ss cuserz. na (ONE HUNDRED FOURTEENTH CONGRESS ue. mans sayann ™ Congress of the Gnited States House of Representatives COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 2197 Ravaunn House Orrice BULOING “Wasvinaron, DG 20515-6143 March 23, 2016 Mr, James C. Duff? Director Administrative Office of the United States Courts One Columbus Circle NE Washington, D.C. 20544 Dear Mr. Duff: ‘The Committee is interested in better understanding the process by which federal judicial misconduct complaints and disability determinations are handled by the United States Court of “Appeals for the District of Columbia, Last week, disturbing allegations surfaced about conduct, by former Chief Judge Richard Warren Roberts of the United States District Court for the District of Columbia. Judge Roberts resigned immediately citing, what appears to be, a remarkably coincidental permanent disability According to a March 18, 2016, media report, “Federal appeals court Judge Karen LeCraft Headerson signed a letter [during the week of March 16] to certify Roberts was ‘permanently disabled from performing his duties ....°"" The report stated: Judges who serve at least 10 years and then retire under the disability statute are eligible to receive full salaries for the rest of their lives... ‘I have satisfied myself from the medical report provided to me by Chief Judge Roberts that he suffers from a very serious health condition rendering him unable to perform his duties...” Henderson signed off as acting chief juége of the U.S. Court of Appeals for the D.C. Circuit because the chief, Merrick Garland, recused himself Chief Judge Roberts’ abrupt retirement was immediately preceded by a troubling complaint of misconduct and a federal lawsuit charging him with sexual impropriety. On March 7, 2016, the Office of the Attorney General for the State of Utah filed a formal, judicial ' Carrie Johnson, Federal Judge Retires as ‘Bad Lapse In Judgment’ With 16-Year Old Surfaces, NPR, Mar. 18, 2016. Ma.Mr. James C. Duff March 23, 2016 Page 2 misconduct complaint against Judge Raberts.’ The complaint followed an extensive criminal investigation by the Utah Attorney General’s Oflice and a subsequent teport of recommendations prepared by former United States District Court Judge Paul G. Cassell." The core allegations relate to sexual misconduct by Roberts in 1981 when he was a Justice Department prosecutor.° The allegations arose from his relationship with a then-16 year old female witness during a federal civil rights criminal prosecution in Utah.® Judge Cassell’s report states: A thorough investigation by your Office has collected significant evidence that Mr. Roberts indeed engaged in sexual relations with [the victim] on multiple occasions under the guise of ‘witness preparation.” These events are firmly established not only by [the victim's) own report, but also a recorded telephone cal) between her and Mr. Roberts. Additional witnesses provide generally corroborative information.’ ‘On March 16, 2016, the victim filed a federal lawsuit alleging Roberts raped her repeatedly while in Utah for the 1981 prosecution.® In a statement provided to news outlets on the same day, lawyers for Roberts acknowledged he had an intimate relationship with the 16 year old witness.” Later that evening, it was reported Chief Judge Roberts retired from the bench.” According to a news account, two days later, on March 18, 2016, the misconduct complaint against Chief Judge Roberts was dismissed.'' The National Law Journal reported: The dismissal ordet, deted March 18, does not name Roberts. It refers to a D.C. district court judge who retired on March 16. Roberts retired on March 16, the same day a civil lawsuit was filed in Utah that accused him of sexual abuse 35 years ago, > Letter from Spencer E, Austin, Chief Criminal Deputy, Office ofthe Attorney Genera, State of Utah, to the Honorable Merrick B. Garland, Chief Judge, United States Court of Appeal for the District of Columbia Circuit (March 7, 2016) * Recommendations Following Completed Investigation of Citizen Report Regarding Alleged Unlawful Conduct of Richard Roberts in Connection With the 1981 Prosecution of Joseph Paul Franklin tothe Flonorable Sean Reyes, Attorney General, State of Utah (August 12, 2018) Sid at | Sid "id * Jennifer Doloner and Robert Gehrke, Utah Woman Sues Prosecutor ~ Now A Federal Judge ~ Alleging He Sexually Abused Her in 1981, SALT LAKE TRIBUNE, March 16, 2016. Fa "Ann E, Marimow, Chief Judge of the District's Federal Court Retires As Lawsuit Accuses Him Of Sexual Assets, Wasi, Post, March 16, 2016. "Zoe Tillman, Misconduct Case Dismissed Against Ex-D.C. Chief Judge Facing Sex-Abuse Suit, NATIONAL LAW JOURNAL, March 22, 2016,Mr. James C, Duff March 23, 2016 Page 3 The dismissal order cited the Judge's retirement in closing the misconduct case, The order was signed by Judge Karen LeCraft Henderson of the U.S. Court of Appeals for the D.C. Circuit as ‘acting Chief Judge.” According to the March 18 order closing the misconduct case, the complaint alleged that the judge “engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts,” Henderson dismissed the misconduct case as ‘no longer necessary because of intervening events."'