By Kevin E. Noonan –

The course of the proceedings involving the attempts to remove Judge Pauline Newman from the Federal Circuit is long and in many senses tragic (see links below).  Last week the latest, and likely last, Act of this sad drama was initiated by Judge Newman filing a petition for certiorari with the Supreme Court.

The Petition was filed on Judge Newman’s behalf by the New Civil Liberties Alliance and the Question Presented was crafted to Judge Newman’s positions taken before the D.C. District Court and the D.C. Court of Appeals in her lawsuit against the Judicial Council of the Federal Circuit:

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?

Counsel’s legal arguments are focused, as have Judge Newman’s arguments to inferior courts, on the ultra vires character of the Judicial Council’s suspensions, the incorrect interpretation of the statute under McBryde v. Committee to Review Circuit Council Conduct and Disability Orders of Judicial Conference of the United States, 264 F.3d 52, 58–68 (D.C. Cir. 2001), and the alleged unconstitutional actions by which the Judicial Council has accomplished a fait accompli of removing Judge Newman from the bench in contravention of the requirement that should she be removed, it can only be through impeachment by the House and conviction by the Senate.

The Petition then sets out the history of the Federal Circuit Judicial Council’s attempts to have Judge Newman permanently removed from the Court (and not without certain characterizations of these efforts).  For example, the Petition asserts that the issues here are nothing less than “crucial constitutional and statutory aspects of lifetime tenure and judicial independence, especially the availability of judicial review for intra-branch infringements on judicial service” and “the very independence of Article III courts [that can] potentially affect every member of the federal judiciary.”  And from the first paragraph, the Petition informs the Court that Judge Newman is known as “the Great Dissenter” as well as being the Federal Circuit’s “longest-serving and most storied jurist.”  The undercurrent of a desire by the judges of the Federal Circuit to remove “this troublesome colleague” is a source of a greater issue than Judge Newman; rather, according to the Petition, the risk is that “[e]very judge who gets crosswise with her chief judge or her colleagues must now worry whether similar tactics could be used to remove them” if, as the D.C. Circuit held, “the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 (“the Disability Act”) bars review of the [unlawful, according to the Petition] actions taken against Judge Pauline Newman.”  (The use of the qualifier “unlawful” is, reminiscent of Homeric qualifiers for its heroes, used in almost every instance where Judge Newman’s suspension is referenced in this Petition.)

The Petition argues that Judge Newman has continued to speak and write and yet the suspension has been maintained, despite ample evidence (see “Newman v. Moore – Down to a “Battle of the Experts”?“; “An American (and Entirely Unnecessary) Tragedy“) of the absence of evidence supporting Judge Newman’s suspension, including evidence that the Judge “voluntarily underwent and passed three expert evaluations of her mental fitness and was reported as having the mental ability of someone decades younger.”  (Indeed, a review of the record shows that the basis for the suspension subtly changed from impairment in any inability to perform her duties to a charge of misconduct because the Judge would not comply with the Judicial Council’s demand that she be submitted to medical, neurological, and psychological testing by doctors of the Council’s choosing.)

As to the “unprecedented” nature of the situation underlying Judge Newman’s request for relief from the Court, the Petition notes that the Judge “has been suspended longer than any federal judge in history” and asserts “[t]he length of the suspension, the apparent intention to keep her off the bench permanently, the same judges acting as complainant, witnesses and judges, and the refusal to transfer the matter to another circuit for neutral investigation” as circumstances relevant to the Court’s consideration (specifically, and repetitively, mentioning that the remedy under the statute is that “on a temporary basis for a time certain, no further cases be assigned to” a Judge, in contrast to the serial suspensions unlimited in time imposed on Judge Newman.

The Petition addresses the statutory (and Constitutional) issues raised by the provision that, except for review by the Judicial Conference of the United States any decision (“orders and determinations”) by an appellate court’s Judicial Council “are ‘final and conclusive’ and ‘shall not be judicially reviewable on appeal or otherwise” under 28 U.S.C. § 357(c).  The Petition also makes a distinction between review of past orders and attempts to “seek to enjoin the issuance of future orders or determinations,” which Judge Newman asserts should be subject to judicial review whether their challenge is based on the statute or the Constitution.  And in an assertion that should be self-evident, the Judge argues that “the Disability Act does not authorize the judicial council (or anyone else) to act in violation of the Constitution.”

