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).  Just when you might think the last Act has begun (see “Judge Newman Seeks Recourse from Supreme Court“), the Judicial Conduct and Disability Committee (JCDC; “Committee”) had its say. 

The decision (against Judge Newman, unsurprisingly) relates to the Judge’s petition for review of the Judicial Council for the Federal Circuit’s August 29, 2025 Order, extending the suspension that has now lingered for almost three years in the face of the language of the statute that such suspensions should be “temporary” (Judge Newman’s petition itself was filed on October 9, 2025, which may provide temporal context for the Committee’s decision).  The details of Judge Newman’s petition included that the suspension was contrary to the Judicial Conduct and Disability Act (“the Act”) and unconstitutional, and that the Federal Circuit Judicial Council’s denial of her request to transfer the complaint to another Circuit violated her Fifth Amendment right to procedural due process.

The Memorandum of Decision sets forth in detail the history of the Judicial Council’s suspensions and Judge Newman’s arguments and efforts to have them lifted, there being little new ground to survey in this latest recitation.  The Committee does make the effort to disclaim any review of the substance of the allegations against the Judge, including incapacity to accomplish her judicial duties; their remit is to determine the propriety of the consequences ensuing from the Judge’s refusal to submit to a neurophysiological examination by doctors of the Judicial Council’s choosing.  The decision also faults Judge Newman’s petition for not arguing that the Judge had been deprived of “a life, liberty, or property interest protected by the Fifth Amendment,” that was the subject of supplemental briefing that was submitted on November 3, 2025.

The Special Committee’s reasoning is affected by their deferring to the circuit judicial council’s consideration of the special committee’s review of the evidence, citing In re Memorandum of Decision of Judicial Conference Comm. on Judicial Conduct & Disability, 517 F.3d 563, 569 (U.S. Jud. Conf. 2008), in denying Judge Newman relief.  Judge Newman argued in her petition that “(1) the Committee should consider the merits of her as-applied constitutional arguments (in a footnote the Special Committee says they did); (2) the Federal Circuit Judicial Council’s renewal of her

suspension is contrary to the Act and is unconstitutional; and (3) the Federal Circuit Judicial Council’s denial of her request to transfer the complaint violates her Fifth Amendment right to procedural due process.  According to the Special Committee, the persistent renewal of the Judge’s suspension is not contrary to the Act.  Judge Newman’s petition, as in all other filings on the Judge’s behalf, argues that the serial imposition of one-year suspensions is contrary to the limits of the Judicial Council’s power to order, “on a temporary basis for a time certain, no further cases be assigned to the judge whose conduct is the subject of a complaint” (emphasis added), citing Section 354(a)(2)(A)(i) of the Act (also citing Rule 20(b)(1)(D)(ii) that the judicial council may order “that no new cases be assigned to the subject judge for a limited, fixed period”).  As Judge Newman has contended elsewhere, the petition argues that the Judicial Council, in the exercise of its power, has violated the “for a time certain” limitation and that in the practice of imposing suspensions under the Act, one year was the longest imposed hitherto.  Also included in this argument is that the suspension is “unprecedented” and has effectively been made permanent by circumvention of the “time certain” requirement under the Act.

The Special Committee disagrees that this is a unique situation, having found that while “[m]any suspensions have been for a one-year duration” that does not act to define the length of a “temporary” suspension, and there is one case (discussed in a footnote; In re: Complaint of Judicial Misconduct against United States District Judge G. Thomas Porteous, Jr. under the Judicial Conduct and Disability Act of 1980, No. 07-05-351-0085 (5th Cir. Jud. Council Dec. 20, 2007)) where the suspension was longer.  The decision notes that the Act provides no explicit definition of “temporary” but that a plain meaning definition would be “suspension for a limited time with a certain end date.”  The Special Committee states that having each term limited to one year, with review at the end of each term ensures that “the suspension is reviewed regularly to determine whether it is still appropriate under the circumstances.”  And the “lengthy consideration” given Judge Newman’s motion for reconsideration “demonstrates that the Judicial Council’s decision to renew the suspension is not simply a rubberstamp.”  The decision self-justifies on the basis that permitting Judge Newman to hear cases before the question of her competence is resolved “could have serious effects on litigants and prejudice the effective and expeditious administration of the business of the courts” (which is certainly the case for those litigants, such as the litigant in Rudisill v. McDonough, 601 U.S. 294 (2024), who saw Judge Newman’s dissent be persuasive before the Supreme Court).  The decision contains a long passage from the Special Committee’s July 28, 2025 Report, which speaks for itself:

