FILED
FOR PUBLICATION MAY 23 2014
MOLLY C. DWYER, CLERK
JUDICIAL COUNCIL U.S. COURT OF APPEALS
OF THE NINTH CIRCUIT
IN RE COMPLAINT OF No. 12-90162
JUDICIAL MISCONDUCT ORDER
KOZINSKI, Chief Judge:
Complainant alleges that a district judge filed false or misleading financial
disclosure statements. Judges file annual financial disclosure statements pursuant
to the Ethics in Government Act of 1978. 5 U.S.C. app. §§ 101–111. Both the
statute and the Filing Instructions for Judicial Officers and Employees provide
guidance on what information must be provided and what information is exempt.
See Comm. on Fin. Disclosure, Filing Instructions for Judicial Officers and
Employees 1 (2014) (hereinafter Filing Instructions). The Judicial Conference of
the United States Committee on Financial Disclosure (the “JCUS Committee”)
receives and reviews each submitted report to ensure that, on the basis of the
information provided, the reporting person is in compliance with applicable law
and regulations. Filing Instructions 1; 5 U.S.C. app. § 103(H)(b). If the report is
inadequate, the Committee requests an explanation or corrections from the filer. 5
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U.S.C. app. § 106(b)(2). If any individual “knowingly and willfully falsifies”
information required on the report, the Attorney General may bring a civil action in
district court. Id. § 104(a)(1).
The statute provides that “[a] reporting individual shall not be required to
report the financial interests held by a widely held investment fund (whether such
fund is a mutual fund, regulated investment company, pension or deferred
compensation plan)” if the fund is publicly traded or widely diversified, and the
reporting individual has no ability to exercise control over the financial interests
held. 5 U.S.C. app. § 102(f)(8); see also 28 U.S.C. 455 § (d)(4)(i)); Filing
Instructions 55. Thus, a filer is normally not required to report the individual
assets owned by a mutual fund nor transactions conducted by the fund in the
purchase or sale of assets. 5 U.S.C. app. § 102(f)(8).
Many of complainant’s allegations are based on her theory that the mutual
funds listed by the judge are not actual mutual funds. She also sets forth several of
the judge’s asset descriptions that she finds misleading or inadequate. But it is the
JCUS Committee that has jurisdiction to review and approve these financial
disclosure reports. Misconduct proceedings are not a forum to second-guess
whether the JCUS Committee properly approved reports or correctly interpreted
the statutory regulations.
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Under Judicial-Conduct Rule 3(h)(1)(G), violating financial disclosure
requirements may be cognizable misconduct, but only if the judge knowingly files
false reports or repeatedly files erroneous reports, casting doubt on the judge’s
good faith in making the disclosures. See 28 U.S.C. § 455(b)(4). Nothing like that
occurred here. There is no evidence that the judge made any mistakes in preparing
his reports, much less committed a knowing falsehood. Nor has the Attorney
General brought an action against the judge for knowing or willful infraction of the
reporting requirements. These claims are dismissed as unfounded. See 28 U.S.C.
§ 352(b)(1)(A)(iii); Judicial-Conduct Rule 11(c)(1)(D).
Complainant further alleges that the judge should have recused sua sponte
from dozens of cases due to an alleged financial conflict of interest in mortgage-
related matters. Allegations that a judge erred in failing to recuse are merits-
related and must be dismissed. See 28 U.S.C. § 352(b)(1)(A)(ii); In re Complaint
of Judicial Misconduct, 579 F.3d 1062, 1064 (9th Cir. 2009); Judicial-Conduct
Rule 11(c)(1)(B). Although an allegation that a judge presided in a case knowing
that he was subject to a conflict of interest may present a viable claim of judicial
misconduct, see Implementation of the Judicial Conduct and Disability Act of
1980: A Report to the Chief Justice 146 (2006), there is no evidence that any
conflict was brought to the judge’s attention. Nor is there evidence that such a
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conflict existed. The allegations are therefore dismissed as baseless. 28 U.S.C.
§ 352(b)(1)(A)(iii); Judicial-Conduct Rule 11(c)(1)(D).
Complainant also claims that the judge’s mortgage-backed securities
investments create conflicts of interest. But complainant’s theory is tenuous at
best. She attempts to link all Mortgage Electronic Registration Systems (MERS)
users to suggest that owning any mutual fund that includes mortgage-backed shares
constitutes an interest in any other such investment. These claims are dismissed as
there’s no evidence that the judge controlled the management of these funds, or
that the outcome of the proceedings substantially affected the value of the interests.
28 U.S.C. § 455(d)(4)(i); see also Comm. on Codes of Conduct, Advisory Opinion
No. 57 (2009).
DISMISSED.