By Kevin E. Noonan –

A distinguished groups of retired judges* filed an amicus brief supporting Judge Pauline Newman’s Petition for Certiorari over the unwillingness of the Court of Appeals for the D.C. Circuit to rule on her complaint regarding constitutional violations by the Federal Circuit Judicial Council (see “Judge Newman Seeks Recourse from Supreme Court“). 

The gist of Judge Newman’s Petition is that the Judicial Council has de facto removed the Judge from the bench, contrary to the Constitution and the provisions therein for impeaching a federal judge.  The Question Presented addressed by these amici is whether 28 U.S.C. § 357(c) of the Judicial Conduct and Disability Act’s bar of judicial review of the Council’s previously issued “orders” and “determinations” deprive a court of jurisdiction to consider claims that seek forward-looking relief to enjoin future unlawful actions.

Amici contend that the D.C. Circuit’s interpretation and determination that they are bound by the 25-year-old precedent of McBryde v. Committee to Review Circuit Council Conduct and Disability Orders, 264 F.3d 52 (D.C. Cir. 2001), is erroneous as recognized by the Court in Johnson v. Robison, 415 U.S. 361, 367 (1974).  Under the Robison precedent, it is contrary to the constitutional-avoidance canon of statutory construction wherein a court should “first ascertain whether a construction of the statute is fairly possible by which the constitutional question(s) may be avoided”—and if that is the case to adopt that more limited construction.  Moreover, the Supreme Court has recognized that there is a “strong presumption” against Congress enacting a statute that prohibits all judicial review of “federal Action” they argue, citing Dunlop v. Bachowski, 421 U.S. 560, 567 (1975), and to require “clear and convincing evidence” of such intent, citing Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 681 (1986), and SAS Institute Inc. v. Iancu, 584 U.S. 357, 370 (2018).  In amici’s view, the language of § 357(c) “does not come close” to providing the requisite “clear and convincing” evidence that Congress intended to bar judicial review of Judge Newman’s constitutional claims, inter alia, because the statutory language itself is silent as to limits on judicial review of constitutional claims (which was sufficient in Robison for the Court to conclude that that statute did not bar judicial review of constitutional claims).  And amici argue that the express limitation in the statutory language is to “orders and determinations,” which are past actions, while Judge Newman asked the Court for “prospective relief” regarding the Judicial Council’s renewal of the current suspension (as the Council had done twice before and appears to have every intention of continuing to do until the Judge capitulates or the matter becomes moot).  Amici also note that even though the D.C. Circuit recognized the “clear and convincing evidence” standard, the Court did not apply it.

The brief also considers the patency of the distinction in McBryde regarding facial constitutional challenges and “as-applied” challenges and finds little statutory support for the distinction (other than a purported “compromise” decision in the McBryde decision itself; this is another instance for amici to remind the Court that the D.C. Circuit stated that the distinction in this case at least raised “constitutional concerns”).  The significance of this understanding is that despite having said so, the en banc D.C. Circuit did not address the constitutional issues even though Judge Newman had expressly requested them to do so.  Another reason asserted in the brief for the Court to grant Judge Newman’s petition is that statutes that abrogate a right enshrined in the Constitution itself is likely to be unconstitutional, citing Boumediene v. Bush, 553 U.S. 723 (2008).

The brief considers the expansive scope of 28 U.S.C. § 1331, which grants to federal district courts “original jurisdiction of all civil actions arising under the Constitution.”  Amici judges recognize that Congress can enact legislation that limits this jurisdictional scope, but cite Robison once again, this time for the rubric that Congress is loath to do so on constitutional grounds.  In this context amici argue that the D.C. Circuit’s application of § 357(c) is erroneous and deserving of the Court’s review.  The brief reminds the Court that Judge Newman “challenges Respondents’ actions designed to permanently deprive her of her office, and she seeks prospective relief against future actions by Respondents—which she alleges to be imminent” without there being any clear and convincing evidence that Congress “intended to foreclose jurisdiction to issue injunctive relief to prevent future conduct that violates Petitioner’s constitutional rights” (emphasis in brief).  In addition, amici remind the Court that the Act itself provides that “under no circumstances may the judicial council order removal from office of any judge appointed to hold office during good behavior” under 28 U.S.C. § 354(a)(3)(A) (which is precisely what Judge Newman asserts the Judicial Council has done).

