Judge Newman Files Reply Brief in Newman v. Moore

By Kevin E. Noonan --

The Honorable Pauline Newman, Circuit Judge for the U.S. Court of Appeals for the Federal Circuit, has been battling her suspension from the Court imposed by the Judicial Council for two years (including proceedings leading up to the suspension; see "Judge Newman and the On-Going Attempts to Remove Her from the Federal Circuit"; "Judge Newman Matter Continues"; "Federal Circuit Special Committee Responds to Judge Newman's Counsel's Request for Clarification Regarding Misconduct Hearing"; "Federal Circuit Special Committee Recommends One-Year Suspension of Judge Newman"; "Judge Newman Suspended for One Year by Federal Circuit"; "Judge Newman's Suit Continues";  "Special Committee of the Judicial Council of the Federal Circuit Replies").  Recently, her efforts came to naught, as the D.C. District Court dismissed her suit against her colleagues (see "Judge Newman's Suit Comes to an End") and the Judicial Counsel renewed her suspension for another year (see "Special Committee's Suspension Recommendation Adopted by Federal Circuit; "Judge Newman Suspension Renewed").  Judge Newman has filed an appeal in the D.C. Circuit (see "Judge Newman Files Appeal with D.C. Circuit") and the Judicial Council of the Federal Circuit has responded.  Last month, Judge Newman filed her Reply.

The brief addresses the arguments set forth in the Judicial Council's brief responding to Judge Newman's principal arguments on appeal:  that Congress cannot legitimately enact legislation that permits removal (actual or constructive) of an Article III Judge outside the impeachment provisions of the Constitution, and that the District Court erred in failing to construe the statute to permit the Judicial Council's de facto removal of Judge Newman from the bench; that the Judicial Council's assertions that their suspension was temporary is inconsistent with the record; that prior precedent (McBryde v. Comm. to Rev. Cir. Council Conduct & Disability Ords. of Jud. Conf. of U.S.) was not controlling; and that permitting the Judicial Council to participate in this process violates Judge Newman's due process rights.

The brief begins by highlighting the Achilles heel of the Judicial Council's justifications for how it had conducted the inquiry directed towards Judge Newman, saying that "Defendants-Appellees fail to dispute that as a result of her unlawful suspension Judge Newman does not exercise any functions of her office."  The tack the Council has taken in its Responsive brief, and throughout is that the Judicial Conduct and Disability Act, 28 U.S.C. §§ 351-364, gives the Council the authority to act as it has, and that Judge Newman has the "keys" to her return to the bench by complying with the Council's demand that she submit to neuropsychological testing by physicians of the Council's choice.  The brief also disputes, and argues that the Council does not "address, much less rebut, Judge Newman's argument that this Court has authority to ensure that the Judicial Council, as an administrative body, does not act beyond its statutory remit."  While seeming not to dispute that the Act permits suspension from a judge's duties only "on a temporary basis for a time certain," it is clear that, absent the Judge's compliance, the suspension will never be lifted.  The situation is unprecedented, Judge Newman argues, stating that "a complete involuntary suspension from judicial duties has never been attempted irrespective of the seriousness of misconduct by a federal judge" (emphasis in brief), nor has there a "single instance of a case where a misconduct investigation of a circuit judge was conducted within that judge's own circuit."  And, the brief argues, no Judicial Council has ever before asserted the power to debar a "duly nominated, confirmed, and appointed United States Circuit Judge" from the "powers and duties" of her judicial office other than by impeachment by the House of Representatives (this lack of historical precedent being "highly probative" according to the brief, citing several authorities).

Judge Newman summarizes her argument in three major points.  The first is that the D.C. Circuit Court has the duty to construe the statute and this includes ruling on the constitutionality of a Judicial Council removing an Article III judge from the court other than by recommending impeachment to the House.  Either the Council has exceeded its authority under the Act, or the Act permits the Council's actions, in which case it is unconstitutional to the extent that it permits such removals.  And the fact that the removal is at the hands of federal judges acting as a judicial council does not justify abrogation of the Constitution's guarantee of life tenure, which guarantee "protects the independence of individual judges from their colleagues as much as from other branches."

