryde would humiliate them in front of prospective jurors. Id. at 120. Others offered similar examples of the extent to which Judge McBryde's harsh, ridiculing, and seemingly arbitrary treatment of lawyers appearing before him exercised a chilling effect on those attorneys' zealous representation of their clients. See, e.g., id. at 111-13, 115-16. The Special Committee found this behavior on Judge McBryde's part to be particularly troubling, suggesting that "the cumulative effect of his trial procedures impedes the ability of lawyers to try their cases." Id. at 122 (citing Sims v. ANR Freight System, Inc., 77 F.3d 846, 850 (5th Cir. 1996)). One government counsel testified that his entire office anticipated appearances before Judge McBryde with great trepidation, and that the office had to stay on constant guard lest the attorneys make litigation decisions — such as settlement offers — out of fear rather than considered legal judgment. Id. at 133-34. As a general matter, the Special Committee emphasized the breadth of "Judge McBryde's negative effect on the Fort Worth legal community. . . ." Id. at 135. Notwithstanding its severity and manifestly negative repercussions, the Special Committee underscored the fact that Judge McBryde's intemperate and abusive behavior eluded redress except through the kind of disciplinary channel contemplated by the Act. In the words of the Special Committee,

  [t]he very nature of the effect of Judge McBryde's
  pattern of conduct — the failure of lawyers to act;
  the decision to forgo asking questions or moving for
  relief; the sleepless nights; the refusal to accept
  cases; the decision to seek employment elsewhere; the
  compromising of advocacy as a form of self-protection
  — cannot be remedied through the appellate process
  and often cannot even be articulated in isolation.
  Nevertheless, the harm to the administration of
  justice is palpable and must be redressed.

Id. at 137.

Having received no word from Judge McBryde shortly before the pretrial conference was scheduled to commence, the state court judge excused the attorney and recessed the trial, leaving the jury waiting for counsel's return. Id. At that point, the state court judge determined to see Judge McBryde privately in order to explain the situation. Along with his court reporter who drove him to federal court, leaving behind her reporting equipment, the state court judge traveled to Judge McBryde's chambers where he was directed to wait in a conference room along with two lawyers who were participating in the pretrial matter. Id. Shortly thereafter, one of Judge McBryde's law clerks entered the conference room, obviously embarrassed, to deliver a message to the state court judge from Judge McBryde that "Judge McBryde told me to tell you that you are not welcome here and you are to leave." Stunned, the state court judge departed after requesting that Judge McBryde release the trial counsel as soon as possible, since a jury awaited his return to resume the trial. Id. at 62. By way of explanation for this conduct, Judge McBryde asserted that he assumed the state court judge had come to engage in a confrontation.*fn10 Id. at 63-64. As evidenced by this incident, Judge McBryde was quick to impute improper motives and bad faith not only to attorneys appearing before him, but also to his peers, whom he treated in a like manner. See id. at 64.

In its Report, the Special Committee ultimately recommended that Judge McBryde be given a choice: to retire voluntarily, id. at 151-52, or to face sanctions, including a public reprimand, id. at 152, suspension of all new case assignments to Judge McBryde for one year, id. at 152-54, and disqualification of Judge McBryde for a period of three years in any case involving a lawyer whom the Special Committee had identified as a potential witness at the hearing, id. at 154-58.

C. Action by the Judicial Council and the Review Committee

On December 17, 1997, the Judicial Council for the Fifth Circuit held a hearing to consider the Special Committee's Report and Judge McBryde's response thereto. See Pl.'s 108(h) Stmt. ¶ 134. Two weeks later, on December 31, the Judicial Council published its order and public reprimand, adopting the Special Committee's Report, findings of fact, and recommendations "[t]o the extent relevant to the action" that the Council pursued. See Order and Public Reprimand. Rather than attempt to summarize the Order and Public Reprimand, the Court shall take advantage of its brevity to reproduce it in full:

