                   FOR PUBLICATION

              JUDICIAL COUNCIL
             OF THE NINTH CIRCUIT


                                             No. 13-90031
 IN RE COMPLAINT OF
 JUDICIAL MISCONDUCT                            ORDER


                    Filed August 5, 2014


                          ORDER

KOZINSKI, Chief Judge:

    Complainant, principal owner of a financial group, alleges
that a bankruptcy judge refused to appoint the group as an
advisor in two bankruptcy cases due to personal animus.
Complainant claims that the animus arises out of a previous
case where the financial group was appointed as an advisor to
the bankruptcy estate. In that case, the judge entered multiple
orders approving the financial group’s appointment. Each of
the orders included a monthly cap on the fees the financial
group was entitled to bill, but the group substantially
exceeded these caps almost every month it was retained.
When it came time for the judge to approve the group’s final
fee application, he denied any fees in excess of the capped
limits. Then, in two subsequent cases, the judge cited the
group’s failure to comply with these orders as his reason for
denying its appointment as advisor. The judge has made it
clear that he will not appoint the group in future cases.
2       IN RE COMPLAINT OF JUDICIAL MISCONDUCT

    The decision whether to approve the appointment of a
professional to deliver services to a bankruptcy estate is a
merits ruling that is not normally second-guessed in a judicial
misconduct proceeding. See Commentary to Judicial-
Conduct Rule 3 (“Any allegation that calls into question the
correctness of an official action of a judge—without more—is
merits-related”); In re Complaint of Judicial Misconduct,
583 F.3d 598, 598 (9th Cir. 2009) (“[C]laims [that] relate to
the merits of the judge’s rulings . . . must . . . be dismissed”).
However, a merits ruling may constitute misconduct if it is
influenced by an invidious factor or an impermissible motive.
See Commentary to Judicial-Conduct Rule 3 (“[a]n allegation
that a judge ruled against the complainant because the
complainant is a member of a particular racial or ethnic
group, or because the judge dislikes the complainant
personally” is cognizable as misconduct).

    Complainant seeks to show impermissible motive by
noting that the judge’s fees order in the original case was
reversed on appeal. In his view, the reversal shows that the
judge erred in imposing the fee caps and, therefore, the
judge’s unhappiness with the financial group’s failure to
adhere to the caps is unreasonable and constitutes personal
animus. Complainant also points to the judge’s comments
following reversal and when he denied appointment in the
two subsequent cases: On all three occasions, the judge
expressed chagrin that the financial group prevailed on appeal
based on what the judge characterized as a technicality.

    Before turning to the question of motive, I note that a
judge’s public comments can themselves constitute
misconduct if they are sufficiently rude, derogatory or
intemperate.     See Judicial-Conduct Rule 3(h)(1)(D)
(“Misconduct includes . . . treating litigants or attorneys in a
       IN RE COMPLAINT OF JUDICIAL MISCONDUCT                 3

demonstrably egregious and hostile manner”). The comments
here do not meet that standard. The judge did not use
demeaning language or heap abuse on anybody. His
statements were blunt but measured expressions of frustration
with having his orders disregarded by someone in whom he
had placed confidence. For example, in one case where the
judge refused to appoint the financial group, he said, “Find
somebody else. . . . There’s no question in my mind that they
violated [my] order [in a previous case] regardless of what the
BAP did. . . . I don’t have confidence in them.” In another
case he said, “I’ve had a history with them of them not
following court orders in my opinion and I’m not going to
appoint [them]. . . . They violated [my order in a previous
case]. For technical reasons I got reversed, but I’m not hiring
them in this case. I have no confidence in their abilities.”
These comments were not rude or intemperate; they
forthrightly reflected the judge’s lack of trust in the group
based on its prior conduct.

    Nor do the judge’s comments reflect an impermissible
motive. In making a discretionary appointment to a position
of trust, a judge may rely on his own prior experience with
the applicants for the appointment. The judge’s refusal to
appoint the financial group in subsequent cases was
consistent with his observation that it had disregarded his
orders in the past and he could therefore not trust them to
perform faithfully in the future. While the judge was
reversed for basing his decision on the wrong statutory
provision, the reviewing court left open the possibility that he
could have limited the financial group’s fees, had he relied on
a different code section. The judge was thus justified in
believing that his limitation was substantively sound and
should have been complied with by the financial group. It
was not misconduct, or even wrong, for the judge to consider
4      IN RE COMPLAINT OF JUDICIAL MISCONDUCT

the group’s repeated refusal to abide by the financial limits he
set in a past case in making future appointments. Indeed, it
would have been irresponsible for the judge to disregard the
group’s prior record.

    Complainant’s allegations of misconduct are dismissed as
unsupported. See 28 U.S.C. § 352(b)(1)(A)(iii); In re
Complaint of Judicial Misconduct, 569 F.3d 1093, 1093 (9th
Cir. 2009).

    DISMISSED.
