An inevitable and tragic outcome

By Kevin E. Noonan —

Congress in writing laws is faced with a dilemma.  On the one hand the laws must be sufficiently clear and specific to enable enforcement, but on the other, the myriad of circumstances that can arise make it impossible to delineate with sufficient prescience the multitude of situations that can fall within the scope of the statute.  Courts are the usual arbiters of how the law should be interpreted and applied, under Marbury v.  Madison and 230 years of subsequent precedent.  The question of what happens when it is the court itself whose practices and procedures are at issue has arisen in Judge Pauline Newman's challenge to her suspension under the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980.  As set forth in the D.C. Circuit Court of Appeals opinion against that challenge, the Court decided that its hands were tied by the statute itself (as interpreted by the Court under McBryde v. Committee to Review Circuit Council Conduct & Disability Orders of the Judicial Conference of the United States, 264 F.3d 52 (D.C. Cir. 2001)), which held that "Congress precluded our jurisdiction over statutory and as-applied constitutional challenges to judicial council orders."  This was the decision even though in their opinion the Court states that "our reasons for affirming are unrelated to the strength of Judge Newman's statutory claim or as-applied constitutional claims.  Nor does our decision reflect our views of the underlying dispute or of Judge Newman's suspension."

The decision was ultimately jurisdictional, the panel deciding that their jurisdiction only extended to "Judge Newman's facial constitutional challenge to the Act's case suspension provision," which failed on the grounds that the challenged provision has applications that are constitutional (a rather "all or none" approach no matter how proper).  The statutory provision purportedly tying the Court's hands, § 357(c) entitled "No Judicial Review" states that "all orders and determinations, including denials of petitions for review, shall be final and conclusive and shall not be judicially reviewable on appeal or otherwise."  Which seems not only plain on its face but to express Congress's clear intentions, upon which the D.C. Circuit panel relied in affirming the District Court's dismissal of Judge Newman's as-applied constitutional claims and statutory claim for lack of jurisdiction.

Application of the law, and specifically § 357(c), is governed by Supreme Court precedent, particularly Webster v. Doe, 486 U.S. 592, 603 (1988), where a statutory bar to judicial review should be upheld to preclude review of constitutional claims "only if there is clear and convincing evidence'" of Congressional intent, the opinion citing Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 308 (D.C. Cir. 2014).  The panel turned to McBryde in holding that this Circuit Court of Appeals had performed this judicial analysis and found sufficiently "clear and convincing" evidence to uphold the bar to Judge Newman's constitutional challenge.  In particular, the Court in McBryde held that there was insufficient evidence of Congressional intent regarding facial challenges to the statute's constitutionality, but there was sufficient evidence to do so regarding "as applied" challenges. It was in this latter category to which the Court understood Judge Newman's challenges reside.  And the judges on the panel recognized that they are bound by the earlier decisions of the Court unless overturned by "intervening Supreme Court precedent."

The opinion then turns to Judge Newman's arguments that the Supreme Court has effectively overruled McBryde, specifically (and fittingly) in SAS Institute, Inc. v. Iancu, 584 U.S. 357 (2018), asserting that the Supreme Court's decision "suggests that even an explicit statutory bar cannot preclude judicial review of claims that an agency exceeded its statutory authority."  (It is necessary to consider in this argument the mention in an earlier footnote that "our court has treated judicial councils and the Judicial Conference as administrative rather than judicial bodies," which makes this citation germane.)  The panel was unpersuaded by this argument, because they discerned as a distinction that in SAS the statutorily preclusion was with regard to "whether to institute an inter partes review" (emphasis in opinion) whereas the challenge was directed to "how the Director conducted his inter partes review" and thus outside the scope of the challenged statutory provision (35 U.S.C. § 314(d)).

The panel also rejected Judge Newman's argument that the addition of a severability clause to the statute in 2002 "expressly contemplates 'as applied' challenges to the Act being adjudicated in Article III courts," if only because its scope was generic and did not state that an Article III court could consider as-applied challenges.  Nor did the panel agree that the failure of the Judicial Conference to consider constitutional issues undermined the reasoning in McBryde's that the Judicial Conferences themselves could or would consider these issues (the panel recognizing that the Judicial Conference here pointedly declined to consider Judge Newman's constitutional challenges).

