Petition for Writ of Certiorari — Pauline Newman, Judge, United States Court of Appeals for the Federal Circuit, Petitioner v. Kimberly A. Moore, Chief Judge, United States Court of Appeals for the Federal Circuit, et al.

Supreme Court briefMar 12, 2026

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No. ________

In the Supreme Court of the United States

_____________

PAULINE NEWMAN, HONORABLE; JUDGE OF THE UNITED

STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT,

PETITIONER

KIMBERLY A. MOORE, HONORABLE; IN HER OFFICIAL

CAPACITIES AS CHIEF JUDGE OF THE UNITED STATES

COURT OF APPEALS FOR THE FEDERAL CIRCUIT, CHAIR

OF THE JUDICIAL COUNCIL OF THE FEDERAL CIRCUIT

AND CHAIR OF THE SPECIAL COMMITTEE OF THE

JUDICIAL COUNCIL OF THE FEDERAL CIRCUIT, ET AL.,

RESPONDENTS

_____________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_____________

PETITION FOR A WRIT OF CERTIORARI

_____________

JOHN J. VECCHIONE

ANDREW J. MORRIS

MARK S. CHENOWETH

New Civil Liberties Alliance

4250 North Fairfax Drive

Suite 300

Arlington, Virginia 22203

(202) 869-5210

JONATHAN F. MITCHELL

Counsel of Record

Mitchell Law PLLC

111 Congress Avenue

Suite 400

Austin, Texas 78701

(512) 686-3940

jonathan@mitchell.law

Counsel for Petitioner

QUESTIONS PRESENTED

The Disability Act authorizes each circuit’s judicial

council, after investigation, to “order[] that, on a temporary basis for a time certain, no further cases be assigned

to” a judge who engaged in misconduct or has a disability.

28 U.S.C. § 354(a)(2)(A)(i). The Act allows these orders to

be reviewed by the Judicial Conference of the United

States, but it limits further judicial review of the council’s

“orders and determinations.” See 28 U.S.C. § 357(c)

(“[A]ll orders and determinations . . . shall be final and

conclusive and shall not be judicially reviewable on appeal

or otherwise.”). Nothing in section 357(c), however, even

purports to prevent litigants from seeking prospective relief that would restrain the council from issuing orders in

the future.

In March 2023, before any investigation, Chief Judge

Kimberly Moore of the Federal Circuit told Judge Pauline

Newman that she had been removed as an active judge

and could either immediately retire or “negotiate senior

status.” Judge Moore and the Judicial Council of the Federal Circuit then issued a series of administrative orders

that prohibit Judge Newman from hearing or participating in any cases at the panel or en banc level. These orders

are ultra vires, unlawful and unconstitutional. Judge

Newman has challenged them and sought to enjoin the judicial council from issuing similar orders in the future.

The D.C. Circuit, however, citing a 2001 decision of that

court, held that 28 U.S.C. § 357(c)’s bar on judicial review

allows her to assert only “facial” constitutional claims that

challenge the constitutionality of provisions in the Disability Act, and strips the courts of jurisdiction to consider

(i)

any “as-applied” constitutional claims. The questions presented are:

1. Does 28 U.S.C. § 357(c)’s bar on judicial review of previously issued “orders” and “determinations” apply to

ultra vires acts that exceed the scope of authority

conferred by the Disability Act and the Constitution?

2. Does 28 U.S.C. § 357(c)’s bar on judicial review of previously issued “orders” and “determinations” deprive

a court of jurisdiction to consider claims that seek forward-looking relief to enjoin future unlawful actions?

(ii)

PARTIES TO THE PROCEEDING

Petitioner Pauline Newman, Judge of the United

States Court of Appeals for the Federal Circuit was the

plaintiff-appellant in the D.C. Circuit Court of Appeals.

Respondents Kimberly A. Moore, in her official capacities as Chief Judge of the United States Court of Appeals

for the Federal Circuit, Chair of the Judicial Council of the

Federal Circuit, and Chair of the Special Committee of the

Judicial Council of the Federal Circuit; Sharon Prost, in

her official capacity as Member of the Special Committee

of the Judicial Council of the Federal Circuit; Richard G.

Taranto, in his official capacity as Member of the Special

Committee of the Judicial Council of the Federal Circuit;

and the Judicial Council of the Federal Circuit and its

members (other than Judge Newman herself) were the

defendants-appellees in the D.C. Circuit Court of

Appeals.

A corporate disclosure statement is not required because Judge Newman is not a corporation. See Sup. Ct. R.

29.6.

(iii)

STATEMENT OF RELATED CASES

Counsel is aware of no directly related proceedings

arising from the same trial-court case as this case other

than those proceedings appealed here.

(iv)

TABLE OF CONTENTS

Questions presented ............................................................. i

Parties to the proceeding ................................................... iii

Statement of related cases ................................................. iv

Table of contents ...................................................................v

Appendix ............................................................................. vii

Table of authorities ............................................................. iii

Petition for a writ of certiorari ............................................1

Opinions below .......................................................................6

Jurisdiction.............................................................................6

Statutory provisions .............................................................7

Statement ...............................................................................7

I. The Disability Act .....................................................8

II. The administrative proceedings against

Judge Newman ........................................................10

III. The federal court proceedings below ...................18

Reasons for granting the petition .....................................22

I. The Court should grant certiorari and hold

that 28 U.S.C. § 357(c) does not shield ultra

vires acts from judicial review ...............................22

II. The Court should grant certiorari and hold

that 28 U.S.C. § 357(c) does not foreclose

claims that seek prospective relief ....................26

III. The court should grant certiorari despite the

absence of a circuit split .........................................30

Conclusion ............................................................................33

(i)

APPENDIX

D.C. Circuit opinion ............................................................ 1a

District court opinion of July 9, 2024 .............................. 24a

District court opinion of February 12, 2024................... 41a

D.C. Circuit order denying rehearing en banc .............. 85a

28 U.S.C. § 351 et seq. ...................................................... 87a

(ii)

TABLE OF AUTHORITIES

Cases

Bowe v. United States, 146 S. Ct. 447 (2026) .......27, 28, 29

Ex parte Siebold, 100 U.S. 371 (1879) ...............................24

Johnson v. Robison, 415 U.S. 361 (1974) ..........................23

Manhattan Community Access Corp. v. Halleck,

587 U.S. 802 (2019) ..........................................................26

McBryde v. Committee to Review Circuit Council

Conduct and Disability Orders of Judicial

Conference of the United States, 264 F.3d 52

(D.C. Cir. 2001) ........................................................4, 5, 28

Norton v. Shelby County, 118 U.S. 425 (1886).................24

Rudisill v. McDonough,

55 F.4th 879 (Fed. Cir. 2022) (en banc) ......................8, 10

Rudisill v. McDonough, 601 U.S. 294 (2024) ...............7, 10

Webster v. Doe, 486 U.S. 592 (1988)...................................24

Statutes

5 U.S.C. § 701(a)(2) .............................................................24

28 U.S.C. § 46(c) ..................................................................17

28 U.S.C. § 351 et seq. ......................................... ii, 3, 7, 8, 1

28 U.S.C. § 351(a) ..................................................................8

28 U.S.C. § 351(b) ............................................................9, 11

28 U.S.C. §§ 352–353 .............................................................9

28 U.S.C. § 353(c) ..................................................................9

28 U.S.C. § 354(a) ...................i, 3, 5, 9, 10, 13, 18, 20, 25, 28

28 U.S.C. § 354(a)(1)(A)–(B) ................................................9

28 U.S.C. § 354(a)(2)(A) .................................i, 3, 5, 9, 20, 28

28 U.S.C. § 354(a)(2)(A)(i) .................................i, 3, 5, 20, 28

(iii)

28 U.S.C. § 354(a)(2)(B) ......................................................10

28 U.S.C. § 354(a)(3)(A) ..........................................10, 18, 25

28 U.S.C. § 357 ........................ i, ii, i, 3, 10, 20, 22, 26, 27, 29

28 U.S.C. § 357(a) ..................................................................3

28 U.S.C. § 357(c) ...................... i, ii, 3, 10, 22, 26, 27, 29, 30

28 U.S.C. § 372 .....................................................................10

28 U.S.C. § 375(a) ................................................................10

28 U.S.C. § 1254(1) ................................................................7

28 U.S.C. § 2244(b)(3)(E) ...................................................29

50 U.S.C. § 403(c) ..........................................................24, 25

Constitutional Provisions

U.S. Const. art. I, § 2, cl. 5 .................................................31

U.S. Const. art. III, § 1 .......................................................30

Rules

Sup. Ct. R. 29.6 .................................................................... iii

Other Authorities

Dennis Crouch, Federal Circuit Dissent Rates

Collapse After Newman’s Removal, PatentlyO

(Mar. 3, 2026)....................................................................32

The Federalist Nos. 78–79 (Alexander Hamilton) ..........31

(iv)

In the Supreme Court of the United States

_____________

No. ________

PAULINE NEWMAN, HONORABLE; JUDGE OF THE UNITED

STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT,

PETITIONER

KIMBERLY A. MOORE, HONORABLE; IN HER OFFICIAL

CAPACITIES AS CHIEF JUDGE OF THE UNITED STATES

COURT OF APPEALS FOR THE FEDERAL CIRCUIT, CHAIR

OF THE JUDICIAL COUNCIL OF THE FEDERAL CIRCUIT

AND CHAIR OF THE SPECIAL COMMITTEE OF THE

JUDICIAL COUNCIL OF THE FEDERAL CIRCUIT, ET AL.,

RESPONDENTS

_____________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_____________

PETITION FOR A WRIT OF CERTIORARI

_____________

This petition presents questions concerning crucial

constitutional and statutory aspects of lifetime tenure and

judicial independence, especially the availability of judicial review for intra-branch infringements on judicial service. These questions affect the very independence of Article III courts and potentially affect every member of the

federal judiciary and every litigant who appears before

(1)

them. For three years the Federal Circuit has been operating short-handed because the judges of that court have

summarily removed its longest-serving and most storied

jurist (its “Great Dissenter”) from the bench.

The D.C. Circuit Court of Appeals held that the Judicial Councils Reform and Judicial Conduct and Disability

Act of 1980 (“the Disability Act”) bars review of the unlawful actions taken against Judge Pauline Newman. This

administrative removal of a judge who is famous for dissenting from her colleagues, by those same colleagues,

with judicial refusal to review the merits of the action, undermines the judicial independence that is a vital foundation of our constitutional design. Every judge who gets

crosswise with her chief judge or her colleagues must now

worry whether similar tactics could be used to remove

them.

Judge Newman has continued to speak and write before the legal community, and no finding of disability has

been made concerning her in the years since the unlawful

administrative orders began. She voluntarily underwent

and passed three expert evaluations of her mental fitness

and was reported as having the mental ability of someone

decades younger. She now has been suspended longer

than any federal judge in history. The length of the suspension, the apparent intention to keep her off the bench

permanently, the same judges acting as complainant, witnesses and judges, and the refusal to transfer the matter

to another circuit for neutral investigation are unprecedented.

The Disability Act allows each circuit court to investigate complaints of judicial misconduct or disability. See 28

U.S.C. § 351 et seq. (App. 87a–101a). After investigation,

the Disability Act authorizes the judicial council of each

circuit (consisting of all the active judges of the circuit) to

“order[] that, on a temporary basis for a time certain, no

further cases be assigned to” a judge found to have engaged in misconduct or to have a disability. 28 U.S.C.

§ 354(a)(2)(A)(i) (App. 92a). These temporary-suspension

administrative orders of the judicial council may be reviewed by the Judicial Conference of the United States.

See 28 U.S.C. § 357(a) (“A complainant or judge aggrieved

by an action of the judicial council under section 354 may

petition the Judicial Conference of the United States for

review thereof.”) (App. 96a). Apart from this review by the

Judicial Conference, “orders” and “determinations” of the

judicial council are “final and conclusive” and “shall not be

judicially reviewable on appeal or otherwise.” 28 U.S.C.

§ 357(c) (“[A]ll orders and determinations, including denials of petitions for review, shall be final and conclusive and

shall not be judicially reviewable on appeal or otherwise.”)

(App. 96a).

The Disability Act does not authorize the judicial council (or anyone else) to act in violation of the Constitution.

So the administrative “orders” and “determinations” described in section 357(c) cannot refer to everything that

happens to be labeled an “order” or “determination” that

emanates from a judicial council, a special committee, or

the Judicial Conference. Instead, section 357(c) should be

read as limited to “orders” and “determinations” that

Congress has constitutionally authorized in the Disability

Act. This construction of section 357(c) preserves the

courts’ jurisdiction to entertain collateral attacks on

previously issued “orders” and “determinations” that are

ultra vires because they violate the Constitution or exceed the scope of the statutory powers conferred by the

Disability Act.

Further, even if section 357(c) can be viewed as limiting the judiciary from disturbing the past orders or determinations of the judicial council, it allows litigants to seek

prospective judicial relief that prevents the issuance of

unlawful (or allegedly unlawful) orders in the future. Section 357(c), by its terms, turns entirely on the type of relief

that a litigant is requesting. Those who seek to enjoin the

issuance of future orders or determinations may proceed

with their claims, regardless of whether those claims are

rooted in statutory or constitutional arguments.

The case law of the D.C. Circuit, however, holds that

the application of section 357(c) depends not on the type

of relief that is being sought, but on the type of claim that

a litigant asserts. See McBryde v. Committee to Review

Circuit Council Conduct and Disability Orders of Judicial Conference of the United States, 264 F.3d 52, 58–68

(D.C. Cir. 2001). Under the law of the D.C. Circuit, a litigant may challenge and ask a court to set aside a previously issued order whenever the litigant brings a “facial”

constitutional challenge to provisions of the Judicial Conduct and Disability Act — even though the statute purports to bar all judicial review of an extant “order” or “determination” issued under the Disability Act. See id. at 58;

App. 9a–18a; App. 59a–71a. At the same time, the D.C.

Circuit has invoked section 357(c) to block litigants from

bringing statutory or “as-applied” constitutional claims

when challenging a judicial council’s authority under the

Disability Act, even when a litigant seeks prospective relief to restrain the council from issuing future orders or

determinations. See McBryde, 264 F.3d at 58–64; App. 9a–

18a; App. 59a–71a. This approach is doubly wrong. It misconstrues section 357(c) by preventing challenges to ultra

vires orders and determinations. And it overenforces section 357(c) by reading it to thwart litigants from seeking

prospective relief against the council’s future actions.

The Judicial Council of the Federal Circuit has issued

a series of three one-year suspension orders (so far) under

28 U.S.C. § 354(a)(2)(A)(i) that prohibit Judge Newman

from hearing or participating in any cases at the panel or

en banc level.1 In response, Judge Newman sued the council and sought relief that would set aside the previously

issued suspension orders, as well as prospective relief that

would enjoin the council from renewing or issuing similar

suspension orders against her in the future.2

But the lower courts were bound by the holding of

McBryde, which led the district court and the D.C. Circuit

panel to consider only Judge Newman’s “facial” constitutional challenge to the Disability Act’s case-suspension

provision. See 28 U.S.C. § 354(a)(2)(A)(i); McBryde, 264

F.3d at 58. In applying McBryde, the district court and the

D.C. Circuit panel held that section 357(c) barred them

from considering any of Judge Newman’s remaining

claims on the merits, including her statutory and as1.

The judicial council has effectively removed Judge Newman permanently, even to the point of preventing her from hiring clerks

and reviewing panel opinions circulated before publication.

Amended Complaint at 31, available at https://tinyurl.com/

4avc3ddw.

applied constitutional challenges to the council’s authority — even though Judge Newman was challenging ultra

vires actions and determinations, as well as seeking prospective relief to which section 357(c) is inapplicable. App.

9a–18a; App. 59a–71a. Judge Newman sought rehearing

en banc and asked the D.C. Circuit to reconsider

McBryde, but the petition was denied. App. 85a–86a.

The Court should grant certiorari and hold that section 357(c) does not preclude jurisdiction over challenges

to ultra vires orders and determinations. The Court

should also hold that section 357(c) allows litigants to seek

prospective relief that enjoins the issuance of future orders or determinations. Judge Newman may therefore assert all of her claims — both statutory and constitutional — to the extent that she seeks forward-looking relief to prevent future unlawful actions.