The second prong of Judge Newman's argument is that the District Court erred by relying on McBryde v. Comm. to Rev. Cir. Council Conduct & Disability Ords. Of Jud. Conf. of U.S., 264 F.3d 52, 64-67 (D.C. Cir. 2001), as precedent that it could not considered "as applied" constitutional challenges.  According to the brief, the Court had "explicitly reserved the issue now presented here: whether a long-term disqualification can constitute an unconstitutional removal from office."  The crux of this argument was that the Court made this reservation in the context of having jurisdiction over whether an agency decision exceeded the statutory authority under which the agency acted, and that when acting under the Act a judicial council was acting as an agency not as a court.

The third argument involved Judge Newman's due process complaint, to which she was constitutionally entitled the brief asserts.  The brief argues that there is no disputing in the Responsive brief that the Judicial Council was acting as "investigators" and "witnesses" and thus not as neutral judges required to ensure due process is received in an adjudicatory proceeding.

Regarding the first argument, Judge Newman asserts that what is properly before the D.C. Circuit Court is her facial challenge on the constitutionality of the Act, based on what she asserts is the Judicial Council's "complete debarment from judicial functions" which "necessarily prevents a judge from exercising judicial power and therefore effects a functional 'removal' from office" (emphasis in brief).  In this argument, Judge Newman presents the Court with two alternatives:  either the Judicial Council's indeterminate suspension was improper under a narrow construction of the Act, or the Act is unconstitutional if within its proper scope it permits divesting an Article III judge from her office.  In addressing the Judicial Council's argument that Judge Newman had waived this argument (which she denies), her brief reminds the Court of their duty "to construe the statute and give meaning to the statutory language," citing Crowell v. Benson, 285 U.S. 22, 62 (1932) (emphasis in brief).  The brief disputes the Responsive brief's characterization of Judge Newman's argument to the extent that it is anything but that the Act does not permit judicial councils to remove a judge from the performance of her judicial functions indefinitely and, if the Act permits this outcome, it is unconstitutional.

And in that case, that the Act does permit suspensions for indefinite terms, then "the Act can never be validly applied" and is unconstitutional on its face.  The brief recognizes that there are some limits that can be placed on a judge's purview under the Act but that the power to suspend a judge from all judicial functions is not (constitutionally) one of them.  "[H]aving a framed commission on the wall while being unable to exercise any powers granted by that very commission, is meaningless," the brief asserts in making its distinction between the question of the length of the suspensions a judicial council is entitled to impose to be constitutional (and the mere fact that Judge Newman technically still has her seat is not enough; "the Constitution 'deals with substance, not shadows'" the brief asserts, citing  Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325 (1867).  And distinguishing McBryde, the brief concedes that "an act of Congress that authorizes some forms of judicial intra-branch discipline (e.g., censure, reprimand, or diminution of caseload) does not raise the same constitutional concerns."

Further on this point, the brief rebuts what it terms the "parade of horribles" in the Responsive brief with regard to the purported negative consequences that would ensue should the Court agree with Judge Newman on the merits (which is somewhat illuminating reading but not particularly germane to the issues here).  But in this portion of the brief Judge Newman takes the opportunity to address the argument that disabled judges would not be able to be divested of their office by, first, stating that "this simply reflects the Constitution's limits on the power of the Judicial Council," and second that while "not ideal circumstances "the Constitution, for better or worse, placed the determination of when to step down from the bench in the hands of the judge herself and of Congress as a backstop—not in a judge's colleagues' hands" (while noting in an aside that Judge Newman is not a disabled judge).

Finally, the brief addresses and rebuts the Judicial Council's argument that the interpretation of the Act they advance does not threaten judicial independence.  In this regard, the brief cites Northern Pipeline Construction Co. v. Marathon Pipe Line Co. that "[t]he guarantee of life tenure insulates the individual judge from improper influences not only by other branches but by colleagues as well and thus promotes judicial individualism," 458 U.S. 50, 59 n.10 (1982) (emphasis in brief).

