NCLA Reply Brief Argues Statutory Bar Cannot Shield Review of Judicial Council’s Suspension of Judge Newman

The New Civil Liberties Alliance (NCLA) this week filed a reply brief in the U.S. Supreme Court on behalf of U.S. Court of Appeals for the Federal Circuit (CAFC) Judge Pauline Newman. The brief responded directly to the May 12 opposition brief filed by the Solicitor General, representing the Judicial Council of the Federal Circuit, which urged the Court to deny review of Newman’s petition.

The dispute began in early 2023 amid purported concerns regarding extensive delays in Newman’s resolution of cases and potential cognitive impairment. After Newman refused to undergo ordered neurological and neuropsychological examinations, the Judicial Council suspended her from hearing new cases. The suspension has been renewed annually, most recently in August 2025. Newman challenged these suspensions in the U.S. District Court for the District of Columbia, asserting that they exceeded statutory authority and violated her constitutional rights.

The district court ultimately dismissed the lawsuit, and the U.S. Court of Appeals for the District of Columbia Circuit affirmed. The D.C. Circuit relied on McBryde v. Committee to Review Circuit Council Conduct and Disability Orders of Judicial Conference of the United States, which held that 28 U.S.C. Section 357(c) bars judicial review of statutory and as-applied constitutional challenges to judicial council orders. Newman then petitioned the Supreme Court for a writ of certiorari.

In its opposition brief, the Solicitor General argued that the Supreme Court should deny review because Newman forfeited her legal arguments. The Solicitor General asserted that Newman failed to present her arguments regarding ultra vires actions and prospective relief to the lower courts. Moreover, the opposition brief maintained that Section 357(c) provides an absolute bar to judicial review of all orders and determinations made under the Judicial Councils Reform and Judicial Conduct and Disability Act, which directs all appeals instead to the Judicial Conference of the United States.

In their reply brief filed yesterday, the NCLA argued that the statutory bar does not apply to Newman’s claims. The NCLA contended that “Section 357(c) does not foreclose claims that seek prospective relief.” The brief explained that the statutory language merely bars judicial review of past orders and determinations. Since Newman and her counsel are seeking prospective relief to restrain the issuance of future unlawful orders, the statutory bar is inapplicable, said the brief. The NCLA also noted that a future order does not yet exist and cannot be accorded finality or conclusiveness under the statute.

The reply brief also addressed the Solicitor General’s contention that a court cannot grant prospective relief without reviewing an extant order. The NCLA argued that if a court acknowledges that it cannot vacate a past order, it does not conduct judicial review of that past action when enjoining similar unlawful “‘orders’ or ‘decisions’ in the future.” The NCLA maintained that Section 357(c) does not shield ultra vires acts from judicial review. It argued that the statutory bar on reviewing orders and determinations must be interpreted to apply only to actions within the authority lawfully conferred by the statute and the Constitution. When a judicial council acts in “excess of its statutory authority,” its actions are ultra vires and do not qualify as orders or determinations under the law. The NCLA cited the Supreme Court decision in Johnson v. Robison, which allowed constitutional challenges to agency actions despite a statutory bar on judicial review, and Webster v. Doe, that preserved judicial review of constitutional claims arising from administrative termination decisions.

In addressing the forfeiture allegations, the NCLA argued that Newman fully preserved her claims. The reply brief stated that Newman was bound in the lower courts by the McBryde precedent, which foreclosed her arguments. The NCLA argued that the pressed-or-passed-upon doctrine does not require developing arguments incompatible with binding precedent in lower courts. It compared her situation to the petitioners in Dobbs v. Jackson Women’s Health Organization, where Mississippi did not argue in lower courts that abortion was not a constitutional right because those courts were bound to apply Roe v. Wade and Planned Parenthood v. Casey.

Additionally, the NCLA demonstrated that Newman did raise her ultra vires arguments in her opening brief before the court of appeals. Her appellate briefs explicitly argued that Section 357(c) does not preclude courts from ensuring that a judicial council does not act in excess of its statutory authority. The NCLA also noted that the first issue raised in Newman’s petition for rehearing was whether the court of appeals erred in precluding as-applied constitutional challenges.

The NCLA concluded that the Solicitor General’s opposition provides “powerful evidence” of the need for Supreme Court review. Newman and her counsel are pursuing a writ of certiorari, and the reply brief argued that “there are compelling reasons to do so here, given the threats posed to judicial independence” by the administrative suspension of an Article III judge without judicial review.

In an NCLA press release, Mark Chenoweth, President and Chief Legal Officer of the NCLA, stated that “if the Supreme Court denies certiorari in this case, it will sound the death knell for judicial independence because it will allow federal judges to sideline their own colleagues in a manner never contemplated nor countenanced by the Constitution.”

The press release also noted that Newman’s suspension marks the longest suspension of a federal judge in history.

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