By Kevin E. Noonan —

The Federal Circuit heard oral argument in Auribundo's appeal of the district court's decision in favor of plaintiff Merck, in a case captioned In re Sugammadex (alternatively, Aurobindo v. Merck Sharp and Dohme).  The issue before the Court is whether Patent Term Extension under 35 U.S.C. § 156 in a reissue patent should be calculated from the original grant date of a patent or from the grant date of a subsequent reissue (wherein the length of PTE can be significantly shorter if the latter date is chosen).  The panel consisted of Judges Dyk, Mayer, and Reyna.  Auribindo was represented by Eric Werlinger, Merck was represented by Danny Krinski, and Maureen Queler argued for the U.S. Patent and Trademark Office.

Auribundo's argument (methodically structured to go through the different sections of the statute at issue) was focused on the statutory text and in particular the meaning of the word "term" in 35 U.S.C. § 156 (the part of the Hatch-Waxman Act providing for patent term extension, PTE).  According to counsel, Congress enacted the PTE statute in the context of the reissue statute, arguing that patent law has contained statutory provisions for reissuing patents for 150 years.  Judge Dyk asked the first question (from what was a fairly hot bench) about the effects of the same claim being in the original patent and the reissue.  Specifically, Judge Dyk wanted to know why such a reissue patent should be treated any differently if there had been no change in the claim to the approved product.  Judge Dyk called it counter-intuitive that Congress would draft § 156(c) in such a way that it would make a difference, and Counsel argued that Congress was aiming for the statute to have a "bright line" definition without getting into "claim-by-claim" analysis.  Judge Dyk, sounding somewhat incredulous asked if Aurobindo's position was that "you could lose your PTE in a reissue even if the same claim [for the approved product] survived reissue"?  Counsel hied back to the statutory language, seeming to hint that "policy reasons" for Congress intending the answer to Judge Dyk's question to be "no" could not trump the plain meaning of the statute.  On the question of losing patent term, Counsel argued that Merck delayed ("a number of years") in filing for reissue even though they knew "full and well" that their patent did not contain the species claim for which the reissue was filed.  Judge Dyk found those answers not to be responsive to his question of why Congress would want two different outcomes for PTE between the original patent and its reissue.  Counsel's response was that this wasn't want Congress wanted, but rather to establish a "single regime" that would accommodate all patents applying for PTE.

Counsel returned to his theme that policy should not be a determinant, and instead that the Court should look to the plain meaning of the statute.  Judge Dyk noted that the plain meaning of § 156(a) for the term to be extended could refer to the term of the original patent.  Judge Dyk pressed counsel to get an answer to his question, and counsel argued that the word "original" refers to the situation before PTE is applied not before the patent was reissued.  Judge Dyk interrupted this argument with a direct assertion that "you would lose" if the § 156(a) definition of "term" was directed to the original patent.  "Not necessarily true" was counsel's response, based on the idea that what is meant is "when do we start counting" (presumably the time lost for which PTE is earned).

Counsel then referred to Merck's argument that the term of the reissue incorporated the term of the original patent and made three responsive arguments.  First, that Section 251 recites that the reissue patent takes the unexpired part of the term of the original patent ("a piece of it, not the whole thing"), and if Congress intended the reissue to take the entire term they could have said so (but they didn't).  Second, Section 251(c) incorporated Sections 151 through 154, and Section 154 defines when the term begins, i.e., the issue date.  Third, that the issue date of a reissue patent is a "legally distinct and meaningful moment" based on Section 252 (that provides that date to be when the reissue patent "takes effect").

Moving on to Section 252, counsel explicated how the Federal Circuit had earlier addressed the section.  He said, "PTE is not granted in litigation," and Judge Dyk reminded counsel that Sections 251 and 252 were enacted "long before" Section 156, so why not interpret Section 156 on its own terms?  Counsel argued context:  that Congress was aware of Sections 251 and 252 and the "mechanics" of reissuing patents when it enacted Section 156.  Counsel characterized how Congress has behaved regarding the interactions of the reissue statute and Section 156 as being "purposeful silence."  This silence is meaningful, counsel argued, and reading the statute as Merck asserts would violate canons of construction regarding the meaning of the word "issue" in the various sections.

Judge Reyna asked about the possibility of "absurd" results?  Counsel did so with relish, speaking about the circumstances under which PTE could be lost by minor differences (a matter of days) resulting in 5 years of PTE or none at all.  Counsel embraced these possibilities, asserting that such outcomes are not uncommon in patent law, here as a consequence of a purported "bright line" drawn by the statute regarding PTE.  These possibilities are not sufficient to deviate from the "otherwise" plain text of the statute according to Aurobindo's counsel.  Judge Reyna stated that the statute is not plain and counsel disagreed, asserting that neither Merck nor the PTO has identified a "facial ambiguity" in the text of the statute.  Judge Dyk disagreed, returning to Section 156(a) as referring to the "term of the patent" phrase clearly referring to the original patent.  Counsel attempted to rely on Section 156(f) for a definition of the term "patent" but Judge Dyk did not agree that the definition helped.

Finally, counsel turned to Section 156(c) because in applying it the phrase "the term of the patent eligible for extension" cannot refer to the original patent because it no longer existed when PTE was obtained for the reissue patent.  Counsel also brought up the situation where a broadening reissue is obtained where the claim or claims relevant to the approved product was first obtained in such a reissue; this would create a problem, which Judge Dyk dismissed as not being eligible for extension.

Counsel for Merck (who underwent much less questioning by the panel) addressed the argument that Merck is attempting to avoid the statutory text, specifically with regard to Sections 251 and 252.  Judge Reyna asked why the Court should reference the original patent where the claims are "dead" under Section 252.  Counsel argued that the original patent's claims are dead but the reissued patent is essentially the same regarding the claims that recite the approved drug product.  Judge Reyna noted that the statute does not recite the "claims" but rather the "patent."  Counsel argued that Section 251 ("reissuing a/the patent") indicates that the statute is referring to "one and the same patent with one and the same term."  Considering a patent that claimed a drug under FDA review and was subject to effective loss of patent term thereby and then reissued, this "one and the same" interpretation is the only interpretation that gives a sensible result under the Hatch-Waxman Act, counsel argued.

Counsel obliquely answered the allegation by Aurobindo's counsel of Merck's delay being strategically intentional by noting that the decision in In re Tanaka clarified the opportunity for reissue under these circumstances and prompted its filing.  He also emphasized that the original patent and the reissue had a claim (claim 4) unaffected by the reissue that encompassed the approved drug.  Nor should the fact that the patent was reissued prior to FDA approval and PTE length determination make any difference according to counsel, confirmed by Sections 251 and 252 (which referred to a single term that remains the same term).  When beginning to address the effect on litigation under Section 252, Judge Dyk interrupted, saying "well, it isn't litigation"; when counsel disagreed, the Judge went on to say "not the kind of litigation [Congress] was talking about" when the statute was enacted.  Counsel mentioned in response that filing the ANDA and filing the complaint in response thereto occurred after the reissue, and thus the intervening rights provisions of Section 252 "compels that the claims be treated as if they had been present all along" (further supported by the "continuous effect clause" in the statute).

Another issue counsel addressed was the effect of a broadening reissue, which he was careful to emphasize (again) was not the case here (nor does Merck advocate for PTE under such circumstances).  Counsel also mentioned that this situation had not arisen in any of the ~40 cases where reissue applications were the basis for PTE request, and that (perhaps) Section 156(a) was the more appropriate section of the statute to consider when deciding this question.  In response to counsel's assertion that under these circumstances the court need not address this issue here, Judge Dyk disagreed, saying that the Court's decision must take this into account ("we [can't] view this with blinders on") and counsel was quick to say "if the court wishes to decide [that question] it should result in affirmance either way" under both Sections 156(a) and 156(c).  And this interpretation was also supported by the "continuous effect" clause under Section 252, he reiterated, under circumstances as here "where there is a substantially identical claim" that survived the reissue.  And here, the change effected by the reissue was not a change to the claim the encompassed the drug.

