(Bloomberg Law) -- The federal lawsuit brought by under-fire 96-year-old Federal Circuit Judge Pauline Newman to block a probe into her fitness to serve should be thrown out, the judges investigating her told another Washington, D.C., federal court.
The internal actions of the three-judge special committee of the US Court of Appeals for the Federal Circuit aren’t subject to judicial review, the committee’s members said in a filing late Friday night at the federal District Court for the District of Columbia. Each court has authority under the constitution to enforce discipline short of removing a judge, they added.
“While no one questions Judge Newman’s many contributions to the law, her legal claims here are jurisdictionally deficient and meritless,” the committee members wrote.
It’s the latest turn in a fight over Newman’s fitness to continue serving on the bench and follows the two sides reaching an impasse after mediation was ordered by District Judge Christopher R. Cooper.
The special committee—led by Chief Judge Kimberly A. Moore—launched the fitness and misconduct probe in April, citing concerns raised by court staff about Newman’s health. That spurred Newman to file her lawsuit to block the probe.
“We look forward to reviewing the filing, but are confident that at the end of the day, courts will recognize that what is happening to Judge Newman is unconstitutional and has to stop,” Greg Dolin, Newman’s attorney, said in an emailed statement Saturday morning.
The committee on Aug. 4 recommended a year-long suspension for Newman for her refusal to cooperate with the probe. The deadline for Newman’s response to the report was Thursday; the committee hasn’t yet made any new filings public. The recommended suspension can’t be implemented until voted on by the full Federal Circuit Judicial Council, though Newman has been held off of new panels since the start of the investigation.
Newman’s cardiac health and a neurologist’s examination she submitted to the committee were central to the July hearing on her compliance with the probe, according to a redacted transcript released in August over Newman’s objections.
Newman’s defenders haven’t been quiet. Fifth Circuit Judge Edith H. Jones in a letter to the Wall Street Journal called Newman “a brilliant, capable jurist” and criticized the committee’s probe as “inexplicable.” Dr. Ted Rothstein of George Washington University’s School of Medicine & Health Sciences, the neurologist who examined Newman and cleared her to return to the bench, described a key finding in the committee’s bombshell 111-page report as “a distortion” of his own report and “very inappropriate.”
Under the court case’s briefing schedule, Newman’s response to the latest filing will be due by Oct. 9 or 21 days after the Judicial Council issues an order on the special committee’s Aug. 4 report, whichever happens latest.
‘No Judicial Review’
The committee argued in its Friday filing that the district court is barred from hearing the case at all.
The Judicial Conduct and Disability Act—under which the committee is investigating Newman—explicitly limits the ability of other courts to step in, according to the filing.
With limited, defined exceptions, “all orders and determinations” under the act “shall be final and conclusive and shall not be judicially reviewable on appeal or otherwise,” the statute says, according to the filing. Those exceptions include a Judicial Council reviewing the chief judge’s orders and the national Judicial Conference reviewing a Judicial Council’s orders.
“But the Act does not permit any outside court to review decisions of the Special Committee or the Judicial Council,” the committee said.
Even if judicial review were allowed, the committee wrote, it would be inappropriate for a single district judge to review the judicial decisions of another federal court body, whose actions “would be reviewable only in a tribunal with appellate jurisdiction over those actions, not a court of original jurisdiction like this one.”
Preliminary Injunction
In addition to asking Cooper to dismiss Newman’s lawsuit, the committee urged him to reject her bid to be reinstated and allowed to hear new cases while the district court case proceeds.
It argued that Newman can’t win on her “constructive-impeachment claim,” which states that her suspension violates the constitution by usurping Congress’ sole authority to impeach federal judges.
Newman is still able to “perform routine judicial functions” related to cases she heard before the investigation, the committee said. It is “undisputed” that she continues to serve as an Article III judge “with its life tenure and undiminished salary,” and she is “encouraged” to work on current pending case assignments, they said.
Regardless, the committee wrote, the federal statute that created judicial councils within each federal circuit court allows the bodies to discipline judges, including by suspending new case assignments to a particular judge on the relevant court. Moreover, D.C. Circuit precedent has upheld courts’ abilities to suspend judges without implicating Congress’ impeachment authority, the filing said.
It also pointed to equitable factors that the district court must weigh in determining whether to grant Newman’s request. Newman won’t be harmed by not hearing any specific case, it said, while the Federal Circuit and the public would be burdened by Newman’s allegedly erratic performance and behavior should the suspension be upended.
The Justice Department represents the Federal Circuit Judicial Council and the member of the special committee. New Civil Liberties Alliance represents Newman.
The case is Newman v. Moore, D.D.C., No. 23-cv-1334, motion to dismiss filed 9/1/23.
To contact the reporter on this story: Adam M. Taylor in Washington at ataylor@bloombergindustry.com
To contact the editors responsible for this story: James Arkin at jarkin@bloombergindustry.com; Tonia Moore at tmoore@bloombergindustry.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com
Author: Adam M. Taylor
