CAFC Judges Move to Toss Newman's Suit Against Fitness Probe in DC District Court

A lawsuit from U.S. Court of Appeals for the Federal Circuit Judge Pauline Newman against her colleagues' investigation into her fitness to continue serving on the bench should be dismissed, CAFC Judges Kimberly Moore, Sharon Prost and Richard Taranto argued in a Sept. 1 motion to dismiss. The judges -- who comprise the three-judge panel carrying out the investigation on the 96-year-old Newman -- said that Newman's suit "suffers from fatal jurisdictional flaws" (The Hon. Pauline Newman v. The Hon. Kimberly A. Moore, D.D.C. # 23-01334).

At the outset, the judge's lawsuit in the U.S. District Court for the District of Columbia against the investigation is barred by the Judicial Conduct & Disability Act's judicial-review bar, which says that all orders shall be final and "not be judicially reviewable on appeal or otherwise." The three judges said that while the act does not stop judicial review of judicial council decisions outside the act, all of Newman's claims "entail as-applied challenges that the D.C. Cirucit has found precluded."

Moore, Prost and Taranto also argued that Newman's suit is, "at bottom, no more than collateral litigation over issues that should be reviewed elsewhere." The D.C. district court has "no original jurisdiction to review the actions of its own circuit's judicial council, let alone the Federal Circuit's." Should Newman seek review of a judicial council decision outside the Judicial Conduct & Disability Act, she must do so in a court with appellate jurisdiction over the Federal Circuit, the brief said.

The three judges further defended the constitutionality of the Judicial Conduct & Disability Act since it "authorizes suspension of case assignments" and permits judges to carry out both "investigative and adjudicatory roles." The text, history, purpose and case law of the statute under which the judicial council barred Newman from being seated on new cases for a year "make clear that it has always allowed a judicial council to suspend case assignments to a particular judge," the brief said. Combined with the "principles of comity and exhaustion," this court should dismiss the suit, it said.

The three-judge panel released their results last month, finding that Newman should not be given any new cases for a year due to her efforts to impede the fitness probe (see 2308040021). The decision was made because of Newman's refusal to undergo neurological testing by a healthcare professional selected by the committee, among other actions, the panel said. The probe itself was launched after various court employees and fellow judges reported Newman having "memory loss, lack of focus, confusion over simple matters, uncharacteristic paranoia, and inability to perform simple tasks."