On Judge Newman's second line of argument, the brief makes short work of the argument in the Responsive brief that Judge Newman's suspension is only temporary.  The brief argues that suspensions by judicial councils are not empowered to "induce compliance" as the Responsive brief contends.  Instead, the Act empowers a judicial council to impose suspensions as remedies for past conduct, and Judge Newman notes that the Judicial Council in this case has itself "abjured the claim that Judge Newman's suspension is meant to be 'coercive.'"  The brief uses the case of Judge John Adams to illustrate the distinctions, wherein while Judge Adams was required to be subject to a psychiatric exam the suspension imposed was "without any possibility of renewal," In re Complaint of Judicial Misconduct, No. 06-13-90009 (6th Cir. Judicial Council, June 27, 2018).  The brief also reminds the Court (or brings to its attention) the fact that "even before the formal disciplinary process against Judge Newman began, Chief Judge Moore demanded Judge Newman's resignation."  "The entire history of this process shows that Defendants-Appellees have already concluded that Judge Newman has no place on the bench and they are willing to remove her irrespective of what medical evidence shows," the brief asserts.

The brief then sets forth an expanded version of the argument that the McBryde precedent does not stand for what the Responsive brief would have the Court believe that it does.  The legal principle upon which Judge Newman continues to rely is that the existence of "intervening authority" (here, the reservation enunciated in footnote 5 of McBryde) relieves this panel from being bound by McBryde under Carpenters Loc. Union No. 26 v. U.S. Fid. & Guar. Co., 215 F.3d 136, 141 (1st Cir. 2000).

Finally, the brief turns to Judge Newman's due process arguments, colorfully addressing the Responsive brief's reliance on Judge Newman's opportunity to proffer her arguments by stating "Even Soviet justice permitted attorney arguments" in response.  What due process requires, Judge Newman argues, is "a neutral and detached judge in the first instance," citing Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Tr. for S. Cal., 508 U.S. 602, 617 (1993) (quoting Ward v. Village of Monroeville, 409 U.S. 57, 61-62 (1972)), which has not been available to Judge Newman according to her brief.  The brief rebuts the assertion that the misconduct allegations are predicated on Judge Newman's failure to comply by reminding the Court that "the reason Judge Newman has declined to cooperate is precisely because the evaluation of any medical report would be done by people who are, by their own admission, witnesses to the underlying allegations" (emphasis in brief).  The basis for this situation has been the unprecedented insistence by this Judicial Council to retain jurisdiction over this matter instead of transferring it to a judicial council in another Circuit, she argues.  The reasonableness of Judge Newman's request for transfer and the importance of the due process implications are illustrated in the brief by the history of such proceedings in other circuits and the behavior (recusal) of judges in similar circumstances as the judges on the Federal Circuit's judicial council here.  "The unprecedented nature of these proceedings, overseen by judges who are also witnesses, weighs heavily in favor of their unlawfulness," this brief strongly argues.

The saga continues.

Comments

[Connor]

Thank you for the post. At least the first and last arguments seem strong to me and I can't understand why Judge Newman is having such difficulty getting other courts to listen. Also, it seems like this treatment of a judge may be something that we will see more of in the future if the judiciary becomes increasingly political but impeachment remains a difficult obstacle.

[Ben Rellinger]

"Unanimous"

That's the word that keeps coming to mind for me as this slow, sad process grinds on. All twelve of her fellow judges, appointed by administrations on both sides of the aisle, voted to initiate these proceedings. Considered, well read, and conscientious jurists just one step below the highest court in the land, in careful consideration of their ethical duties and the historical and political ramifications of the decision, unanimously and publicly stated that Judge Newman needed to step down, or at least to submit to independent evaluation.

I do not note this with relish. This is indeed a very sad circumstance. I doubt that I have ever disagreed with the central thrust of any of Judge Newman's dissents, and believe that someone with her perspective is needed on the court.

However, when ALL of your fellow judges take such a serious action, you need to take a step back and consider that maybe the institution of the court would be best served by taking your well-earned retirement (or even just senior status), rather than the present sad state of affairs.