Turning to policy, counsel argued there was no "gamesmanship" involved due to the timing of the reissue request being recognition after Tanaka that Merck could so seek it.  Also to be considered according to counsel was that at the date of the reissue request filing the drug had not been approved, no one knew how long FDA review would take or if it would be approved at all.  Further, without drawing the court's attention to this being an absurd result, counsel suggested that it would be unlikely that Congress intended that the "relative ordering" of reissue and FDA approval should make a difference of whether PTE was curtailed by that ordering ("it doesn't make any sense" otherwise), if only because neither when FDA review is completed nor the date the PTO grants the reissue patent was within the patentee's control.  Counsel also asserted that Section 156 is an remedial statute to enable patentees to recover lost term for patents reciting claims to the approved drug.

Finally, counsel addressed the argument that a reissue patent needed to be treated as a different patent than the original patent because the latter is "dead."  Counsel contends that the "dead" case law stems from Seattle Box Co. v. Indus. Crating Packing, which also says "the statute permits the claims in the reissue to reach back to the claims in the original" provided that those claims are identical (i.e., unchanged by the reissue proceedings).

Ms. Queler, arguing for the U.S. Patent and Trademark Office, began a strong presentation by saying that, taken in the context of the Patent Act as a whole, the "issue date" used in determining patent term adjustment under Section 156 is best interpreted under Sections 251 and 252 as the date the original patent was issued.  As Merck's counsel had argued, the PTO interprets Section 252 to require that a reissue patent has "the same effect" as the original patent.  Judge Dyk once again stated his uncertainty regarding his view that Section 252 does not relate to PTE because that section was enacted well before Section 156.  PTO counsel addressed this argument by saying it is counterintuitive (it "doesn't make sense") to assess the patent term in an administrative procedure differently than in litigation involving such a patent.  She cited Section 251 to require that a reissue expires on the same date (pre-AIA, 17 years from issue) as the original patent.  Everything, she stated, is tied to the original patent and it "would simply not make sense" to under these statutory provisions to have the expiration date be derived from a different date.

For the PTO, she argues, the paradox raised by Aurobindo's calculus is that a patentee would be entitled to less PTE as the amount of FDA delay increases.  This is nonsensical; if Merck had waited to file its reissue patent until after FDA approval, they would have been entitled to the full PTE to which they were entitled.  The best reading is to use the original patent issue date according to the PTO.

Judge Reyna asked whether it is the case that these instances are rare, and counsel agreed that they are, saying that there had been only about 40-50 instances responsive to questions from Judge Reyna and that that in almost all such cases the PTO had used the original patent issue date for determining PTE.

A line of questioning arose that was to some extent amusing and illustrates how delving deeply into these questions can obscure a simple solution.  Judge Dyk asked about the situation where a claim for the approved drug product is cancelled in reissue.  This question was because Section 156 is concerned with patents and not claims, could the reissue patent still be entitled to PTE even though it no longer (due to reissue) recited a claim encompassing the approved drug product?  Counsel responded by reminding the Court that Section 156(a) requires a patent requesting PTE to be only one "which claims a product," so such a reissue patent would not be entitled to PTE.  The Judge was concerned about an original patent having a claim that encompassed the approved drug product being granted PTE but then cancelling that claim upon reissue.  Counsel addressed the situation where PTE was obtained before the reissue occurs, but Judge Dyk asked about the situation where the reissue happens before PTE is granted.  The Judge believes the construction of Section 156 needs to accommodate such a circumstance to ensure that a reissued patent that had a claim or claims that encompassed the drug product, but cancelled any/all claims that encompassed the approved drug, is not entitled to and does not get PTE.  Counsel responded that PTE could not be obtained for a patent that does not encompass the approved drug product.  Judge Dyk then asked counsel to confirm that if PTE was applied for after the reissue that cancelled all drug-related claims such PTE would be denied and asked her how to get to that outcome under the language of the statute.  Counsel again resorted to Section 156(a), but the Judge said that would be the case for a new claim (i.e., in a broadening reissue).  PTO counsel also stated that the Office does not have a policy on this scenario because it has never arisen (it is theoretical and highly unlikely in practice).  She suggested that such an unlikely eventuality should not motivate changes in statutory interpretation of Sections 251 and 252 that would have the consequences discussed in this case.

Stepping back, it seems evident that this scenario is a tempest in a teapot (however entertaining).  Any patent (reissue or not) no longer reciting any claim that encompasses the approved drug product could not be asserted in litigation (ANDA or otherwise) and would likely lead to an immediate and successful motion to dismiss, risking sanctions for asserting a patent where the patentee took affirmative steps to cancel the claims on the FDA-approved product and then tried to assert such a patent in litigation.  Moreover, such a patent could not be properly Orange Book listed for failure to satisfy the requirement that any Orange Book listed patent must recite claims to the drug product or methods for using the product to treat a disease, ailment, or disorder.  (The FTC had recently started a delisting campaign for improper listing, threatening sanctions, for listing patents for which the propriety of listing was much less uncertain than in the case argued here.)

Judge Reyna raised the possibility for gamesmanship — "shenanigans" — and asked whether the likelihood would increase if PTE was to be determined using the reissue date rather than the earlier date.  Counsel responded by speculating that the patentee could delay seeking a reissue (which would be contrary to the public interest in not disclosing the errors motivating the reissue) but wait until the original patent was granted PTE (which extension of term would remain with the reissue under the express terms of the statute).

On rebuttal, Aurobindo's counsel went through with increased vigor a number of issues raised by Merck and the PTO.  Counsel argued that the Court should recognize that the arguments raised by Plaintiff and amicus were not identical.  He also argued that the term "term" was not defined in the statute (at least expressly) and thus should be construed for the ordinary meaning (such as by using a dictionary definition).  He disputed Merck's position that the reissue and original patent are the same patent, citing Seattle Box for contrary precedent from the Federal Circuit (and unnamed Supreme Court precedent to the same effect).  He mentioned that Merck amended its complaint to recite the reissue patent and updated the Orange Book as evidence that Merck itself recognized they were not the same patent ("a different bundle of rights"); Judge Dyk interjected to mention that what Merck thought doesn't determine proper claim construction.  Counsel responded that Merck's opinion matters because it illustrates an attempt to obliquely provide an alternative definition for the term "issue" that Merck cannot give through a plain text analysis.  He also made the distinction that reissue is itself distinct from the original patent (which is what Congress wanted).  Judge Dyk interjected that it appeared Auribindo thinks that someone was thinking of these issues when the statutes were enacted and counsel responded that Congress is presumed to have done so.  Counsel also criticized the PTO's amended MPEP § 2766 for proposing that broadening reissue patents are entitled to the original patent issue date only if the original and reissue both recite claims to the drug product, which while sensible policy is, according to counsel, even further from the text of the statute.  Finally, counsel asserted that Skidmore deference is not appropriate, because using conventional canons of construction, the interpretive issues can be resolved and because the Office has not provided a coherent articulation for Section 156.

It would be imprudent for an observer to assert any definitive predictions regarding how the Federal Circuit will rule, but the tenor of the argument seems to have favored Merck's (and the PTO's) position.

