21 West Street Apt. 21J
New York, New York 10006-2931
April 26, 2019
Judicial Conference Committee on Judicial Conduct and Disability
Attn: Office of the General Counsel
Administrative Office of the United States Courts
One Columbus Circle, NE
Washington, DC 20544
Petition for Review of Order Dismissing Misconduct Complaint No. 10-18-90050
Your Honors,
This is a petition for review of an Order (March 15, 2019 (“March Order”)) by which the
Tenth Circuit Judicial Council affirmed an Order (December 18, 2018 (“December Order”))
that dismissed a misconduct complaint (No. 10-18-90050 (“Complaint”)) that I filed against
The Honorable Brett Kavanaugh under the Judicial Conduct and Disability Act (the “Act”).
For ease of reference, I number the paragraphs that follow.
1. This petition gives the Committee an opportunity to clarify the law of federal judicialmisconduct proceedings and to make it more uniform with other federal and state law.
2. In the March Order, the Council affirmed the dismissal of the Complaint because the subject
judge has become an Associate Justice of the United States. The Complaint was filed,
however, before Justice Kavanaugh was promoted to the Supreme Court—in other words,
while he was still a circuit judge, and while he was still subject to the Act.
3. Therefore this petition raises a key question: Is jurisdiction of a judicial-misconduct
complaint governed by the time-of-filing rule? The answer to this question should be yes.
4. Federal courts depart from the time-of-filing rule if jurisdictional facts are not subject to
post-filing manipulation. Yet manipulation is exactly what happened here: the promotion
of a subject judge was rushed through the Senate. That very political process ought not
determine federal subject-matter jurisdiction. For if the rule were that such a promotion
sufficed to divest courts of jurisdiction, then politically connected judges would be able to
evade federal jurisdiction in ways that most American citizens cannot. Indeed, most lawyers
cannot evade attorney-misconduct proceedings by resigning from state bars. Why should
federal judges be able to evade discipline through promotion to the Supreme Court?
5. Therefore the Committee should hold that if a misconduct complaint is filed against a judge
who is subject to the Act at the time of filing, then any subsequent promotion to the Supreme
Court does not oust the courts of subject-matter jurisdiction to consider the complaint.
6. Having held this much, the Committee should then reverse the Council’s March Order and
remand the Complaint for further proceedings under the Act.

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 FACTS
Filing of the Complaint on October 1, 2018
7. I filed the Complaint with the United States Court of Appeals for the District of Columbia
Circuit on October 1, 2018. The Office of the Circuit Executive for that Court assigned the
Complaint number DC-18-90069 on October 4, 2018. (See date stamps on Complaint.)
8. On October 5, 2018, the Deputy Circuit Executive for the District of Columbia Circuit
forwarded the Complaint to the Chief Justice of the United States.
Elevation of the Subject Judge Five Days Later
9. Only on the next day, October 6, 2018, was Justice Kavanaugh confirmed by the Senate and
sworn in as an Associate Justice of the United States. In other words, the Complaint was
pending against the subject judge, while he was a circuit judge, for five days.
10. On October 10, 2018, the Chief Justice of the United States, The Honorable John Roberts,
assigned the Complaint to the Council. The Chief Justice’s letter of transfer—dated
October 10, 2018—did not describe any jurisdictional flaw in the Complaint.
The December Order Dismissing the Complaint on Jurisdictional and Other Grounds
11. On December 18, 2018, the Council issued the December Order dismissing the Complaint,
and also dismissing 82 other judicial-misconduct complaints against Justice Kavanaugh.
12. In the December Order, the Council initially stated that the Complaint “must be dismissed”
because “Justice Kavanaugh is no longer a judge covered by the Act.” (December Order at 2
(italics added).) According to the December Order, the Council “[l]ack[ed] statutory
authority to do anything more” and “lack[ed] jurisdiction” to make findings on the merits of
the Complaint. (December Order at 9.)
13. Elsewhere, however, the Council’s reasoning was less jurisdictional. The December Order
stated that consideration of the Complaint was “no longer appropriate.” (Id. at 9 (italics
added).) The Council stated that the Act “effectively precludes” action against anyone “who
is no longer a circuit, district, bankruptcy or magistrate judge.” (Id. at 6–7 (italics added).)
14. On December 20, 2018, I wrote Chief Justice Roberts, copying all eight Associate Justices,
a letter that read in part as follows:
Unlike the circuit courts, this Court does not seem to have posted on its website any
judicial-misconduct rules or other guidance for a potential complainant who wishes to
lodge a complaint.
Could the Court please therefore inform me (1) how I may file a judicial-misconduct
complaint in this Court and (2) what procedural rules would govern such a complaint?
15. As of today—April 26, 2019—I have not received any response to my December 20 letter,
whether from the Chief Justice, any Associate Justice, or any member of that Court’s staff.

