Moore Tells Appellate Court that Newman’s Challenge to Suspension is Doomed

The Chief Judge of the U.S. Court of Appeals for the Federal Circuit (CAFC) told the Court of Appeals for the D.C. Circuit on Thursday that Judge Pauline Newman’s appeal of her effective removal from the CAFC should fail because her claims do not meet the “exceptional circumstances” warranted for transfer to another circuit and her constitutional challenges are precluded.

Newman appealed the July 2024 dismissal of her case against the CAFC in early December, after the U.S. District Court for the District of Columbia in July dismissed the remaining counts in her challenge to CAFC Chief Judge Kimberly Moore’s inquiry into Newman’s fitness to continue serving as a federal appellate judge.

In her opening appellate brief in December, Newman noted that she 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 [Judicial Conduct and] Disability Act that a complaint against a circuit judge which proceeded to the committee investigation stage was kept within the same circuit.” The brief explained 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 at the time that Moore’s actions amount to an “unconstitutional campaign that has functionally removed a sitting Article III judge from office.”

But the CAFC’s brief filed Thursday argued that “a temporary suspension from hearing new cases is not equivalent to removal.” The Committee in August 2023 issued a 319-page report recommending a sanction of suspension against Newman and characterizing her refusal to submit to medical testing by the Committee’s selected doctors as “serious misconduct” that has “[t]hwarted the process Congress created for determining whether a life-tenured judge suffers from a disability.” The recommendation was adopted and the sanction was renewed in September for another year upon the committee’s second recommendation in July.

While the CAFC’s brief argues that the Disability Act “makes clear that Congress considered such time-limited suspensions distinct from ‘removal’ from office,” Newman’s counsel, Greg Dolin of the NCLA, has argued previously that the sanction amounts to a “floating” period of punishment that constitutes “coercive” action, rather than remedial, as required by the rules, and effectively equates to Newman’s removal from the court. The only way for the suspension to be lifted is for Newman to submit to the Committee’s preferred medical testing and for those tests to confirm what her own medical professionals have concluded, i.e., that she possesses superior cognitive ability for a woman her age, with no signs of mental deterioration. At least one of the three doctors who have now evaluated Newman proactively reached out to her on a pro bono basis in a self-described effort to “help resolve the impasse between Judge Newman and the Judicial Council.”

The brief also argued that both statutory and as-applied constitutional challenges to Judicial Council determinations are precluded by D.C. Circuit precedent and dismissed Newman’s contention that the fact that the Committee is comprised of a panel that includes the effective complainant, Judge Moore, violates due process. The CAFC’s brief argued:

“That the subject judge is a circuit judge and thus a colleague of the chief judge’s, for example, or that the subject judge is dissatisfied with the decisions of her home circuit’s judicial council, cannot alone be sufficient. If that were the intention, Congress would have written a very different statute. Throughout these proceedings, which have featured multiple rounds of briefing and oral argument, Plaintiff has received far more process than the constitutional minimum guaranteed by the Fifth Amendment.”

Ultimately, said the CAFC, the only one of Newman’s claims that is even properly before the appellate court is her facial Article III challenge regarding her effective removal from the court, which the brief characterized as “meritless.” The CAFC wrote:

“At minimum, § 354(a)(2)(A)(i) is not facially invalid, as even Plaintiff concedes that it has legitimate applications…. Plaintiff acknowledges that a Judicial Council may cut off further case assignments as long as the judge still has cases pending before her…. Under Plaintiff’s theory, the Judicial Council’s order suspending case assignments to her was valid between its entry on September 20, 2023, and November 8, 2023, when Plaintiff cleared her final backlogged opinion—and would have been valid even longer had Plaintiff not enjoyed a reduced workload and therefore had more existing cases to continue working on…. That concession alone dooms her facial challenge because it establishes a ‘set of circumstances … under which the Act would be valid.’”

On December 12, 2024, two key amici filed briefs supporting Newman. One was filed jointly by six retired federal judges while the other was joined by several law professors, a former International Trade Commission (ITC) commissioner and the Manhattan Institute. The judges’ brief, signed by Hon. Janice Rogers Brown, Hon. Paul R. Michel, Hon. Randall R. Rader, Hon. Thomas I. Vanaskie, Hon. Paul G. Cassell, and Hon. Susan G. Braden, urged the court to intervene because the Federal Circuit’s actions “directly challenge the independence of all federal judges,” while the law professors’ brief urged reversal of the district court’s judgment and a declaration that the CAFC’s proceeding against Judge Newman is unconstitutional for its failure to transfer the complaint to a different circuit initially.

Judge Michel also authored an article for IPWatchdog in December warning that “the appearance of bias is regarded as being just as harmful to justice as actual bias,” and that transfer of the case to another circuit for a substantive and neutral review of the facts via a “trial-like proceeding” is the only viable option. “The disputed facts should be decided by a neutral body,” wrote Michel. “Such neutrality must be beyond question for the sake of faith in the courts by litigants and the public alike.”