Amici further provide their analysis of the application of the constitutional-avoidance canon and make a comparison of the similarities with the statute in Robison, wherein the Court permitted the District Court to consider constitutional claims to avoid the consequences of not doing so.  Here, amici argue that the distinction under McBryde between facial and as applied constitutional challenges, and the Court’s jurisdiction over each, was “unsupported and unsupportable” because, inter alia, “[n]either the text nor the legislative history of the statute supports such a distinction” (which the brief suggests arose because jurisdiction over facial challenges appeared to have more support than did as-applied challenges did).  Amici draw a direct comparison between Robison and this case, asserting that “McBryde‘s distinction [between facial and as-applied constitutional claims] cannot be squared with Robison,” and that “if (as McBryde conceded) the statutory language of § 357(c) ‘closely parallels’ the language of 38 U.S.C. § 211(a), then Robison requires a finding that § 357(c) permits federal courts to exercise jurisdiction over all constitutional claims against Judicial Council actions, not simply facial claims.”  Further, amici claim that “there [is no] logical reason why Congress would decide to bar all as-applied constitutional claims while simultaneously authorizing facial constitutional challenges,” and in a particularly apt assertion, “[a] plaintiff suffering constitutional injury is no less aggrieved simply because the defendant’s misconduct affected no one other than the plaintiff.”

With a modicum of sympathy to the D.C. Circuit, amici acknowledge that the Court identified the defects in McBryde but were stymied (“felt compelled – solely on stare decisis grounds”) to affirm based on jurisdictional grounds (“[t]his panel has no authority to depart from McBryde“).

These amici characterize the issue before the Court as being one of “exceptional importance” because it provides an avenue for de facto removing judges from the federal bench regardless of the propriety of such removal under the Constitution.  Amici conclude their substantive arguments by reliance on Boumediene v. Bush, 553 U.S. 723 (2008), which involved the constitutionality of Section 7(a) of the Military Commissions Act of 2006 (MCA), preventing federal courts from considering habeus corpus actions by individuals alleged to be foreign terrorists detained at Guantanamo.  The Court in ruling against the government cited “serious separation of powers concerns,” rejected the capacity of the political branches to “switch the Constitution on or off at will” and be contrary to Marbury v. Madison, 1 Cranch 137, 177 (1803), regarding exercise by the judicial branch of saying “what the law is.”  Amici contend that permitting § 357(c) to stand as construed by the D.C. Circuit would raise separation of powers concerns at least as serious as those in Boumediene.

Amici also emphasize the context of the dispute as a threat to judicial independence (“Authorizing Congress to eliminate the authority of federal courts to decide whether a federal judge has been improperly deprived of life tenure would be a devastating blow to [judicial] independence,” in their view).  The mere filing of a complaint, they assert, “is one means by which individuals can seek to undermine the authority of a federal judge,” particularly insofar as such complaints “often result in some curtailment of the judge’s activities (including a bar on the assignment of certain categories of cases) while a Judicial Council is investigating the complaint” (Judge Newman’s experience having gone much beyond such temporary discomfiture).  The risk, of course (similarly tracking Judge Newman’s experience) is that these circumstances provide a method (increasingly common, according to amici) by which “a judge’s antagonists can circumvent the constitutionally prescribed impeachment process.”  The Court’s review, accordingly, “is warranted to call a halt to this unconstitutional practice.

The effect on the Justices’ consideration of Judge Newman’s case is at best uncertain.  It must be recalled that this Court has spent the better part of the last quarter century disagreeing with and overruling decisions of the Federal Circuit (often 9-0), written by or concurred with by two former Chief Judges of the Federal Circuit.  At least this suggests that the judicial thinking on the Court is sufficiently at odds with amici that any solace that can be gotten by this amicus brief may be very little indeed.

*Amici:

Hon. Janice Rogers Brown served as a Judge on the United States Court of Appeals for the District of Columbia Circuit from 2005 to 2017.  From 1996 to 2005, she served as an Associate Justice on the California Supreme Court.

Hon. Kent A. Jordan served as a Judge on the United States Court of Appeals for the Third Circuit from 2006 to 2025.  From 2002 to 2006, he served on the United States District Court for the District of Delaware.

Hon. Paul R. Michel served as a Judge on the United States Court of Appeals for the Federal Circuit from 1988 to 2010.  He served as Chief Judge of that court from 2004 to 2010.

Hon. Randall Ray Rader served as a Judge on the United States Court of Appeals for the Federal

Circuit from 1990 to 2014.  He served as Chief Judge of that court from 2010 to 2014.

Hon. Thomas I. Vanaskie served as a Judge on the United States Court of Appeals for the Third

Circuit from 2010 to 2019.  He served as a Judge on the United States District Court for the Middle District of Pennsylvania from 1994 to 2010; he served as Chief Judge of that court from 1999 to 2006.

Hon. Paul G. Cassell served as a Judge on the United States District Court for the District of Utah

from 2002 to 2007.  He is currently a Presidential Professor of Criminal Law and a University Distinguished Professor at the University of Utah.

Hon. Susan G. Braden served as a Judge on the United States Court of Federal Claims from 2003 to 2019.  She was designated by the President as Chief Judge in 2017, assumed senior status in 2018, and retired from the bench in 2019.