Federal Circuit Council Tells District Court to Scrap Surviving Challenges in Newman Case

The Judicial Council of the Federal Circuit told the U.S. District Court for the District of Columbia on Friday that it should dismiss Judge Pauline Newman’s remaining challenges to the Council’s decision to suspend Newman indefinitely from the court because all of Newman’s claims “fail as a matter of law.”

Most recently, on February 12, the District of Columbia court denied a motion for preliminary injunction filed by Judge Newman. Despite acknowledging that all of the recent complaints against 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 was widely touted as a blow to Newman’s case but, nonetheless, kept several of her claims alive.

In its motion for judgment on the pleadings on Friday, the Council said Newman will not be able to meet the high standard set forth under United States v. Salerno (U.S., 1987) for proving a facial constitutional challenge. For instance, Newman’s claim that that the JC&D Act violates the Fourth Amendment “‘to the extent’ it authorizes demands for medical records or medical or psychiatric examinations without requiring either (1) a warrant based on probable cause, or (2) a showing of constitutional reasonableness,” fails because it does not prove that the Act is unconstitutional in all of its applications and because “the Fourth Amendment does not require a warrant based on probable cause for all such orders in this context.”

As for Newman’s claims that the Act is “unconstitutionally vague” with respect to its “disability” and investigation provisions, the Council argued that “the disability provision roots the assessment of disability in the concrete determination whether a judge has been rendered ‘unable to discharge all the duties of office,’” which does not qualify as constitutionally vague language, and the investigation provision challenge fails under the Salerno standard because Newman challenges only “certain types of investigative orders.”

Additionally, said the Council, there is “judicial recognition that there is no general due process right protecting individuals from being investigated” and “the investigative provision does not regulate conduct—or even set a substantive standard that is applied to make any determination about a judge’s misconduct or disability—and so does not implicate the primary concern of the vagueness doctrine.”

Newman, who is being represented by the New Civil Liberties Alliance (NCLA), has argued 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 Council counters that a plaintiff “to whose conduct a statute clearly applies may not successfully challenge it for vagueness,” but Judge Christopher Cooper noted in his partial motion to dismiss in February that “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 Council’s motion came just over one week after Judge Newman celebrated 40 years with the Federal Circuit. IPWatchdog commemorated the day alongside Judge Newman and many other members of the IP community, who independently organized a tribute to her in her chambers.