CAFC Panel Investigating Newman Says District Court Case Must Be Dismissed

The three-judge panel that comprises the Special Committee investigating Judge Pauline Newman’s fitness to continue serving on the U.S. Court of Appeals for the Federal Circuit (CAFC) told the U.S. District Court for the District of Columbia on September 1 that the federal judiciary was meant to police itself, and that her claim that the Judicial Conduct and Disability Act of 1980 is unconstitutional should be dismissed.

“While no one questions Judge Newman’s many contributions to the law, her legal claims here are jurisdictionally deficient and meritless,” said the CAFC judges in their motion to dismiss.

Newman filed a complaint with the district court on May 10, 2023. She and the CAFC panel agreed to mediate the dispute in July, but that effort failed in August.

The motion to dismiss says that Newman’s claims are first precluded by the judicial review bar, but that even if the court decides to review the claims, there is no merit to the argument that the Act is unconstitutional.

Newman said in her complaint that CAFC Chief Judge Kimberly Moore “unconstitutionally and unilaterally removed Circuit Judge Newman from all future sittings of the Court.”

The motion also asserts that Newman must bring her appeal to a court with appellate jurisdiction over the Federal Circuit. “This Court has no original jurisdiction to review the actions of its own circuit’s judicial council, let alone the Federal Circuit’s,” said the motion to dismiss. For example, Judge Stephen Chandler in 1966 appealed directly to the U.S. Supreme Court to ask for a stay of an order of the Judicial Council of the Tenth Circuit.

As to the substantive allegations that the Act is unconstitutional because it authorizes suspension of case assignments and allows judges to perform both investigative and adjudicatory roles, the motion says that the D.C. Circuit has already acknowledged that judicial discipline – short of impeachment – does not amount to improper removal from office and that the court also found in Hastings v. Jud. Conf. of U.S., 829 F.2d 91, 104 (D.C. Cir. 1987) that there is “no ‘unconstitutional risk of bias’ or ‘risk of actual bias’ through the combination of investigative and adjudicative functions in the Act.” And as far as the challenge to the order suspending case assignments, the motion claims that “the text, history, purpose, and case law of § 332(d) make clear that it has always allowed a judicial council to suspend case assignments to a particular judge.” The motion also contends that Newman’s delay in filing the preliminary injunction motion undermines “nearly three-month delay in first moving for ‘emergency’ relief.”

In the event the court decides against dismissal, the CAFC judges argue that the remaining equitable factors still weigh heavily against a preliminary injunction. Specifically, regarding Newman’s request to enjoin the order suspending new case assignments, and/or the proceedings under the Act that might lead to a similar suspension, the motion argues that “no judge has a right to hear particular cases, and she still has old cases to work through.” Furthermore, the public interest would not be well served by the court overriding the order and restoring Newman to her judicial functions as it will “only further interfere with the Federal Circuit’s work, causing that court’s judges, litigants, and counsel to suffer,” claims the motion.

The motion adds that a decision by the Judicial Council is “imminent” and will soon be reviewed by the Judicial Conduct & Disability Committee. “If Plaintiff’s preliminary-injunction motion can be heard at all, it should be denied,” said the CAFC committee.

The motion also renewed the CAFC’s claims about Judge Newman’s fitness to serve on the court, recounting her alleged “concerning behavior” with staff and productivity issues.  Ultimately, the motion says Congress intended for the federal judiciary to be “self-policing” and the measures precluding removal of judges or diminution of pay outside the impeachment process “have never been understood to preclude all other measures of managing the Judiciary.”

In early August, the Special Committee released a number of documents, including a 319-page one dated July 31 that recommended Newman 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 August 16, the CAFC published a redacted transcript of the hearing held on July 13, as well as an Order explaining its reasoning for releasing the transcript with the generic descriptor “cardiac condition” in place of a “hidden, more specific phrase.”