    WHEREAS a Special Investigating Committee of the
  Council (the "Special Committee"), pursuant to
  28 U.S.C. § 372(c)(5) and Rule 9(A) of the Fifth
  Circuit's Rules Governing Complaints of Judicial
  Misconduct or Disability, conducted an investigation,
  held hearings over nine days during which over fifty
  witnesses testified, and received evidence regarding
  complaints against, and the conduct of, Judge John H.
  McBryde of the United States District Court for the
  Northern District of Texas;
    WHEREAS, pursuant to 28 U.S.C. § 372(c)(5), the
  Special Committee issued a report to the Council
  dated December 4, 19997; and
    WHEREAS the Council has considered the record, the
  Special Committee's Report, the Responses thereto,
  and statements by counsel and Judge McBryde at the
  Council's December 17, 1997 meeting.
    To the extent relevant to the action taken below,
  the Council adopts by a clear majority vote the
  Special Committee's Report, Findings of Fact, and
  Recommendations. Based thereon:
    1. The Council hereby PUBLICLY REPRIMANDS Judge
  McBryde, pursuant to 28 U.S.C. § 372(c)(6)(B)(vi),
  for conduct prejudicial to the effective and
  expeditious administration of the business of the
  courts within the Circuit and inconsistent with Canon
  2(A) and Canon 3(A)(3) of the Code of Conduct for
  United States Judges.
    Judge McBryde has engaged in a continuing pattern
  of conduct evidencing arbitrariness and abusiveness
  that has brought disrepute on, and discord within,
  the federal judiciary. This conduct is unacceptable
  and damaging to the federal judiciary.
    Judge McBryde's intemperate, abusive and
  intimidating treatment of lawyers, fellow judges, and
  others has detrimentally affected the effective
  administration of justice and the business of the
  courts in the Northern District of Texas. Judge
  McBryde has abused judicial power, imposed
  unwarranted sanctions on lawyers, and repeatedly and
  unjustifiably attacked individual lawyers and groups
  of lawyers and court personnel. This pattern of
  behavior has had a negative and chilling impact on
  the Forth Worth legal community and has, among other
  things, prevented lawyers and parties from conducting
  judicial proceedings in a manner consistent with the
  norms and aspirations of our system and is harmful to
  the reputation of the courts.
    2. Pursuant to 28 U.S.C. § 372(c)(6)(B)(iv), no new
  cases are to be assigned to Judge McBryde for a
  period of one (1) year from the effective date of
  this Order; and
    3. Pursuant to 28 U.S.C. § 372(c)(6)(B)(vii), Judge
  McBryde, for a period of three (3) years from the
  effective date of this Order, is not to participate
  in (i) cases now pending before him (other than any
  as to which there are appellate proceedings) in which
  any of the attorneys listed on Attachment A are
  currently involved, and (ii) any and all cases filed
  after the effective date of this order in which the
  initial notice of appearance includes any of the
  attorneys listed on Attachment A.
    4. Consistent with 28 U.S.C. § 332(d)(2), the
  Council directs all judicial officers and employees
  within the Circuit, particularly the Chief Judge of
  the Northern District of Texas and the Clerk of the
  Court for the Northern District of Texas, to take all
  necessary steps to carry into effect the above orders
  of the Council.
    This order is issued on the date recited below but
  shall not become effective until all stays have
  expired or been lifted.
    New Orleans, Louisiana, this 31st day of December
  1997.

In this Order, the Judicial Council disciplined Judge McBryde with three sanctions: (1) a public reprimand; (2) suspension of all new case assignments for one year; and (3) suspension from participation of cases involving twenty-three attorneys who had testified against him at the hearings. Although the Judicial Council stayed implementation of its order for 30 days pending any appeal by Judge McBryde, Judge McBryde filed an application for a further stay to permit him additional time to petition the Judicial Conference Committee to Review Circuit Council Conduct and Disability Orders ("Review Committee") for review. Pl.'s 108(h) ΒΆΒΆ 169-172. The Review Committee agreed to ...


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