Published Patent Applications Are Prior Art as of the Filing Date, Not the Publication Date

By Joshua Rich —

Lynk Labs raises a simple question of statutory interpretation with surprisingly important ramifications:  in inter partes review, is a published patent application considered prior art as of the date of filing or the date of publication?  The former answer has been how the law has long been applied and would comport with Federal court practice, but Lynk argued that Congress had chosen the latter approach by keeping the language that had been in the statute for decades before IPRs existed and not expressly including patent applications as a separate category of available art.  The Federal Circuit found that the statutory language governed only whether a reference could constitute prior art, not when it would.  As a result, the Court rejected Lynk's approach and decided that patent applications, like patents, are treated as prior art as of the filing date.

The issue arose out of Samsung's IPR challenge to Lynk's U.S. Patent No. 10,687,400.  The '400 Patent relates to alternating current ("AC")-driven light emitting diodes ("LEDs"), LED circuits, and AC drive circuits and methods.  Basically, it covers the type of lighting now used in many Christmas tree lights:  "an LED circuit array comprising an LED circuit comprising a plurality of LEDs connected in series" and a number of other elements, "wherein a forward voltage of the LEDs of the LED circuit array matches the rectified input AC voltage output" of a connected driver.[i]

Samsung brought its IPR based on an argument that the claims were obvious in light of numerous combinations of prior art.  Importantly, many of the combinations relied on U.S. Patent Application Publication No. 2004/0206970 (the "Martin Application").  The Martin Application was filed more than one year before the application that ripened into the '400 Patent, but published several months after the filing; it never issued as a patent.  Given those circumstances, Lynk argued that the Martin Application was potential prior art as a "printed publication," not a published patent application (to the extent that is a separate category under the Patent Act) and would not qualify as prior art in this case because it was not printed until after the '400 Patent's critical date.  The PTAB disagreed and found all of the relevant claims unpatentable.[ii]

Lynk appealed, arguing that IPRs are limited to "patents and printed publications,"[iii] and published patent applications could only be considered the latter.  That is, unlike the pre-AIA § 102 that applied here, the scope of IPRs does not explicitly contemplate published patent applications in any context separate from the printed publications referenced in §§ 102(a) and (b).  It follows, according to Lynk's  reasoning, that published patent applications should be treated like all other printed publications for purposes of determining the prior art date, regardless of the provisions of § 102(e)(1) that relate specifically to published patent applications.  Lynk argued that the use of the long-used term "printed publications" carried with it the "old soil" of prior uses and court opinions.

It is true that the terms "patents and printed publications" have long been used in patent law and post-grant review proceedings.  Since 1980, there have been opportunities for post-grant review of patents:  first ex parte reexamination (created by the 1980 Patent Act), then inter partes reexamination (created by the 1999 American Inventors Protection Act), and most recently post-grant review and inter partes review (created by the 2011 America Invents Act).  Throughout that time, the identification of available prior art has remained the same:  "patents and printed publications."[iv]  But in truth, the parameters for what is available to challenge the validity of patents — both in USPTO proceedings and in district court litigation — have changed.  Prior to the AIPA, the USPTO had maintained strict secrecy over patent applications so there were no published patent applications.  Then, the AIPA ushered in the era of published patent applications and added the "secret prior art" provisions of § 102(e), establishing that a patent would be invalid if:

the invention was described in

(1) an application for patent, published under section 122(b), by another filed in the United States before the invention by the applicant for patent or

(2) a patent granted on an application for patent by another filed in the United States before the invention by the applicant for patent, except that an international application filed under the treaty defined in section 351(a) shall have the effects for the purposes of this subsection of an application filed in the United States only if the international application designated the United States and was published under Article 21(2) of such treaty in the English language

Those two changes under the AIPA set the stage for the Federal Circuit's decision in Lynk Labs.

Lynk had admitted that published patent applications constitute "printed publications," but argued that whether they are prior art should be considered under the paradigms of § 102(a) and (b) regardless of the language added by the AIPA.  It argued that it would be anomalous to treat documents within the ambit of printed publications differently based on what type of printed publication they are.  And it had on its side older court decisions that suggested that all printed publications should be treated as prior art only when they are published.

The Federal Circuit recognized that Lynk's position found some support in older case law, but reasoned otherwise based on the language of the entirety of § 102.  It found the addition of § 102(e) dispositive because it specifically addressed the timing of prior art status of published patent applications.  And responding to the anomaly Lynk pointed out, it noted another one if it applied the test urged by Lynk — that published patent applications would not be treated the way set forth in § 102(e), but patents would be.  In a bit of statutory interpretation legerdemain, the court suggested this was all just a plain language reading of §§ 311 and 102.  A better approach would have been to use the canons of construction that suggest that the proper reading of a statute gives effect to all of the clauses and reads each of them in the context of the statute as a whole.

The Federal Circuit then took a confused, and confusing, trip through the cases that Lynk cited to suggest that published patent applications are only an unremarkable subset of printed publications.  When Congress amends a statute but retains the same language as used before, it is presumed to be importing the prior usage of that language, which would suggest that "printed publications" would be defined consistently throughout the history of post-grant proceedings.  But the court rejected that approach because published patent applications did not exist throughout that history.  And it argued that printed publications could have different prior art dates based on the differential scenarios of § 102(a) and § 102(b).  But that seems wrong — the date of the printed publication does not change, only whether it is before or after the time point identified in the statute.  That is, a journal article has a fixed date of publication — just like a published patent application — which may be before or after the date of invention or bar date for a claimed invention.  In the end, the Federal Circuit concluded that "whether, and how, something that qualifies as a 'printed publication' is considered prior art depends on other statutory language" — again defaulting to the language of § 102(e).

Remarkably, the Federal Circuit relegated to a footnote perhaps the best policy argument for interpreting the statute as it did.  That is, in district court litigation, published patent applications and patents are both treated as prior art as of the date of filing.[v]  Had the case come out the other way, accused infringers would have yet another reason to avoid IPRs because some of the patent applications considered prior art in district court proceedings would not be considered prior art in IPRs.  Nothing about the references would be different, just the legal treatment of the reference between the two venues.  Not only would such an approach increase the likelihood of gamesmanship in the choice of venue to resolve validity, it would also have created numerous other difficulties – Would estoppel apply to a published patent application like the Martin Application? Would the same approach apply in post-AIA cases, where the language of § 102 was altered slightly?  And would a different approach apply in IPRs and ex parte reexamination?

In the end, regardless of the reasoning, the Federal Circuit reached the correct conclusion in Lynk Labs.  A contrary decision would have made a mess of the interplay of IPRs and district court litigation, and would also have been inconsistent with the totality of § 102.  And it would have called into question IPRs already decided and currently pending that have been decided or filed based on the presumption that the approach to published patent applications would not change suddenly after 25 years of clear precedent.

Lynk Labs, Inc. v. Samsung Electronics Co. (Fed. Cir. 2025)
Panel: Circuit Judges Lourie, Prost, and Stark
Opinion by Circuit Judge Prost

[i] For Taylor Swift fans, the timing of the Federal Circuit decision may draw a smirk because, as she sings in Lover, "We could leave the Christmas lights up 'til January."

[ii] Lynk Labs cancelled certain claims in response to the IPR filing, rather than having those claims invalidated.

[iii] 35 U.S.C. § 311(b).

[iv] The exception to this rule is post-grant review, for which any basis under 35 U.S.C. § 101 is available, including other forms of prior art.

[v] See pre-AIA 35 U.S.C. § 102(e) and current 35 U.S.C. § 102(d).

Distinguished Judges File Amicus Brief in Newman v. Moore et al.