OPINIONS BELOW

The opinion of the D.C. Circuit Court of Appeals is

available at 151 F.4th 472 and reproduced at App. 1a–23a.

The district court’s opinions are available at 717 F. Supp.

3d 43 and 743 F. Supp. 3d 62 and reproduced at App. 24a–

40a and App. 41a–84a.

The order of the D.C. Circuit Court of Appeals denying rehearing en banc is available at 2025 WL 3765492 and

reproduced at App. 85a–86a.

JURISDICTION

The D.C. Circuit Court of Appeals issued its opinion

on August 22, 2025. App. 1a. Judge Newman filed a timely

petition for rehearing en banc on September 19, 2025, but

the D.C. Circuit denied en banc rehearing on December

29, 2025. Judge Newman timely filed this petition on

March 12, 2026.

This Court has jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS

The Judicial Councils Reform and Judicial Conduct

and Disability Act of 1980 is codified at 28 U.S.C. § 351 et

seq. and set forth in the appendix at App. 87a–101a.

STATEMENT

For the past three years, Chief Judge Kimberly

Moore, acting as complainant and leading the administrative process, has sought to remove Judge Pauline Newman as an active judge on the Federal Circuit. Chief

Judge Moore has acted on the pretense that Judge Newman is physically and mentally unfit to continue serving

as a judge,3 even though Judge Newman, at the age of 98,

remains an “unusually cognitively intact . . . woman” who

appears “20 or more years younger than her stated

age”4— and even though this Court only two terms ago

announced a ruling that reversed the 10-2 en banc Federal

Circuit and adopted much of the reasoning in Judge Newman’s dissent from that en banc decision. See Rudisill v.

McDonough, 601 U.S. 294 (2024).5 Judge Newman has

The complaint that Chief Judge Moore initiated against Judge

Newman included multiple false statements, including a baseless

allegation that Judge Newman had suffered a heart attack and

subsequently never resumed a full docket. See infra, note 7.

4. Expert Report of Dr. Aaron G. Filler at 28, 40 available at

https://tinyurl.com/5eczych9.

5. Judge Newman published her now-vindicated dissent in Rudisill

on December 15, 2022—less than three months before Chief

(continued…)

resisted Chief Judge Moore’s campaign of intimidation

and continues to hold office (in name only) as a Federal

Circuit judge in active service.

Chief Judge Moore has invoked the Disability Act improperly to perpetually sideline Judge Newman until she

gives in to the bullying and retires or takes senior status,

doing far more than suspending her from new case assignments. The relevant provisions of the Disability Act are

described below.

THE DISABILITY ACT

The Judicial Councils Reform and Judicial Conduct

and Disability Act of 1980, also known as the Disability

Act, allows the judicial council of each circuit to investigate allegations of misconduct or disability against its

judges. See 28 U.S.C. § 351 et seq.; App. 87a–101a. In

practice, whenever allegations against a circuit judge

have advanced beyond the preliminary investigatory

stage, in every prior case, the chief judge or judicial council has requested (and been granted) a transfer to another

judicial council. That is, chief judges have only kept complaints against fellow circuit judges when dismissing

them, leaving any more substantive investigations to another judicial council.

The process begins when a written complaint alleging

misconduct or disability is filed with the clerk of the court

of appeals for that circuit. See 28 U.S.C. § 351(a). The chief

Judge Moore began pressuring her to resign under the pretense

that Judge Newman was cognitively unfit to decide cases. See

Rudisill v. McDonough, 55 F.4th 879, 888–96 (Fed. Cir. 2022) (en

banc) (Newman, J., dissenting).

judge of the circuit may also “identify a complaint” by

written order even when no complaint has been formally

submitted to the clerk by a third party. See 28 U.S.C.

§ 351(b). The chief judge of the circuit must promptly review the complaint and either dismiss it, transfer it, or

else convene a special committee to further investigate

the allegations. See 28 U.S.C. §§ 352–353. If the chief

judge convenes a special committee, then the special committee must “conduct an investigation as extensive as it

considers necessary.” 28 U.S.C. § 353(c). After concluding

its investigation, the special committee must “file a comprehensive written report thereon with the judicial council of the circuit.” Id.

When the judicial council receives a report from a special committee, the Disability Act allows the judicial council to conduct additional investigations or dismiss the complaint. See 28 U.S.C. § 354(a)(1)(A)–(B). But if the judicial

council declines to dismiss the complaint, the Disability

Act requires the council to take “appropriate” action,

which may include one or more of the following:

(i) ordering that, on a temporary basis for a time

certain, no further cases be assigned to the

judge whose conduct is the subject of a complaint;

(ii) censuring or reprimanding such judge by

means of private communication; and

(iii) censuring or reprimanding such judge by

means of public announcement.

28 U.S.C. § 354(a)(2)(A). Notably, the Disability Act does

not authorize actions that would prohibit a sitting circuit

judge from participating in en banc proceedings or prevent a judge from continuing to hire law clerks. If the

judge at issue is an Article III judge, then the council may

also issue a certificate of disability under 28 U.S.C. § 372

or ask the judge to voluntarily retire. See 28 U.S.C.

§ 354(a)(2)(B). The Disability Act expressly prohibits the

judicial council from removing an Article III judge from

office. See 28 U.S.C. § 354(a)(3)(A) (“Under no circumstances may the judicial council order removal from office

of any judge appointed to hold office during good behavior.”).

A judge who is aggrieved by an action of the judicial

council may petition the Judicial Conference of the United

States for review. See 28 U.S.C. § 375(a). But the Disability Act limits judicial review of the “orders and determinations” issued under the Act: “Except as expressly provided in this section and section 352(c), all orders and determinations, including denials of petitions for review,

shall be final and conclusive and shall not be judicially reviewable on appeal or otherwise.” 28 U.S.C. § 357(c).

II. THE

ADMINISTRATIVE

AGAINST JUDGE NEWMAN

PROCEEDINGS

On December 15, 2022, Judge Newman authored one

of her characteristically excellent dissents from a 10-2 en

banc decision in Rudisill v. McDonough, 55 F.4th 879,

888–96 (Fed. Cir. 2022) (Newman, J., dissenting). This

Court later adopted much of Judge Newman’s reasoning

when it reversed the Federal Circuit. See Rudisill v.

McDonough, 601 U.S. 294 (2024). Some two months after

Judge Newman wrote that dissent, Chief Judge Moore removed her from normal panel assignments. See Report

and Recommendation of the Special Committee of July 31,

2023 (hereinafter “July 31 Report”) at 77–79, available at

https://tinyurl.com/4az95aat.6 Judge Newman had not violated objective criteria that warranted the removal. Id.

at 79.

The next month, on March 8, 2023, the Judicial Council

ordered that Judge Newman not hear any more cases. Id.

at 17 n.6, 54. And Chief Judge Moore told Judge Newman

she could either retire or “consider senior status.” In re

Complaint No. 23-90015 (Fed. Cir. Mar. 24, 2023) (hereinafter “March 24 Order”) at 5, available at http://bit.ly/

4pr3smb. Judge Newman refused. See July 31 Report at

4–5. Then, on March 24, 2023, Chief Judge Moore acted

on her own initiative to “identify a complaint” against

Judge Newman under the Disability Act. See March 24

Order at 6; 28 U.S.C. § 351(b). Chief Judge Moore alleged

that “there is probable cause to believe that Judge Newman’s health has left her without the capacity to perform

the work of an active judge.” See March 24 Order at 5. To

investigate Judge Newman, Chief Judge Moore convened

a “special committee” comprising Chief Judge Moore and

circuit judges Sharon Prost and Richard Taranto. See

July 31 Report at 1.

The order of March 24, 2023, relied on the personal

knowledge of Judge Newman’s Federal Circuit colleagues. Although none of them had initiated a complaint,

Judge Moore claimed that other “judges and staff ” had

brought concerns about Judge Newman to Chief Judge

Specifically, Judge Moore removed Judge Newman from the

April 2023 hearing calendar, which was issued at the end of February 2023. See July 31 Report at 77–78.

Moore’s attention “based on their personal experience.”

See March 24 Order 2. The order also referred to statements that Judge Newman had made “during deliberati[ons]” with other judges (i.e., when no one other than

other Federal Circuit judges were in the room), id., and

stated that fully “half of the active judges” had expressed

concerns about Judge Newman, id. at 5–6. The order

falsely asserted that two years earlier, in 2021, Judge

Newman had “suffer[ed] a heart attack and undergo[ne]

coronary stent surgery.” Id. at 1.7

Because the investigation was initiated by Chief Judge

Moore and based on accusations leveled by her fellow

Federal Circuit judges, Judge Newman asked the Chief

Judge and the Special Committee to transfer the investigation to another circuit, given that members of the Special Committee would be serving as witnesses and noting

the established routine practice of transferring complaints against circuit judges requiring more than minimal investigation to special committees outside the circuit

of the judge under investigation. See Letter from Gregory

Dolin, Counsel for Judge Pauline Newman, to Chief Judge

Kimberly A. Moore et al. at 3 (Apr. 21, 2023), available at

https://tinyurl.com/y5rrtd69. Despite their blatant conflict of interest in serving simultaneously as complainant,

witnesses, and judges, the Chief Judge and Special

Judge Newman never suffered a heart attack (nor a “cardiac episode,” as the Special Committee later described it, see Report &

Recommendation of July 31, 2023, at 14), and she submitted extensive medical records to prove it. So even the initial investigation was predicated on a falsehood.

Committee members denied the request. See Order of

May 3, 2023, available at https://tinyurl.com/y2hkhpsm.8

Before the investigation even began, Chief Judge

Moore removed Judge Newman from normal panel assignments. See Order of April 6, 2023 at 3–4, available at

https://tinyurl.com/yc4uszpt. This was improper because

the Disability Act does not authorize sanctions or suspensions until after the investigation concludes. See 28 U.S.C.

§ 354(a); Rules for Judicial-Conduct and Judicial-Disability Proceedings Rule 20(b)(1)(D). When Judge Newman

e-mailed Chief Judge Moore and asked her to reconsider

her exclusion of Judge Newman from the entire June

hearing calendar,9 Chief Judge Moore rebuked Judge

Newman for replying to this email and one relating to

clerks via an email list named “All Judges.” See Order of

April 6, 2023, at 3–5. Because that list included the email

addresses of law clerks and court staff, Chief Judge

Moore declared use of the email list possible judicial misconduct. Id. at 6–7. She broadened the Special

The Judicial Council of the Federal Circuit upheld that refusal to

transfer on efficiency grounds: “If the investigation had been

transferred to another court, unknown to the staff and less accessible to them, the investigation could not have been carried out in

the same expeditious manner. Acting expeditiously is one of the

Committee’s charges[.]” Order of the Judicial Council of the Federal Circuit at 46, In re Complaint No. 23-90015 (Fed. Cir. Sept.

20, 2023).

See E-mail from Judge Pauline Newman to Chief Judge Kimberly A. Moore, April 5, 2023, as quoted in Order of April 6, 2023,

at 3 (“To Chief Judge Moore, Yesterday’s notice of the June appeal paneling again excludes me from the entire June hearing calendar, despite my request. Please correct this action.”), available

at https://tinyurl.com/yc4uszpt.

Committee’s investigation to include “Judge Newman’s

disclosure of a confidential employment dispute matter

and statements made in regard to that matter.” Order of

April 6, 2023, at 7, https://tinyurl.com/yc4uszpt; see also

id. (“I conclude there is sufficient cause to believe that

Judge Newman’s disclosure of a confidential employment

dispute matter and statements made in regard to that

matter may constitute additional misconduct and may

also be relevant to the matters already under investigation identified in the March 24, 2023 order . . . . I accordingly expand the scope of the investigation to include an

investigation into this newly-identified matter.”).

The Special Committee ordered Judge Newman to

submit to neurological and neuropsychological testing by

doctors chosen by the committee. See Order of April 7,

2023, available at https://tinyurl.com/mr3rdyah. The committee also ordered Judge Newman to provide her “hospital records, medical, psychiatric or psychological, and

other health-professional records” to the committee-selected neurologist. See Order of April 17, 2023, at 1–2,

available at https://tinyurl.com/2p9jwvty; Order of May

16, 2023, at 6, available at https://tinyurl.com/3xns8zum.

In response Judge Newman submitted expert reports

from Dr. Ted L. Rothstein and Dr. Regina M. Carney,

based on hours of testing and observation, attesting that

her cognitive abilities are fully intact and that she remains

capable of performing the functions of her office. See

Order of the Judicial Council of the Federal Circuit, Sept.

20, 2023, at 50–51.10

The Special Committee rejected these expert reports

and declared Judge Newman guilty of misconduct for refusing to “cooperate” with the committee.11 See Report &

Recommendation of July 31, 2023, at 109–11, available at

https://tinyurl.com/4az95aat. It recommended that Judge

Newman “not be permitted to hear any cases . . . at the

panel or en banc level” for a period of one year “subject to

consideration of renewal.” Id. at 109–11. The judicial

10. All medical records relied on or reviewed by these experts were

produced to the judicial council’s attorneys. No expert hired by

the judicial council stated that Judge Newman was impaired, and

the judicial council made no such finding at any time.

11. The Special Committee eventually found Judge Newman guilty

of misconduct for refusing to provide her medical records to (and

submit to an examination by) the committee-selected neurologist,

on the pretense that this qualified as a “refusal to cooperate with

the Committee.” See Report & Recommendation of July 31, 2023,

at 109–11, https://tinyurl.com/4az95aat. But refusing to cooperate

with an investigation qualifies as judicial misconduct only when

the refusal is unaccompanied by “good cause.” See Rules for Judicial-Conduct and Judicial-Disability Proceedings, Rule 4(a)(5)

(“Cognizable misconduct includes refusing, without good cause

shown, to cooperate in the investigation of a complaint or enforcement of a decision rendered under these Rules” (emphasis

added)). Judge Newman had “good cause” for refusing to cooperate because she had a constitutional due-process objection to

Chief Judge Moore’s identifying the complaint and then serving

as both a witness and a judge. Other judges on the Federal Circuit were also serving as both witnesses and judges in the matter.

She had also been prematurely removed from panels before the

investigation began. That is why Judge Newman has said all

along that she would cooperate further once the matter was

transferred to another circuit, but Chief Judge Moore and the judicial council refused Judge Newman’s requests for a transfer.

council approved the Special Committee’s recommendation on September 20, 2023. See Judicial Council Order of

September 20, 2023, at 71–73, available at

https://tinyurl.com/mue496ru. Judge Newman sought review before the Judicial Conference of the United States.

The JC&D Committee denied her petition on February 7,

2024, affirming the suspension order while leaving her

constitutional arguments unaddressed. See Memorandum

of Decision at 14, 27, In re Complaint No. 23-01 (Comm.

on Jud. Conduct & Disability of the Jud. Conf. of the U.S.

Feb. 7, 2024), available at https://tinyurl.com/298emk3v.

As the D.C. Circuit put it:

In this case … neither the Judicial Council’s orders nor the JC&D Committee’s decision explicitly reflects genuine consideration of Judge

Newman’s constitutional arguments. None of

the orders appear to address any argument by

Judge Newman that her suspension violates the

Constitution by effectively removing her from

office. The JC&D Committee acknowledged

that Judge Newman argued for a transfer in

constitutional terms, but its order does not

much discuss constitutional due process case

law.

App. 15a n.3 (citations omitted).

On September 6, 2024 — 14 days before the expiration

of the one-year suspension order — the judicial council renewed Judge Newman’s suspension for a second year. See

Judicial Order of September 6, 2024, available at https://

tinyurl.com/2vs2v627. On August 29, 2025, the judicial

council issued a third one-year suspension order. See

Judicial Council Order of August 29, 2025, available at

https://tinyurl.com/4t3k7y5t.12 The judicial council has

continued issuing and renewing these one-year

suspension orders because Judge Newman has not

agreed to receiving a mental evaluation from a neurologist

chosen by the Special Committee.13

The upshot is that Judge Newman has been barred

from exercising any functions of her judicial office since

November 8, 2023 — the date on which she issued her last

opinion. Chief Judge Moore has prohibited Judge Newman from sitting en banc, leaving the Federal Circuit

operating a judge short of its statutory allotment and in

violation of a statute requiring all active Federal Circuit

judges to sit in en banc proceedings, unless recused or

disqualified.14 Chief Judge Moore has also cut Judge

12. Judge Newman appealed this suspension order to the Judicial

Conduct and Disability Committee of the Judicial Conference in

October 2025, and her appeal remains pending. But the committee showed no interest in Judge Newman’s constitutional claims

in rejecting her previous appeal, and we have no reason to expect

a different outcome this time around.

