Judge Newman’s Colleagues Move to End Her Reinstatement Lawsuit

Colleagues of Federal Circuit Judge Pauline Newman asked a federal district court judge to throw out what’s left of her lawsuit challenging her suspension from hearing cases.

The US Court of Appeals for the Federal Circuit’s Judicial Council—consisting of the court’s active judges, sans Newman—on March 9 asked Judge Christopher R. Cooper to enter a judgment on the pleadings and close the case. Almost a month earlier, Cooper, of the US District Court for the District of Columbia, denied the 96-year-old judge’s request for an injunction restoring her to full active duty on the court, and knocked out most of the original claims from her suit.

The remaining claims challenge the constitutionality of the Judicial Conduct and Disability Act, under which Newman was investigated, and, in particular, the authority of the Judicial Council to force Newman to turn over medical records or sit for a psychiatric examination. The council argued that for Newman’s suit to succeed all of the targeted parts of the Act must be unconstitutional in every applications, a high legal hurdle that it said the lawsuit doesn’t clear.

Newman’s pared-down suit argues the Act is suspect to the extent it allows investigators of federal judges to demand medical records or psychiatric examinations—as the Judicial Council demanded of Newman—without a warrant or showing of reasonableness. Separately, she’s contended that the statute’s standard for a disqualifying mental disability and its provision describing judicial investigations are impermissibly vague.

“The Act and its implementing rules effectively require” a showing of reasonable suspicion prior to “any demand for medical records or psychiatric exam,” according to the council’s motion, and so the statute doesn’t run afoul of the Fourth Amendment’s requirements. Separately the judicial council argued that the disability provision of the statute is “more definite” than “many statutes that readily survive vagueness scrutiny.”

Newman’s separate administrative appeal of her September 2023 suspension was denied by a panel of federal judges at the Judicial Conference of the US on Feb. 7.

New Civil Liberties Alliance represents Newman. The US Justice Department represents the Federal Circuit’s Judicial Council.

The case is Newman v. Moore, D.D.C., 1:23-1334, mot. for judgment on the pleadings 3/8/24.