By Kevin E. Noonan —

It has been a remarkable feature of the Federal Circuit's suspension of the Honorable Judge Pauline Newman that few have taken a stand publicly on the propriety of the suspension (something the Judge herself recently mentioned; see "An American (and Entirely Unnecessary) Tragedy").  That has now changed, with the D.C. Circuit Court of Appeals receiving amicus briefs from four separate groups submitted in support of Judge Newman's challenge.  These amici ask the Court to reverse the District Court's dismissal of her lawsuit challenging the Judicial Council's actions on, inter alia, Article III and due process grounds.  Another one of these amicus briefs is discussed herein, submitted by a cadre of distinguished former judges:  Hon. Paul R. Michel, Hon. Randall R. Rader, Hon. Thomas I. Vanaskie, Hon. Paul G. Cassell, and Hon. Susan G. Braden.

As have other amicus briefs recently filed with the Court, this one begins with reciting what has perhaps become Judge Newman's preeminent judicial distinction, the frequency of her dissenting from her colleagues' opinions and how frequently her views have been vindicated, including by citations to those dissents in Supreme Court opinions reversing the Federal Circuit.  Of course the judicial pedigree of this group of former judges impose a gravitas on these sentiments that would be difficult to exceed.  The brief continues by noting that Judge Newman's physicians have reached the same conclusions that anyone who have witnesses her in public appearance, that she is "cognitively sharp" (which may be an understatement) and that she is not "disabled or otherwise incapable of performing her judicial duties."

But then the brief reaches the crux:  regardless of the Judge's eminent capacity to continue her contributions to the Federal Circuit her fellow members of that court have "effectively . . . removed [her] from judicial office."  In addition to reminding the Court of the history of the contretemps between Judge Newman and her Federal Circuit colleagues, these introductory remarks tweak the D.C. District Court judge with the reality that "[i]nstead of addressing the merits of those constitutional issues, the district court dismissed Judge Newman's claims largely on the ground that judicial review was precluded."  That decision "cuts against the strong presumption that all U.S. citizens are entitled to have their federal constitutional claims heard in a federal court" according to this collection of federal court judges, succinctly stating that "Judge Newman is entitled to her day in court."  On the merits, the brief endorses as being "a valid claim" the facts underlying her complaint.  "The Constitution assigns to the U.S. Senate alone the power to remove Article III judges from office," amici state, and the indefinite suspension effectively (and thus improperly) does so outside the proper ambit of the Constitution.

The brief then provides a "Statement of the Case" informed (according to a footnote) by the factual statements "drawn from Judge Newman's Amended Complaint."  Although overall an evenhanded account, there are instances where the source of this narrative peeks through (for example, attributing Judge Newman's refusal to submit to examination by doctors "selected by the committee" to her being "[d]ismayed by the inaccuracy of many of the Special Committee's statements regarding her medical history and its unreasonable time demands"; mentioning that Judge Newman was suspended despite the Special Committee having "made no finding regarding whether Judge Newman's health was such that she lacked the capacity to perform the work of an active judge").  The brief notes that the Judicial Conduct and Disability Committee of the Judicial Conference (JC&D) did not deign to consider any of Judge Newman's constitutional challenges to her suspension.  Rather, expressly relying on the Kafka-esque aspects of these proceedings, the JC&D did not uphold Judge Newman's suspension because she is in any way cognitively or otherwise impaired but because her refusal to submit to being examined by the Committee's doctors amounted to "a serious form of continuing misconduct."  (Perceptive followers of this case will recognize that the September 2023 suspension was appealed to the Committee, which allowed it to stand in a February 2024 decision.  The September 2024 suspension has not yet been appealed to the Committee, although such an appeal is likely.)

With regard to the District Court's decision below, the brief notes that the District Court dismissed Judge Newman's challenge without deciding whether Judge Newman was correct that 28 U.S.C. § 354 was being applied to her "in an unconstitutional manner" and because the District Court "believed its rulings were mandated by [the D.C. Circuit Court's] decision in McBryde v. Committee to Review Circuit Council Conduct and Disability Orders, 264 F.3d 52 (D. C. Cir. 2001).

The brief makes two arguments:  first, that Judge Newman "is entitled to bring her constitutional claims before an Article III court," and second that "the Judicial Council of the Federal Circuit violated separation-of-powers principles by removing Judge Newman from her judicial powers for an indefinite period of time."

Regarding amici's first argument, the brief asserts that the remainder of the Federal Circuit judges "cannot" overcome the "strong presumption" that Judge Newman is entitled to judicial review of the Judicial Council's actions in suspending her from her position on the Court.  The exercise of jurisdiction by the federal courts "has always served as a critical safeguard of individual liberties" and provided "a vital check against the modern administrative state," their brief asserts.  The Founders envisioned the "importance of an independent judiciary to protect constitutional rights and prevent government abuse" according to the brief.  This importance was recognized (and procedurally facilitated) by Congress in enacting a broad jurisdictional statute (28 U.S.C. § 1331).  Acknowledging that Congress has the power to limit such jurisdiction the brief asserts that "courts have been very reluctant to interpret federal statutes as barring jurisdiction over constitutional claims because of the threat to liberty posed by any such interpretation," citing Johnson v. Robison, 415 U.S. 361, 366 (1974).  The District Court held that § 357(c) "clearly and convincingly" evinced Congress's intent to preclude Judge Newman's "as-applied constitutional claims" but amici argue that this section of the statue "says nothing about whether its limitations on judicial review of Judicial Council actions apply to constitutional claims—whether facial or as-applied."  This is not the "explicit reference" to such jurisdictional limitations concerning constitutional questions that Robison requires to preclude judicial review (citing the Supreme Court's decision in Demore v. Kim, 538 U.S. 510 (2003), for the same principle).  The brief emphasizes the "serious constitutional dilemma" that the District Court's decision raises, i.e., that Judge Newman has no recourse in any forum to seek redress for her constitutional injury should the Court her uphold the District Court's decision in light of the JC&D's taking the position that it will not decide constitutional questions.  Making a reductio ad absurdum argument to illustrate the resulting predicament, the brief posits that Judge Newman would have no recourse to challenge their constitutionality should the Judicial Council or JC&D render decisions by a "flip of a coin" or by "subject[ing] Judge Newman to 'trial by ordeal.'"  The statute's very silence is evidence that Congress did not intend this result in enacting § 357(c), according to amici.

In their second argument, amici assert that the District Court erred in relying on McBryde v. Committee to Review Circuit Council Conduct and Disability Order to support its decision to dismiss.  First, the brief argues that the McBryde decision arose in a different factual context.  Specifically, the sanctions imposed by the Judicial Council had in large part expired and so were moot.  While McBryde held that "§357(c) preclude[d] judicial consideration of as-applied constitutional challenges to Judicial Council public reprimand," it was "not a bar to all consideration of constitutional challenges to Judicial Council orders."  But "[n]either of those holdings has direct application to the issue presented here" according to the brief, which is "whether Judge Newman may bring an as-applied challenge to Appellees' efforts to remove her from the federal bench."  Accordingly, the District Court's reliance on McBryde to support its decision to dismiss was improper.  The brief also notes specific "passages" from the McBryde decision that support Judge Newman's complaint, wherein some of these satisfy judicial review for more serious grounds for dismissal (albeit admitting that "a long-term disqualification from cases" could amount to unconstitutional removal).  The brief also asserts that the District Court did not draw a "bright line" or provide any indication of the distinctions to be drawn between constitutional claims that are subject to § 357(c) and ones that are not; the absence of such an effort makes implausible the District Court's conclusions regarding Judge Newman's challenge.  In addition, the brief cites to a statute (the 21st Century Department of Justice Appropriations Authorization Act, Pub. L. No. 107-273, Div. C, Title I, Subtitle C, § 11044, 116 Stat. 1758, 1856 (Nov. 2, 2002)) enacted one year after the McBryde decision "expressly acknowledged [that] the Disability Act is subject to as-applied constitutional challenges."  Amici find the District Court's response to the existence and interpretation of this statute to be "nonsensical."  Even the distinction purportedly rendered in McBryde between facial and as-applied constitutional claims "has not stood the test of time" according to amici, evidence thereof including the Supreme Court's refusal (or non-recognition) that even suggested that the strength of any "strong presumption" of whether constitutional claims are reviewable depends on whether they are facial or as-applied, citing Demore.