13. Even then, the judicial council will not commit to reinstating

Judge Newman if she were to submit to and pass the medical examinations. See, e.g., Order of August 29, 2025, at 9 (“[T]ransfer

will be reconsidered once the ordered testing is completed and

the proceeding turns to the ultimate question of disability.”). The

judicial council has not requested transferring the proceedings to

another circuit despite the longstanding practice of transferring

investigations of circuit judges so that their circuit-court colleagues (who are typically far from disinterested) will not sit in

judgment of the judge under investigation.

14. See 28 U.S.C. § 46(c) (“A court in banc shall consist of all circuit

judges in regular active service, or such number of judges as may

be prescribed in accordance with section 6 of Public Law 95–486

(continued…)

Newman off from the ceremonial functions of her court,

as well as pre-publication opinion distributions and

administrative matters. She has even prohibited Judge

Newman from hiring new law clerks. Judge Newman has,

for all practical effect, been removed from office despite

Article III’s guarantee of tenure during good behavior —

and despite the Disability Act’s strict admonition that

“[u]nder no circumstances may the judicial council order

removal from office”15— and without the impeachment

and conviction needed to remove Senate-confirmed

judges from office against their will.

III. THE FEDERAL COURT PROCEEDINGS BELOW

On May 10, 2023, Judge Newman sued Chief Judge

Moore, the members of the Special Committee, and the

Judicial Council of the Federal Circuit and its members in

federal district court. On June 27, 2023, Judge Newman

filed an amended complaint that sought both retrospective and prospective relief against the named

defendants. The requested retrospective relief would

declare unlawful and set aside the previously issued

(92 Stat. 1633), except that any senior circuit judge of the circuit

shall be eligible (1) to participate, at his election and upon designation and assignment pursuant to section 294(c) of this title and

the rules of the circuit, as a member of an in banc court reviewing

a decision of a panel of which such judge was a member, or (2) to

continue to participate in the decision of a case or controversy

that was heard or reheard by the court in banc at a time when

such judge was in regular active service.”).

15. 28 U.S.C. § 354(a)(3)(A).

suspension order of the judicial council.16 But Judge

Newman also sought prospective relief that would enjoin

the judicial council from taking action against her in the

future. Among other things, Judge Newman asked the

court to “enjoin Defendants from continuing any such

proceedings” against her. See Amended Complaint at 31,

available at https://tinyurl.com/4avc3ddw. Judge Newman

also asked the court to “order the termination of any

further investigation of Plaintiff by the Judicial Council of

the Federal Circuit.” Id. Finally, Judge Newman’s catchall

request sought “other relief as the Court deems just and

proper.” Id.

Judge Newman also raised a litany of statutory and

constitutional claims against the judicial council. She

alleged that the suspension orders violated her constitutional rights by removing her from office absent impeach16. See, e.g., Amended Complaint at 31, available at

https://tinyurl.com/4avc3ddw (asking the court to: “(5) declare

any decisions by any and all Defendants authorizing a limitation

of Plaintiff’s docket or other special restrictions on her actions as

a federal judge, including, but not limited to the reduction in

statutorily authorized number of staff to be unconstitutional

and/or not in accordance with the law, and enjoin Defendants

from continuing any such actions; (6) declare any orders of the

Special Committee requiring Plaintiff to undergo a compelled

medical or psychiatric examination and/or disciplining Plaintiff

for objecting in good faith to these demands to be

unconstitutional and enjoin Defendants from enforcing the

foregoing unconstitutional orders; (7) declare any orders of the

Special Committee requiring Plaintiff to surrender her private

medical records and/or disciplining Plaintiff for objecting in good

faith to these demands to be unconstitutional and enjoin

Defendants from enforcing the foregoing unconstitutional

orders”).

ment and denying her due process of law. Id. at 25. She

argued that the judicial council lacks statutory authority

to issue a series of self-perpetuating, one-year suspension

orders that may be renewed indefinitely. Id. at 24. And

Judge Newman brought a “facial” constitutional challenge to the provision of the Disability Act that authorizes

temporary suspension of further case assignments. Id. at

22; see also 28 U.S.C. § 354(a)(2)(A)(i).

The district court held that 28 U.S.C. § 357, as

construed in McBryde, allowed it to consider only Judge

Newman’s “facial” constitutional challenge to 28 U.S.C.

§ 354(a)(2)(A)(i), and it dismissed Judge Newman’s

remaining claims for lack of subject-matter jurisdiction.

App. 59a–71a. The district court also rejected Judge

Newman’s facial constitutional challenge to section

354(a)(2)(A)(i) on the merits. App. 79a–81a. The D.C.

Circuit affirmed, holding that McBryde allows Judge

Newman to present only her “facial” constitutional

challenge to section 354(a)(2)(A)(i), and rejecting that

claim on the merits because Judge Newman could not

establish that section 354(a)(2)(A)(i) is “unconstitutional

in all applications.” App. 18a–19a (citing United States v.

Salerno, 481 U.S. 739, 745 (1987)).

The court of appeals acknowledged that the

constitutional issues raised by Judge Newman were

important and serious:

Judge Newman has posed important and serious questions about whether these Judicial Conduct and Disability Act proceedings comport

with constitutional due process principles and

whether her ongoing suspension comports with

the structure of our Constitution. That we do

not answer those questions is no indication that

her arguments lack merit, nor signals how we

might have addressed them if we were able.

App. 21a. The panel also recognized that its decision to

preclude Judge Newman from raising her as-applied

constitutional claims, in federal court, itself presented

“constitutional concerns”:

The seeming absence of a judicial forum to address Newman’s as-applied constitutional

claims itself raises constitutional concerns. Judge Newman presents substantial arguments that her suspension — which has now

lasted nearly two years, with a third year recommended — threatens the principle of judicial

independence and may violate the separation of

powers. She further contends that the refusal to

transfer her case to a different circuit deprived

her of an impartial tribunal, which if correct

would raise due process concerns.

App. 22a (citation omitted). But the panel insisted that its

hands were tied by McBryde, and that only the en banc

D.C. Circuit could overrule the jurisdictional limits imposed by that ruling. App. 22a–23a (“Those doubts,

however, would at most suggest that McBryde was wrong

the day it was decided, not that it does not bind us now.”).

Judge Newman sought rehearing en banc, asking the full

court to overrule McBryde, but the court denied her

request. App. 85a–86a.

REASONS FOR GRANTING THE PETITION

The Court should grant the petition and restore the

critical aspects of judicial lifetime tenure and judicial

independence that the Constitution safeguards. It should

resolve whether the “orders” and “determinations”

described in section 357(c) include ultra vires acts that

exceed the authority conferred on the judicial council by

the Disability Act and the Constitution. The Court should

also make clear that section 357(c) allows litigants to seek

prospective relief that enjoins future unlawful (or

allegedly unlawful) actions. Section 357(c), at most,

shields only the past orders and determinations from

judicial review; it does nothing to stop courts from

awarding remedies that restrain or control future activity.

THE COURT SHOULD GRANT CERTIORARI AND

HOLD THAT 28 U.S.C. § 357(c) DOES NOT SHIELD

ULTRA VIRES ACTS FROM JUDICIAL REVIEW

The Court should grant certiorari and resolve whether

and to what extent the respondents can hide behind

section 357(c) when issuing administrative “orders” and

“determinations” that exceed their statutory and constitutional powers. Section 357(c) provides that:

Except as expressly provided in this section and

section 352(c), all orders and determinations,

including denials of petitions for review, shall be

final and conclusive and shall not be judicially

reviewable on appeal or otherwise.

28 U.S.C. § 357(c). Although this statute refers to “all orders and determinations,” it does not shield from judicial

review everything that happens to be labeled an “order”

or “determination.” Rather, section 357(c) exempts from

judicial review only the “orders” and “determinations”

made under the authorities conferred by the Disability

Act. If a judicial council issued an “order” raising taxes,

pardoning a convicted criminal, or declaring war on Venezuela, this so-called order would not be spared from judicial review on account of section 357(c) because it is not an

“order” or “determination” authorized by the Disability

Act. It is instead an ultra vires act issued without any

statutory or constitutional authority whatsoever, and the

courts retain their authority to review and set aside such

misbegotten administrative “orders” notwithstanding the

bar on judicial review in section 357(c).

This Court has often construed statutes that prohibit

judicial review of agency action to nonetheless preserve

the courts’ authority to set aside ultra vires acts taken

without any statutory or constitutional authority. In Johnson v. Robison, 415 U.S. 361 (1974), for example, Congress

had prohibited judicial review of certain “decisions” made

by the Administrator of Veterans’ Affairs, declaring that:

[T]he decisions of the Administrator on any

question of law or fact under any law administered by the Veterans’ Administration providing

benefits for veterans . . . shall be final and conclusive and no . . . court of the United States

shall have power or jurisdiction to review any

such decision.

Id. at 367 (alterations in original) (quoting 38 U.S.C.

§ 211(a) (1970). The Court nonetheless held that litigants

could collaterally attack “decisions” of the Administrator

if they were challenging the constitutionality of the

underlying statutes that vested the Administrator with

decision-making authority. The holding of Johnson is eminently defensible, because an unconstitutional statute

cannot confer any decision-making authority on an

agency official. See, e.g., Norton v. Shelby County, 118

U.S. 425, 442 (1886) (“[A]n unconstitutional act is not a

law; it confers no rights; it imposes no duties; it affords no

protection; it creates no office; it is, in legal contemplation,

as inoperative as though it had never been passed.”); Ex

parte Siebold, 100 U.S. 371, 376 (1879) (“An unconstitutional law is void, and is as no law.”). So Johnson construed

the statutory prohibition on judicial review to apply only

to “decisions” made pursuant to the powers that Congress

had constitutionally conferred upon the Administrator of

Veterans’ Affairs.

Webster v. Doe, 486 U.S. 592 (1988), is in a similar vein.

The statute in Webster provided that the Director of Central Intelligence:

may, in his discretion, terminate the employment of any officer or employee of the Agency

whenever he shall deem such termination necessary or advisable in the interests of the

United States.

Id. at 594 (quoting 50 U.S.C. § 403(c) (1988)). When a terminated CIA employee sued and claimed that he had been

fired for unconstitutional reasons, the Court held that it

could review his claim under the Administrative Procedure Act — notwithstanding the prohibition on judicial review of decisions “committed to agency discretion by law.”

5 U.S.C. § 701(a)(2). And rightly so: A statute such as 50

U.S.C. § 403(c) can never vest an agency official with

“discretion” to violate the Constitution, no matter how

sweeping its language, so the seemingly absolute discretion conferred by section 403(c) still left the courts with

room to review constitutional challenges to the CIA director’s firing decisions.

The Disability Act, like 50 U.S.C. § 403(c), cannot authorize the judicial council (or anyone else) to act in violation of the Constitution. So the administrative “orders”

and “determinations” described in section 357(c) should

not refer to any “order” or “determination” that happens

to emanate from a judicial council, a special committee, or

the Judicial Conference of the United States. Instead, one

can rely on Johnson and Webster to limit section 357(c) to

the “orders” and “determinations” that Congress has constitutionally authorized in the Disability Act. This construction of section 357(c) will preserve the courts’ jurisdiction to entertain collateral attacks on previously issued

“orders” and “determinations” that violate the Constitution or exceed the scope of the statutory powers conferred

by the Disability Act.

Judge Newman has raised a host of constitutional

challenges to her suspension orders, and she claims that

the judicial council has exceeded the scope of its statutory

powers and violated the Constitution (and the Act) by effectively removing her from office despite the life tenure

promised by Article III. See 28 U.S.C. § 354(a)(3)(A)

(“Under no circumstances may the judicial council order

removal from office of any judge appointed to hold office

during good behavior.”). The Court should grant certiorari to decide whether and to what extent Judge Newman

can collaterally attack the previously issued suspension

orders under section 357(c), notwithstanding its prohibition on judicial review, on the ground that the statute

shields only the “orders” and “determinations” issued

within the scope of constitutionally conferred authorities.

II. THE COURT SHOULD GRANT CERTIORARI AND

HOLD THAT 28 U.S.C. § 357(c) DOES NOT

FORECLOSE CLAIMS THAT SEEK PROSPECTIVE

RELIEF

McBryde failed to recognize that section 357(c) preserves the rights of litigants to sue for prospective relief

that enjoins the issuance of future orders and determinations under the Disability Act. Section 357(c), at most,

bars judicial review of past orders and determinations; it

does nothing to stop Judge Newman (or other litigants)

from suing to enjoin a judicial council’s future actions.

Judge Newman’s complaint alleges that the respondents

will renew Judge Newman’s one-year suspension orders

indefinitely,17 and it seeks prospective relief that will enjoin the respondents from issuing future suspension orders against her.18 And nothing in section 357(c) bars

17. See Amended Complaint at ¶ 71, available at https://tinyurl.com/

4avc3ddw (“Defendants believe they have authority to suspend

and may continue their suspension of Judge Newman even in the

absence of any finding of misconduct.”); These allegations must

be assumed true at this stage of the litigation. See Manhattan

Community Access Corp. v. Halleck, 587 U.S. 802, 806 (2019)

(“Because this case comes to us on a motion to dismiss, we accept

the allegations in the complaint as true.”).

18. See Amended Complaint, at p. 31, available at https://tinyurl.com/

4avc3ddw (demanding relief that would, among other things, “order that Judge Newman’s ability and authority to hear cases be

immediately restored” and “order the termination of any further

(continued…)

courts from enjoining future conduct that is alleged to violate statutory or constitutional rights.

That section 357(c) does not bar such relief is readily

apparent from its text:

Except as expressly provided in this section and

section 352(c), all orders and determinations, including denials of petitions for review, shall be

final and conclusive and shall not be judicially

reviewable on appeal or otherwise.

28 U.S.C. § 357(c). The statute accords non-reviewability

only to orders and determinations that have already issued, and it blocks judicial review only of those extant orders and determinations. This leaves an accused judge

free to sue for prospective relief lest the improper and illegal orders and determinations be repeated. Here, such

relief would prevent the judicial council from renewing or

reissuing the suspension orders in the future. And there

is certainly no “clear indication” that section 357(c) strips

the courts of jurisdiction to consider claims that seek prospective relief. See Bowe v. United States, 146 S. Ct. 447,

456 (2026) (“clear indication” needed before a statute is

construed to deprive federal courts of jurisdiction to review claims for relief).

investigation of Plaintiff by the Judicial Council of the Federal

Circuit, except insofar as necessary to transfer the matter to the

judicial council of another circuit”); id. at ¶ 83 (requesting relief

that would “enjoin[]” the defendants “from continuing the investigation into Judge Newman except insofar as any actions are required to transfer this matter to a judicial council of another circuit.”)

McBryde led the D.C. Circuit panel to conclude that

Judge Newman could pursue only her “facial” constitutional challenge to 28 U.S.C. § 354(a)(2)(A)(i), because

McBryde held that courts could consider only facial constitutional challenges of this sort when judges sue in response to suspension orders. See McBryde, 264 F.3d at 58;

App. 10a–12a. But Judge Newman is seeking prospective

relief, in addition to remedies that would set aside the past

orders and determinations of the judicial council.19 Even

if this Court were to determine that, under section 357(c),

Judge Newman cannot bring any claims that would lead

to a vacatur or modification of those previously issued orders, she still would remain free to litigate any claim that

seeks forward-looking relief that would enjoin the issuance of a future agency action. Both McBryde and the

panel opinion failed to recognize that section 357(c) turns

on the requested relief rather than on whether the plaintiff is asserting “facial” as opposed to “as-applied” constitutional claims.

At the very least, the Court should grant the petition

for certiorari, vacate, and remand (GVR) in light of the

intervening decision in Bowe v. United States, 146 S. Ct.