The Petition then turns to the question before the Court, that the D.C. Circuit Court of Appeals has case law, McBryde, that precludes constitutionally based challenges of this statute unless that are facial and not “as-applied” challenges to a Judicial Council’s authority under the Constitution to impose a penalty (thereby blocking litigants from bringing the challenge at all).  The Petition also sets forth the provisions of the statute and the protocol (“in practice”) that had been established in earlier cases (in contrast to the course of conduct in this case).  This explication is followed by a review of that course of conduct against Judge Newman, which is replete with evidence of the differences that have occurred.*  These include the response by Chief Judge Moore to one of her “characteristically excellent dissents” (in Rudisill v. McDonough), which response first “removed her from normal panel assignments,” followed by a Judicial Council Order that Judge Newman “not hear any more cases” and Chief Judge Moore telling the Judge that she “could either retire or ‘consider senior status’” (the Petition succinctly noting that “Judge Newman refused” those alternatives).  The Petition makes a specific assertion that in response to Judge Newman’s refusal “Chief Judge Moore acted on her own initiative to ‘identify a complaint’ against Judge Newman under the Disability Act” and “alleged that ‘there is probable cause to believe that Judge Newman’s health has left her without the capacity to perform the work of an active judge.”  The Petition states that an Order issued to establish a “special committee” to investigate these allegations that “rel[ied] on the personal knowledge of Judge Newman’s Federal Circuit colleagues,” despite “none of them [having] initiated a complaint,” and that Chief Judge Moore had “claimed that other ‘judges and staff” had brought” their concerns in this regard to her “based on their personal experience.”  According to the Petition, the Chief Judge asserted that “half of the [Federal Circuit] judges” had expressed such concerns, albeit arising during deliberations (the Petition noting that “no one other than other Federal Circuit judges were in the room”).  Also mentioned was that the Order “falsely asserted that two years earlier, in 2021, Judge Newman had ‘suffer[ed] a heart attack and undergo[ne] coronary stent surgery.’”

This litany was asserted as a basis for Judge Newman requesting that the Chief Judge and Special Committee transfer the investigation to another Circuit, to the extent that “members of the Special Committee would be serving as witnesses and noting the established routine practice of transferring complaints against circuit judges requiring more than minimal investigation to special committees outside the circuit of the judge under investigation.”  Despite what the Petition characterizes as “blatant conflict of interest in [these Federal Circuit Judges] serving simultaneously as complainant, witnesses, and judges,” the transfer request was denied.

The Petition then notes as an impropriety under the Disability Act (88 U.S.C. § 354(a); Rules for Judicial-Conduct and Judicial-Disability Proceedings Rule 20(b)(1)(D)), Chief Judge Moore removed Judge Newman from normal panel assignments “[b]efore the investigation had even begun” (the Petition noting that in response, the Chief accused Judge Newman of “judicial misconduct” in inquiring about the basis for the removal and expanded the scope of the investigation thereby). And then the Petition further explained for the Court what the Special Committee demanded (that the Judge “submit to neurological and neuropsychological testing by doctors chosen by the committee” and supply “hospital records, medical, psychiatric or psychological, and other health-professional records”) and what Judge Newman provided (“expert reports from Dr. Ted L. Rothstein and Dr. Regina M. Carney, based on hours of testing and observation, attesting that her cognitive abilities are fully intact and that she remains capable of performing the functions of her office”**).  This led to the Special Committee finding Judge Newman “guilty of misconduct for refusing to ‘cooperate’ with the committee”*** and recommending a one-year suspension (see “Federal Circuit Special Committee Recommends One-Year Suspension of Judge Newman“), which the Judicial Council entered (see “Judge Newman Suspended for One Year by Federal Circuit“).