Turning to the brief's argument that the Judicial Council violated separation of powers principles in removing Judge Newman constructively, the brief asserts that the conclusion that this was exactly what has happened is borne out by the facts.  Long-term deprivation of Judge Newman's judicial authority is "impossible to distinguish from an outright removal from office given her advanced age" (the first mention of this "elephant in the judicial corner" in the brief).  The brief reminds the Court that the Constitution provides that federal judges shall "hold their offices during good behavior" and they can be removed from office only through a vote of impeachment by the U.S. House of Representatives and a trial and conviction by the Senate under Art. I, § 3, cl. 6.  The brief asserts that the Judicial Council of the Federal Circuit violated the Constitution by "impinging on [impeachment] powers delegated solely to the Senate" (emphasis in brief).  At a minimum, amici argue, Judge Newman is entitled to have the Court reverse the District Court's dismissal of Counts II and III relating to these constitutional questions (see "Judge Newman and the On-Going Attempts to Remove Her from the Federal Circuit") (the brief also asserting a challenge to the Judicial Council and Judge Newman's colleagues on the Court to provide "substantial evidence that Judge Newman is not actually subject to an indefinite suspension").  The brief rejects the Judicial Council's justification for the suspension as being "a serious form of continuing misconduct."  If that is indeed the case, amici assert that the proper course of conduct is "to refer the matter to Congress for possible impeachment and trial, [but w]hat they may not do is take it upon themselves to effectively remove Judge Newman from office by suspending her indefinitely."

This is not just an issue limited to one Circuit Court judge (no matter how unjust it may appear to be).  The brief recites "particular[] concern[]" regarding "the threat to judicial independence posed by Appellees' alleged actions" and returns to the theme of Judge Newman providing dissents without regard to whether they might provoke resentment, exasperation, or animosity from her colleagues, and the benefits that have accrued by her willingness to be faithful to her view of the law.  The risk is that "[i]f the Federal Circuit Judicial Council succeeds in shutting down Judge Newman without going through the constitutionally prescribed process for removing Article III judges from office, other judges may conclude that they should hesitate to act boldly in defense of justice for fear of the adverse consequences of doing so."  The brief cites the Supreme Court for evidence of the importance of avoiding such a consequence:

[I]t is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequence to himself.  Liability to answer to every one who might feel himself aggrieved by the action of the judge, would be inconsistent with the possession of this freedom, and would destroy that independence without which no judiciary can be either respectable or useful.

citing Bradley v. Fisher, 80 U.S. 335, 347 (1871) and Pierson v. Ray, 386 U.S. 547, 554 (1967).

The brief concludes with the exhortation that confidence in their ability to follow their views on the law requires "[a]dherence to the constitutionally prescribed impeachment process" because it "ensures that Article III judges can feel confident that their rulings will not endanger their job security and that they cannot be removed from office except through a rigorous process that entitles them to raise all plausible defenses before an impartial Senate jury."

D.C. Bar Association File Amicus Brief in Newman v. Moore et al.

By Kevin E. Noonan —

It has been a remarkable feature of the Federal Circuit's suspension of the Honorable Judge Pauline Newman that few have taken a stand publicly on the propriety of the suspension (something the Judge herself recently mentioned; see "An American (and Entirely Unnecessary) Tragedy").  That has now changed, with the D.C. Circuit Court of Appeals receiving amicus briefs from four separate groups submitted in support of Judge Newman's challenge.  These amici ask the Court to reverse the District Court's dismissal of her lawsuit challenging the Judicial Council's actions on, inter alia, Article III and due process grounds.  Another one of these amicus briefs is discussed herein, submitted to the Court by the District of Columbia Bar Association.

The brief begins with reciting what has perhaps become Judge Newman's preeminent judicial distinction, the frequency of her dissenting from her colleagues' opinions and how frequently her views have been vindicated, including by citations to those dissents in Supreme Court opinions reversing the Federal Circuit.  This combination of judicial independence and a propensity for her views to be legally correct, in light of her "indefinite suspension" deprives our legal community of an experienced and fiercely independent voice in the ongoing weaving of the tapestry of caselaw at the Federal Circuit" and amounts to an impeachment, which being effected by the Judicial Council circumvents the Constitution, the brief asserts.  The brief also asserts that there is "widespread, but silent, support" for the Judge, and a concomitant fear ("justified or not") that such support if voiced publicly might "adversely impact [their] own appeals before [the Federal Circuit]" (itself a somewhat damning indictment).  But to the extent this is current reality of the relationship between the Court and the patent bar, this dishonest silence "underscores why this Court should approach with skepticism the suspension and Appellees' refusal to transfer the complaint against Judge Newman to another circuit's judicial council."

Amounting to a mere 548 words, the brief, unfettered by discussion of the underlying legal basis for assessing competency amongst the federal judges making up the judicial branch of the government, it in some ways provides the most powerful advocacy for the D.C. Circuit Court to rectify the current situation.

Academics and Other Experts File Amicus Brief in Newman v. Moore et al.

    By Kevin E. Noonan —

It has been a remarkable feature of the Federal Circuit's suspension of the Honorable Judge Pauline Newman that few have taken a stand publicly on the propriety of the suspension (something the Judge herself recently mentioned; see "An American (and Entirely Unnecessary) Tragedy").  That has now changed, with the D.C. Circuit Court of Appeals receiving amicus briefs from four separate groups submitted in support of Judge Newman's challenge.  These amici ask the Court to reverse the District Court's dismissal of her lawsuit challenging the Judicial Council's actions on, inter alia, Article III and due process grounds.  Another one of these amicus briefs is discussed herein. 

The amici here include:

• The Manhattan Institute, a "nonprofit policy research foundation whose mission is to develop and disseminate ideas that foster individual responsibility and agency across multiple dimensions."

• Dean Pinkert, an "international trade and human rights consultant, whose projects range from labor practices in U.S.-facing supply chains to trade remedies and intellectual property."

• Steve C. Charnovitz, who is on the faculty of George Washington University Law School and who "writes on international trade, foreign relations law, and environmental sustainability."

• Rochelle Dreyfuss, emerita law professor at the NYU School of Law whose scholarship focused on patent law and the Federal Circuit.

• Brian Dean Abramson, "a leading expert on vaccine law."

• Andrew C. Michaels, associate professor of law at the University of Houston Law Center who specializes in intellectual property law.

• Hugh Hansen, emeritus professor of law at Fordham Law School.

• Howard Knopf, a retired Canadian lawyer.

These amici assert that the legitimacy of the judiciary "relies on its ability to resolve disputes impartially and maintain public confidence in its integrity."  In instances such as the one before the Court, the law contains "structural safeguards," like transferring a case to a different circuit to "ensure that disciplinary proceedings are both impartial and perceived as fair," the latter effect being "essential."  These amici characterize the allegations raised against Judge Newman to be "precisely the type of circumstances that demand such precautions."  The manner in which these proceedings have been conducted in this case "create a risk of impropriety or the appearance of bias if the case were to remain within the circuit," amici assert.