447 (2026), which forecloses any construction of section

357(c) that would close the doors on Judge Newman’s

claims for purely prospective relief. Bowe establishes that

jurisdiction-stripping provisions such as section 357(c)

must be construed according to their enacted language —

and they cannot be expanded beyond their words to reach

situations that might seem similar to yet fall outside the

category of claims that the statute places beyond the jur19. See notes 17–18, supra, and accompanying text.

isdiction of the courts. See id. at 454–62. More specifically,

Bowe held that 28 U.S.C. § 2244(b)(3)(E), which provides

that “[t]he grant or denial of an authorization by a court

of appeals to file a second or successive [habeas corpus]

application shall not be appealable and shall not be the

subject of a petition for rehearing or for a writ of certiorari,”20 does not in any way limit this Court’s jurisdiction

to review a court of appeals’ denial of authorization to file

a second or successive motion under 28 U.S.C. § 2255. See

Bowe, 146 S. Ct. at 456 (“[T]he certiorari bar in [28 U.S.C.

§ 2244(b)(3)(E)] speaks to ‘second or successive applications,’ which federal prisoners do not file”).

Like the statute at issue in Bowe, the language of section 357 is “both narrow and specific,”21 as it insulates only

previously issued “orders and determinations” from judicial review. See 28 U.S.C. § 357(c) (“Except as expressly

provided in this section and section 352(c), all orders and

determinations, including denials of petitions for review,

shall be final and conclusive and shall not be judicially reviewable on appeal or otherwise.”). Bowe precludes any

court from expanding section 357(c) beyond its literal

terms, or using section 357(c) to decline jurisdiction over

anything other than collateral attacks on extant “orders

and determinations.” And Bowe further requires courts to

find a “clear indication” in a statute’s language before construing that law to deprive the courts of jurisdiction to

consider a claim for prospective relief. See Bowe, 146 S.

Ct. at 457.

20. 28 U.S.C. § 2244(b)(3)(E) (emphasis added).

21. Bowe, 146 S. Ct. at 458.

Neither McBryde nor the panel opinion applied the

“clear indication” rule from Bowe before interpreting section 357(c) to block Judge Newman’s statutory and as-applied constitutional claims. Nor could they, as Bowe was

announced on January 9, 2026 — 11 days after the D.C.

Circuit denied Judge Newman’s petition for rehearing en

banc. If the Court is unwilling to grant certiorari and decide the questions presented, it should at least grant, vacate, and remand the petition so that the D.C. Circuit may

reconsider its decision in light of the intervening ruling in

Bowe.

III. THE COURT SHOULD GRANT CERTIORARI

DESPITE THE ABSENCE OF A CIRCUIT SPLIT

McBryde has been the law of the D.C. Circuit for

nearly 25 years, and the court showed no interest in revisiting it when Judge Newman sought rehearing en banc.

App. 85a–86a. But awaiting further percolation is unlikely

to produce a circuit split, as litigation over judicial-suspension orders is thankfully rare, and 28 U.S.C. § 357(c)’s

apparent bar on judicial review is likely to deter litigation

by those who do not realize that its seemingly sweeping

language still allows courts to consider claims for prospective relief.

But the rarity of litigation over judicial suspensions

does not diminish the importance or certworthiness of

these issues, especially in light of the recent attacks on the

independence of Article III judges. The Constitution provides Article III judges with life tenure and salary protection (among other protections) so they can apply the law

without fear of retaliation from those who dislike their decisions. U.S. Const. art. III, § 1; see The Federalist Nos.

78–79 (Alexander Hamilton). And the Constitution empowers Congress—and only Congress—to remove Presidentially-appointed, Senate-confirmed judges through

the impeachment process when a judge engages in misconduct that warrants ouster from office. See U.S. Const.

art. I, § 2, cl. 5.

Chief Judge Moore is using the Disability Act to circumvent these constitutional protections, in an attempt to

implement a constructive discharge of a judicial colleague

with whom she no longer wishes to serve. These heavyhanded tactics cannot be tolerated if the independence of

Article III judges is to be preserved. Other judges who

are watching what is happening to Judge Newman can

only wonder if a similar fate will befall them if they fail to

stay on the good side of their chief judge. This Court cannot allow the internal politics of a court to sideline a Senate-confirmed judge and threaten the independence of

other judges who may fear similar reprisals from their

colleagues. All of this needs to be nipped in the bud before

any further damage is done to the Constitution’s protections of judicial independence.

Judge Newman’s colleagues have thus far succeeded

in silencing her frequently dissenting voice on the court,

despite her presidential appointment and lifetime tenure.

And, indeed, her effective removal from the bench has had

a dramatic effect on the number of dissents issued in the

Federal Circuit. One recent study concluded that since

Judge Newman’s removal from the bench, the rate of

dissent in the Federal Circuit has dropped from 12% to

4%.22 Just losing Judge Newman’s own dissents does not

fully account for that drop. This means that other judges

are dissenting less often than they used to when Judge

Newman was actively participating and setting a good example. Or, perhaps what has happened to Judge Newman

has raised the perceived costs of dissenting and intimidated some judges at the margins from authoring dissents. Either way, the Federal Circuit and those who litigate before it are worse off with the lack of vibrant dissent

to stimulate more careful thinking and adjudicating.

Attacks on the independence of the judiciary have

been increasing from both the left and right, and from the

executive, legislative, and even within the judicial branch.

For those reasons — and for the reasons given above — it

is imperative for the Court to step in and issue a strong

statement in support of judicial independence and make

clear that the only appropriate method of removing a federal judge is through the constitutional impeachment process.

22. See Dennis Crouch, Federal Circuit Dissent Rates Collapse After

Newman’s Removal, PatentlyO (Mar. 3, 2026), https://bit.ly/

46Xb6OG [https://perma.cc/84SW-MZEQ].

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted.

JOHN J. VECCHIONE

ANDREW J. MORRIS

MARK S. CHENOWETH

New Civil Liberties Alliance

4250 North Fairfax Drive

Suite 300

Arlington, Virginia 22203

(202) 869-5210

March 12, 2026

JONATHAN F. MITCHELL

Counsel of Record

Mitchell Law PLLC

111 Congress Avenue

Suite 400

Austin, Texas 78701

(512) 686-3940

jonathan@mitchell.law

APPENDIX

D.C. Circuit opinion ............................................................ 1a

District court opinion of July 9, 2024 .............................. 24a

District court opinion of February 12, 2024................... 41a

D.C. Circuit order denying rehearing en banc .............. 85a

28 U.S.C. § 351 et seq. ...................................................... 87a

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

————

Argued April 24, 2025

Decided August 22, 2025

No. 24-5173

PAULINE NEWMAN, HONORABLE; CIRCUIT JUDGE,

APPELLANT

KIMBERLY A. MOORE, HONORABLE; IN HER OFFICIAL

CAPACITIES AS CHIEF JUDGE OF THE UNITED STATES

COURT OF APPEALS FOR THE FEDERAL CIRCUIT, CHAIR

OF THE JUDICIAL COUNCIL OF THE FEDERAL CIRCUIT

AND CHAIR OF THE SPECIAL COMMITTEE OF THE

JUDICIAL COUNCIL OF THE FEDERAL CIRCUIT, ET AL.,

APPELLEES

————

Appeal from the United States District Court

for the District of Columbia

(No. 1:23-cv-01334)

————

Gregory Dolin argued the cause for appellant. With

him on the briefs were John J. Vecchione and Andrew

Morris.

David C. Tryon was on the brief for amicus curiae

the Buckeye Institute in support of appellant.

Ilya Shapiro was on the brief for amici curiae Manhattan Institute, et al. in support of appellant.

Richard A. Samp was on the brief for amici curiae

Honorable Janice Rogers Brown, et al. in support of appellant.

Christopher A. Zampogna was on the brief for amicus curiae the Bar Association of the District of Columbia in support of appellant.

Melissa N. Patterson, Attorney, U.S. Department of

Justice, argued the cause for appellees. With her on the

brief were Brian M. Boynton, Principal Deputy Assistant Attorney General, at the time the brief was filed,

Mark R. Freeman and Maxwell A. Baldi, Attorneys.

Probir K. Bondyopadhyay, Ph.D., pro se, was on the

brief for amicus curiae Probir K. Bondyopadhyay, Ph.D.

in support of appellees.

Before: MILLETT, PILLARD, and GARCIA, Circuit

Judges.

Opinion for the Court filed by Circuit Judge GARCIA.

GARCIA, Circuit Judge: The Judicial Councils Reform

and Judicial Conduct and Disability Act of 1980 empowers circuit judicial councils to investigate allegations of

misconduct or disability lodged against fellow judges.

The Act also authorizes judicial councils to take “action”

to address such allegations, including by “ordering that,

on a temporary basis for a time certain, no further cases

be assigned” to the judge in question. 28 U.S.C.

§ 354(a)(1)–(2).

In 2023, a Special Committee of the Federal Circuit

opened an investigation into Judge Pauline Newman under the Act. The Committee asked Judge Newman to

undergo medical examinations and produce medical records. Judge Newman refused, contending that those requests and the Committee’s investigation were unlawful.

In response, the Federal Circuit’s Judicial Council suspended Judge Newman from receiving new case assignments for one year, subject to potential renewal. The Ju-

dicial Council in fact renewed that suspension in September 2024, and it will decide whether to do so again in

September 2025.

In May 2023, Judge Newman filed this suit in district

court, contesting her suspension on multiple grounds.

She argued the Judicial Council violated her constitutional due process rights by refusing to transfer the matter to another circuit despite what she submits are stark

conflicts of interest. She claimed that the Act’s provision

authorizing temporary case-assignment suspensions is

facially unconstitutional. She contended, alternatively,

that the case-suspension provision is unconstitutional as

applied to her, because she has been effectively removed

from office without being impeached. And she argued

that the Judicial Council exceeded its statutory authority

in imposing her suspension.

As the district court recognized, our ability to review

Judge Newman’s statutory and constitutional claims is

largely foreclosed by binding precedent. In McBryde v.

Committee to Review Circuit Council Conduct & Disability Orders of the Judicial Conference of the United

States, 264 F.3d 52 (D.C. Cir. 2001), this court held that

Congress precluded our jurisdiction over statutory and

as-applied constitutional challenges to judicial council

orders. Id. at 58–63. Instead, McBryde concluded, Congress intended for those claims to be considered exclusively by the Judicial Conference. Id. This panel has no

authority to depart from McBryde.

As a result, we have jurisdiction to consider only

Judge Newman’s facial constitutional challenge to the

Act’s case-suspension provision. Under well-settled standards for such claims, that facial challenge fails because — irrespective of whether the provision’s applica-

tion to Judge Newman is constitutional — Judge Newman agrees that the provision has many other constitutional applications.

We therefore affirm the district court’s judgment. As

just explained, however, our reasons for affirming are

unrelated to the strength of Judge Newman’s statutory

claim or as-applied constitutional claims. Nor does our

decision reflect our views of the underlying dispute or of

Judge Newman’s suspension. Under McBryde, any recourse for Judge Newman must come from a judicial

council or from the Judicial Conference, the entity statutorily empowered to review council decisions.

The Judicial Councils Reform and Judicial Conduct

and Disability Act of 1980 “established a formal mechanism by which federal judges could be disciplined by fellow judges for ‘conduct prejudicial to the effective and

expeditious administration of the business of the

courts.’ ” Hastings v. Jud. Conf. of U.S., 770 F.2d 1093,

1095 (D.C. Cir. 1985) (quoting 28 U.S.C. § 351(a)). The

Act outlines the following procedures.

First, “[a]ny person” may submit a complaint alleging judicial misconduct or disability to the clerk of the

circuit where the accused judge sits. 28 U.S.C. § 351(a).

The clerk will then transmit the complaint to the circuit’s

chief judge. Id. § 351(c). Alternatively, the chief judge

may “identify a complaint” on her own initiative. Id.

§ 351(b).

The Act contemplates that proceedings on a complaint will ordinarily take place in the accused judge’s

own circuit. Congress, however, has also authorized the

Judicial Conference of the United States — a body which

includes the Chief Justice of the United States, the chief

judge and a district judge from each federal circuit, and

the Chief Judge of the Court of International Trade — to

promulgate rules governing the proceedings. See id.

§§ 331, 358(a). One such rule provides that “[i]n exceptional circumstances, a chief judge or a judicial council

may ask the Chief Justice to transfer a proceeding . . . to

the judicial council of another circuit.” R. for Jud. Conduct & Jud. Disability Procs. 26.

Upon receiving or identifying a complaint, the chief

judge may dismiss the complaint, “conclude the proceeding” because “intervening events” render action unnecessary, or “certify the complaint” to an investigative

“special committee.” 28 U.S.C. §§ 352(b), 353(a). A special committee usually consists of the chief judge and two

other judges. See id. § 353(a). If appointed, the special

committee will “conduct an investigation as extensive as

it considers necessary,” id. § 353(c), with “full subpoena

powers” at its disposal, id. § 356(a). Upon completing the

investigation, the committee will prepare “a comprehensive written report,” including “recommendations,” for

the circuit’s judicial council, id. § 353(c) — a body that in

the Federal Circuit includes all active judges, see id.

§§ 332(a)(1), 363; Appellant’s Brief 4 n.1.

After receiving a special committee’s report, the circuit’s judicial council may investigate further, and then

must either dismiss the underlying complaint, or “take

. . . action” to address it. 28 U.S.C. § 354(a). Potential

“action” includes formally censuring the judge or requesting that the judge retire. Id. § 354(a)(2). The statute also authorizes a judicial council to “order[] that, on a

temporary basis for a time certain, no further cases be

assigned to the judge.” Id. § 354(a)(2)(A)(i). The Act

specifies, however, that judicial councils are prohibited

from “order[ing the] removal from office of any [Article

III] judge appointed to hold office during good behavior.” Id. § 354(a)(3)(A).

Following consideration by a judicial council, complaints can be reviewed by the Judicial Conference. See

id. §§ 331, 357(a)–(b). A circuit’s judicial council may directly refer or certify any complaint to the Judicial Conference. Id. § 354(b)(1)–(2). Alternatively, a “complainant

or judge aggrieved by an action of the judicial council . . .

may petition the Judicial Conference . . . for review.” Id.

§ 357(a). Upon review, the Conference is empowered to

take any of the actions available to a judicial council, or

to inform the House of Representatives that it believes

impeachment is warranted. Id. § 355. The Conference

has delegated that responsibility for reviewing judicial

council orders to its Committee on Judicial Conduct and

Disability (the JC&D Committee). See R. for Jud. Conduct & Jud. Disability Procs. 21(a).

The Act, however, purports to preclude judicial review of any orders issued during such proceedings. The

Act provides for only two forms of intrabranch review:

the Judicial Conference’s review of council orders, and a

judicial council’s review of certain orders issued by the

circuit’s chief judge. See 28 U.S.C. §§ 352(c), 357(a). But

except for those review mechanisms, Section 357(c) of

the Act — in a provision entitled “No Judicial Review” —

states that “all orders and determinations, including denials of petitions for review, shall be final and conclusive

and shall not be judicially reviewable on appeal or otherwise.” Id. § 357(c).

On March 24, 2023, Federal Circuit Chief Judge

Kimberly A. Moore initiated a complaint against Judge

Newman, who was then ninety-five years old and remained in active service. Citing reports from court staff,

Chief Judge Moore’s complaint claimed that Judge

Newman could no longer manage her workload due to

health- and age-related mental impairments. The Chief

Judge certified the complaint to a Special Committee

composed of herself and two other Federal Circuit judges.

As part of its investigation into the complaint, the

Special Committee asked Judge Newman to submit

medical records and undergo independent neurological

and neuropsychological examinations. Judge Newman

objected to the records’ and tests’ relevance and refused

to comply. She also requested that the complaint be

transferred to another circuit, arguing that due process

precluded the judges on her circuit’s Committee — whom

she described as her “accusers” and as “witnesses” to

relevant events — from also conducting the investigation

and adjudicating the complaint. J.A. 38–39 ¶ 33. The

Committee denied her transfer request without prejudice.

On July 31, 2023, the Committee submitted its report

to the Judicial Council. The report concluded that Judge

Newman’s noncooperation itself constituted misconduct,

as she had violated Judicial Conduct Rules prohibiting

refusal to cooperate in an investigation without good

cause. See R. for Jud. Conduct & Jud. Disability Procs.

4(a)(5). The Committee recommended that Judge Newman be suspended from receiving new case assignments

for at least one year, subject to renewal if her conduct

continued.

