By Kevin E. Noonan –

At the beginning of June, the New Civil Liberties Alliance (representing Judge Paulene Newman) filed the Judge’s Reply Brief to the Federal Circuit Judicial Council’s Opposition to her Petition for Certiorari*.  The brief specifically identifies Judge Newman’s argument that prospective relief is not foreclosed by the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980, 28 U.S.C. § 357(c), and her ultra vires argument regarding the Judicial Council’s application of the statute.  And Judge Newman is not remiss in her inclusion of reference to the amicus brief by former judges of the court that sat with her (and with Chief Judge Moore, if any of the Justices have missed that undercurrent in the proceedings) supporting the petition.

As to the Judicial Council’s response to Judge Newman’s first argument, that the statute properly forecloses claims relating to prospective relief (i.e., any such foreclosure not extending past retrospective challenges), the Reply brief asserts that there is nothing in the statutory language relating to the current situation; in fact the brief sets forth this portion of the statute in toto, illustrating not only the failure of specific language but how in context the language is clearly directed to orders and determinations that have been already entered in the matter.  After all, “[a] future order or determination that might someday be issued by a judicial council does not exist” and thus “cannot be accorded finality or conclusiveness by the language of section 357(c).”  Similarly, the brief states that a court cannot “‘review’ an order or determination that has not yet issued.”  As for the “practical problems” the Solicitor General apprehends should arise if judicial review were permitted under current circumstances, the brief posits that

[I]f a court acknowledges that it is statutorily prohibited from vacating a previously issued “order” or “determination,” then it is not conducting judicial review of that past agency action even if it enjoins the issuance of similar “orders” or “decisions” in the future.  The previously issued order will remain in place, even if the reasoning of the court’s opinion implies that it never should have issued in the first place.

Thus, judicial review of the prospective orders and determinations arising in this case (the continued reiteration of annual suspension of Judge Newman that prevents her from performing her duties as an Article III judge) “does not violate section 357(c) because the past ‘orders’ and ‘determinations’ of the judicial council remain undisturbed.”  The status quo will not be disturbed “if courts remain powerless to vacate those previously issued orders and determinations no matter how wrong they think they are.”

As to the Solicitor General’s argument that Judge Newman forfeited these arguments for not making them in earlier briefing to the D.C. District and Circuit courts, the brief asserts that she did, and to the extent they were not entered with sufficient fulsomeness, the Judge was precluded from doing so by those court’s application of McBryde v. Committee to Review Circuit Council Conduct and Disability Orders of Judicial Conference of the United States, 264 F.3d 52 (D.C. Cir. 2001), citing specific incidents thereof in the record.  “The pressed-or-passed-upon doctrine does not require Judge Newman to present or develop arguments in the lower courts that are incompatible with binding precedent, and that cannot be considered or accepted by those courts until this Court repudiates McBryde,” the brief asserts (thereafter citing the Court’s decision in Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), as well as Janus v. American Federation of State, County, and Municipal Employees, Council 31, 585 U.S. 878 (2018), and Citizens United v. FEC, 558 U.S. 310 (2010), as illustrations of the principle).  Indeed, on the contrary, the brief states that “[i]t merely provides additional arguments in favor of a claim that Judge Newman has asserted and preserved throughout these proceedings: that the federal judiciary has jurisdiction to consider her constitutional challenges to the judicial council’s actions,” citing Yee v. Escondido, 503 U.S. 519, 534 (1992) (emphasis in brief).

Turning to Judge Newman’s ultra vires argument, the brief characterizes the Solicitor General’s position as being that the statute “precludes any type of collateral attack on anything that a judicial council does and gives courts no latitude to characterize a purported ‘order’ or ‘determination’ as outside the scope of the council’s delegated authority,” somewhat turning the rhetorical tables on the Solicitor General’s pithy “all means “all” assertion (emphasis in brief).  The brief contrasts this position with the Solicitor General’s acquiescence regarding the availability of facial constitutional challenges to the statute as not being a request for judicial review (“[t]hat is not true” according to Judge Newman).  The relief a facial challenge seeks “can occur only in the context of a ruling that sets aside the “order” or “determination” that was purportedly authorized by the unconstitutional statutory provision” because, inter alia, “[i]t is impossible for litigants to ‘challenge’ a federal statutory provision in the abstract.”  And ultimately the source of any such (successful) challenge would be that actions taken under the statute were constitutionally ultra vires.  The brief dissects the Solicitor General distinctions regarding earlier Supreme Court precedent regarding challenges to purportedly unreviewable agency action in Johnson v. Robison, 415 U.S. 361 (1974), and Webster v. Doe, 486 U.S. 592 (1988) (relevant in view of the administrative character of decisions by Judicial Councils under the Act).

The brief also challenges and distinguishes the Solicitor General’s assertions that Judge Newman forfeited this claim, citing the record where the Judge had argued that the Judicial Council’s actions were ultra vires.  And to the extent that the Court may be tempted to rely on the “pressed-or-passed-upon doctrine” in denying certiorari, Judge Newman reminds that it is “far from an absolute rule and this Court often indulges and considers claims or arguments that were never considered or ruled upon by lower courts,” citing (in a footnote) Hormel v. Helvering, 312 U.S. 552, 557 (1941); Illinois v. Gates, 462 U.S. 213, 219 (1983); and more contemporaneously Kennedy v. Braidwood Management, Inc., 606 U.S. 748, 779–93 (2025).

The Court considered Judge Newman’s petition in the Justices’ June 11th Conference, and Orders were to be handed down on the next two Mondays before the Court begins its summer recess.

* Large portions of the Reply brief are redacted (including the entire section responding to the Solicitor General’s argument that the petition should be considered moot).