“Judge Newman’s lawsuit is about more than restoring her to the bench. It is about the very independence of the federal judiciary and the ability of each federal judge to fulfill the office constitutionally entrusted to her.” – NCLA Counsel, Greg Dolin
Late yesterday evening, the New Civil Liberties Alliance (NCLA)—the firm representing U.S. Court of Appeals for the Federal Circuit (CAFC) Judge Pauline Newman in her district court case against CAFC Chief Judge Moore and other members of the panel of the Judicial Council who are accusing Newman of being unfit to serve on the court—filed a brief asking the D.C. district court to deny the Council’s September Motion to Dismiss and to halt her recent suspension from duties. The brief calls the Council’s actions thus far “ultra vires and inconsistent both with constitutional strictures and the [Judicial Conduct and Disability] Act [of 1980] itself.”
How We Got Here
Newman has been battling accusations about her physical and mental ability to serve as a CAFC judge since April. IPWatchdog first broke the news that Moore had filed a judicial complaint against Newman under the Judicial Conduct and Disability Act claiming she has probable cause to believe that Newman is unable to effectively discharge the duties of her office, alleging that she is slow to issue opinions and that colleagues on the court had concerns her overall ability to serve. Soon after, the CAFC made the complaint and other documents public and it was revealed that Moore was claiming Newman had suffered an unidentified health problem and that a Special Committee of the Judicial Council composed of Moore and Judges Prost and Taranto determined that an expert’s recommendation that Newman undergo medical testing and evaluation was warranted. Newman refused to undergo testing by the court’s chosen experts and the Committee then expanded the scope of the investigation to consider whether Newman has failed to cooperate in violation of Rule 4(a)(5) for Judicial Conduct and Judicial Disability Proceedings.
In August, the Special Committee charged Newman with “serious misconduct” and recommended she be suspended from taking on case assignments for one year, “or at least until she ceases her misconduct and cooperates such that the Committee can complete its investigation” and on September 20, the Council released a 375-page Order suspending Newman from all cases.
Separately, in May, Newman filed a complaint in the United States District Court for the District of Columbia saying that Moore’s March 24 Order was “riddled with errors” and citing 12 counts warranting claims for relief. Specifically, Newman denied Moore’s allegations that she suffered a heart attack and had to undergo coronary stent surgery “during the summer of 2021,” noting that she “sat on ten panels and issued at least eight (including majority, concurring, and dissenting) opinions” during that same time period. Furthermore, said the complaint, “even were the allegation true, having coronary artery disease is simply irrelevant to one’s ability to be able to carry out judicial functions.”
The Court Has Jurisdiction
In yesterday’s response to the Committee’s motion to dismiss, Newman’s counsel explained that she is currently subject to two separate suspension orders: the June 5 order denying Newman’s request to be restored to the rotation of new case assignments while the investigation is pending and the September 20 order mentioned above. While Moore argued in the motion to dismiss that Newman’s allegations against the Committee were “jurisdictionally deficient and meritless,” the complaint counters that the district court “can review and should enjoin the Judicial Council Orders of March 8 and June 5”; that the Disability Act does not bar facial challenges to the statute; and that “as applied challenges” to the Act are also not foreclosed.
The March 8 Order was entered without notice to Judge Newman, says the brief, “much less her participation, was nowhere recorded or reduced to writing (a practice virtually unheard of in appellate courts), and took place before any investigatory proceedings had even begun…. It necessarily follows that any jurisdiction-stripping provisions of the Disability Act, however broad, cannot possibly apply to an action taken prior to that Act being invoked,” the brief adds.
And the June 5 Order, which was issued after the investigation had begun, was nonetheless “taken pursuant to a statute which does not foreclose judicial review.” While Moore’s Motion argued that only the Supreme Court can review actions of the Federal Circuit’s Judicial, “that argument conflates the role and status of the Judicial Council of the Federal Circuit, which is an administrative body, with the United States Court of Appeals for the Federal Circuit, which is an Article III court,” explains the brief.
These are two different entities with different functions, powers and review mechanisms, and, as an administrative body, the Council’s actions are reviewable by the district court, Newman’s brief argues.
Furthermore, it says, “[s]uspending an active judge from hearing cases indefinitely without first conducting an investigation was unprecedented in the history of the American judiciary, and no statute empowered the Judicial Council to do it.”
An Injunction is Warranted
Following the September 20 decision to suspend Newman from taking on case assignments for one year, “or at least until she ceases her misconduct and cooperates such that the Committee can complete its investigation,” including en banc cases, NCLA counsel Greg Dolin told IPWatchdog he believes the order is flatly illegal, citing to Rule 20 of the Rules for Judicial-Conduct and Judicial-Disability Proceedings, which requires a “fixed period” for suspending a judge from being assigned new cases.
According to Dolin, the order calls for a floating period of one year that is renewable depending on whether Newman chooses to submit to the Council’s preferred medical examinations. Dolin also said the action taken here is not remedial, as required by the rules, but “coercive.”
Dolin also said the order conflicts with 28 U.S.C. Section 46 (c), which states that “A court in banc shall consist of all circuit judges in regular active service….” The order suspends Newman from sitting en banc as well, and responds to this discrepancy by explaining that “[t]he general directive in 28 U.S.C. § 46(c) that the court en banc ‘shall consist of all circuit judges in regular active service’ cannot trump that more specific authority and obligation granted to the Council for addressing situations of misconduct or disability.”
The brief reiterates these points and also says that Judge Newman will suffer irreparable harm in the absence of a preliminary injunction against the recommendation of the Council to suspend her. The brief explains:
“Every sitting of which she is deprived cannot be restored to her. Second, there was no delay on Judge Newman’s part in moving for preliminary injunction, particularly given the tradition of comity between judges broken without warrant or precedent by the Defendants. Finally, the public interest would be served by her reinstatement via injunction as demonstrated by the reaction of neutral observers to this unlawful, results-oriented cashiering of a Presidentially-appointed, Senate-confirmed Article III judge.”
Newman ultimately urged the court to deny the motion to dismiss and to grant her motion for preliminary injunction and “restore her to the bench immediately.”
Dolin said in a press release issued today: “Judge Newman’s lawsuit is about more than restoring her to the bench. It is about the very independence of the federal judiciary and the ability of each federal judge to fulfill the office constitutionally entrusted to her. The District Court should reject Defendants’ claims of absolute and unfettered power to effectively remove judges from office—a power that belongs to Congress alone.”