Judges Seem Frustrated with Judicial Council Arguments in Newman v. Moore Case

The U.S. Court of Appeals for the D.C. Circuit heard oral arguments today from both Greg Dolin of the New Civil Liberties Alliance (NCLA), on behalf of Judge Pauline Newman, and Melissa Patterson, on behalf of the Judicial Council of the Federal Circuit, in Newman v. Moore, a case challenging the effective removal of Judge Newman from the U.S. Court of Appeals for the Federal Circuit (CAFC).

The judges had tough questions for both sides but seemed particularly exasperated with Patterson’s argument that only the Judicial Conference of the United States can hear as applied constitutional challenges to the Judicial Conduct and Disability Act and that Newman’s case should therefore be dismissed.

The Council has argued in its briefs that as applied constitutional challenges to Judicial Council determinations are precluded by D.C. Circuit precedent and has also dismissed Newman’s contention that the fact that the Committee is comprised of a panel that includes the effective complainants, Chief Judge Moore and other CAFC judges, violates due process.

Newman’s counsel filed a reply brief in February of this year arguing in part that the Judicial Council’s “complete involuntary suspension” of Newman “from judicial duties has never been attempted irrespective of the seriousness of misconduct by a federal judge.” Three days earlier, the Special Committee of the CAFC that called for suspending Newman from her duties—comprising Chief Judge Moore and Judges Prost and Taranto—published an order expressing concerns about Newman’s three independent medical evaluations, which Newman has argued prove she is in exceptional mental and physical health.

During today’s arguments, the judges asked Patterson what they should do in this case, where the Conference has seemingly already refused to hear the as applied claims and the district court has also refused to hear them because, under the court’s precedent, the Conference must decide them. “So, there are constitutional claims that can’t be heard anywhere,” remarked one of the three judges. “Isn’t that a constitutional problem in its own right?”

While Patterson argued that the Conference did consider the as applied constitutional claims, the judges disagreed. They said that the Conference’s February 7, 2024, Order addressed the Council’s compliance with the Rules, not with the Constitution.

In McBryde v. Comm. to Rev. Cir. Council Conduct & Disability Ords. of Jud. Conf. of U.S., 264 F.3d 52 (D.C. Cir. 2001), the D.C. Circuit noted that, at the time, the Judicial Conference had expressly disclaimed its ability to review both as applied and facial constitutional claims. In McBryde, the court quoted the Conference as saying in a report: “We have no competence to adjudicate the facial constitutionality of the statute or its constitutional application to the speech of an accused judge, however inappropriate or offensive his words may be.” The Conference added:

“We are not a court. Our decisions are not subject to review by the Supreme Court of the United States. We sit in review of the action of the Circuit Council. The courts of the United States are open for the adjudication of such questions.”

While the appellate court said in McBryde that it applies Chevron Deference, the standard at the time (which has since been thrown out by the Supreme Court), to agency decisions, it also said “[t]he committee offered no reason for this position… [T]he statutory mandate to the committee appears to contain no language justifying a decision to disregard claims that a circuit judicial council has violated a judge’s constitutional rights in application of the Act…. We can see neither any reason why Congress would have withdrawn that power and obligation from a reviewing “agency” composed exclusively of Article III judges nor any indication that it has done so.”

As a result, McBryde is read as having conferred authority upon the Conference to consider constitutional claims, but in today’s arguments the judges said there is no evidence the Conference has been doing so, despite McBryde’s directive.

Some of the judges also seemed skeptical of McBryde generally, and asked why facial constitutional claims are reviewable, but not as applied. “Unless the outcome of this is that Article III judges just don’t have constitutional rights that everyone else does upon their removal,” commented one of the judges.

Patterson replied that “these all sound like essentially reasons McBryde was wrongly decided, not reasons McBryde doesn’t apply here,” and doubled down on her argument that McBryde did a good job of explaining “why, in this context, Congress was allowed to make the choices it did.”

The panel also seemed particularly irritated by Patterson’s assertion that transfer of the case to a different circuit was not appropriate, that transfer has been denied only as to Newman’s misconduct—which the Council alleges is based on her refusal to submit to their preferred medical testing—and not to the initial disability complaint brought by the Committee, and that the remedy of a one-year, renewable suspension does not violate the “time certain” provision of the Act.

In his rebuttal, Dolin rejected Patterson’s argument that transfer has been denied only with respect to misconduct, noting that it was also denied when the disability case was still pending and unresolved. “Judge Newman has said she will submit to whatever tests are ordered by a neutral Council” if the investigation is transferred, Dolin added.

For his part, Dolin argued three main points: that the defendants have functionally effected the removal of Newman from office in violation of Article III; 2) that they have exceeded the powers granted by the Disability Act because only temporary, “time certain” removal is authorized; and 3) the entire proceedings violate basic norms of due process, which at minimum require a neutral adjudicator. “Ruling for the defendants undermines the independence of every holder of judicial office,” Dolin said.

The judges pushed back on Dolin’s contention that Newman’s constitutional challenges are facial, rather than as applied, which would technically be foreclosed by McBryde, and also peppered him with hypotheticals of other situations in which a circuit might need to exercise power to stop a judge from carrying out their duties, such as in the case of a brain injury or dementia. The judges commented that Dolin’s reasoning would mean only impeachment by Congress or imprisonment by a district court would be appropriate in those cases to stop a judge from coming into the office, rather than the Council imposing sanctions with full salary similar to the ones Newman is challenging.

But ultimately, Dolin’s arguments that Newman’s suspension from all judicial duties for the renewable, and thus arguably open-ended, period of one year, subject to her compliance with the Council’s demands, and the perception of bias inherent in the Committee’s refusal to transfer the case, seemed compelling to the judges in light of the fact that the Conference’s Order also failed to address her constitutional claims. And, while the judges did concede that McBryde might in fact limit whether they can even consider Newman’s claims, they nonetheless seemed skeptical of the fact that Newman might then have no other recourse to pursue her constitutional challenges.