Judge Newman appealed the suspension to the Judicial Conference of the United States, which denied her petition, and as the D.C. Circuit noted “neither the Judicial Council’s orders nor the JC&D Committee’s decision explicitly reflects genuine consideration of Judge Newman’s constitutional arguments,” and “[n]one of the orders appear to address any argument by Judge Newman that her suspension violates the Constitution by effectively removing her from office,” details certainly relevant to the Supreme Court’s decision whether to review.

“The upshot” of these proceedings, according to Judge Newman, is that she:

[H]as, for all practical effect, been removed from office despite Article III’s guarantee of tenure during good behavior— and despite the Disability Act’s strict admonition that “[u]nder no circumstances may the judicial council order removal from office”—and without the impeachment and conviction needed to remove Senate-confirmed judges from office against their will.

The Judge’s final statements regarding her lawsuit before the D.C. district court and appeal before the Circuit Court of Appeals is focused on her statutory and constitutional claims and the bases for both courts to reject these claims.  Those bases rested almost entirely on the McBryde decision, wherein 28 U.S.C. § 357 as thus construed barred her complaint on anything other than facial challenges (dismissing other counts in her complaint on lack of subject matter jurisdiction; see “Judge Newman’s Suit Comes to an End” and “Judge Newman’s Challenge Fails at D.C. Circuit“).  The Judge takes the opportunity to inform the Court of the D.C. Circuit’s recognition of “the constitutional issues raised by Judge Newman being important and serious” and that its decision that “its hand were tied by McBryde” raised “constitutional concerns” that could only be resolved by en banc review (Judge Newman’s petition for which was denied; see “Judge Newman’s Petition for Rehearing En Banc Denied“).Having set forth the predicate factual and procedural underpinnings of the case, the Petition turned to the reasons the Court should grant certiorari.  The first of these set forth in the Petition is that the Court needed to clarify the scope of Section 357(c) of the Disability Act such that it does not shield ultra vires acts (like the actions taken by the Judicial Council of the Federal Circuit) from judicial review.  The basis for the argument is that this section of the statute is limited to authority conferred by the Act and does not extend to actions without any statutory or constitutional authority.  The Petition cites Johnson v. Robison, 415 U.S. 361 (1974) (regarding decisions by the Administer of Veterans’ Affairs), supported by Norton v. Shelby County, 118 U.S. 425, 442 (1886)(“[A]n unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed”) and Ex parte Siebold, 100 U.S. 371, 376 (1879); and Webster v. Doe, 486 U.S. 592 (1988) (regarding the Director of Central Intelligence).  Again, somewhat self-evidently, the Petition asserts “[t]he Disability Act . . . , cannot authorize the judicial council (or anyone else) to act in violation of the Constitution” and accordingly the construction of the Act below exceeded its scope.  Thus, the Petition argues that Judge Newman is entitled to judicial review of “a host of constitutional challenges to her suspension orders, and [her] claims that the judicial council has exceeded the scope of its statutory powers and violated the Constitution (and the Act) by effectively removing her from office despite the life tenure promised by Article III.”

The second basis for the Court to grant certiorari advocated by the Petition is that the lower courts erred in upholding under McBryde the scope of § 357(c) to preclude claims seeking prospective relief.  Here the Petition argues that “at most” the Disability Act bars judicial review of past orders, and the consequence of the decisions of the lower courts would permit the one-year suspensions to be imposed “indefinitely” if there can be no challenge before they are imposed.  Should the Court so rule, Judge Newman expects (as set forth in a footnote) the possibility of the prospect that her authority to hear cases would be “immediately restored.”  Judge Newman argues that the express language of § 357(c) states that judicial review is only blocked for existing (i.e., past) “orders and determinations.”  The Petition states that, at a minimum the Court could vacate and remand for reconsideration under their intervening decision in Bowe v. United States, 146 S. Ct. 447 (2026) (having to do with subsequent habeus corpus motions), which the Judge argues “forecloses any construction of section 357(c) that would close the doors on Judge Newman’s claims for purely prospective relief” because under Bowe the statute would be construed narrowly to apply to only prior orders and determinations under a “clear indication” rule of statutory construction.