On September 20, 2023, the Federal Circuit’s Judicial

Council issued an order affirming the Committee’s conclusions and adopting its recommendation. Specifically,

the Council found that the Committee had a reasonable

basis to request the medical records and testing at issue,

and it concluded that Judge Newman had not shown

good cause for her refusal to comply. The Council ordered that Judge Newman not be permitted to hear any

new cases “for a period of one year, . . . subject to consideration of renewal if [her] refusal to cooperate continues

after that time and to consideration of modification or

rescission if justified by an end of the refusal to cooperate.” Jud. Council Order (Sept. 20, 2023), at 72–73. Judge

Newman petitioned the JC&D Committee for review of

her suspension. On February 7, 2024, the JC&D Committee affirmed the Council’s order.

In the meantime, Judge Newman filed this suit in

district court against Chief Judge Moore, the two other

members of the Special Committee, and the Judicial

Council. As amended, her complaint asserted eleven

counts. Among them were allegations that the Council’s

proceedings violated her Fifth Amendment due process

rights, that her suspension was not authorized by the

Act, and that the Act’s case-suspension provision was

unconstitutional facially and as-applied.

The district court dismissed Judge Newman’s complaint in part and granted the defendants’ motion for

judgment on the pleadings as to the remaining claims.

The court concluded that it lacked jurisdiction over

Judge Newman’s as-applied and statutory challenges

and dismissed her facial constitutional challenge on the

merits. Judge Newman appealed.

Before this court, Judge Newman continues to press

her claim that the Council exceeded its statutory authority because her suspension is not “temporary” and “for a

time certain.” 28 U.S.C. § 354(a)(2)(A)(i). She also raises

three constitutional challenges to her suspension. First,

she argues that the case-suspension provision is facially

unconstitutional. Second, she asserts that the provision

is unconstitutional as it has been applied to her because

it has resulted in her unlawful removal from office. The

Constitution, Judge Newman emphasizes, provides that

Article III judges “shall hold their Offices during good

Behaviour.” U.S. Const. Art. III, § 1. And, she submits,

the only method to remove a judge from her “Office[]” is

impeachment. See Appellant’s Brief 27. In Judge Newman’s view, because she no longer has pending cases to

decide, she cannot exercise judicial power and the suspension has, in effect, unconstitutionally removed her

from “Office[]” without impeachment. Appellant’s Brief

23–28. Third, Judge Newman brings an as-applied challenge that the Council violated “basic norms of Due Process” by declining to transfer her case to another circuit,

and instead “having the same individuals act as both witnesses and adjudicators.” Id. at 5556, 58–60.

In September 2024, while this appeal was pending,

the Federal Circuit’s Judicial Council renewed Judge

Newman’s suspension for a second year. And in July

2025, the Special Committee recommended that her suspension be renewed for a third year.

The district court dismissed Judge Newman’s asapplied constitutional claims and statutory claim for lack

10a

of jurisdiction. Our court reviews that dismissal de novo.

Statewide Bonding, Inc. v. DHS, 980 F.3d 109, 114 (D.C.

Cir. 2020). We affirm. Binding circuit precedent dictates

that federal courts lack jurisdiction to review those

claims.

Recall that Section 357(c) of the Act provides that “all

orders and determinations” of a judicial council or the

Judicial Conference “shall not be judicially reviewable on

appeal or otherwise.” 28 U.S.C. § 357(c). By its plain text,

that provision appears to explicitly preclude judicial review of all challenges to covered orders.

The Supreme Court, however, has long instructed

that a “serious constitutional question . . . would arise if a

federal statute were construed to deny any judicial forum for a colorable constitutional claim.” Webster v. Doe,

486 U.S. 592, 603 (1988) (citation modified). Thus, “a

statutory bar to judicial review” is understood to “preclude[] review of constitutional claims only if there is

‘clear and convincing’ evidence that the Congress so intended.” Ralls Corp. v. Comm. on Foreign Inv. in U.S.,

758 F.3d 296, 308 (D.C. Cir. 2014) (citation omitted). To

ascertain the scope of an explicit preclusion provision

like Section 357(c), our court “examine[s] both the text of

the statute and the legislative history” and asks whether

there is “clear-and-convincing evidence” of “congressional intent to bar judicial review of constitutional

claims.” Id. at 309.

Twenty-four years ago, our court applied those principles to determine the preclusive scope of Section

357(c). See McBryde v. Comm. to Rev. Cir. Council Conduct & Disability Ords. of Jud. Conf. of U.S., 264 F.3d

52, 58–63 (D.C. Cir. 2001). In McBryde, we considered a

11a

judge’s statutory and constitutional challenges to a judicial council order imposing sanctions under the Act. See

id. at 54–55. We held that Section 357(c) explicitly precluded that judge’s statutory claims. Id. at 59, 63–64.

And we used the clear-and-convincing-evidence test to

determine that Section 357(c) precluded some of that

judge’s constitutional claims. Id. at 58–63. Specifically,

our court held that Section 357(c) did not preclude facial

constitutional challenges given the “serious constitutional question” that would arise if such claims could not be

brought in any forum. Id. at 58 (quoting Webster, 486

U.S. at 603). We also held, however, that Section 357(c)

did “preclude review in the courts for as applied constitutional claims.” Id. at 62–63. In the Act’s legislative history, we discerned “clear and convincing” evidence of

Congress’s intent to channel review of as-applied challenges to the Judicial Conference alone and away from

federal courts. Id.1

McBryde’s jurisdictional holding was unambiguous:

Section 357(c) bars from federal court statutory and asapplied constitutional challenges to judicial council or

Judicial Conference orders issued under the Act. Id. at

59, 62–63.

As this description of McBryde reflects, our court has treated

judicial councils and the Judicial Conference as administrative

rather than judicial bodies. See McBryde, 264 F.3d at 62–63;

Hastings v. Jud. Conf. of U.S., 829 F.2d 91, 103–04 (D.C. Cir.

1987); cf. also Chandler v. Jud. Council of Tenth Cir., 398 U.S.

74, 83–86 (1970) (declining to resolve this issue). Neither party

challenges that treatment before our panel. The appellees do,

however, “preserve” for later review the argument that these

entities should be understood as judicial in nature, in which case

their decisions would not be subject to district court review at

all. See Appellees’ Brief 31 n.7.

12a

We are bound by a prior panel decision “unless intervening Supreme Court precedent” has “effectively overrule[d], i.e., eviscerate[d]” that decision. Alpine Sec.

Corp. v. Fin. Indus. Regul. Auth., 121 F.4th 1314, 1334

(D.C. Cir. 2024) (citation modified). Neither our court

nor the Supreme Court has reconsidered the scope of

Section 357(c) (or altered the clear-and-convincingevidence test) since McBryde was decided. And

McBryde has not otherwise been overruled or meaningfully undermined. We therefore may not review Judge

Newman’s statutory challenge or as-applied constitutional challenges.

Judge Newman resists that conclusion principally by

arguing that McBryde has been effectively overruled

and so no longer forecloses review of statutory challenges or as-applied constitutional challenges. We are not

persuaded.

Judge Newman first claims that McBryde’s holding

respecting statutory challenges was eviscerated by the

Supreme Court’s decision in SAS Institute, Inc. v. Iancu, 584 U.S. 357 (2018). That case, she says, suggests

that even an explicit statutory bar cannot preclude judicial review of claims that an agency exceeded its statutory authority. See Appellant’s Brief 52–53. But SAS Institute says no such thing. That case applied the same principles as McBryde to a differently worded preclusion

provision. And the Court permitted that petitioner’s

challenge to proceed because the preclusion provision by

its terms did not encompass the petitioner’s challenge.

The provision there stated that a “determination by the

Director [of the Patent Office] whether to institute an

inter partes review under this section shall be final and

13a

nonappealable.” SAS Inst., 584 U.S. at 370 (quoting 35

U.S.C. § 314(d)) (emphasis added). But the petitioner

challenged how the Director conducted his inter partes

review — not the Director’s determination of “whether to

institute” such review — so that challenge was not precluded. Id. at 370–71. Judge Newman does not argue

that the order imposing her suspension somehow falls

outside the category of “all orders and determinations”

described in Section 357(c). And SAS Institute is irrelevant to the argument she does make: that Section 357(c)

cannot bar any argument that a judicial council exceeded

its statutory authority.2

Judge Newman also fails to show that McBryde’s

holding regarding as-applied constitutional challenges

has been eviscerated.

First, Judge Newman argues that McBryde’s holding

was undermined by Congress’s 2002 addition of a sever2.

Judge Newman’s brief also might be read as suggesting that,

despite Section 357(c), we can review her statutory challenge

under cases allowing us to review agency overreach of statutory

authority that is “so extreme that one may view it as jurisdictional or nearly so.” Griffith v. Fed. Lab. Rels. Auth., 842 F.2d

487, 493 (D.C. Cir. 1988). She makes any such argument in (at

most) a “skeletal” manner, and so it is forfeited. See N.Y. Rehab.

Care Mgmt., LLC v. NLRB, 506 F.3d 1070, 1076 (D.C. Cir. 2007)

(quotation omitted). And even if we considered her claim, the

exception she invokes has only been applied to statutory

schemes raising questions of implicit preclusion, not to explicit

preclusion provisions like the one at issue here. See Changji

Esquel Textile Co. v. Raimondo, 40 F.4th 716, 722 (D.C. Cir.

2022). The exception is also exceedingly narrow—as the Supreme Court recently reiterated, it is “essentially a Hail Mary

pass [that] in court as in football, . . . rarely succeeds.” Nuclear

Regul. Comm’n v. Texas, 605 U.S. 665, 681–82 (2025) (citation

modified).

14a

ability clause to the Act. That clause states: “If any provision of this subtitle . . . or the application of such provision . . . to any person or circumstance is held to be unconstitutional, the remainder of this subtitle . . . and the

application of the provisions of such to any person or circumstance shall not be affected thereby.” 28 U.S.C. § 351

Note. Judge Newman argues that the provision’s text —

by imagining that an application of the Act could be

found unconstitutional “expressly contemplates ‘as applied’ challenges to the Act being adjudicated in Article

III courts.” Appellant’s Brief 60.

We disagree. The clause does not state that Article

III courts can consider as-applied challenges. And although it contemplates some entity finding applications of

the Act unconstitutional, it is possible Congress envisioned that a judicial council or the Judicial Conference

(not an Article III court) could make such findings. Our

court in McBryde, after all, concluded that the Judicial

Conference could decide such claims. See 264 F.3d at 62,

68. At the least, the clause does not provide clear evidence of Congressional intent to, in effect, partly repeal

Section 357(c) as it was understood in McBryde. See

United States v. Hansen, 772 F.2d 940, 944 (D.C. Cir.

1985) (“[R]epeals by implication are not favored, and will

not be found unless an intent to repeal is clear and manifest.” (citation modified)).

Second, Judge Newman argues that the Judicial Conference has declined to consider constitutional issues in

the years since McBryde was decided. Its failure to do

so, she says, undermines McBryde’s reasoning, which

emphasized Congress’s intent to channel review of those

claims to the Judicial Conference. See 264 F.3d at 62–63.

15a

Whatever the Judicial Conference’s current practices

are, they do not undermine McBryde. When McBryde

was decided, the Judicial Conference declined to pass on

constitutional issues. See id. at 62. The McBryde court

acknowledged as much and conceded that it had no power to order the Judicial Conference to begin hearing such

claims (though it urged the Conference to do so). See id.

at 62, 68. Our court’s reasoning thus never depended on

the Conference in fact reviewing constitutional claims.

Instead, our holding rested on the finding that Congress

had — clearly and convincingly — intended that the Conference, rather than courts, review asapplied challenges

(even if the Conference in fact shirked its duty). See id.

at 59–61.3

Third and finally, Judge Newman turns to the Supreme Court’s opinions in Axon Enterprise, Inc. v. FTC,

598 U.S. 175 (2023), and Free Enterprise Fund v. Public

The parties debate whether judicial councils and the Judicial

Conference have in fact begun to address constitutional issues

in this case and others since McBryde. Counsel for appellees

represents that the Judicial Council agrees it can address asapplied constitutional challenges, and appellees identify one

other JC&D Committee decision that, in their view, considered

and rejected a Fourth Amendment challenge. See Tr. of Oral

Arg. 64; Appellees’ Brief 49 (citing In re Complaint of Judicial

Misconduct, C.C.D. No. 17-01 (U.S. Jud. Conf. Aug. 14, 2017), at

30–34). In this case, however, neither the Judicial Council’s orders nor the JC&D Committee’s decision explicitly reflects genuine consideration of Judge Newman’s constitutional arguments. None of the orders appear to address any argument by

Judge Newman that her suspension violates the Constitution by

effectively removing her from office. The JC&D Committee

acknowledged that Judge Newman argued for a transfer in constitutional terms, In re Complaint No. 23-90015, C.C.D. No. 2301 (U.S. Jud. Conf. Feb. 7, 2024), at 14, 21, but its order does not

much discuss constitutional due process case law.

16a

Company Accounting Oversight Board, 561 U.S. 477

(2010). On her view, those cases held that all constitutional questions “are outside the scope of agencies’ expertise” and so must be reviewable in federal courts. Appellant’s Brief 62. Those holdings, she says, undermine

McBryde’s conclusion that Congress intended to route

review of as-applied challenges exclusively to the Judicial Conference.

Judge Newman overreads Axon and Free Enterprise

Fund. Most simply, those cases did not involve an explicit statutory bar on judicial review, and so did not address

the same type of legal question as did McBryde. In Axon

and Free Enterprise Fund, entities facing agency investigations or enforcement actions sued in district court,

arguing that the agencies at issue were unconstitutionally structured. See Axon, 598 U.S. at 180; Free Enter.

Fund, 561 U.S. at 487. As the Court emphasized, neither

case involved an explicit jurisdiction-stripping provision

like Section 357(c). See Free Enter. Fund, 561 U.S. at

489 (“[T]he text does not expressly limit the jurisdiction

. . . [of] district courts.”); see also Axon, 598 U.S. at 185.

Instead, the agencies claimed that Congress’s creation of

a scheme of administrative review, followed by review in

a court of appeals, implicitly precluded district court

suits challenging the agencies’ actions. See Axon, 598

U.S. at 184–88; Free Enter. Fund, 561 U.S. at 489–91. In

such a case, rather than the clearand-convincingevidence test McBryde applied, courts deploy a different

doctrinal framework stemming from Thunder Basin

Coal Co. v. Reich, 510 U.S. 200 (1994). See Axon, 598 U.S

at 185–86; Free Enter. Fund, 561 U.S. at 489–91. That

difference alone defeats any argument that Axon or Free

17a

Enterprise Fund eviscerates McBryde’s reading of Section 357(c)’s explicit bar on judicial review.

A further weakness in Judge Newman’s analogy is

also worth noting. She seizes on the Court’s explanation

that the SEC and FTC were comparatively inexpert as

compared to district courts in evaluating constitutional

claims. See Axon, 598 U.S. at 194–95; Free Enter. Fund,

561 U.S. at 491. But it is far from clear that concern applies equally to judicial councils or the Judicial Conference. Those entities are, after all, composed exclusively

of Article III judges.

Taking a different tack, Judge Newman argues that,

even if McBryde generally remains good law, its reasoning does not apply to her specific as-applied challenges.

This line of argument also proves unpersuasive.

To start, Judge Newman contends that McBryde

held in a footnote that Section 357(c) did not cover asapplied challenges (like hers) to long-term disqualifications from hearing cases. That footnote states: “Obviously, we do not decide whether a long-term disqualification

from cases could, by its practical effect, [e]ffect an unconstitutional ‘removal.’” McBryde, 264 F.3d at 67 n.5.

Through that footnote, she argues, McBryde promised

that a court would have jurisdiction to consider that type

of as-applied challenge if it arose.

That reading is implausible. McBryde squarely

held — in an earlier section of the opinion — that Section

357(c) reflects Congress’s intent “to preclude review in

the courts for as applied constitutional claims.” Id. at 62–

63. The footnote appears in the panel’s later discussion of

McBryde’s facial challenge and does not purport to modify the court’s jurisdictional holding.

18a

Next, Judge Newman argues that McBryde does not

preclude review of her due process challenge to the Judicial Council’s refusal to transfer her case. The Act, she

notes, does not explicitly provide for Judicial Conference

review of a council’s decision to transfer (or not transfer)

a case. And she argues that McBryde’s rationale cannot

apply to her due process claim because it turned on the

availability of review before the Judicial Conference.

