Newman Makes Another Bid to Reverse Suspension from CAFC

Judge Pauline Newman has appealed the July 2024 dismissal of her case against the U.S. Court of Appeals for the Federal Circuit (CAFC) to the U.S. Court of Appeals for the District of Columbia Circuit.

In July, the district court dismissed the remaining counts in Judge Newman’s challenge to Chief Judge Kimberly Moore’s inquiry into her fitness to continue serving as a federal appellate judge. In February, 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 maintained jurisdiction over three of the 11 counts, and part of another, and allowed the case to proceed on those counts. But the July decision sided with Moore on the remaining counts as well.

The opening appeal brief filed today recounts Judge Newman’s long and remarkable career in the intellectual property field and on the CAFC, and points to her multiple evaluations by medical professionals who have attested to her superior cognitive ability. The brief poses three questions to the court:

“1. Is an Act that authorizes suspensions of a duly confirmed Article III judge from all judicial duties unconstitutional?

2. Do recurrent suspensions violate the Disability Act’s (to the extent that it is constitutional) strictures that any suspension must be for “temporary basis [and] time certain”?
3. Do federal courts have jurisdiction over ‘as applied’ constitutional challenges to the Disability Act?”

It also notes that the complaint identified by Chief Judge Moore against Judge Newman was investigated by a Special Committee consisting of Moore herself and two other judges on the CAFC, making it “the first time in the history of the Disability Act that a complaint against a circuit judge which proceeded to the committee investigation stage was kept within the same circuit.” The brief explains that Newman refused to undergo the medical testing ordered by Moore due to Moore’s “false allegations, refusal to transfer the matter, and failure to engage in any cooperative process with her.”

Newman’s counsel, the New Civil Liberties Alliance (NCLA), said in statement that Moore’s actions amount to an “unconstitutional campaign that has functionally removed a sitting Article III judge from office.”

The statement added that the Judicial Council has changed the rationale for pursuing the claims against Newman along the way and noted that retired CAFC Judge Paul Michel, in an article for IPWatchdog published earlier this week, has condemned the CAFC’s actions and its effect on public trust in the federal judiciary.

Greg Dolin, Senior Litigation Counsel at NCLA, said “the issues are more important than Judge Newman. At stake is the very independence of American judiciary and our system of checks and balances.”