The Petition also argues that the absence of a circuit split and the longevity of McBryde (25 years) should not inhibit the Court from granting certiorari because there is no prospect of a circuit split arising given the “thankfully rare” nature of litigation over judicial-suspension orders.  The Petition puts the issue in the context of “recent attacks on the independence of Article III judges” and the constitutional protections necessarily enjoyed by judges that permit them to “apply the law without fear of retaliation from those who dislike their decisions.”  The Petition directly asserts Chief Judge Moore’s role in “using the Disability Act to circumvent these constitutional protections, in an attempt to implement a constructive discharge of a judicial colleague with whom she no longer wishes to serve,” calling them “heavy-handed tactics [that] cannot be tolerated if the independence of Article III judges is to be preserved.”  The Petition sets forth additional negative consequences for the independence of the judiciary that make it important to “nip[] in the bud” these practices.  The Petition asserts that these tactics have been effective, wherein “Judge Newman’s colleagues have thus far succeeded in silencing her frequently dissenting voice on the court, despite her presidential appointment and lifetime tenure” and that the consequences they argue are not imaginary: citing Dennis Crouch’s Patently-O blog, the Petition notes that since Judge Newman’s removal from the bench the rate of dissent has dropped from 12% to 4%, which is not accounted for by Judge Newman’s absence alone, giving credence to Judge Newman’s warnings.

The Petition closes with the admonition to the Court:

Attacks on the independence of the judiciary have been increasing from both the left and right, and from the executive, legislative, and even within the judicial branch. For those reasons—and for the reasons given above—it is imperative for the Court to step in and issue a strong statement in support of judicial independence and make clear that the only appropriate method of removing a federal judge is through the constitutional impeachment
process.

* It is in the Statement section of the Petition that Judge Newman particularly points out Chief Judge Moore’s role (“acting as complainant and leading the administrative process”) in the efforts to remove the Judge from the Court.  The Petition characterizes as “pretense” that there is any evidence that she is “physically and mentally unfit to continue serving as a judge” (quoting both her age (98) and conclusions from her own medical experts that she is an “unusually cognitively intact . . . woman” who appears “20 or more years younger than her stated age”).  The Petition also takes the opportunity to remind that Court that “only two terms ago” her reasoning in dissent was used in Rudisill v. McDonough, 601 U.S. 294 (2024) (and in a footnote noting that her dissent was made “less than three months before Chief Judge Moore began pressuring her to resign under the pretense that [the] Judge was cognitively unfit to decide cases”).  Elsewhere in the Petition, the further actions of the Judicial Council are prefaced by being of Judge Moore’s doing (e.g., “Chief Judge Moore has prohibited Judge Newman from sitting en banc,” “Chief Judge Moore has also cut Judge Newman off from the ceremonial functions of her court, as well as pre-publication opinion distributions and administrative matters,” “She has even prohibited Judge Newman from hiring new law clerks”).

** As a reminder, the response to these reports by the Judicial Counsel is to have their own experts denigrate Judge Newman’s experts’ methods and conclusions; see “Newman v. Moore — Down to a “Battle of the Experts”?“

*** A conclusion expanded upon in footnote 11 for those interested in the details, at least as Judge Newman sees it.

For additional information regarding this topic, please see:

• “Judge Newman’s Petition for Rehearing En Banc Denied,” December 30, 2025
• “Judge Newman’s Challenge Fails at D.C. Circuit,” August 22, 2025
• “Federal Circuit Special Committee Recommends Continued Suspension for Judge Newman,” July 28, 2025
• “Newman v. Moore – Down to a “Battle of the Experts”?” March 25, 2025
• “Judge Newman Files Appeal with D.C. Circuit,” December 22, 2024
• “An American (and Entirely Unnecessary) Tragedy,” December 9, 2024
• “Judge Newman Suspension Renewed,” July 25, 2024
• “Judge Newman’s Suit Comes to an End,” July 9, 2024
• “Judge Newman Suspended for One Year by Federal Circuit,” September 20, 2023
• “Federal Circuit Special Committee Recommends One-Year Suspension of Judge Newman,” August 6, 2023
• “Judge Newman and the On-Going Attempts to Remove Her from the Federal Circuit,” May 21, 2023