The brief's first argument is that "history and case law suggest" that an accused judge not be tried by her colleagues on the court, which is particularly the case where, as here, some of these colleagues are the judge's accusers.  The brief reminds the Court that until recent times the only mechanism for disciplining a federal judge was impeachment, citing United States v. Claiborne, 727 F.2d 842, 845 (9th Cir. 1984), and McBryde v. Comm. to Rev. Cir. Council Conduct & Disability Ords. of Jud. Conf. of U.S., 264 F.3d 52, 66 (D.C. Cir. 2001).  Amici consider there to have been "good reason" for this, inter alia, to avoid "overreach" by different branches of government against other branches (protections particularly important to the judiciary; to paraphrase Stalin, "how many divisions [of troops] do judges have"?).  Being entitled to such protection depends, according to the brief, on judges deserving the benefits thereof, and entitlement depends on the judiciary's integrity remaining "beyond reproach."  Because there are instances where a judge's past conduct, while not amounting to impeachable conduct needs correction, and in other instances where methods for alternative relief are necessary, as evidenced by decisions that "highlight[] how the role of the judicial council is to provide administrative remedies in the absence of judicial relief," citing Chandler v. Jud. Council of Tenth Cir. of U. S., 398 U.S. 74, 85 (1970).  Enactment of the Judicial Conduct and Disability Act showed that the court had the authority to effectively discipline federal judges for "conduct unbecoming or that reflected poorly on the integrity on the institution."  The Act contained provisions aimed at these protections, giving initial responsibility to the Circuit's Chief Judge.  But importantly. the Act provided, as these amici see things, proceedings that are "forward-looking and not punitive," citing  In re Complaints of Jud. Misconduct, 9 F.3d 1562, 1566 (U.S. Jud. Conf. 1993), and "inquisitorial and administrative" rather than "adversarial," the brief citing In re Memorandum of Decision of Jud. Conf. Comm. on Jud. Conduct & Disability, 517 F.3d 563, 567 (U.S. Jud. Conf. 2008).  And one provision ensuring "good behavior" in such circumstances is moving the proceedings to another circuit.

Here the Federal Circuit has ignored these built-in safeguards, amici assert.  Part of the implementation of the Act included establishment of a set of Judicial Conference Rules "designed to provide a mandatory and nationally uniform governing structure to the procedural aspects of judicial conduct and disability proceedings."  These may differ from circuit to circuit according to the brief, but it is the uniformity of the rules that stand out amici argue (the brief further stating that complaints such as this one are "the rarest type"; this conclusion stems from the information contained in a report, entitled Implementation of the Judicial Conduct and Disability Act of 1980: A Report to the Chief Justice, 22 (2006) by former Justice Breyer).  The brief walks through the typical procedural steps involved in evaluating a complaint against a judge, including early determinations of whether a complaint has merit and, if determined to be so the Chief Judge of the Circuit convening a special committee to further investigate (all these steps having been features of this investigation of Judge Newman).  Even these early procedural steps are rare, the brief stating that "only 25 out of 1,363 complaints in 2023 being referred to a special committee" according to Complaints Against Judges, U.S. Cts. (2024).  It is up to the judicial council from that circuit to decide whether to recommend public reprimand or other penalties (which can include recommending impeachment to the House of Representatives).

This is a recitation of the "ordinary course of events," according to the brief, and while it "may appear straightforward, there are structural concerns that give pause."  One such concern is a recognition that "the process for judicial discipline is built on the presumption of good-faith action by the investigating judges," which is usually ("the vast majority of cases") but not always true.  The need for such good faith "is a critical element because the chief judge acts as detective, prosecutor, and arbiter for the accused through the entire procedure" (statuses that Judge Newman has asserted in her complaint relating to due process deficiencies), citing McBryde.  Because there is this "potential for misconceived actions against a particular judge serving on the same circuit," the Rules contain provisions for transferring the matter to another circuit, or for the Chief Judge to recuse herself as safeguards.  But, the brief emphasizes, these steps are discretionary to the Chief Judge.  The brief provides illustrative examples (taken from the Breyer Report) and enumerates the benefits of such safeguards.  These include that "transferring cases eases internal tensions," citing In re Jud. Misconduct J.C. Nos. 03-20-90043 and 03-20-90044, 2 (Jud. Coun. Third Cir. 2021), and In re Charges of Jud. Misconduct, 769 F.3d 762, 763 (D.C. Cir. 2014).  Amici also assert that such transfers "preserve[] the public trust," using to illustrate "perhaps the highest-profile such instance in modern times, [wherein] 83 judicial-misconduct complaints against D.C. Circuit Judge Brett Kavanagh were transferred from the D.C. Circuit's judicial council to the Tenth Circuit's judicial council" in In re Complaints Under the Judicial Conduct and Disability Act, Nos. 10-18-90038 through 10-18-90112 (10th Cir. Jud. Council 2022).  Amici draw a comparison between these "unfounded complaints" (that were ultimately dismissed) with those against Judge Newman (the brief asserting "as those against Judge Newman should be [dismissed]").  The brief also notes the strong motivation of avoiding a perception of impropriety, citing transfer from the Ninth Circuit to the Second Circuit in a case of alleged sexual impropriety against "then-Judge Alex Kozinski in In re Complaint No. 17-90118, at 1 (2d Cir. Jud. Council Feb. 5, 2018)."  The brief also notes that "transfers for independent review are common in instances where public confidence and the perception of impartiality are in jeopardy," setting forth several other instances for illustration.

The brief concludes with confirmation by retired Federal Circuit Chief Judge Paul Michel of amici's "reading of the situation" with regard to the wisdom of a circuit transfer in this case.  The Chief Judge's views were set forth in an IP Watchdog article entitled Judge Newman's Suspension by the CAFC Has Marred Public Faith in the Federal Judiciary.  The brief states that in this article the former Chief Judge "raises timely concerns that should be taken seriously" and takes the opportunity (and word count) to set forth these comments in detail:

Normally, one would assume the chief judge's motivations are proper: simply to protect the court and litigants before it.  But the mere appearance of bias is regarded as being just as harmful to justice as actual bias.  Given Judge Newman's accounts of their interactions, at least the appearance of bias against her by the chief judge is hard to dismiss. . . .

Given the chief judge's apparent animus against Judge Newman, how can she herself be regarded as an impartial adjudicator?  Even the impartiality of the other judges may be questioned if, like the staff, they were perhaps fearful of adverse consequences if they failed to support the wishes of the chief judge.

No one, I suggest, can confidently untangle these diametrically opposing versions of the truth without a trial-like proceeding.  And, so far, that has been repeatedly denied by all the external authorities who have looked at this case.

Finally, all should be able to agree that the disputed facts should be decided by a neutral body.  Such neutrality must be beyond question for the sake of faith in the courts by litigants and the public alike.  That, after all, is the basis of judicial recusals.  Yet requests by Judge Newman to transfer the case to another circuit have all been rejected.  That alone is troubling. . . .

Getting the facts straight always lies at the heart of doing justice.  In this case, however, the relevant facts have yet to be established and verified.  In its brief filed in the district court, the Federal Circuit wrote that all the disability charges were "moot", removing these charges from the district court.  Yet, Judge Newman was not returned to judicial service, and she has now been "suspended" for a second year, on the same charge of "failure to cooperate."

Judges from around the country anxiously ask me regarding the actions taken against Judge Newman: "What's going on with the Federal Circuit?"  Is it not time for some outside authority to intervene and to end this impasse before it further undermines the credibility of the Federal Circuit, and potentially the entire judiciary?

It should go without saying that amici here wholeheartedly agree with former Chief Judge Michel and request that the Circuit Court reverse the judgment of the district court and "render a judgment indicating a need to transfer the underlying proceedings to another circuit."  This judgment "would obviate any concerns about impartiality arising from internal tensions within the Federal Circuit and begin to remedy the damage being done to the rule of law by Judge Newman's arbitrary suspension," amici assert.

