Judge Newman Asks Full D.C. Circuit to Make Good on ‘Virtual Invitation’ for En Banc Review

Caption: During IPWatchdog’s Women’s IP Forum last week, Judge Newman shared details of her life with attendees. Stay tuned for details on IPWatchdog Unleashed. 

U.S. Court of Appeals for the Federal Circuit (CAFC) Judge Pauline Newman has filed a petition for rehearing en banc with the U.S. Court of Appeals for the D.C. Circuit, which in August affirmed a district court’s dismissal of her case against CAFC Chief Judge Kimberly Moore for suspending her from judicial duties.

Despite the loss, the D.C. Circuit’s opinion 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.”

With that in mind, Newman’s counsel, the New Civil Liberties Alliance (NCLA), said in its petition filed Friday that the court “should accept the Panel’s implicit invitation to take this case en banc to overrule or at least cabin 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).”

In its decision, the D.C. Circuit panel said that “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).”

Newman’s petition therefore argued that McBryde is preventing courts from addressing on the merits issues that the court conceded are “important and serious.” The petition is specifically asking the full appellate court to review the following three issues of “exceptional importance”:

“1. Whether the panel erred when it construed McBryde as precluding all judicial review of as-applied constitutional challenges to Judicial Council orders; alternatively, if McBryde is properly interpreted as precluding all as-applied constitutional challenges, whether it should be overruled.

2. Whether Appellees have violated the U.S. Constitution’s separation of powers by depriving Judge Newman of the functions of her office for an indefinite period of time, a power delegated solely to the U.S. Senate.

3. Whether the proceedings against Judge Newman, in which her colleagues have acted as accusers, witnesses and adjudicators and have declined her requests to transfer proceedings to another judicial council, comport with the constitutional minimum requirements for due process of law.”

The petition also rehashed Newman’s arguments that the Chief Judge’s actions against her are unlawful because she suspended Newman from cases pending investigation; she refused to transfer the case to a different circuit; she is accusing Newman of “serious misconduct” without referring her for impeachment proceedings; and because her suspension of Newman is essentially indefinite unless Newman submits to the Council’s demands for their own medical tests.

“Suspending an Article III judge from all judicial functions of her office is unconstitutional,” said an NCLA press release today. “To the extent that the Disability Act’s provision permitting administrative suspensions is constitutional at all, it only authorizes a time-limited suspension with definite end-date.”

John Vecchione, Senior Litigation Counsel at NCLA, said: “We are taking the D.C. Circuit panel up on its virtual invitation to review the case en banc. Judge Newman has been kept from her duties for more than [two] years unconstitutionally, and it should end.”