High Court Denies Judge Newman’s Case Against CAFC Chief Judge

Less than two weeks after Judge Pauline Newman filed her reply brief with the U.S. Supreme Court in response to the May 12 opposition brief of U.S. Court of Appeals for the Federal Circuit (CAFC) Chief Judge Kimberly Moore, the Court has today denied Newman’s petition for certiorari.

Newman filed her Supreme Court petition in March of this year. It posed two questions:

1. Does 28 U.S.C. § 357(c)’s bar on judicial review of previously issued “orders” and “determinations” apply to ultra vires acts that exceed the scope of authority conferred by the Disability Act and the Constitution?
2. Does 28 U.S.C. § 357(c)’s bar on judicial review of previously issued “orders” and “determinations” deprive a court of jurisdiction to consider claims that seek forward-looking relief to enjoin future unlawful actions?

A number of retired federal judges filed an amicus brief in support of Newman in April, focusing on question two and arguing that “permitting misconduct of the sort alleged here to proceed unchecked and unexamined by the federal courts poses a grave threat to the independence of all federal judges, particularly the 50% of judges who are 68 or older.”

Federal Circuit Chief Judge Kimberly Moore first identified a complaint against Newman in April 2023. IPWatchdog was the first to break the news, and the court soon published a statement responding to media reports and making previously sealed documents public.

The Judicial Council of the Federal Circuit’s September 2023 decision made official the July 31 recommendation of the Federal Circuit’s Special Committee that Newman be suspended from taking on case assignments for one year, “or at least until she ceases her misconduct and cooperates such that the Committee can complete its investigation.” It barred Newman from hearing any cases at the panel or en banc level and discredited the two independent medical reports Newman has undergone in lieu of submitting to the court’s preferred exams, calling them “not remotely an adequate substitute for the thorough medical examinations ordered by the Committee.” That suspension has been renewed twice now.

The D.C. Circuit in its August 2025 decision agreed with the U.S. District Court for the District of Columbia that judicial review of Newman’s case 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) as to the 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. 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.

McBryde’s distinction between facial constitutional challenges to Judicial Council actions and as-applied constitutional challenges has no support in the statute, said the judges’ brief, and the decision’s rationale for finding that federal courts can consider facial challenges applies just as equally to as-applied challenges.

But Moore argued that the Supreme Court should deny review because 28 U.S.C. 357(c) “bars from federal court statutory and as-applied constitutional challenges to judicial council or Judicial Conference orders issued under the Act,” citing McBryde, and noting that Congress “intended for those claims to be considered exclusively by the Judicial Conference.” And to the extent the Court might find otherwise, Newman forfeited her legal arguments, as she failed to present her arguments regarding ultra vires actions and prospective relief to the lower courts.

Newman’s petition was also concerned with “prospective relief” to stop the Judicial Council from renewing her suspension for the fourth year in a row, rather than strictly with relief from past “orders and determinations” of the Council.

Newman’s counsel, the New Civil Liberties Alliance (NCLA), vowed to continue pursuing the case. “We are disappointed in this denial but will continue on all legal avenues for her reinstatement,” said John Vecchione, Senior Litigation Counsel at NCLA.

Andrew Morris, NCLA’s Senior Litigation Counsel, said “[i]t is disappointing that the Court did not take this opportunity to protect judicial independence,” while NCLA President Mark Chenoweth called it “a dark day for the independence of the federal judiciary.” Chenoweth added:

“The cert denial in this case means that Judge Newman’s due process and other complaints about the way Chief Judge Moore and the Federal Circuit Judicial Council have treated her never have and never will receive a merits decision from an Article III court. That is utterly inexcusable and truly inexplicable.”

Judge Newman turns 99 this month.