Judge Newman Fights Motion to Dismiss Her Suit Against Colleagues' Fitness Investigation

The proceeding against U.S. Court of Appeals for the Federal Circuit Judge Pauline Newman has "violated the basic norms of due process of law and are inconsistent with constitutional protections" for federal judges, Newman argued in a reply to a motion to dismiss from Judges Kimberly Moore, Sharon Prost and Richard Taranto -- the trio who investigated Newman. Fighting off the dismissal bid in the U.S. District Court for the District of Columbia, the 96-year old Newman said the three judges' actions, which amounted to a one-year suspension for Newman, "were designed to accomplish a preordained result, whether legal or not" (The Hon. Pauline Newman v. The Hon. Kimberly A. Moore, D.D.C. # 23-01334).

Newman's scathing brief addressed the three judges' claim that the D.C. court lacks jurisdiction given the Judicial Conduct & Disability Act's judicial-review ban (see 2309060063). The brief blasted the trio's claim, which Newman characterized as saying that so long as the Federal Circuit's Judicial Council classifies the action as existing under the Disability Act, all jurisdiction is divested from the court over all judicial council actions.

This statute is "not nearly as broad as Defendants contend it is, and binding precedent does not support Defendants' position," Newman replied. In addition, not all action taken against Newman fell under the Disability Act, as the three judges themselves admit, the brief said. Newman's brief also declares that the Disability Act, insofar as it allows for Article III judges to be involuntarily removed, is "facially unconstitutional." Since all of the judge's claims "remain live," the D.C. court should deny the motion to dismiss, the brief said.

The case stems from the fitness investigation launched in March on Newman's ability to effectively do her job due to the 96-year-old's physical and mental well-being. After narrowing the proceeding to Newman's hindrance of the investigation, the three judges recommended barring Newman from receiving new cases for a year. This recommendation was enacted by the court's Judicial Council (see 2309200024).

Newman subsequently filed the present action in the D.C. court to claim that the proceeding violates the U.S. Constitution and strips her of her due process rights. In the reply to the motion to dismiss, Newman added that she has been "fully competent, able, and willing to perform her duties" throughout her tenure, noting that she has been confirmed to be able to carry out her functions as a judge by two "independent board-certified physicians." One of the three-judge panel's sticking points in finding that Newman obstructed their investigation was that the judge refused to meet with a physician selected by the panel for exmaination.