Judge Newman may be right that the Act provides

no means to petition the Conference for interlocutory

review of the Council’s transfer decision. But the Act

does provide for Conference review of any final council

action stemming from a case that was not transferred.

See 28 U.S.C. § 357(a)–(b). Judge Newman’s due process

challenge to the Council’s transfer decision can thus be

raised to the Conference as part of a petition challenging

the Council’s final action in this case. Indeed, Judge

Newman challenged the Judicial Council’s denial of her

transfer request in her 2023 petition for review of the

Council’s initial suspension order, and the JC&D Committee addressed it. See In re Complaint No. 23-90015,

C.C.D. No. 23-01 (U.S. Jud. Conf. Feb. 7, 2024), at 15–22.

Judge Newman cannot show that McBryde has been

eviscerated or that her specific claims escape its grasp.

We thus lack jurisdiction over her statutory and asapplied constitutional challenges.

III

We do have jurisdiction over Judge Newman’s facial

challenge to the Act’s case-suspension provision, see

McBryde, 264 F.3d at 58, and now turn to the merits of

that challenge.

In a facial challenge, the plaintiff asks a court to look

beyond the facts of her own case and declare a statutory

19a

provision unconstitutional in all its applications. Facial

challenges thus strain against the many “good reasons”

that “courts usually handle constitutional claims case by

case, not en masse.” Moody v. NetChoice, LLC, 603 U.S.

707, 723 (2024). As a result, under longstanding precedent, such challenges are quite difficult to make out. To

succeed in a facial challenge, a plaintiff must show that

“no set of circumstances exists under which the law

would be valid” or “that the law lacks a plainly legitimate

sweep.” Comm. on Ways & Means v. Dep’t of Treasury,

45 F.4th 324, 339 (D.C. Cir. 2022) (quoting Ams. for

Prosperity Found. v. Bonta, 594 U.S. 595, 615 (2021);

United States v. Salerno, 481 U.S. 739, 745 (1987)) (citation modified). Put differently, the plaintiff must demonstrate that the provision at issue does not have any — or

at least not many — constitutional applications.

Judge Newman’s own concessions demonstrate that

she cannot meet that settled standard. She challenges 28

U.S.C. § 354(a)(2)(A)(i), which authorizes judicial councils to “order[] that, on a temporary basis for a time certain, no further cases be assigned to the judge whose

conduct is the subject of a complaint.” But Judge Newman concedes that, under that provision, short suspensions from receiving new case assignments can be constitutional at least as long as the judge still has cases left to

decide — while a judge clears a mounting backlog of

opinions, for example. See Reply Brief 6, 9; Appellant’s

Brief 41–43. In fact, both our court and the Supreme

Court have suggested the same (albeit in dicta). See

McBryde, 264 F.3d at 65; Chandler v. Jud. Council of

Tenth Cir., 398 U.S. 74, 85 (1970). Judge Newman thus

cannot show that there is “no set of circumstances . . .

under which the law would be valid” or that it “lacks a

20a

plainly legitimate sweep.” Comm. on Ways & Means, 45

F.4th at 339 (citation modified). Indeed, Judge Newman

does not attempt to make that showing.

Judge Newman’s argument instead proceeds as

though she needs to show only that some portion of the

statute’s applications are unconstitutional. She accordingly argues that her lengthy suspension is unconstitutional, and that if the provision authorizes that suspension and similar ones, it must be facially unconstitutional.

That argument misunderstands the law governing facial constitutional challenges. To be sure, in the First

Amendment context, statutes may sometimes be deemed

facially invalid where only a subset of their applications

are unconstitutional. See United States v. Hansen, 599

U.S. 762, 769 (2023). But that unique way of evaluating

facial challenges — called “overbreadth doctrine” —

“[b]reak[s]” from the ordinary rules for evaluating such

claims to “guard against” the potential that even partly

unconstitutional laws “may deter or ‘chill’ constitutionally protected speech.” Id. at 769–70 (citation modified).

Given that other types of constitutional challenges do not

raise those same concerns, however, courts “have not

recognized an ‘overbreadth’ doctrine outside the limited

context of the First Amendment.” Salerno, 481 U.S. at

745; accord Metro. Wash. Chapter, Associated Builders

& Contractors, Inc. v. District of Columbia, 62 F.4th 567,

577 (D.C. Cir. 2023). This is not a First Amendment case.

Overbreadth doctrine does not apply. So Judge Newman’s theory fails.

Judge Newman further urges us to adopt a “narrowing construction” of the statute. Appellant’s Brief 41–42.

She asks us to find that case suspensions like hers are at

least constitutionally suspect and construe the case-

21a

suspension provision not to authorize such suspensions

to avoid a potentially serious constitutional flaw. See

Crowell v. Benson, 285 U.S. 22, 62 (1932). But a narrowing construction can be justified only if a party first raises a serious constitutional question. See id. Here, the only claim properly before us is Judge Newman’s facial

challenge. And as just explained, that challenge does not

present a close question. We therefore have no occasion

to consider a narrowing construction.

We have now resolved all issues presented in this

case. Before concluding, however, we emphasize two

points.

First, we do not consider — because we cannot considerthe merits of Judge Newman’s as-applied constitutional claims. Judge Newman has posed important and

serious questions about whether these Judicial Conduct

and Disability Act proceedings comport with constitutional due process principles and whether her ongoing

suspension comports with the structure of our Constitution. That we do not answer those questions is no indication that her arguments lack merit, nor signals how we

might have addressed them if we were able. As already

discussed, precedent strips us of authority to consider

those challenges. We do not reach them for that reason

alone.

Second, as a panel of this court, we are unable to

overrule McBryde, and so do not resolve whether

McBryde was rightly decided. To be sure, there are substantial arguments that — if judicial councils and the

Conference are properly regarded as administrative

bodies — the McBryde majority misapplied the clearand-convincing-evidence test when interpreting Section

22a

357(c). Judge Tatel’s partial dissent articulated several

such arguments: The McBryde majority may have applied the clear-and-convincing-evidence test more loosely

than our court had in prior cases, in part because it

thought that as-applied constitutional claims would still

be heard by “a reviewing ‘agency’ composed exclusively

of Article III judges.” McBryde, 264 F.3d at 62; see id. at

73–76 (Tatel, J., concurring in part and dissenting in

part) (citing Ungar v. Smith, 667 F.2d 188, 193, 195 n.2,

196 (D.C. Cir. 1981); Griffith v. Fed. Lab. Rels. Auth.,

842 F.2d 487, 490, 494–95 (D.C. Cir. 1988)). It relied on a

potentially strained reading of the relevant legislative

history. See id. at 74–76. And its holding could be taken

to suggest that certain constitutional questions might be

heard in no forum (if the Judicial Conference does not

consider those challenges) and that, regardless, the Judicial Conference—not the Supreme Court—would be

the last word on major questions of constitutional law.

See id. at 75.

The seeming absence of a judicial forum to address

Newman’s as-applied constitutional claims itself raises

constitutional concerns. See Webster, 486 U.S. at 603.

Judge Newman presents substantial arguments that her

suspension — which has now lasted nearly two years,

with a third year recommended — threatens the principle

of judicial independence and may violate the separation

of powers. She further contends that the refusal to transfer her case to a different circuit deprived her of an impartial tribunal, which if correct would raise due process

concerns. See, e.g., Gibson v. Berryhill, 411 U.S. 564, 579

(1973); In re Murchison, 349 U.S. 133, 136–37 (1955).

Those doubts, however, would at most suggest that

McBryde was wrong the day it was decided, not that it

23a

does not bind us now. (Indeed, many of those arguments

were presented when McBryde was issued, and our full

court nonetheless denied en banc review. See McBryde v.

Comm. to Rev. Cir. Council Conduct & Disability Ords.

of Jud. Conf. of U.S., 278 F.3d 29, 29 (D.C. Cir. 2002) (per

curiam).)

The result of faithfully applying McBryde is that

Judge Newman cannot raise her as-applied constitutional arguments in any Article III forum.4 It is thus up to

the Judicial Council and the Judicial Conference to genuinely engage with those arguments.

The judgment of the district court is affirmed.

So ordered.

Appellees suggested at oral argument that the Supreme Court

may be able to review Judicial Conference orders via mandamus. See Tr. of Oral Arg. 71–74. We express no opinion on that

possibility.

24a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

HON. PAULINE NEWMAN,

Plaintiff,

Case No. 23-cv-01334

(CRC)

HON. KIMBERLY A.

MOORE, et al.,

Defendants.

MEMORANDUM OPINION

In 2021, the Chief Judge of the U.S. Court of Appeals

for the Federal Circuit, Kimberly A. Moore, received reports from court staff that raised concerns about whether veteran Federal Circuit Judge Pauline Newman remained fit to carry out her judicial duties. The reports

prompted Chief Judge Moore to exercise her authority

under the Judicial Conduct & Disability (“JC&D”) Act to

convene a special committee of the court’s judges to conduct an investigation. See 28 U.S.C. §§ 353(a), (c). Judge

Newman declined to cooperate with the investigation,

however, objecting especially to the committee’s requests that she undergo independent neurological testing and provide it relevant medical records. In the face of

Judge Newman’s recalcitrance, the Federal Circuit Judicial Council, on the recommendation of the special

committee, suspended her from receiving new case assignments until she acquiesced to the special committee’s demands.

25a

Fighting fire with fire, Judge Newman brought this

lawsuit against Chief Judge Moore, the two other members of the special committee, and the Federal Circuit

Judicial Council, which is comprised of every member of

the court (collectively, “Defendants”). Her eleven-count

complaint raised both facial and as-applied challenges to

provisions of the JC&D Act, as well as to 28 U.S.C. § 332,

which governs the authority of circuit judicial councils.

Following an unsuccessful Court-ordered mediation, the

Court denied Judge Newman’s request for a preliminary

injunction and granted Defendants’ motion to dismiss

most counts of the complaint. The Court determined that

it lacked jurisdiction over Judge Newman’s as-applied

claims and that two of her facial challenges failed to state

a claim. Defendants now move for judgment on the

pleadings as to the remaining facial challenges, which

allege that certain provisions of the JC&D Act violate

the Fourth Amendment and are unconstitutionally

vague. Because Judge Newman cannot prevail on these

counts either, the Court will grant judgment for Defendants and dismiss the case.

I. Background

The Court has already detailed the background of

this case, including the relevant statutory frameworks.

See Newman v. Moore, No. 23-cv-01334 (CRC), 2024 WL

551836, at *2–5 (D.D.C. Feb. 12, 2024). It need not

replow the same ground here. After dismissing most of

the counts in Judge Newman’s complaint, the Court directed Defendants to answer the remaining counts:

Counts Eight and Nine, which present facial challenges

to the JC&D Act under the Fourth Amendment, and

Counts Five and Seven, which allege that provisions of

the Act are unconstitutionally vague. Defendants did so

26a

and simultaneously moved under Federal Rule of Civil

Procedure 12(c) for judgment on the pleadings. Judge

Newman opposed, and the motion is fully briefed and

ripe for review.

II. Legal Standards

A. Motion for Judgment on the Pleadings

Parties may move for judgment on the pleadings after the pleadings are closed but early enough so as not to

delay trial. Fed. R. Civ. P. 12(c). Movants are entitled to

judgment on the pleadings under Rule 12(c) if they

“demonstrate[ ] that no material fact is in dispute and

that [they are] entitled to judgment as a matter of law.”

Schuler v. PricewaterhouseCoopers, LLP, 514 F.3d 1365,

1370 (D.C. Cir. 2008) (quoting Peters v. Nat’l R.R. Passenger Corp., 966 F.2d 1483, 1485 (D.C. Cir. 1992)).

Though there are some differences between a Rule 12(b)

and Rule 12(c) motion, “[t]he appropriate standard for

reviewing a motion for judgment on the pleadings is virtually identical to that applied to a motion to dismiss under Rule 12(b)(6).” Maniaci v. Georgetown Univ., 510 F.

Supp. 2d 50, 58 (D.D.C. 2007); see also Tapp v. Washington Metro. Area Transit Auth., 306 F. Supp. 3d 383, 391–

92 (D.D.C. 2016) (noting that the “focus of a motion to

dismiss lies with the plaintiff’s inability to proceed on his

claim,” while “a motion for judgment on the pleadings

centers upon the substantive merits of the parties’ dispute”). “When evaluating a motion for judgment on the

pleadings, the [C]ourt may rely on the pleadings, the exhibits to the pleadings, and any judicially noticeable facts

. . . .” Jimenez v. McAleenan, 395 F. Supp. 3d 22, 30

(D.D.C. 2019) (cleaned up) (alteration in original). And

while the Court must construe the factual allegations in

27a

the light most favorable to the nonmoving party, it is not

bound by that party’s legal conclusions. See Sissel v. U.S.

Dep’t of Health & Human Servs., 760 F.3d 1, 4 (D.C. Cir.

2014).

III. Analysis

Defendants have moved for judgment as to Counts

Five, Seven (in part), Eight, and Nine. Again, Counts

Eight and Nine allege that the JC&D Act facially violates the Fourth Amendment of the Constitution, and the

other two counts allege that provisions of the Act are unconstitutionally vague. The Court will start with the

Fourth Amendment claims before tackling the vagueness challenges.

A. Counts Eight and Nine: Unconstitutional Searches

As detailed in the Court’s prior opinion, following receipt of a judicial misconduct or disability complaint, the

chief judge of a circuit may convene a special committee

to investigate the complaint. See Newman, 2024 WL

551836, at *2; see also 28 U.S.C. §§ 353(a), (c). Here,

Chief Judge Moore appointed a special committee to investigate such a complaint against Judge Newman. Id. at

*4. Under the JC&D Act’s “investigation” provision, the

special committee was authorized to “conduct an investigation as extensive as it consider[ed] necessary.” 28

U.S.C. § 353(c). Counts Eight and Nine attempt to

mount facial attacks to this provision. Specifically, they

allege that § 353(c) “violates the Fourth Amendment to

the extent it authorizes a compelled medical or psychiatric examination of an Article III judge” (Count Eight) or

“a compelled surrender of medical records belonging to

an Article III judge” (Count Nine) “without a warrant

based on probable cause.” FAC ¶¶ 118, 124.

28a

To prevail on a facial attack, Judge Newman must

show that § 353(c) “is unconstitutional in all of its applications.” Wash. State Grange v. Wash. State Republican

Party, 552 U.S. 442, 449 (2008). Although such a challenge is “the most difficult . . . to mount successfully,” in

“assessing whether a statute meets this standard,” a

court must consider “only applications of the statute in

which it actually authorizes or prohibits conduct.” City of

Los Angeles, Calif. v. Patel, 576 U.S. 409, 415, 418 (2015)

(quoting United States v. Salerno, 481 U.S. 739, 745

(1987)).

The relevant question therefore is: Does section

353(c) authorize special committees to engage in conduct

that does not run afoul of the Fourth Amendment? It

does. In “conduct[ing] an investigation as extensive as it

considers necessary,” a special committee is authorized

to undertake action that falls outside the Fourth

Amendment. 28 U.S.C. § 353(c). For example, under the

aegis of § 353(c), a special committee could interview

court employees, request and receive third-party witness

statements, or collect relevant communications from the

court’s email server, none of which necessarily constitutes a search or seizure. See Florida v. Bostick, 501 U.S.

429, 434 (1991) (“[A] seizure does not occur simply because a police officer approaches an individual and asks a

few questions . . . . [s]o long as a reasonable person would

feel free to disregard the police and go about his business.” (cleaned up)); United States v. Miller, 425 U.S.

435, 443 (1976) (“[T]he Fourth Amendment does not

prohibit the obtaining of information . . . conveyed by [a

third party] to Government authorities . . . .”); United

States v. Simons, 206 F.3d 392, 395–96, 398 (4th Cir.

2000) (government employee lacked a reasonable expec-

29a

tation of privacy in the “record or fruits of his [i]nternet

use” in light of agency’s policy that it would monitor employees’ internet use and that internet was for official

government business only).

Judge Newman concedes that some of § 353(c)’s “investigative tools” “do not implicate the Fourth Amendment.” Pl.’s Opp’n at 7 n.5. She nonetheless maintains

that the use of these tools does not defeat her facial claim

for two other reasons. First, she argues that § 353(c)

does “no work” and “is therefore irrelevant” in the context of interviewing a court employee because “the Chief

Judge can always interview the Court’s employees even

in the absence of any complaint against any other judge.”

