Suspended Judge Newman Urges Appeals Court to End Her Exile (1)

Pauline Newman, the nation’s oldest active federal judge, asked the D.C. Circuit to end a suspension imposed by her colleagues that prevents her from hearing cases at the Federal Circuit.

The 97-year-old judge argued the suspension was essentially a way to strip her of her core duties without formal impeachment proceedings and was, therefore, unconstitutional, according to an opening brief filed Thursday in the US Court of Appeals for the D.C. Circuit.

“Judge Newman has been functionally removed from office,” the brief says. “Removal without impeachment is wholly inconsistent with the Framers’ carefully calibrated system of checks and balances.”

Newman sued Chief Judge Kimberly A. Moore and her court’s Judicial Council in May of 2023 challenging her suspension under the Judicial Conduct and Disability Act after her fellow judges investigated claims she was behaving erratically. Newman’s district court suit was dismissed in July, prompting the D.C. Circuit appeal.

Newman has served on the US Court of Appeals for the Federal Circuit since being appointed in 1984 by then-President Ronald Reagan during the court’s infancy. During the course of the Judicial Council’s probe into her fitness, Newman refused to undergo independent neurological testing or turn over certain medical records, which the council said merited suspension. Newman hasn’t been assigned a new case for about a year and a half.

Her brief focused on the Disability Act, specifically its suspension provision.

Newman called it “an unconstitutional end-run around impeachment—the sole Constitutional means of removing an Article III judge from office,” though she acknowledged that she does still receive a salary.

She argued the Federal Circuit, by issuing multiple one-year suspensions in back-to-back fashion, had breached the law, which authorizes each judicial council to sideline judges only “on a temporary basis for a time certain.”

“This case is the first wherein a judicial council has ordered a judge removed from all functions of her office—for any period of time, much less one that is indefinite,” the brief states.

The judge separately said the law had been applied unconstitutionally to her, in that she was investigated “by her colleagues who are witnesses to the allegations, and whose own workload is likely to be affected by a removal of their oft-dissenting colleague.”

Newman also used the brief to argue that she’s of sound mind, citing extensively to a recent medical examination she received from Aaron Filler, a California neurosurgeon and attorney who has defended his patented brain scan invention in multiple proceedings at the Federal Circuit.

Newman is represented by the New Civil Liberties Alliance. Moore and the Federal Circuit Judicial Council are represented by the US Department of Justice.

The case is Newman v. Moore, D.C. Cir., 24-5173, opening brief 12/5/24.