? The National Law Journal reported that the Roberts case was handled differently than two other recent judicial misconduct cases, wherein the intemal investigation process continued despite the sudden retirement of the judges under investigation. In one such case, it was determined that the actions of the judge in question may constitute grounds for impeachment." It was noted that the findings of the investigation in that case served as a “public censure.”"* To help the Committee understand how the judicial misconduct and disability determination process works for the United States District Court and Court of Appeals for the District of Columbia, we ask that you provide a briefing sufficient to answer the below-listed questions. We are interested in further understanding the roles and responsibilities of the Chief Judge of the United States Court of Appeals for handling misconduct complaints and disability determinations, and the process by which an Acting Chief Judge is selected, when, like here, the Chief Judge is recused. To address the Committee’s questions about the Roberts case, please bring the appropriate official from the United States Court of Appeals who can speak to the facts and circumstances of the investigation and the related determinations by Judge Henderson. We request this briefing take place as soon as possible, but no later than March 31, 2016, At the briefing, please be prepared to address the following questions: 1. How the process described in 28 U.S.C. §§ 351-364 for adjudicating complaints against judges works in practice, and how the process worked in the Roberts case. 2. If the complaint is deemed meritorious and worthy of additional investigation by a special commnitiee pursuant to the process described in 28 U.S.C. §§ 351-364, who conducts the fact finding, and where is the staff drawn from? 3. If the respondent Judge in question abruptly retires, what is the process for determining ‘whether the misconduct complaint is further acted upon? 4, How the process for making a disability determination pursuant to the Judicial Conference of the United States Rules for Judicial-Conduct and Judicial-Disability Pia ia MidMr. James C. Duff. Mareh 23, 2016 Page 4 Proceedings works in practice, including what record is required to be submitted to establish a disability claim? Had Judge Roberts not been accorded a full permanent disability determination, but just retired, what salary and benefit package was he entitled to? It was reported that Judge Roberts, by virtue of the disability determination, is entitled to his full salary for life. If true, what additional benefits is the retired Judge entitled to attendant with the disability determination? Describe the process for identifying an Acting Chief Judge for misconduct and disability determinations when the Chief Judge is recused? The relevant statute, 28 U.S.C. § 45, specifies the Chief Judge be 64 years of age or under. Judge Henderson is 71. Was Judge Henderson properly deemed the acting Chief Judge in this case? If so, how does the decision comport with 28 U.S.C. § 45? If Judge Henderson was improperly deemed the Acting Chief Judge in the Roberts case, does that nullify her determinations? To the extent you will be producing any materials or documents to assist the Committee with this inquiry, please deliver production sets to the Majority staff in Room 2157 of the Rayburn House Office Building and the Minority staff in Room 2471 of the Raybum House Office Building. The Committee prefers, if possible, to receive all documents in electronic format, ‘The Committee on Oversight and Government Reform is the principal investigative committee in the U.S. House of Representatives. Pursuant to House Rule X, the Committee has authority to investigate “any matter” at “any time.” Please contact Steve Castor of the Majority staff at (202) 225-5074 with any questions about this request. Thank you for your attention to this matter. ce: Jason Chaffetz Chairman ‘The Honorable Elijah E. Cummings, Ranking Member