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 The March Order Affirming the December Order on Jurisdictional Grounds
16. On January 29, 2019, I petitioned for review of the Council’s December Order (“Petition”).
The Petition generally raised two points of error.
17. First, the Petition pointed out that the Complaint arose under the Act while Justice
Kavanaugh was a circuit judge. (Petition at 3.) Therefore, under the time-of-filing rule,
by which federal subject-matter jurisdiction is almost always determined, the federal courts
had jurisdiction of the Complaint on the day it was filed. (Id.) Moreover, no subsequent
event operated to oust the federal courts of this jurisdiction, because no subsequent event
rendered adjudication of the Complaint any less necessary. (Id. at 3.)
18. Second, the Petition argued that the December Order was “grossly inequitable.” (Id. at 4.)
19. In the March Order, six members of the Council affirmed its December Order. One member
of the Council, Circuit Judge Briscoe, dissented. One member of the Council, Circuit Judge
Lucero, recused himself.
20. The March Order did not say anything about whether consideration of the Complaint would
be appropriate. It appears to be largely a jurisdictional holding. (See March Order passim.)
21. But in discussing subject-matter jurisdiction, the March Order did not even mention the timeof-filing rule. Nor did the March Order explain why the federal jurisdiction that existed on
October 1, 2018, had been ousted in any way.
22. Instead, the March Order treated the Petition’s jurisdictional argument as turning on whether
Justice Kavanaugh “is” now a covered judge. The March Order entirely failed to analyze the
real issue—whether judicial-misconduct jurisdiction is determined at the time of filing:
The Council’s jurisdiction is limited by the Act and the Rules. The Council cannot create
jurisdiction where it does not exist. As explained extensively in the underlying Order, a
Supreme Court justice is not a covered judge. Order at 6-8. The lack of jurisdiction over
Justice Kavanaugh precludes an investigative and fact-finding process, even over conduct
allegedly committed while Justice Kavanaugh was a covered judge. . . . As this Council
lacks jurisdiction to entertain the complaints, it cannot investigate or make any findings
regarding alleged misconduct.
Accordingly, the Council reaffirms the determination that there was no jurisdiction or
authority under the Act to review the allegations of misconduct.
(March Order at 6 (italics added); see also id. at 7 (“[B]ecause the intervening event in this
matter resulted in the loss of jurisdiction, this Council does not have the authority to
investigate or make findings upon which to base any remedial action.”) (italics added).)
23. So the March Order raises a clear issue for this Committee. If a misconduct complaint is
filed and subject-matter jurisdiction vests, then does a later promotion of the subject judge
oust the federal courts of jurisdiction? The Committee should answer this question, “No.”