Judge Newman’s conduct in refusing to undergo the medical examinations ordered by the Committee is a serious matter.  Her conduct prevents the Committee from completing the process established by Congress for determining whether a life-tenured judge suffers from a disability.  Litigants before this Court deserve to have confidence that the judges ruling on their matters do not suffer from a cognitive impairment that may affect the resolution of their cases.  They also deserve to have confidence that the mechanisms Congress established for addressing judicial disability function properly and that a judge with such an impairment cannot derail the process by refusing to cooperate.  The Committee and the Judicial Council have an overriding duty to ensure that the judges on this Court are able-minded and capable of performing their jobs.  We also have a responsibility to court employees to ensure that they have a workplace free from hostile and abusive behavior.  When serious concerns are raised about a judge’s fitness, they must be taken seriously and addressed expeditiously, and all judges must recognize their duty to facilitate that process.

The decision further justifies the extension of the suspension on the grounds that the Judicial Council “extensively considered additional expert reports and evidence that could have resolved the proceeding,” setting forth the possible outcomes in Judge Newman’s favor that are ephemeral under the actual circumstances.  The decision characterizes the Special Committee’s review as being “careful” and demonstrating that “the facts of the JC&D proceeding had meaningfully evolved” so that there was a possibility for resolution.  Under these possibilities, the Special Committee finds that the renewed suspension remains “temporary.”  The Special Committee interprets the Act as “envision[ing] that any suspension must be based on its own facts and circumstances to qualify as temporary under § 354(a)(2)(A)(i)” and that “[a] judicial council must approach each application of that power based on new facts and circumstances that emerge during its consideration of the remedy for ongoing complaints that are not yet resolved.”  The decision also posits that in a world where they had had an opportunity to review the circumstances of the first renewal, the outcome here might have been different.  But they did not, and here do not, provide a different outcome.

The decision next turns to Judge Newman’s assertion that these serial suspensions “usurp Congress’s exclusive control over impeachment and removal” and, accordingly, the Judicial Council is required to refer her to the House of Representatives for impeachment if “her misconduct is so serious it requires an unprecedented three-year suspension.”  The Special Committee declines to consider the bases for Judge Newman’s suspension to amount to “Treason, Bribery, or other high Crimes and Misdemeanors” under U.S. Const. art. II § 4 that would qualify the Judge for impeachment (and reasons that no judicial council has ever done so as the result of a disability complaint).  The decision further notes that Congress does not need a “certificate of impeachment” from a judicial council to impeach, and is not compelled to impeach should it receive one.  According to this logic, Judge Newman’s continued suspension does not usurp Congress’s right to impeach (which seems to create a procedural limbo for the Judge, or misses her point).

The Special Committee’s rationale on the constitutionality of renewable suspensions is that “the ‘judicial power’ referenced in Article III belongs to the judiciary, not individual judges,” citing N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 US 50, 59–60 (1982), and finds no authority for the (reasonable) proposition that judicial power is exercised (and to some extent only exists) by individual judges (or at least a panel of them).  This conclusion is supported by citations that don’t seem to be quite on point.  The decision also makes distinctions between being removed from office and being prohibited from hearing cases, but to the extent the distinction involves a judge “continu[ing] to receive salary and would continue to hold office” it is unclear how such a judge could be “eligible to exercise judicial authority” as the decision contends.  And the further distinction that the Chief Judge did not reassign any of Judge Newman’s cases at the time of her first suspension (having been prohibited from taking any other cases for six months before) seems unavailing for the Special Committee’s argument.  This portion of the decision returns again to the calculus that because Judge Newman refused to comply with the Judicial Council’s demands to neurophysiological examination which was required in order for them to make a “fully informed determination as to whether Judge Newman is suffering from a disability that prevents her from discharging the duties of office,” the “temporary” suspension(s) under 28 U.S.C. § 354(a)(2)(A)(i) “[did] not amount to removal from office” (if only because the Judge kept her salary and title).