Id. But a special committee has no power to interview an

employee in the absence of § 353(c)’s grant of authority.

Indeed, a special committee exists only once a complaint

is initiated against a judge, see 28 U.S.C. § 353(a)(1)

(permitting the chief judge to appoint a special committee), and its authority to investigate is wholly derived

from § 353(c). Thus, a special committee’s power to interview a court employee is an “application[] of the statute in which [the statute] actually authorizes . . . conduct.” Patel, 576 U.S. at 418 (cleaned up).

Second, Judge Newman contends that Patel’s standard for facial challenges limits the inquiry only to “investigative conduct” that “implicate[s] the Fourth Amendment” — as opposed to all conduct authorized by the

statute. Pl.’s Opp’n at 7 n.5. But that approach reads Patel too broadly. In Patel, a group of hotel proprietors

challenged a provision of the Los Angeles Municipal

Code that compelled “[e]very operator of a hotel to keep

a record” of certain information about guests and to

make this record “available to any officer of the Los An-

30a

geles Police Department for inspection” on demand. 576

U.S. at 412 (alteration in original) (quoting Los Angeles

Municipal Code §§ 41.49(2), (3)(a), (4) (2015)). In upholding the plaintiffs’ facial challenge, the Supreme Court did

not question that the only conduct authorized by this

provision constituted a search within the meaning of the

Fourth Amendment.1 The Supreme Court thus characterized the statute as one “authorizing warrantless

searches,” and explained that, “when addressing a facial

challenge to [such] a statute,” “the proper focus of the

constitutional inquiry is searches that the law actually

authorizes, not those for which it is irrelevant” — for example, when “exigency or a warrant justifies an officer’s

search.” Id. at 418. But because § 353(c) authorizes conduct that, as Judge Newman admits, does not implicate

the Fourth Amendment, this case presents a different

kind of statute. And nothing in Patel suggests that the

Before Patel reached the Supreme Court, the parties disputed — and the lower courts considered — “whether a police officer’s non-consensual inspection of hotel guest records under

[the provision] constitute[d] a Fourth Amendment ‘search.’ ” Patel v. City of Los Angeles, 738 F.3d 1058, 1061 (9th Cir. 2013)

(en banc), aff’d sub nom. City of Los Angeles, Calif. v. Patel, 576

U.S. 409 (2015). The Ninth Circuit sitting en banc found that

such an inspection did implicate the Fourth Amendment. Id.

And, only after having made that determination, the circuit concluded that the searches authorized by the provision were unreasonable and — as the final hurdle for a facial challenge —

were unreasonable in “all” instances. Id. at 1064–65 (“Because

[the] procedural deficiency affects the validity of all searches authorized by § 41.49(3)(a), there are no circumstances in which

the record-inspection provision may be constitutionally applied.”). But as this order of analysis suggests, the first step in

the inquiry is to determine whether all the conduct authorized

by the law is a search or seizure — not whether the searches or

seizures authorized by the law are constitutional.

31a

Court must narrow its analysis of a facial challenge to

conduct that falls within the Fourth Amendment’s ambit

when the statute also authorizes conduct beyond the

amendment’s reach.

The D.C. Circuit confirmed as much in Brennan v.

Dickson, which challenged a Federal Aviation Administration (“FAA”) rule regulating drones. 45 F.4th 48

(D.C. Cir. 2022). The FAA promulgated a “Remote Identification” rule that required “drones in flight to emit

publicly readable radio signals reflecting certain identifying information.” Id. at 53. The circuit rejected a facial

Fourth Amendment challenge to the rule because it

found the rule “generally” did not implicate privacy

rights. Id. at 61 (“Brennan’s facial Fourth Amendment

challenge fails because drone pilots generally lack any

reasonable expectation of privacy in the location of their

drone systems during flight.”). And though the court

noted that future applications of the rule might “violate a

pilot’s constitutionally cognizable privacy interest,” the

plaintiff’s facial challenge failed because he had “not

shown that [] data collection offends the Fourth Amendment in every application of the Rule to the typically

very public activity of drone piloting.” Id. at 64 (emphasis added). The same is true for § 353(c). Though some

investigative conduct might trigger Fourth Amendment

concerns, and even constitute violations of an individual’s

privacy rights, Judge Newman has not shown that every

application of the provision offends the Fourth Amendment. Her facial challenges in Counts Eight and Nine

therefore fail.

B. Counts Five and Seven: Vagueness

Counts Five and Seven meet the same fate. In these

counts, Judge Newman contends that two sections of the

32a

JC&D Act are unconstitutionally vague and violate the

Due Process Clause of the Fifth Amendment. Count

Five challenges § 351(a), which provides that someone

may initiate a JC&D complaint against a judge who “is

unable to discharge all the duties of office by reason of

mental or physical disability.” 28 U.S.C. § 351(a). Judge

Newman alleges that this provision “fails to provide adequate notice of what constitutes a mental disability that

renders a judge ‘unable to discharge all the duties of office.’” FAC ¶ 103 (citing 28 U.S.C. § 351(a)). And in

Count Seven, she claims that § 353(c) — the investigation

provision also challenged in Counts Eight and Nine —

“lacks minimal enforcement guidelines.” Id. ¶ 112 (citing

28 U.S.C. § 353(c)).2 The Court will take up these two

challenges in turn.

1. Count Five

“A vague law denies due process by imposing standards of conduct so indeterminate that it is impossible to

ascertain just what will result in sanctions.” Hastings v.

A reminder on how the Court reads Count Seven. As described

in the Court’s previous opinion, the count makes three allegations: (1) the JC&D Act is “unconstitutionally vague to the extent it purports to authorize compelled medical or psychiatric

examinations . . . or demands for . . . Article III judges to surrender their private medical records,” (2) § 353(c), “which authorizes a Special Committee to conduct an investigation ‘as extensive as it considers necessary’ lacks minimal enforcement

guidelines,” and (3) the act “vests virtually complete discretion

in the hands of a Special Committee.” FAC ¶ 112; see also

Newman, 2024 WL 551836, at *16 n.13. The Court has already

dismissed the third allegation. See id. at *17–18. And the first allegation collapses into the second as the provision purportedly

authorizing the Special Committee to compel medical examinations and the production of records is § 353(c).

33a

Jud. Conf. of U.S., 829 F.2d 91, 105 (D.C. Cir. 1987).

Statutes are not impermissibly vague, however, merely

because they “require[] a person to conform his conduct

to an imprecise but comprehensible normative standard,

whose satisfaction may vary depending upon whom you

ask.” United States v. Bronstein, 849 F.3d 1101, 1107

(D.C. Cir. 2017) (cleaned up). “Rather, a statute is unconstitutionally vague if, applying the rules for interpreting legal texts, its meaning ‘specifie[s]’ ‘no standard of

conduct . . . at all.’” Id. (quoting Coates v. Cincinnati, 402

U.S. 611, 614 (1971)); see also Fed. Express Corp. v.

United States Dep’t of Com., 39 F.4th 756, 773 (D.C. Cir.

2022) (“The Due Process Clause’s fair notice requirement generally requires only that the government make

the requirements of the law public and afford the citizenry a reasonable opportunity to familiarize itself with its

terms and to comply.” (cleaned up)). As the Supreme

Court has cautioned, the vagueness doctrine “is not a

principle designed to convert into a constitutional dilemma the practical difficulties in drawing [] statutes

both general enough to take into account a variety of

human conduct and sufficiently specific to provide fair

warning that certain kinds of conduct are prohibited.”

Colten v. Kentucky, 407 U.S. 104, 110 (1972).

Given the text, legislative history, and implementing

rules of the JC&D Act, section 351(a) is not unconstitutionally vague. First, the text. Section 351(a) provides

that someone may initiate a JC&D complaint against a

judge who “is unable to discharge all the duties of office

by reason of mental or physical disability.” 28 U.S.C. §

351(a); see also id. § 354(2)(A) (providing that judicial

councils may impose penalties based on valid complaints). The statute’s standard of conduct is thus de-

34a

fined in reference to the “duties of [judicial] office.” And

judges, the only individuals against whom § 351(a) can be

enforced, are well aware of their duties. Indeed, before

taking office, all judges must swear an oath to “faithfully

and impartially discharge and perform all the duties incumbent upon” them. 28 U.S.C. § 453. Because the provision is pegged to “knowable criteria,” it is not impermissibly vague. United States v. Ragen, 314 U.S. 513,

523 (1942) (cleaned up); see also Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229, 247–48 (2010)

(rejecting a vagueness challenge to a Bankruptcy Code

provision because the individuals against whom the provision would be enforced — “[a]ttorneys and other professionals who give debtors bankruptcy advice”—“must

know” of other provisions in the Code that impose similar standards).

The legislative history of the JC&D Act provides further color to § 351(a)’s standard. See United States v.

Poindexter, 951 F.2d 369, 379 (D.C. Cir. 1991) (suggesting that clear legislative history can render a “facially

vague” provision constitutional). As the D.C. Circuit held

in the context of an overbreadth challenge to a related

provision of the JC&D Act, the “legislative history

demonstrates that the Act was directed against serious

judicial transgressions.” Hastings, 829 F.2d at 106; see

also id. at 106 n.59 (“It is worth pointing out that federal

judges, the individuals to whom the Act is directed, are

unusually well qualified to interpret statutes in light of

their legislative history.”). The Act “[wa]s not designed,”

by contrast, “to assist the disgruntled litigant who is unhappy with the result of a particular case.” S. Rep. No.

35a

96-362, 96th Cong., 1st Sess., 8 (1979), reprinted in 1980

U.S. Code Cong. & Ad. News 4315, 4323.3

Congress also supplied several reference points for

interpreting § 351(a). See Arnett v. Kennedy, 416 U.S.

134, 160 (1974) (finding no vagueness issue when a statute “was not written upon a clean slate”). The Senate

Report noted that § 351(a) was “a paraphrase of [the]

existing statutory language” of 28 U.S.C. 372(b). S. Rep.

No. 96-362, 9. Section 372(b), which was enacted in 1957,

permits the president to appoint an additional judge

when a sitting judge, who is eligible to retire but does

not do so, becomes “unable to discharge efficiently” her

duties “by reason of permanent mental or physical disability.” 28 U.S.C. § 372(b); see also P.L. 85-261, September 2, 1957, 71 Stat. 586. The Senate Report further

counseled that the JC&D Act’s standards should be informed by the Code of Judicial Conduct and the Canons

of Judicial Ethics of the American Bar Association, resolutions of the Judicial Conference related to judicial conduct, and acts of Congress about judicial conduct. S. Rep.

No. 96-362, 9; see also Hastings, 829 F.2d at 106 (citing

same).4

Under the version of the statute then before the Senate Judiciary Committee, what is now § 351(a) was located at

§ 372(c)(1)(a) and had a slightly different formulation. Thensection 372(c)(1)(a) permitted any person to file a written complaint alleging that a “judge is or has been unable to discharge

efficiently all the duties of his or her office by reason of mental

or physical disability.” S. Rep. No. 96-362, 8.

4. The commentary to the Code of Judicial Conduct reflects this

purpose. It notes that the code “may [] provide standards of

conduct for application in proceedings under the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980.”

(continued…)

36a

Finally, the Rules for Judicial-Conduct and JudicialDisability Proceedings (“JC&D Rules”), promulgated by

the Judicial Conference of the United States, clarify the

meaning of disability in § 351(a). See Vill. of Hoffman

Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 504

(1982) (noting that the adoption of “administrative regulations” can “sufficiently narrow potentially vague or arbitrary interpretations” of a local ordinance).5 The rules

list as “[e]xamples of disability” “substance abuse, the

inability to stay awake during court proceedings, or impairment of cognitive abilities that renders the judge unable to function effectively.” JC&D R. 4(c). Given these

definitions, § 351(a) “provides a discernable standard.”

Bronstein, 849 F.3d at 1107.

Judge Newman offers two main rebuttals. First, she

claims that the “history of enforcement of [§ 351(a)],”

and in particular the proceedings against her, “illustrate[] how standardless [the provision] is.” Pl.’s Opp’n at

19. But at most, her examples suggest that the statute is

subject to multiple interpretations. See, e.g., id. at 21

(claiming that aspects of the Federal Circuit’s investigation “confirm[] the latent subjectivity at play”); id. 24

(“ ‘[E]ffectiveness’ is in the eye of the beholder.”). A sub-

Code of Conduct for United States Judges, Canon 1, Commentary, https://perma.cc/JW2B-99GU.

Judge Newman claims the “needed clarity” cannot come from

the JC&D Act’s implementing rules. Pl.’s Opp’n at 23. But neither of the cases she draws on for support concerns a Fifth

Amendment vagueness challenge. See Texas Educ. Agency v.

United States Dep’t of Educ., 992 F.3d 350, 361 (5th Cir. 2021)

(state waivers of sovereign immunity); Bennett v. Kentucky

Dep’t of Educ., 470 U.S. 656, 666 (1985) (limits on state uses of

federal funding).

37a

jective statute is not an unconstitutional one. See Bronstein, 849 F.3d at 1107 (“[A] statutory term is not rendered unconstitutionally vague because it do[es] not

mean the same thing to all people, all the time, everywhere.” (cleaned up) (second alteration in original)). Second, she suggests that any subjectivity in § 351(a) is impermissible because it undermines judicial independence. See, e.g., Pl.’s Opp’n at 25 (“[B]ecause an Article

III judge is not subject to ‘supervision’ by any of her colleagues, an Article III judge need not meet any other

judge’s . . . definition of ‘effectiveness.’”). But, as the D.C.

Circuit (and this Court) have held, “Article III’s grant of

‘judicial independence’” does not give “judges ‘absolute

freedom from’ discipline or sanctions that fall short of

removal or salary diminution.” Newman, 2024 WL

551836, at *18 (quoting McBryde v. Comm. to Rev. Cir.

Council Conduct & Disability Ords. of Jud. Conf. of U.S.,

264 F.3d 52, 65 (D.C. Cir. 2001)). Nor does the Constitution “exclude[] discipline of judges by judges.” Id. (quoting McBryde, 264 F.3d at 65). Given these accepted limits on judicial independence, there is no reason to believe

that Article III imposes a heightened standard of clarity

on statutes affecting judicial authority. Accordingly, the

Court grants Defendants’ motion as to Count Five.

2. Count Seven

Section 353(c) is not unconstitutionally vague either.

The vagueness doctrine “prevents the government from

imposing criminal and, to a lesser extent, civil penalties if

the statute or regulation specifying the prohibited conduct is not sufficiently specific to provide fair notice” or,

as Judge Newman alleges with respect to § 353(c), “fair

enforcement.” Maxwell v. Rubin, 3 F. Supp. 2d 45, 49

(D.D.C. 1998); see also Beckles v. United States, 580 U.S.

38a

256, 265 (2017) (“[T]win concerns underly[] vagueness

doctrine — providing notice and preventing arbitrary enforcement.”). But “the vagueness doctrine applies only to

laws that regulate the primary conduct of private citizens” — i.e., “laws that define crimes,” “laws that fix sentences,” “laws that restrict speech,” and “laws that regulate businesses.” United States v. Matchett, 837 F.3d

1118, 1119, 1122 (11th Cir. 2016) (en banc); see also ElShifa Pharm. Indus. Co. v. United States, 607 F.3d 836,

856 n.4 (D.C. Cir. 2010) (en banc) (Kavanaugh, J., concurring) (“If a statute regulating private conduct provides no discernible standards and therefore insufficient

notice of what actions are prohibited, the statute might

be void for vagueness under the Due Process Clause.”).

The Supreme Court has found that a statute can lead to

arbitrary enforcement in one of two scenarios: “[I]f it

leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not

in each particular case, . . . or permits them to prescribe

the sentences or sentencing range available.” Beckles,

580 U.S. at 266 (cleaned up); see also id. at 262.

The JC&D’s investigation provision does not fall into

either category. It does not vest a special committee with

authority to decide what judicial conduct is or is not

permissible, nor does it allow a committee to choose the

proper penalty for such conduct. Instead, it merely sets

the outer boundaries for how a special committee may

investigate once a JC&D complaint has been initiated. It

also bears noting that § 353(c) is not unusual. Federal

prosecutors and some federal agencies enjoy similarly

broad investigative authority. See, e.g., Justice Manual

9-2.001 (“The statutory duty to prosecute for all offenses

against the United States (28 U.S.C. § 547) carries with

39a

it the authority necessary to perform this duty. The

[U.S. Attorney] is invested by statute and delegation

from the Attorney General with the broadest discretion

in the exercise of such authority.”); 15 U.S.C. § 78u (“The

[Securities and Exchange] Commission may, in its discretion, make such investigations as it deems necessary

to determine whether any person has violated, is violating, or is about to violate any provision of this chapter.”).

