By Kevin E. Noonan –

The D.C. Circuit Court today denied Judge Pauline Newman’s request for rehearing en banc of the panel decision handed down by the Court on August 22, 2025 (see “Judge Newman’s Challenge Fails at D.C. Circuit“).  That decision affirmed the D.C. District Court’s dismissal of Judge Newman’s complaint against the Judicial Council over the Federal Circuit’s continuing suspension under the Judicial Conduct and Disability Act of 1980.  The Judge’s en banc petition was aimed at 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), wherein the panel held that “Congress precluded our jurisdiction over statutory and as-applied constitutional challenges to judicial council orders.”  It was provoked in no small measure by what the Judge (and others) considered the panel’s “implicit invitation” for the en banc Court to overrule or at least cabin McBryde, being literally littered with quotes, citations, and dicta from the D.C. Circuit’s opinion suggesting this course of action.

Despite these circumstances, the D.C. Circuit Court rejected the petition in a per curiam opinion (see below) with no further explanation.

The Judge’s forthright challenge to what her briefing has characterized as the constitutional questions regarding separation of powers for removing Article III judges raised by the actions of the Judicial Council suggests a likelihood of a certiorari petition in the New Year.