Newman Urges Judge Not to Dismiss Lawsuit Challenging Suspension

Federal Circuit Judge Pauline Newman urged a federal judge to keep alive her lawsuit challenging a law through which her colleagues suspended her from hearing cases.

The Judicial Conduct and Disability Act contains “irredeemably vague provisions” that unconstitutionally permitted her colleagues to “divest an Article III judge of her office,” Newman, who turns 97 in June, said in a Friday filing.

Newman is the longest serving member of the court, which has exclusive jurisdiction over patent appeals, and is the nation’s oldest active federal judge. Her colleagues on the US Court of Appeals for the Federal Circuit in September 2023 unanimously voted to sideline her after she refused medical testing as part of a probe into her fitness.

The filing is Newman’s latest attempt to keep alive a lawsuit in the US District Court for the District of Columbia where she’s challenged her suspension and the 40-plus-year-old statute itself.

Much of Newman’s suit, which names Chief Judge Kimberly A. Moore as the lead defendant, was dismissed by Judge Christopher R. Cooper in February, though a few claims targeting the law on its face remain.

Those include a challenge to the authority of judicial investigators to demand medical records or psychiatric exams of judges without a warrant or a showing of reasonableness, and an argument that the Act’s standard for a disqualifying mental disability and a provision describing investigations are impermissibly vague.

Moore and the rest of the appeals court’s Judicial Council sought dismissal of the surviving claims in March. They argued that her challenges to the statute fall short of the exacting standard for setting aside an act of Congress.

Newman countered that the Act is fatally flawed for a series of reasons:

• Her benching can’t be delegated to the courts because “Congress alone has the power to remove her,” the filing said.
• She restated arguments about the vagueness of the law’s definition of a disability, which she said is left “in the hands of lay people like Chief Judge Moore and her colleagues” but without “any tools to determine when a disability exists.”
• Additionally, Newman said the statute is flawed in that it “provides for no judicial review of any orders including those that authorize invasive searches of private medical information.”

“The stealth impeachment process launched against Judge Newman is based on unconstitutionally vague and arbitrary criteria that easily can be, and in this case were, manipulated to achieve pre-determined goals,” said Newman’s attorney, Greg Dolin of the New Civil Liberties Alliance.

NCLA represents Newman. The US Justice Department represents the Federal Circuit’s Judicial Council.

The case is Newman v. Moore, D.D.C., 1:23-cv-1334, opposition 4/5/24.