Complaint of Judicial Misconduct - The Honorable Carl J. Barbier: A Case Study
“Judges Judging Judges” Is Untenable
As explained below, I firmly believe that the following complaint of judicial misconduct is the only one ever filed against a U.S. district judge that is publicly available.
August 23, 2021 - Complaint of Judicial Misconduct Filed Against U.S. District Judge Carl J. Barbier
January 10, 2022 - Order Dismissing Complaint of Judicial Misconduct Filed Against U.S. District Judge Carl J. Barbier
INTRODUCTION
Any person alleging that a judge has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts may file with the clerk of the court of appeals for the circuit a written complaint containing a brief statement of the facts constituting such conduct. (28 U.S. Code § 351). The statement of facts is limited to five single-sided and double-spaced pages on 8.5x11 inch paper, whether typed or handwritten. Font size must be at least 12pt.
The complaint of judicial misconduct is considered confidential by the court, the chief judge’s review of the complaint is conducted in secret behind closed doors, and information about the complaint and attached exhibits must not be publicly disclosed by any judge or judicial employee, or by any person who records or transcribes testimony. Upon receiving a complaint against a judge, the circuit clerk must open a file and assign a docket number which replaces the judge’s name. As a result of this lack of transparency, dozens or hundreds of misconduct complaints could be filed against a U.S. district court judge without the public ever knowing.
In an unintended moment of candor Justice Gorsuch explains why corrupt federal judges are never held accountable. In February 2017, Judge Neil Gorsuch made the following comment to Nebraska Republican Senator Ben Sasse in response to President Trump‘s anti-judiciary attacks: “Any attack on brothers and sisters of the robe is an attack on all judges.”
It is clear that a federal judge, who desires to maintain the prestige of the bench and does not want to alienate his colleagues, would consider any complaint of misconduct or impeachment proceeding initiated against a fellow brother or sister of the robe by an outside party to be an attack on all judges. On September 26, 2019, Bloomberg Law published an article titled, “Judges Policing Judges: True Disciplinary Actions Are Rare,” wherein the data from the Administrative Offices of the U.S. Courts for judicial disciplinary actions taken from 2010 to 2018 supports this conclusion (10,957 complaints of judicial misconduct were terminated, 121 miscreant judges were allowed to retire thereby terminating an investigation of the complaint by their peers, 33 complaints resulted in the subject judge receiving a meaningless judicial slap on the wrist). Although 121 subject judges were allowed to retire with full pensions, not a single complaint of judicial misconduct was referred to the Judicial Conference to determine whether to certify the matter to Congress, which would then decide whether to initiate impeachment proceedings. Allowing a miscreant judge to retire without punishment and still receive a full pension does not protect the integrity of the judicial branch and uphold the public trust.
On August 23, 2021, Donovan files a complaint of judicial misconduct against Judge Carl J. Barbier with the clerk of the United States Court of Appeals for the Fifth Circuit. Donovan files this complaint pursuant to the Judicial Conduct and Disability Act, 28 U.S.C. § 351 - 364. This judicial complaint arises out of Judge Barbier’s misconduct in the six cases listed in the complaint. Donovan further alleges Judge Barbier, in his capacity as the presiding judge over these cases, has violated the Canons of the Code of Conduct for United States Judges, namely Canons 2A, 3 and 3B(3). The specifics referred to in this complaint are supported in the record and are set forth in the supporting exhibits.
Although the evidence of Judge Barbier’s misconduct is clear and convincing, the Chief United States Circuit Judge dismissed the complaint based on nothing more than empty air. She did not review the court documents, exhibits, or interview the witnesses.
The Nine Basic Issues Underlying Judicial Misconduct Complaint No. 05-22-90003 and the Subsequent Petition for Review
Issue 1
Judge Barbier appears to have committed a politically motivated fraud on the process of allocating common benefit fees in MDL No. 2179 by awarding $18,290,494.18 in common benefit fees to Mikal Watts, a known “mega donor” to the Democratic Party and a former member of the PSC, even though Judge Barbier knew that Watts had been indicted for falsely claiming to represent 40,000 oil spill claimants in MDL No. 2179.