By Kevin E. Noonan —

The Honorable Pauline Newman, Circuit Judge for the U.S. Court of Appeals for the Federal Circuit, has been battling her suspension from the Court imposed by the Judicial Council for two years (including proceedings leading up to the suspension; see "Judge Newman and the On-Going Attempts to Remove Her from the Federal Circuit"; "Judge Newman Matter Continues"; "Federal Circuit Special Committee Responds to Judge Newman's Counsel's Request for Clarification Regarding Misconduct Hearing"; "Federal Circuit Special Committee Recommends One-Year Suspension of Judge Newman"; "Judge Newman Suspended for One Year by Federal Circuit"; "Judge Newman's Suit Continues";  "Special Committee of the Judicial Council of the Federal Circuit Replies").  Recently, her efforts came to naught, as the D.C. District Court dismissed her suit against her colleagues (see "Judge Newman's Suit Comes to an End") and the Judicial Counsel renewed her suspension for another year (see "Special Committee's Suspension Recommendation Adopted by Federal Circuit; Judge Newman Suspension Renewed").

Judge Newman has tenacity as a strong character trait and this is evidenced by her filing an appeal with the D.C. Circuit Court of Appeals earlier this month.  While the Judge asserted several grounds for challenging her suspension before the District Court (including due process violations and procedural irregularities), her appeal to the Circuit Court has winnowed those challenges to one, that the suspension is unconstitutional, wherein if her brethren wished to remove her from the court the proper avenue was to ask the House of Representatives to impeach her.

The brief extols Judge Newman for her six decades of making contributions to U.S. patent law, turning considerations of her age from a liability to a unique strength (Judge Giles Sutherland Rich is perhaps the only jurist having a longer tenure of such contributions).  These contributions include work with UNESCO, the State Department, work on revisions to the Paris Convention, as an advocate for creation of the Federal Circuit, and of course her forty years on that Court.  During that time, the brief asserts that the Judge has published "over 2,000 majority, concurring, and dissenting opinions," with her dissents "hav[ing] been routinely vindicated by the United States Supreme Court,  . . . as recently as this year."  Providing succinct rebuttal to allegations of intellectual infirmity (the supposed predicate for investigations leading to her suspension), the brief cites "both lay and expert witnesses" attesting to the contrary (she is an "unusually cognitively intact . . . woman" who appears "20 or more years younger than her stated age").  "Nevertheless," the brief maintains, the evidence of the past 18 months show the Judge has been "functionally removed from office" and such removal "without impeachment is wholly inconsistent with the Framers' carefully calibrated system of checks and balances."  Accordingly, Judge Newman argues that either the application of the Disabilities Act in this case or the Act itself is unconstitutional.

The brief sets forth the history of the proceedings that have led to the current situation (substantially as Judge Newman herself has presented them in public fora; see "An American (and Completely Unnecessary) Tragedy") in a narrative peppered in its text and footnotes with factual rebuttals of the alleged facts justifying the Judge's suspension.  The narrative also notes procedural idiosyncrasies if not irregularities, such as her assertion that "[t]his was the first time in the history of the Disability Act that a complaint against a circuit judge which proceeded to the committee investigation stage was kept within the same circuit" ("[d]espite Judge Newman's requests"), suggesting the existence of animus or perhaps a lack of certainty about the strength of the allegations against the Judge.  Addressing her refusal to provide the "hospital records, medical, psychiatric or psychological, and other health-professional records that relate to" the alleged "heart attack" and a "fainting episode," as well as all "hospital records and medical, psychiatric or psychological, or other health-professional records of any treatment or consultation in the last two years regarding attention, focus, confusion, memory loss, fatigue or stamina" the brief provides a simple explanation:  none of the events comprising these "false allegations" ever happened according to Judge Newman so she could not provide evidence that does not exist.  Evincing an inclination to appropriately cooperate, the brief asserts that Judge Newman did provide expert reports by clinicians of her choosing that support her contention that there has been no basis for allegations of diminished mental or intellectual capacity.  Without any rebuttal expert testimony or evidence, the Judicial Council imposed a suspension in September 2023 which was renewed in September 2024 according to the brief (and the records of the proceedings before the Judicial Council).

The brief also provides a short discourse on proceedings before the District Court (necessarily short in view of that court granting the Judicial Council's motions to dismiss), including a synopsis of Judge Newman's arguments relevant to the positions she takes before the Circuit Court.

The brief asserts three bases for the Court to overturn Judge Newman's suspension:

• "First, this Court should invalidate the Disability Act's remedies provision as unconstitutional on its face or provide a limiting construction that renders it constitutional."  This argument is based on limitations to the Disability Act to suspensions for "a temporary basis for a time certain" precluding a judge from being assigned no new cases, as opposed to the total preclusion under Judge Newman's suspension from all cases, including ones for which she has already participated in panels.  "No judicial council has ever issued an order that effectively prevents a judge from performing all judicial functions," the brief contends.

• "Second, assuming the Disability Act is given a constitutional construction, it authorizes only suspensions that are, in the Disability Act's plain words, 'for a time certain' and 'temporary.'"  The current behavior of the Judicial Council of imposing upon the Judge repeated one-year suspensions is contrary to the plain language of the Disability Act and provides a basis for the Circuit Court to reverse the Judicial Council's order according to the brief.

• "Finally, this Court should exercise jurisdiction over Judge Newman's 'as applied' challenges.  In those challenges, she contends that the nature of her suspension violates the Constitution and the Act, and that the Judicial Council proceeding itself violated Due Process of Law because, among other conflicts, its members are fact witnesses."  The district court held it did not have jurisdiction for these allegations under McBryde v. Comm. to Rev. Cir. Council Conduct & Disability Ords. of Jud. Conf. of U.S., 264 F.3d 52, 54 (D.C. Cir. 2001), which the brief argues was error.

Regarding Judge Newman's constitutional arguments, the brief sets forth the constitutional status of Article III judges as members of a co-equal branch of the Federal government and the importance of ensuring judicial independence.  One aspect of this status is the capacity and opportunity to "exercise judicial power" (which, if it means anything must include "the ability to perform routine judicial functions such as hearing cases, and ruling on the controversies brought before the court"), the brief citing Supreme Court precedent from 1823 (United States v. Maurice, 26 F. Cas. 1211, 1214 (C.C.D. Va. 1823)) to 2018 (Lucia v. SEC, 585 U.S. 237, 270 (2018) (Sotomayor, J., dissenting)) consistent with this definition.  And from Marbury v. Madison the "exercise of judicial power" has been the exclusive province of the judiciary, specifically "the persons [Judges] to whom is delegated the judicial Power of the United States" (emphasis in brief).  This status and its prerogatives have been consistently applied the brief asserts, citing "historical and modern practice" against "administrative suspensions from judicial office."  And this is precisely what has occurred to Judge Newman who has been prevented under an administrative statute (the Disability Act) from performing any judicial work (not just hearing cases) and that "the entirety of her constitutional 'duties' have been reduced to 'receiv[ing] emails from various court departments, including HR, Circuit Librarians, the Administrative Services Office . . . regarding network outages, server patches, new equipment upgrades, and the new International IT access policy,' and being invited 'to various court-related social events.'"