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 ARGUMENT
24. The March Order should be reversed because it rests on a matter-of-law error.
I. The March Order Is Erroneous Because It Violates the Time-of-Filing Rule.
25. “It has long been the case that ‘the jurisdiction of the court depends upon the state of things
at the time of the action brought.’” Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S.
567, 570 (2004) (Scalia, J.) (quoting Mollan v. Torrance, 9 Wheat. 537, 539 (1824)).
26. Moreover, the jurisdiction of the federal courts, once vested, “cannot be ousted by
subsequent events.” Mollan, 9 Wheat. at 539 (Marshal, C.J.).
27. Therefore “‘[w]here there is no change of party, a jurisdiction depending on the condition of
the party is governed by that condition, as it was at the commencement of the suit.’” Grupo
Dataflux, 541 U.S. at 574 (quoting Conolly v. Taylor, 27 U.S. 556, 565 (1829)).
28. This time-of-filing rule is “hornbook law . . . taught to first-year law students in any basic
course on federal civil procedure.” Grupo Dataflux, 541 U.S. at 570–71.
A. The federal courts apply the time-of-filing rule in contexts where jurisdictional facts
are subject to parties’ post-filing manipulation.
29. Federal and state courts unite in describing the time-of-filing rule as one that is intended to
defeat forum-shopping or other strategic behavior by parties that are trying to manipulate
jurisdictional facts.
30. The First Circuit at first suggested that Grupo Dataflux “restricted the time-of-filing rule to
diversity cases.” ConnectU LLC v. Zuckerberg, 522 F.3d 82, 92 (1st Cir. 2008). In 2015,
however, the First Circuit suggested that the time-of-filing rule is inapposite to the federalquestion context only if “there are no allegations of manipulative abuse of the rule.” United
States ex. rel. Gadbois v. PharMerica Corp., 809 F3d 1, 5 (1st Cir. 2015).
31. The Fifth Circuit also declined to adopt the ConnectU suggestion. 16 Front St., L.L.C.
v. Miss. Silicon, L.L.C., 886 F.3d 549, 558 (5th Cir. 2018) (“We do not hold that the Supreme
Court’s decision in Grupo Dataflux restricts the time-of-filing rule to diversity cases.”).
32. And the Federal Circuit has observed that “appellate courts generally allow the government
to defeat jurisdiction by post-complaint action only in the presence of some specific
indication of Congressional intent that such action would defeat jurisdiction.” Ford Motor
Co. v. United States, 688 F.3d 1319, 1326 (Fed. Cir. 2012). “Absent such an indication,” the
Federal Circuit wrote, “the federal appellate judiciary has not hesitated to apply the general
jurisdictional guidance of the time-of-filing rule.” Id. (citing cases). In that case, the Federal
Circuit did not decide “whether post-filing actions by a defendant can ever defeat jurisdiction
in a federal question case under the time-of-filing rule.” Id.
33. This is the question that the March Order raises, in the judicial-misconduct context.

