D.C. Circuit Kills Judge Newman’s Appeal While Hinting at Constitutional Problems with Suspension

Hon. Pauline Newman

On Friday, August 22, the U.S. Court of Appeals for the D.C. Circuit affirmed a district court’s dismissal of Judge Pauline Newman’s case against U.S. Court of Appeals for the Federal Circuit’s (CAFC’s) Chief Judge Kimberly Moore for suspending her from judicial duties.

However, the D.C. Circuit noted that “Judge Newman has posed important and serious questions about whether these Judicial Conduct and Disability Act proceedings comport with constitutional due process principles and whether her ongoing suspension comports with the structure of our Constitution.”

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 Moore’s inquiry into Newman’s fitness to continue serving as a federal appellate judge.

The D.C. Circuit today agreed with the district court that it is 1) precluded by precedent in McBryde v. Committee to Review Circuit Council Conduct & Disability Orders of the Judicial Conference of the United States, 264 F.3d 52 (D.C. Cir. 2001) from deciding Newman’s statutory and as-applied constitutional challenges to the Judicial Conduct and Disability Act of 1980 and 2) that Newman’s facial constitutional challenge to the Act’s case-suspension provision fails because even Newman agreed that it has other constitutional applications.

The decision noted that McBryde “was unambiguous” in its holding that 28 U.S. Code § 357  “bars from federal court statutory and as-applied constitutional challenges to judicial council or Judicial Conference orders issued under the Act.”

But the court also took pains to point out that it was not commenting on the merits of Judge Newman’s case or whether McBryde is good law. The court dedicated the final section of its opinion to highlighting two key points:

“First, we do not consider—because we cannot consider—the merits of Judge Newman’s as-applied constitutional claims. Judge Newman has posed important and serious questions about whether these Judicial Conduct and Disability Act proceedings comport with constitutional due process principles and whether her ongoing suspension comports with the structure of our Constitution. That we do not answer those questions is no indication that her arguments lack merit, nor signals how we might have addressed them if we were able. As already discussed, precedent strips us of authority to consider those challenges. We do not reach them for that reason alone.

Second, as a panel of this court, we are unable to overrule McBryde, and so do not resolve whether McBryde was rightly decided. To be sure, there are substantial arguments that—if judicial councils and the Conference are properly regarded as administrative bodies—the McBryde majority misapplied the clear-and-convincing-evidence test when interpreting Section 357(c).”

During oral arguments in the case, some of the judges 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.

In amicus briefs supporting Newman, six retired federal judges told the court in December 2024 that Moore’s investigation of Newman “directly challenge[s] the independence of all federal judges,” while another brief field by several law professors, a former International Trade Commission (ITC) commissioner and the Manhattan Institute 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.

Most recently, the Special Committee of the Federal Circuit that has been investigating Newman’s alleged misconduct since April 2023 recommended extending her suspension from the court for a third year.

Newman’s counsel, Greg Dolin, Senior Litigation Counsel at the New Civil Liberties Alliance (NCLA), sent the following statement on today’s decision:

“While we are disappointed in today’s outcome it is important to note that the panel reached its decision solely on the ground that they are bound by a prior decision (which the panel acknowledged may have been wrongly decided).  Nowhere does the panel even remotely suggest that either the Judicial Council’s tactics or legal arguments (save for the force of precedent) are sound. We intend to continue fighting for Judge Newman and the independence of the federal judiciary.”