Issue 2
In order to ensure the number of opt-outs did not exceed the secretly agreed upon 5,000 cap, Judge Barbier colluded with the MDL No. 2179 lead counsel and the fund administrator to fraudulently induce potential Economic Class Members not to opt-out of the MDL No. 2179 Economic and Property Damages Settlement Agreement.
Issue 3
Beginning in or about August 2010 and continuing through the present, Judge Barbier, knowingly and intentionally colluded with the MDL No. 2179 lead counsel and fund administrators to conceive, develop, and/or facilitate a sophisticated and deceptive “Eight-Step” fraudulent scheme to maximize judicial efficiency and/or their compensation in exchange for limiting the liability of BP. Justice for the plaintiffs/claimants was never a consideration.
Issue 4
In repeatedly refusing to recuse himself from proceedings in which his impartiality would most assuredly be questioned, Judge Barbier deprived the parties and the public of the right to the honest services of his office.
Issue 5
Beginning in or about August 2010 and continuing through the present, Judge Barbier, has consistently violated the Canons of the Code of Conduct for United States Judges, namely Canons 2A, 3 and 3B(3).
Issue 6
Judge Barbier ignored evidence placed before the Court that nineteen material facts had been intentionally withheld from the plaintiffs/claimants. Judge Barbier calls these facts “completely frivolous.”
Issue 7
Herman, Roy, and Juneau clearly engaged in “sewer service” when they filed their motions for sanctions against Donovan. Judge Barbier denied Donovan’s subsequent motion for clarification of the issue of “sewer service” and prohibited Donovan from filing any further documents or motions.
Issue 8
Court documents were omitted from the court record. A search on the PACER system for Donovan v. Barbier, et al., 2:21-cv-00237 (EDLA) reveals the last two documents filed in this case are: Notice of Voluntary Dismissal (filed on February 17, 2021) and Judge Barbier’s Order setting the amount of attorney fees Donovan must pay as a sanction to Herman and Roy (filed on August 26, 2021). This is incorrect. There were sixteen court documents filed in Donovan v. Barbier, et al. between February 17, 2021 and August 26, 2021 which are being hidden from the view of the public and the Chief Judge. These documents, which were either omitted or deleted from the court record by the MDL 2179 court, were provided to the judicial council on a thumb drive.
Issue 9
Judge Barbier’s misconduct is not related to the merits of a judicial ruling. The Committee on Judicial Conduct and Disability of the Judicial Conference of the United States explains “A complaint ‘directly related to the merits of a decision or procedural ruling’ cannot be the basis for misconduct under the Act. But the merits-related bar does not prevent the Judiciary from regulating conduct that is ‘prejudicial to the effective and expeditious administration of the business of the courts,’ 28 U.S.C. § 351(a), when that conduct is not directly related to the merits of a decision or procedural ruling. The allegations in my complaint do not “directly” relate to the merits of a decision or procedural ruling. Instead, the complaint focuses on Judge Barbier’s misconduct which is reasonably likely to result in a substantial and widespread loss of public confidence in the courts and threaten the integrity and proper functioning of the judiciary. Whether Judge Barbier’s decisions or procedural rulings were legally correct or not does not affect the analysis at all. (See attached Petition for Review).
CONCLUSION
Similar to the Donovan v. Barbier, et al. civil RICO complaint, this complaint of judicial misconduct was filed after a careful consideration of context, that is, the entire course of judicial proceedings, rather than isolated incidents. Indeed, it was only after the benefit of hindsight developed over a period of more than ten years of representing plaintiffs in MDL No. 2179 that Donovan realized this complaint of judicial misconduct was justified and appropriate.
The public has a right to know that the failure to uphold the rule of law by the Honorable Carl J. Barbier is not solely attributed to Judge Barbier's personal misconduct, but rather exposes a deeper issue within the judicial system. It sheds light on a systemic problem where U.S. federal judges have been able to preside over a federal judicial protection racket favoring corporations.