                                                                           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
                                                                                   page 2

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.
                                                                                   page 3

      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
                                                                                page 4

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.
