Two key amicus briefs were filed on Thursday, December 12, backing Judge Pauline Newman’s appeal to the U.S. Court of Appeals for the District of Columbia Circuit from the dismissal of her case against the Chief Judge of the U.S. Court of Appeals for the Federal Circuit (CAFC).

First, several law professors and a former International Trade Commission (ITC) commissioner joined the Manhattan Institute in submitting an amicus brief urging reversal of the district court’s judgment and a declaration that the CAFC’s proceeding against Judge Newman is unconstitutional for its failure to transfer the complaint to a different circuit initially. And six retired federal judges filed a separate brief urging the court to intervene because the Federal Circuit’s actions “directly challenge the independence of all federal judges.”

Newman filed her appeal on December 5. The district court’s July 2024 order dismissed the remaining counts in Judge Newman’s challenge to CAFC Chief Judge Kimberly Moore’s inquiry into her fitness to continue serving as a federal appellate judge. The appeal asks the court to address three questions:

1. “Is an Act that authorizes suspensions of a duly confirmed Article III judge from all judicial duties unconstitutional?
2. Do recurrent suspensions violate the Disability Act’s (to the extent that it is constitutional) strictures that any suspension must be for “temporary basis [and] time certain”?
3. Do federal courts have jurisdiction over ‘as applied’ constitutional challenges to the Disability Act?”

Newman’s appeal brief further noted that the complaint against her was investigated by a Special Committee consisting of Moore herself and two other judges on the CAFC, making it “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.”

Manhattan Institute, Dean Pinkert and Law Professors’ Brief

Thursday’s amicus brief submitted by the Manhattan Institute; The Honorable Dean Pinkert; and Professors Steve Charnovitz, Rochelle Dreyfuss, Brian Dean Abramson, Andrew C. Michaels, Hugh Hansen and Howard Knopf, details the history and reasoning for impeachment as the sole remedy for disciplining a federal judge prior to the Judicial Conduct and Disability Act of 1980. It also notes the safeguards that were included in the Act to ensure due process rights for judges.

Since the structure of the Act relies on the good faith of the circuit’s chief judge, “as detective, prosecutor, and arbiter for the accused through the entire procedure,” the rules provide for the safeguards of transfer to another circuit or recusal of the chief judge in the event there is a perception of impropriety. Transfer is especially common where internal tension within the circuit has been a trigger for the complaint, explains the brief. Transfer also preserves the public trust, and the brief cites several high-profile examples where transferring a judicial misconduct complaint was necessary to ensure both fairness to the subject judge and public faith in the judiciary. These points are especially relevant in the case against Newman but the brief charges that the CAFC has wholly ignored the safeguards.

Finally, the brief points to a recent article published on IPWatchdog and authored by Retired CAFC Chief Judge Paul Michel. “One of the most distinguished jurists ever to sit on the Federal Circuit wrote an opinion piece that crystallizes the issues at play here,” says the brief. In the piece, Michel lamented the damage the case against Judge Newman has done to public faith in the court and the need at this point for an outside authority to intervene in order to get to the truth. The professors’ amicus brief echoes Michel’s views and adds:

“Amici are in strong agreement that it is time for a court with the relevant competence and jurisdiction—this Court—to intervene to end the impasse by declaring that due process has been violated and thus the necessity of transferring this disability proceeding to a circuit that is uninvolved in the underlying dispute.”

Retired Judges’ Brief

The judges’ brief was submitted by six retired judges, including Judge Michel, Janice Brown of the U.S. Court of Appeals for the District of Columbia Circuit; Randall Rader, former CAFC Chief Judge; Thomas Vanaskie, former judge on the U.S. Court of Appeals for the Third Circuit; Paul Cassell, formerly of the U.S. District Court for the District of Utah; and Judge Susan Braden, former Chief Judge on the U.S. Court of Federal Claims.

The brief argues first that the district court failed to “give effect to the ‘strong presumption’ in favor of judicial review of administrative action, ‘which applies in a particularly rigorous fashion … when constitutional claims are at stake.’” While the district court pointed to 28 U.S.C. § 357(c) as limiting judicial review of Judicial Council orders, the judges charge that § 357(c) makes no mention of constitutional claims.

Additionally, the district court’s reliance on McBryde v. Committee to Review Circuit Council Conduct and Disability Orders, 264 F.3d 52 (D. C. Cir. 2001) as support for its decision to dismiss Newman’s case is “misplaced,” says the brief. The McBryde decision was narrow, and in fact it “clearly stated that claims of the type that Judge Newman is raising—that a Judicial Council is seeking to effectively remove an Article III judge from her position in violation of the Constitution—are not barred by § 357(c).”

Finally, the judges contend that the CAFC’s actions amount to a violation of separation of powers principles because the court has effectively removed Judge Newman from the court by prescribing an indefinite period of time for her suspension. “Appellees’ long-term deprivation of Judge Newman’s judicial authority is impossible to distinguish from an outright removal from office given her advanced age,” explains the brief. The appellate court should at the very least grant reversal on Newman’s counts II and III, which plausibly allege that she has been effectively removed from the bench, it adds.

The judges are “particularly concerned by the threat to judicial independence posed by Appellees’ alleged actions,” because Newman has been a vocal dissenter from the court. The brief explains:

“If 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.”

Judge Newman has been fighting the CAFC’s complaint against her since April 2023 and has now been evaluated by three independent medical professionals who have all determined she is cognitively and physically able to serve on the court.

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