The history of courts dealing with disabled judges has not been suspension, the brief argues, but providing additional help (inter alia, from other judges in the performance of the work of the court).  Importantly, in earlier instances such additional help was relied upon when a disabled judge could not perform his duties, but the judge retained the capacity to perform those duties when able.  The crux of this portion of the argument is what the purportedly disabled judge chose whether or not to perform those judicial duties; they were not taken from such judges against their will (as has happened here).  "It was well understood that the power to decide whether or not to exercise the judicial office to which one was duly appointed for life rested with the judge himself, and not with his colleagues" according to the brief (the power to remove a judge "derelict in his duties" remained with Congress through impeachment).  Uniform recognition of the constitutional unsoundness of a Judicial Council suspending a judge from the exercise of her judicial office is supported by historical precedent, the brief reminding the Court that "in twenty-six years not a single federal judge was involuntarily suspended from her judicial functions as punishment for any misconduct" (citing the Breyer Report, Implementation of the Judicial Conduct and Disability Act of 1980, Report to the Chief Justice of the Judicial Conduct and Disability Act Study Committee, 239 F.R.D. 116, 143 (Sept. 2006), as well as the history of exercise of the Disability Act in other Circuits).  This history of the exercise of Judicial Council's authority regarding the exercise of a disabled judge's judicial power is one where judges voluntarily decided to temporarily do so.  In addition, the brief notes that even in instances where a judge's power to exercise his judicial office was diminished it did not result in "complete divestiture" of the power to adjudicate cases (citing instances in the Fifth, Seventh, Ninth, and Tenth Circuits; it might be noted that all of these cases involved district court judges).  A good reason for earlier Judicial Council's reticence to do so, the brief contends, is "that such an action traduces the House's sole power of impeachment and the Senate's sole power to try impeachments, and is therefore unconstitutional" (emphasis in brief).

Judge Newman's brief sets out a jurisprudential pathway for the Circuit Court to rule in her favor without totally upsetting the administrative applecart providing a route for fairly  dealing with truly disabled judges.  The brief argues the issue is one of statutory construction to avoid a constitutional question (which was one basis for the decision below, which relied on a narrow construction of the Disability Act to dismiss Judge Newman's facial challenge of the law), citing Dimmitt v. City of Clearwater, 985 F.2d 1565, 1572 (11th Cir. 1993).  The brief calls this a "cardinal principle" under Crowell v. Benson, 285 U.S. 22, 62 (1932), and Commc'ns Workers of Am. v. Beck, 487 U.S. 735, 762 (1988), and paints it as a choice for the appellate panel.  But make no mistake, the brief casts this as a choice, and if the Circuit Court cannot find an amenable way to narrowly construe the Act then it must render a decision regarding it constitutionality the Judge contends.  And, the brief asserts, "the upshot is that under either approach, judicial councils lack the power to suspend a judge from the exercise of all her judicial functions" (emphasis in brief).

The narrowing limitation the brief suggests is to "authorize judicial councils to limit, 'on a temporary basis for a time certain' [under] 28 U.S.C. § 354(a)(2)(A)(i), a judge's docket, but not to completely revoke a judge's ability 'to exercise judicial power.'"  This approach has the advantage, according to the brief, that it would not disturb earlier decisions in other judicial disability cases (where, as Judge Newman's brief asserts other Judicial Councils had not overstepped the scope of the suspensions they handed down), and would be "consistent with judicial councils' long-standing understanding of their own powers as well as statutory and constitutional limits on those powers" (emphasis in brief) (reinforcing the point).  Should the Court take this approach, Judge Newman states that this would "recognize that an order that fully divests a judge from judicial functions is well outside the Act's statutory limits," that the Federal Circuit's Judicial Council had never been "clothed with authority to deprive Judge Newman against her will of the 'power to hear and determine judicially questions submitted,'" and accordingly, the Court should issue a declaratory judgment or injunction on her behalf.

The brief considers the alternative (wherein the Circuit Court does not construe the Disability Act narrowly), which is that the Act is unconstitutional.  This conclusion follows directly from separation of powers principles and that it necessarily involves the Judge's ability to exercise judicial power, which is "the power to perform routine judicial functions such as hearing cases, and delivering judgments."  Permitting unlimited suspensions as has happened against Judge Newman substitutes ("abrogates") an administrative order for the "constitutionally prescribed impeachment process."

The brief then considers the consequences of the Circuit Court holding that the suspension provisions of the Disability Act to be constitutional, and argues that in that case only time-limited suspensions having a definite end date are authorized by the Act under its plain meaning (from the statutory provisions that such suspensions are permitted "on a temporary basis for a time certain" and limited to the judge being assigned no new cases) under 28 U.S.C. § 354(a)(2)(A)(i)).  In this regard, the brief sets out canons of statutory interpretation for a definition that whatever these provisions may mean they do not include the unlimited suspension imposed on the Judge.  Under a plain meaning interpretation, the brief argues that "Judge Newman's suspension from judicial duties must have a definitive end date" and that "[t]he order that permits renewed suspensions until Judge Newman submits to medical testing is therefore ultra vires and in excess of Defendants-Appellees' statutory authority."  (Ironically, the Judicial Council opposes this interpretation because it would permit a judge under suspension to "wait the committee out, thwart the functioning of the Act, and be free and clear of any consequence for ongoing misconduct after a single year."  But even if the Court gives credence to this argument, Judge Newman counters that "it is long-settled that courts are obliged to give statutes their plain and ordinary meaning even where it may lead to unwelcome results," citing Lamie v. U.S. Tr., 540 U.S. 526, 534, 538 (2004).  What the Judicial Council ignores is the fact that, should this occur, the Council's remedy is to refer the matter to the House of Representatives for impeachment proceedings to commence according to Judge Newman.)

Finally, Judge Newman's brief argues that the D.C. Circuit has jurisdiction to consider "as applied" challenges (another basis for the district court's dismissal, relying on McBryde).  This portion of the brief is based on explication of 28 U.S.C. § 357, which the brief argues does not preclude review of all orders issued even if some such issues fall within its proscriptive purview.  This is because there is "a fundamental principle of administrative law" that courts "shall [i.e., must] hold unlawful and set aside agency action . . . found to be in excess of statutory jurisdiction, authority, or limitations" under 5 U.S.C. § 706(2)(C), as held in Cuozzo Speed Techs. v. Lee, 579 U.S. 261, 275 (2016), and Wallace v. Christensen, 802 F.2d 1539, 1551 (9th Cir. 1986) (en banc).  This is the case, the brief argues, even when such an order is "final and not appealable" because the reviewable question remains whether the agency "act[ed] outside its statutory limits," citing SAS Inst. v. Iancu, 584 U.S. 357, 370-71 (2018) (the brief using here the analytical rubrics as set forth in SAS).  As for McBryde, the brief asserts error below because exceptions to that decision include situations where "a long-term disqualification from cases . . . , by its practical effect, affect[s] an unconstitutional 'removal,'" 264 F.3d at 67 n.5 [which is] precisely the situation Judge Newman finds herself in.  McBryde does not empower the Judicial Council to "string[] together and indefinitely extend[] numerous suspensions" as the Judicial Council of the Federal Circuit has done here, Judge Newman argues.  Interpreting McBryde as broadly as the Judicial Council has here and the District Court held below "would leave certain decisions of judicial councils entirely beyond review" the brief contends, citing Weinberger v. Salfi, 422 U.S. 749, 762 (1975).

Without expressly raising the types of extensive due process arguments made below, the brief asserts that "Judge Newman enjoys a right to a judicial review of unlawful agency actions" as do all citizens, even if certain aspects, such as whether the Judicial Council's actions are "arbitrary and capricious," are not available to her.  In the context of interpreting the McBryde decision, the brief argues that the District Court held outside its jurisdiction Judicial Council acts such as refusing to transfer this matter to another circuit, despite the Judicial Council taking on the roles of "witness and adjudicator," and "investigator and litigant," which constituted a due process violation without a remedy from a reviewing court.  Regardless, the brief argues that the McBryde decision has been "overtaken by events" and is no longer good law for what it was advocated by the Judicial Council and applied by the District Court.

As evidenced by Judge Newman's recent public remarks, the Judge apparently has no intention of "going way quietly."  On the contrary, the Judge seems to intend to continue her opposition to suspension by the Judicial Council for as long as it takes or time permits.