“None of the complaints about [Newman’s] potential disability have been substantiated.” – Judge Cooper
On February 12, the U.S. District Court for the District of Columbia denied a motion for preliminary injunction filed by Circuit Judge Pauline Newman, who has been at the center of a controversial inquiry into her current fitness to continue serving as a federal appellate judge. Despite acknowledging that all of the recent complaints against Judge Newman’s mental fitness continue to be unsubstantiated, the D.C. district court determined that most of Judge Newman’s requested relief was foreclosed by legal precedent limiting constitutional challenges to the Judicial Conduct and Disability (JC&D) Act. However, the court said it maintains jurisdiction over three of the 11 counts, and part of another, brought by Newman. The ruling has been touted as a blow to Newman’s case but it is arguably at least a mixed victory for her, as she retains several challenges and may have a chance to conduct discovery with respect to the allegations against her.
Newman’s Challenge to Section 332 Case Reassignment Mooted
Since Federal Circuit Chief Judge Kimberly Moore first identified a complaint against Judge Newman last April, Judge Newman has navigated a maelstrom of adversity in fighting unsubstantiated claims about her claimed lack of mental acuity. Days after appearing at IPWatchdog LIVE last September, Judge Newman was suspended from taking new case assignments pending the outcome of a mental fitness inquiry based on a complaint that, according to IPWatchdog Founder and CEO Gene Quinn, “contains wild factual inaccuracies.” One week ago, the Judicial Conference of the United States’ Committee on JC&D affirmed Judge Newman’s suspension over her claims that the Federal Circuit abused its discretion in failing to transfer the case to another circuit and that her suspension exceeded authority granted by the JC&D Act.
In its order denying injunctive relief, U.S. District Judge Christopher Cooper denied Judge Newman’s challenge to the judicial fitness inquiry stated under 28 U.S.C. § 332(d), which predates the JC&D Act and gives authority to reassign cases to address delays that interfere with the “expeditious administration of justice.” Judge Newman’s challenge to last June’s order upholding her suspension against new assigned cases was mooted by a sua sponte order by the Judicial Council last November 9 rescinding the suspension once Judge Newman’s case backlog had disappeared.
Although Judge Newman argued that her Section 332 challenge was not mooted because the challenged action was too short to be fully litigated and could possibly have been repeated, Judge Cooper “presumed” that Judge Newman would not repeat the behavior creating her case backlog. Further, Judge Cooper cited case law on separation of powers deeming it inappropriate for district courts to impute manipulative conduct to an entire roster of federal appellate judges.
Chief Judge Moore Must Answer Judge Newman’s Facial Challenges to JC&D Act
Judge Cooper then moved on to assess several of Judge Newman’s claims that the district court found to be constitutional challenges to the JC&D Act as applied, not facial challenges to the constitutionality of the statute. Such challenges are foreclosed from the district court by its interpretation of the no judicial review clause at 28 U.S.C. § 357(c) as discussed in McBryde v. Committee to Review Circuit Council Conduct (2001). While facial challenges to JC&D Act provisions are still available under McBryde, Judge Newman’s due process and constitutional challenges to the acts of the Judicial Council and Special Committee handling her judicial fitness inquiry were limited to the facts presented in the district court case, leading Judge Cooper to dismiss those challenges under McBryde.
In Judge Newman’s favor, the D.C. district court nixed a pair of jurisdictional arguments raised by Moore. First, Moore argued that the district court, as a court of original and not appellate jurisdiction, did not have the authority to review decisions of the Federal Circuit Judicial Council. While the Council may have been performing judicial duties, Judge Cooper ruled that the council was more like an administrative body and not an Article III court for purposes of decision review. Further, prudential concerns did not require dismissal of Judge Newman’s claims because the recent affirmance of the Judicial Council’s sanctions against Judge Newman proved that her serious and irremediable injury was no longer a mere possibility.
Also notable was the decision’s discussion of Newman’s Count V, which “alleges that the JC&D Act is unconstitutionally vague in that it fails to ‘provide adequate notice of what constitutes a mental disability’ and ‘lacks minimum enforcement guidelines.’” The court maintains jurisdiction over Count V, though it was not at issue at the motion to dismiss stage. While Moore argued that this was a facial challenge disguised as an as-applied challenge, the court said “[t]his argument falters at its initial premise.” Judge Christopher Cooper continued:
“Judge Newman is not ‘clearly’ someone to whom the JC&D Act’s standard of disability applies because none of the complaints about her potential disability have been substantiated.”
The D.C. district court did dismiss the two facial challenges to the JC&D Act filed by Judge Newman that were part of her motion for preliminary injunctive relief. Judge Newman’s challenge to the JC&D Act’s delegation of judicial impeachment power had already been dismissed on its merits in McBryde. Further, the Special Committee’s complete discretion to compel compliance with judicial orders was supported by other case law establishing that the Constitution permits judges to enter sanctions against other judges.
Judge Cooper’s ruling also ordered Chief Judge Moore to provide an answer to Judge Newman’s remaining counts by March 13.
A Potential Windfall
Commenting on the decision today, IPWatchdog CEO and Founder Gene Quinn said it could very well be a positive for Newman. “Although some are already characterizing Judge Cooper’s Order as a serious blow to Judge Newman’s attempt to vindicate herself, the truth is much more complicated, and it may well wind up that this Order is ultimately a victory,” Quinn said. He added:
“While some counts brought by Judge Newman were dismissed (e.g., as applied constitutionality challenges), others were not (e.g., facial constitutionality challenges). The case will continue and could lead to discovery and depositions that will allow Judge Newman and her legal team to challenge the veracity of the allegations made in the complaint filed by the Federal Circuit against her.
Of particular importance, the question of whether the Judicial Conduct and Disability Act is unconstitutionally vague remains alive. Attorneys for the Justice Department argued that Judge Newman could not challenge the Act as being unconstitutionally vague because even if vague it would still clearly apply to her and this situation. Judge Cooper explained that there is no way to know at this point whether the statute clearly applies to Judge Newman such that it would foreclose a constitutional challenge “because none of the complaints about her potential disability have been substantiated.”
Based on this ruling, Judge Cooper could be prepared to allow Judge Newman to challenge the veracity of the allegations against her as the case moves forward. It is too early to tell for certain, with inevitable skirmishes to be fought, but the ruling today could (and perhaps should) mean that at least some fact discovery will be allowed, and potentially even depositions taken.
In short, Judge Newman may for the first time be given the opportunity to challenge the allegations made in the complaint filed against her by the Federal Circuit. We know that at least some of the allegations made are false (e.g., Judge Newman did not have a heart attack and never had a stent implanted). How much else of what is in the complaint against her will similarly be proved to be false, or at least misleading? Perhaps we will find out as Judge Newman’s lawsuit continues.”
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