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 B. In order to discourage jurisdictional manipulation, the Committee should apply the
time-of-filing rule to judicial-misconduct complaints.
34. Courts agree that the time-of-filing rule is designed to defeat strategic behavior by parties
that can alter jurisdictionally important facts. See, e.g., Hill v. Kwan, 962 A.2d 963 (Me.
2009) (“Federal courts rely on the time-of-filing rule to curtail forum shopping and other
strategic behavior by the parties.”) (citing ConnectU and New Rock Asset Partners, L.P.
v. Preferred Entity Advancements, Inc., 101 F.3d 1492, 1503 (3d Cir. 1996)).
35. Unfortunately, recent events demonstrate that judicial-misconduct proceedings are subject
to the kind of jurisdictional manipulation that the time-of-filing rule is designed to prevent.
36. Allegedly at the urging of President Donald Trump, the nomination of Justice Kavanaugh
was rushed through the Senate by its Republican majority, aided by a Chairman of the
Judiciary Committee who allowed only one instance of alleged misconduct to be the subject
of a hearing (at which the Complaint alleges Justice Kavanaugh lied repeatedly).
37. The federal courts must not allow a majority of the United States Senate to alter a
jurisdictional fact in a pending case. Such legislative meddling in the judicial process
is analogous, in constitutional terms, to a bill of attainder, which the Constitution expressly
prohibits. See United States v. Brown, 381 U.S. 437, 440 (1965) (“The Bill of Attainder
Clause was intended not as a narrow, technical (and therefore soon to be outmoded)
prohibition, but rather as an implementation of the separation of powers, a general safeguard
against legislative exercise of the judicial function or more simply – trial by legislature.”).
38. Here, if the dismissal of the Complaint is affirmed only because Justice Kavanaugh was
promoted, the Committee will effectively allow the Senate to try, and then to dismiss,
judicial-misconduct complaints against judges who become Justices of the Supreme Court.
39. Any such permission would be contrary to the Framers’ vision. They contemplated a judicial
power that is separate from the legislative power. See James Madison, Federal Number 44
(1788) (“[L]egislative interferences, in cases affecting personal rights, become jobs in the
hands of enterprising and influential speculators.”).
40. Concerns about abuse of power are also present in resignations. President Trump’s sister,
The Honorable Maryanne Trump Barry, just became “the latest powerful federal judge to
escape an ethics inquiry with her pension intact by stepping down from the bench.” Jimmy
Hoover, Move by Trump’s Sister Draws Attention to Judicial Loophole, Law360 (April 12,
2019). At the time, Judge Barry was the subject of misconduct complaints about tax matters.
41. The Honorable Alex Kozinski in 2017 similarly resigned. At the time, Judge Kozinski was
the subject of allegations of sexual harassment and related misconduct.
42. The public therefore sees a pattern of high-ranking federal judges (and their partisans)
evading misconduct complaints by altering the jurisdictional facts. The time-of-filing rule
is designed to prevent such evasions and abuses.

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47.

Applying the time-of?filing rule to federal judicial-misconduct complaints would
make such proceedings more congruent with attorney-misconduct proceedings.

One of the many ironies of the March Order?which created a time-of-?ling exception
in favor of a high-ranking federal judge?is that the March Order is in tension with rules
that govern hundreds of thousands of ordinary lawyers around the country.

In most American jurisdictions, attorneys?that is, low-ranking of?cers of courts?may not
evade misconduct proceedings by the simple expedient of resigning from the bars of which
they are members. The established norm in the legal profession?often a rule written and
enforced by judges?is that resignation cannot defeat disciplinary enforcement.

This is why Rule 6 (?Jurisdiction?) of the ABA Model Rules for Lawyer Disciplinary
Enforcement provides that ?Any lawyer admitted to practice law in this jurisdiction,
including any formerly admitted lawyer with respect to acts committed prior to resignation,
suspension, disbarment, or transfer to inactive status [italics added] . . . is subject to the
disciplinary jurisdiction of this court and the board.?

It is also why the New York Rules for Attorney Disciplinary Matters provide that an attorney
who is the subject of a pending disciplinary investigation or proceeding may resign only if
the attorney attests that the attorney ?cannot successfully defend against the charges or
allegations of misconduct.? N.Y. Uniform Rules for Attorney Disciplinary Matters

see also id. App. A (form of af?davit for application to resign).

In other words, most state attorney-disciplinary bodies are loath to give up jurisdiction over
ordinary attorneys who are subject to misconduct allegations. Why should this Committee
countenance any different rule for federal judges who are promoted to the Supreme Court?

CONCLUSION

48.

The federal courts had subj ect-matter jurisdiction of the Complaint on the day it was ?led.
This Committee should apply the time-of-?ling rule, reverse the Council?s March Order, and
remand the Complaint for further proceedings under the Act.

Respectfully submitted,

QWQ. (gm

Jeremy C. Bates1

 

1 I appreciate the Council?s redaction of personal details in my Complaint. The Committee has
my permission, however, to use my name in any caption as to this petition.

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