Finally, the Court refused Judge Newman's recourse to Axon Enterprise, Inc. v. FTC, 598 U.S. 175 (2023), and Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (2010), to the extent that Judge Newman argued those cases "held that all constitutional questions 'are outside the scope of agencies' expertise' and so must be reviewable in federal courts."  But "neither case involved an explicit jurisdiction-stripping provision like Section 357(c)" (emphasis in opinion); in those cases the preclusion was implied according to the Court, and in such cases the standard is not a clear and convincing evidence of Congressional intent.

The opinion then addresses the deficiencies of Judge Newman's reasoning to as-applied challenges.  These included a footnote in McBryde that the Judge contended evinced an opinion that a court would have jurisdiction over as-applied challenges should they arise.  This opinion terms this reading of McBryde to be "implausible" in view of the remainder of the McBryde opinion. Similarly the panel dismissed Judge Newman's argument that McBryde (nor the statute) did not preclude her due process claims or the Judicial Conference's refusal to transfer her case to a different circuit, because "Judge Newman may be right that the Act provides no means to petition the Conference for interlocutory review of the Council's transfer decision.  But the Act does provide for Conference review of any final council action stemming from a case that was not transferred," which Judge Newman unsuccessfully attempted to employ.

Having explained the portions of Judge Newman's arguments over which the Court did not have jurisdiction the opinion turned to those that it does, the Judge's facial challenge to the statute's case-suspension provisions.  The panel acknowledges the difficulty in prevailing in such challenges.  The most determinative of these difficulties is Judge Newman's acknowledgment that there are applications of the statute that pass constitutional muster, where a facial challenge demands that there be no such circumstances or applications.  In this portion of the opinion, the Court sets forth those concessions and their effect on the Judge's arguments, including that "short suspensions from receiving new case assignments" are constitutional under certain circumstances.  But Judge Newman has not been able to show "no set of circumstances . . . under which the law would be valid" or that it "lacks a plainly legitimate sweep," citing Comm. on Ways & Means v. Dep't of Treasury, 45 F.4th 324, 339 (D.C. Cir. 2022).  And ("indeed") the panel appreciates that Judge Newman did not attempt to make this showing, rather arguing that how the statute was applied to her was unconstitutional.  Somewhat unkindly, the opinion states that the Judge's argument "misunderstands the law governing facial constitutional challenges" at least in this context (begrudging that in other contexts, such as the First Amendment, "statutes may sometimes be deemed facially invalid where only a subset of their applications are unconstitutional," citing United States v. Hansen, 599 U.S. 762, 769 (2023), and stating that this is a special case due to the importance of constitutionally protected speech).  The Court also dismissed Judge Newman's invitation to adopt a "narrowing construction" of the statute because in order to properly do so the panel states that first Judge Newman would have had to raise "a serious constitutional question," which, in their view, Judge Newman has not done.

The opinion ends with two points the panel sought to emphasize.  The first is that they did not (and assert that they could not) consider the merits of Judge Newman's as-applied constitutional claims.  In an apparent nod towards the respect Judge Newman has certainly earned, the Court states that "Judge Newman has posed important and serious questions about whether these Judicial Conduct and Disability Act proceedings comport with constitutional due process principles and whether her ongoing suspension comports with the structure of our Constitution" and that their failure (or more correctly refusal) to address those questions "is no indication that her arguments lack merit, nor signals how we might have addressed them if we were able."  Their hands are tied, according to the opinion, because "precedent strips us of authority to consider those challenges," which is the only reason the panel did not address them.

The second point is a reiteration that the panel was unable to overrule McBryde but nevertheless the Court recognizes that there are reasons to think that case was wrongly decided.  One reason is that the "seeming absence of a judicial forum to address [Judge] Newman's as-applied constitutional claims itself raises constitutional concerns."  The opinion states that "Judge Newman presents substantial arguments that her suspension—which has now lasted nearly two years, with a third year recommended—threatens the principle of judicial independence and may violate the separation of powers" as well as the due process violations Judge Newman asserted and the Court did not reach.  But as it stands under the law, Judge Newman cannot raise her as-applied constitutional arguments before any Article III court and is left at the consideration (if not mercy) of the Federal Circuit Judicial Council and Judicial Conference.

In a footnote, the opinion speculates that Judge Newman may have the option of asking the Supreme Court to review the Judicial Conference orders under a writ of mandamus, but the Circuit Court deigned not to express an opinion on this possibility.