Finally, the Special Committee’s decision holds that refusal of Judge Newman’s request to transfer her case to the Judicial Council of another Circuit Court did not violate the Judge’s Fifth Amendment right to due process.  The basis for this decision is that Judge Newman has no protected property interest from which she was deprived.  One reason for this outcome is that the property interest Judge Newman asserted was the exercise in “judicial power,” which the Special Committee decided was not a personal interest but “belongs to the courts, not individual judges” under N. Pipeline Constr. Co.  The decision also uses the distinction that Judge Newman was permitted to continue working on the cases she had heard before the Chief Judge prohibited her from sitting on any additional cases three years ago.  Thus, according to the decision, Canon 3(A)(2) (“a judge ‘should hear and decide matters assigned, unless disqualified’”) did not support her claim to a property right to her judgeship.  And the decision enumerates a list of the perquisites of her position (including an office, a law clerk salary, and benefits) and concludes that “Judge Newman cannot have been deprived of a property interest in an office she still holds,” citing Abcarian v. McDonald, 617 F.3d 931, 941-42 (7th Cir. 2010).

The Special Committee is willing to acknowledge that Judge Newman has alleged a protected liberty interest in her “personal medical records and in avoiding compelled neuropsychological examinations” but that is not enough to convince the Committee that the Judge has been deprived procedural due process.  The Special Committee recognizes Judge Newman’s argument that “due process requires the disqualification of a decision maker when the circumstances present a risk of actual bias or create the appearance of bias so substantial that it would tempt the average adjudicator” but rejects application to this case of the legal citations the Judge relied upon in making her claims.  The basis for the decision is that the actions of the Judicial Council are administrative rather than judicial, and that “[t]he Supreme Court has rejected the argument that the combination of investigative and adjudicative functions creates an unconstitutional risk of bias in an administrative proceeding,” citing Withrow v. Larkin, 421 U.S. 35, 47 (1975):

The contention that the combination of investigative and adjudicative functions necessarily creates an unconstitutional risk of bias in administrative adjudication has a much more difficult burden of persuasion to carry.  It must overcome a presumption of honesty and integrity in those serving as adjudicators; and it must convince that, under a realistic appraisal of psychological tendencies and human weakness, conferring investigative and adjudicative powers on the same individuals poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented [emphasis in brief].

Specifically, the Special Committee rejects Judge Newman’s allegations, inter alia, that the Judicial Council’s rejection of the reports of her experts was evidence of bias, because the basis for this conclusion was that her evidence was insufficient.  And the Special Committee in setting forth the circumstances suggests that the request for transfer was premature:

When the Committee considered Judge Newman’s petition for review of her initial suspension, it noted that if the Judicial Council were to reach the ultimate issue of whether Judge Newman suffers from a disability, she might seek testimony from her colleagues on the Judicial Council if a Rule 14 hearing were held.  We explained that under those circumstances, the Chief Circuit Judge and Judicial Council should give due consideration as to whether a request for transfer would be warranted.  . . .  If at a later stage in the proceedings, members of the Judicial Council will be called upon to provide testimony on the ultimate issue – whether Judge Newman suffers from a disability – then due process concerns would counsel in favor of a request to transfer the complaint.

Whereas here the narrow question before the Judicial Council did not implicate these situations that might support transfer.

Finally, the Special Committee’s decision contains a possibility of a favorable decision to transfer, saying that “throughout the proceedings, Judge Newman has consistently represented that she would agree to cooperate with the investigation and undergo a medical examination if the complaint were transferred to a different circuit.  In that event, the Committee expects Judge Newman to honor her representation to undergo further medical evaluation.”  Not an explicit quid pro quo, perhaps, but more than a suggestion that there may be a path forward (other than retirement) should the Supreme Court deny the Judge’s certiorari petition.

For additional information regarding this topic, please see:

• “Judge Newman Seeks Recourse from Supreme Court,” March 15. 2026
• “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