Under the circumstances, it appears that Judge Newman has three options remaining:  to succumb to the demands of the Judicial Council to submit to medical and psychological testing by doctors not of her choosing; to continue in limbo under suspension; or to step down from the bench.  No one but the Judge herself can provide any relevant counsel.  But the circumstances under which the current situation has arisen and persisted can certainly and properly be decried and the Judge herself be wished Godspeed.

By Kevin E. Noonan —

Inexorable, inevitable, and regrettable are three words that come to mind with publication from the Report from Special Committee of the Federal Circuit (composed of Chief Judge Moore and Judges Prost and Taranto) containing, inter alia, their recommendation that suspension of Judge Pauline Newman be extended for yet another year.

The basis for the sanction remains the same:  that Judge Newman's continued refusal to submit to the Special Committee's appointed physicians is judicial misconduct.  The Report is 95 pages in length and sets forth those spurned physicians' justifications for arguing that their examination (and not Judge Newman's own qualified physicians') are required.  Those arguments include that "[t]he Committee finds that this extensive record leaves no room for doubt:  Judge Newman, now 98 years old, needs a full neuropsychological battery of tests in order for the Committee to determine whether she is capable of performing the functions of an active federal judge" (the reference to the Judge's age not being close to coincidental).  The Report strongly suggests that the report by Judge Newman's physician (Dr. Rothstein) on her neurological health is less robust that presented in her attorney's arguments.  The Report also cast doubts on Dr. Carney's opinion regarding Judge Newman's neurological fitness to serve.  And the Report asserts that "[a]ll three" of the Committee's experts "explained, in detail, that, contrary to the assertions made by Judge Newman's expert, Dr. Filler, it is not an accepted diagnostic approach in the field to use a CT perfusion scan to determine whether or not an individual suffers from a cognitive impairment" (supplemented by additional allegations of professional incredibility on Dr. Filler's part, including mistakes regarding Judge Newman's fainting incidents).  The Report also includes evidence from the Judge's medical records of "memory impairment" issues as early as 2022 and that the Judge made "significant errors" in recounting her own medical history to her doctors in 2023 and 2024.

Of the evidence and testimony from "non-professional" witnesses, the Report mentions the "more than a dozen affidavits from court employees from nearly every court department" as raising "serious concerns" regarding the Judge's neurological health.  This evidence, while helping to paint a picture of the Judge being in cognitive decline is less relevant first for being lay testimony on a medical issue for which the witnesses are not competent to opine and second because the issue is not whether prudence suggests the Judge's neurophysiological state be assessed, but rather the Committee's insistence that Judge Newman comply with their demands that their physicians do the assessing.

The summary section of the Report ends by placing the blame for the current circumstances on the Judge, stating that "[y]ears of litigating this dispute could have been avoided if Judge Newman had acknowledged in 2023 that the neurologist she selected—Dr. Ted Rothstein—recommended that she have the more detailed neuropsychological testing and if she had followed his advice and acquiesced in having that testing."

The Report's conclusions contain three recommendations (characterized elsewhere in the Report as "recommended sanction for continuing misconduct"):

(i) that there is a reasonable basis to order full neuropsychological testing by a provider selected by the Committee;

(ii) that Judge Newman's continued refusal to cooperate with the Committee's investigation by undergoing that testing constitutes continuing misconduct; and

(iii) that the Judicial Council should renew the sanction of suspending Judge Newman from hearing cases for a period of one year.

As Judge Newman has maintained, following these recommendations could be considered to be a de facto impeachment of an Article III judge regardless of how it is presented.

The remainder of the Report provides an extensive recapitulation of the procedural and evidentiary background of this matter, specifically directed at evidence that casts doubt on the conclusions drawn by Judge Newman's experts, the validity of the testing they did perform, and whether they themselves evinced as much faith in those conclusions than has been represented they did in various court filings and briefs both before the Committee and in the lawsuit brought by Judge Newman in the D.C. District Court and Circuit Court (see "Judge Newman Files Appeal with D.C. Circuit").  Regarding the Committee's own experts, the Report provides their professional imprimatur on the insistence that Judge Newman submit to examination by them as "independent experts" based at least in part on the deficiencies alleged against the physicians picked by the Judge herself.  Finally, the Report attempts to rebut the anecdotal evidence by those who have heard Judge Newman speak during the term of her suspensions by stating that "[e]vidence suggesting that Judge Newman can speak coherently and fluidly does not undermine the need for testing."

Unless the D.C. Court of Appeals finds in Judge Newman's favor it can only be presumed that she has spent her last day as an active Judge on the Federal Circuit bench.