Judge Newman does not address whether the vagueness doctrine applies to § 353(c) as a threshold matter.

She does offer two tangential arguments. Neither succeeds. First, she claims that “[b]ecause there is no defined reference point” for § 351(a)’s disability standard,

“it necessarily follows that any inquiry into whether that

standard has been met will itself be hopelessly vague.”

Pl.’s Opp’n at 28. As explained above, however, 351(a)

has defined reference points. Second, she repackages an

argument that she made — and the Court rejected — in

the last round of motions. She claims that the “issue”

with § 353(c) is that “Defendants can compel Judge

Newman to turn over private documents and then directly sanction her for declining to do so.” Pl.’s Opp’s at 28

(emphasis in original). It is difficult to see how this is a

vagueness challenge. In any event, this point confuses

the authority of special committees with that of circuit

judicial councils. Though a special committee can issue

orders to subject judges, the JC&D Act “does not give

[it] enforcement power.” Newman, 2024 WL 551836, at

*17. Instead, the Act “directs special committees to present a report to the judicial council with ‘recommendations for necessary and appropriate action by the judicial

council.’” Id. (quoting 28 U.S.C. § 353(c)). The JC&D

Rules also divest the special committee of enforcement

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power. They “allow subject judges to refuse to comply

with investigations for ‘good cause,’ ” and empower “the

judicial council, [or] ultimately the Judicial Conference

[of the United States],” but not the special committee, to

“decide whether the judge had good cause to refuse.” Id.

(quoting JC&D R. 4(a)(5)). Finally, to the extent judicial

councils (as opposed to special committees) have the

power to both compel and sanction, the D.C. Circuit has

found no constitutional defect in that arrangement. See

Newman, 2024 WL 551836, at *17 (“[In Hastings,] [t]he

circuit held that the JC&D Act’s vesting of both investigative and adjudicatory functions in the same body did

not violate due process.” (citing Hastings, 829 F.2d at

104–05)).

In sum, § 353(c) is not unconstitutionally vague, and

Defendants are therefore entitled to judgment on the

pleadings as to Count Seven.

IV. Conclusion

For these reasons, the Court will grant Defendants’

motion for judgment on the pleadings and dismiss this

case as to all remaining claims. A separate Order shall

accompany this memorandum opinion.

Date: July 9, 2024

/s/ Christopher R. Cooper

CHRISTOPHER R. COOPER

United States District Judge

41a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

HON. PAULINE NEWMAN,

Plaintiff,

Case No. 23-cv-01334

(CRC)

HON. KIMBERLY A.

MOORE, et al.,

Defendants.

MEMORANDUM OPINION

Veteran Federal Circuit Judge Pauline Newman has

sued Federal Circuit Chief Judge Kimberly A. Moore,

along with all the other judges on the court, over their

handling of reports from court staff implicating Judge

Newman’s fitness for office. Judge Newman has been

hailed, by Chief Judge Moore no less, as a “trailblazer”

and “heroine of the patent system.” Kimberly A. Moore,

Anniversaries and Observations, 50 AIPLA Q. J. 521,

524–25 (2022). After leading the intellectual property department of a major corporation at a time when “female

attorneys, particularly female patent attorneys, were rare,” id. at 524, Judge Newman became the first judge

directly appointed to the Federal Circuit, by President

Ronald Reagan in 1984. First Amended Complaint

(“FAC”) ¶ 10. During her tenure on the court, she has

authored hundreds of opinions and been particularly

recognized for her “insightful dissents.” Id. ¶¶ 13, 74. On

multiple occasions when Judge Newman dissented, the

42a

Supreme Court reversed the Federal Circuit and

“adopt[ed] . . . [her] reasoning.” Moore, supra, at 525.

In 2021, however, court personnel began reporting

“behavior that [] called into question Judge Newman’s

ability to perform her duties.” Mot. Dismiss at 4. Specifically, staff relayed information about Judge Newman

“indicative of memory loss, a lack of focus, confusion over

simple matters, uncharacteristic paranoia, and an inability to perform simple tasks.” Id. These reports eventually led to Chief Judge Moore convening a Special Committee to investigate a judicial misconduct complaint

against Judge Newman; the Federal Circuit Judicial

Council suspending Judge Newman from hearing new

cases on the recommendation of the Special Committee;

and Judge Newman filing this lawsuit against members

of the Special Committee and the Judicial Council as a

whole (“Defendants”). At the Court’s urging, the parties

attempted to resolve the dispute through mediation with

retired D.C. Circuit Judge Thomas B. Griffith. The mediation proved unsuccessful, however, and litigation resumed.

At the heart of the dispute are two important, but at

times competing, priorities: judicial independence and

the need for oversight of Article III judges. The Constitution provides for judicial independence through the

“great bulwarks” of life tenure and undiminished salary

during good behavior. McBryde v. Comm. to Rev. Cir.

Council Conduct & Disability Ords. of Jud. Conf. of U.S.,

264 F.3d 52, 64 (D.C. Cir. 2001); U.S. CONST. Art. III,

§ 1. But with this independence comes the risk that,

should judges falter in performing their duties, there is

no means for sanctioning them short of impeachment.

43a

Congress addressed this gap by creating a system for

the judiciary to police itself. With the passage of 28

U.S.C. § 332, which created circuit judicial councils, and

later the Judicial Conduct and Disability (“JC&D”) Act,

Congress gave “the judiciary the power to ‘keep its own

house in order.’ ” McBryde, 264 F.3d at 61 (citing S. Rep.

No. 96-362, at 11); see also Chandler v. Jud. Council of

Tenth Cir. of U.S., 398 U.S. 74, 85 (1970). Employing this

“housekeeping” power, federal courts created commonsense rules to deal with shortcomings in judges’ performance. One such rule, a variant of which Judge Newman’s colleagues invoked in this case, provides that

“when a judge has a given number of cases under submission, he will not be assigned more cases until opinions

and orders issue on his ‘backlog.’ ” Chandler, 398 U.S. at

85. The Supreme Court has blessed these rules. See id.

(“These are reasonable, proper, and necessary rules, and

the need for enforcement cannot reasonably be doubted.”). And it has rejected the notion that “the extraordinary machinery of impeachment” is the “only recourse”

“if one judge in any system refuses to abide by such reasonable procedures.” Id.

Cases dealing with this system of oversight thankfully are rare, but they have consistently affirmed the judiciary’s authority to police itself. See, e.g., McBryde, 264

F.3d at 61–64; Hastings v. Jud. Conf. of U.S. (“Hastings

II”), 829 F.2d 91, 103–05 (D.C. Cir. 1987). Judge Newman now asks the Court to break ranks with higher

courts that have upheld this self-regulatory regime. The

Court must decline the invitation.

Spanning eleven counts, Judge Newman’s First

Amended Complaint mounts both facial and as-applied

constitutional challenges to the JC&D Act and 28 U.S.C.

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§ 332. Now before the Court are two motions. First,

Judge Newman has moved for a preliminary injunction

to prohibit Defendants from continuing her suspension

from new case assignments and from proceeding with

any further disciplinary proceedings until the matter is

transferred to the judicial council of another circuit. Second, Defendants have moved to dismiss the case, primarily on jurisdictional grounds. For the reasons explained

below, Judge Newman is not entitled to preliminary relief because the Court lacks jurisdiction over most of her

claims and she has failed to establish a likelihood of prevailing on the others. Moving to Defendants’ motion, the

Court will dismiss the claims over which it lacks jurisdiction (Counts II–IV, VI, and X–XI). As for the remaining

claims, Defendants have moved to dismiss two (Count I

and part of Count VII) under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. The Court will

grant that relief. Defendants have not, however, sought

Rule 12(b)(6) dismissal of the remaining claims over

which the Court has jurisdiction (Counts V and VIII–IX

and part of Count VII). The Court therefore may not entertain dismissal of the case in its entirety at this juncture. Defendants may seek dismissal of the surviving

claims under Rule 12(c) or via summary judgment.

I. Background

A. Statutory Frameworks

Under federal law, each circuit has a judicial council,

composed — in most cases — of the chief judge of the circuit and an equal number of district and circuit judges.

28 U.S.C. § 332(a)(1). The Judicial Council for the Federal Circuit, however, is composed of all active judges of

the Federal Circuit. See United States Court of Appeals

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for the Federal Circuit, Judicial Council.1 Judicial councils have a range of powers, but two sources of authority

are of particular relevance here: 28 U.S.C. § 332 and the

JC&D Act, 28 U.S.C. § 351 et seq.

Under 28 U.S.C. § 332(d), judicial councils may

“make all necessary and appropriate orders for the effective and expeditious administration of justice within

[their] circuit.” As the Supreme Court explained over

fifty years ago, “[t]he legislative history of 28 U.S.C

§ 332 and related statutes is clear that some management power was both needed and granted.” Chandler,

398 U.S. at 85. And courts since have found that § 332

“gives considerable discretion to courts and circuit Judicial Councils to choose how to regulate court business,

whether by formal rules, standing orders, or other

means.” Truesdale v. Moore, 142 F.3d 749, 760 (4th Cir.

1998).

Second, judicial councils may “take [] action” on judicial misconduct complaints filed under the JC&D Act. 28

U.S.C. § 354(a)(1)(C). The act permits any person to file

a complaint “alleging that [a] judge is unable to discharge all the duties of office by reason of mental or

physical disability.” Id. § 351(a). “In the interests of the

effective and expeditious administration of the business

of the courts,” the chief judge may also “identify a complaint” and dispense with the filing of a written complaint. Id. § 351(b). The chief judge then reviews the

complaint and takes one of several routes. Id. § 352(a).

She may dismiss the complaint (e.g., because it is frivolous, relates to the merits of a decision, or lacks any factual foundation), id. §§ 352(b)(1), (b)(1)(A)(ii)–(iii),

https://perma.cc/2AF4-LG8R.

46a

(b)(1)(B); conclude the proceeding if appropriate action

has already been taken, id. § 352(b)(2); or appoint a special committee to conduct “an investigation as extensive

as it considers necessary,” id. §§ 353(a), (c). On this final

avenue, once the committee completes its investigation,

it presents its findings and recommendations to the judicial council. Id. § 353(c).

The judicial council, in turn, may conduct an additional investigation, dismiss the complaint, or “take such

action as is appropriate to assure the effective and expeditious administration of the business of the courts within the circuit.” Id. § 354(a)(1)(C). One possible action is to

“order[] that, on a temporary basis for a time certain, no

further cases be assigned to the judge whose conduct is

the subject of a complaint.” Id. § 354(a)(2)(A)(i). A judge

aggrieved by an action of a judicial council may petition

the Judicial Conference of the United States’ Committee

on Judicial Conduct and Disability for review. Id.

§ 357(a).2 The Judicial Conference, in turn, “after consideration of the prior proceedings and such additional investigation as it considers appropriate” may take the

same actions available to a judicial council. Id. § 355(a).

Or, if the Judicial Conference deems impeachment war-

Created by Congress, the Judicial Conference of the United

States, through an executive committee and nineteen topicrelated subcommittees, establishes and implements policies for

the administration of the federal judiciary. United States

Courts, About the Judicial Conference, https://perma.cc/A9XB9C8F. Though Judicial Conference review of complaints is discretionary, see JC&D R. 21(a), the D.C. Circuit found it “fair to

suppose that both houses of Congress realistically expected that

the Judicial Conference would hear all serious claims,”

McBryde, 264 F.3d at 61.

47a

ranted, it may certify and transmit that determination to

the House of Representatives. Id. § 355(b)(1).

B. Proceedings against Judge Newman

In 2021, according to Defendants, Federal Circuit

court personnel began reporting “behavior that [] called

into question Judge Newman’s ability to perform her duties.” Mot. Dismiss at 4. These reports included “information indicative of memory loss, a lack of focus, confusion over simple matters, uncharacteristic paranoia, and

an inability to perform simple tasks.” Id. In early March

2023, Chief Judge Moore allegedly met with Judge

Newman and “attempted to convince [her] to retire.”

FAC ¶ 17. After she refused, the Federal Circuit Judicial

Council proceeded along two separate, but overlapping,

tracks: It pursued action under both § 332(d) and the

JC&D Act.

Starting with § 332, on March 8, 2023, the Judicial

Council convened without Judge Newman present to

consider “concerns raised about [her] mental fitness”

and “her abnormally large backlog in cases.” FAC, Ex. O

at 1. Though the Council did not issue a written order or

identify the source of its authority, it voted on March 8 to

preclude the assignment of new cases to her. Id. After

Judge Newman asked to be restored to the case calendar, the Judicial Council reconsidered its March 8 opinion “de novo.” Id. at 2. In a June 5 order, the Council

concluded that “precluding Judge Newman from new

case assignments [wa]s warranted” under the Council’s

§ 332 authority. Id. at 4. The Council cited Judge Newman’s “continued backlog of cases, and her inability to

clear the backlog despite the absence of new cases.” Id.

Specifically, the June 5 order noted that Judge Newman

still “ha[d] a backlog of seven opinions, three of which

48a

[were] pending for over 200 days and all of which [we]re

pending for over 100 days.” Id. at 3.

The June 5 order remained in effect until November

9, 2023. On November 8, the seventh and final case in

Judge Newman’s backlog issued. The following day, the

Judicial Council “sua sponte vacate[d]” the June 5 order.

Defs.’ Reply, Ex. 4 at 2.

Separately, the Judicial Council proceeded along the

track laid by the JC&D Act. On March 24, 2023, Chief

Judge Moore initiated a complaint against Judge Newman under the act. FAC, Ex. A. She did so pursuant to

Rule 5 of the Rules for Judicial-Conduct and JudicialDisability Proceedings (“JC&D Rules”), which permits a

chief judge to “identify” a complaint upon a finding of

“probable cause to believe that misconduct occurred or

that a disability exists.” JC&D R. 5(a); see also 28 U.S.C.

§ 351(b). In the order initiating the complaint, Chief

Judge Moore cited several factors as providing probable

cause, including Judge Newman’s delay in issuing opinions and voting on other judges’ opinions, reports that

she had made statements indicating a lack of awareness

about the issues in cases, and reports that she had inappropriately managed staff. FAC, Ex. A.

Chief Judge Moore then appointed a special committee, consisting of herself and Federal Circuit Judges

Sharon Prost and Richard G. Taranto, to investigate the

allegations in the complaint. FAC ¶ 23. Throughout the

spring, the Special Committee issued a series of orders

affecting the scope of its investigation and seeking cooperation from Judge Newman. Among them, the Special

Committee expanded the investigation to include alleged

misconduct in Judge Newman’s management of staff,

FAC, Exs. B, E; ordered Judge Newman to submit to

49a

neurological and neuro-psychological testing by physicians of the committee’s choosing, FAC, Exs. C, K; and

directed Judge Newman to provide the Committee with

medical records related to incidents described in the

complaint, FAC, Exs. E, K.

When Judge Newman refused to undergo testing by

doctors chosen by the Special Committee or share her

medical records, the Committee changed course. It decided to narrow the investigation to focus only on

“whether Judge Newman’s refusal to cooperate with the

Committee’s investigation constitute[d] misconduct.”

FAC, Ex. N at 3; see also JC&D R. 4(a)(5) (“Cognizable

misconduct includes . . . refusing, without good cause

shown, to cooperate in the investigation of a complaint. . . .”). In early May, the Judicial Council also denied Judge Newman’s request to transfer her complaint

to the judicial council of another circuit. FAC, Exs. H–I.

The Council denied the transfer request without prejudice to re-filing after Judge Newman complied with its

orders for her to undergo the specified testing and provide relevant medical records. FAC, Ex. H at 9.

As part of its investigation, the Special Committee interviewed more than twenty court employees, reviewed

case-processing records, and consulted with a physician

experienced in judicial-disability matters. Mot. Dismiss

at 13. Judge Newman’s counsel countered with several

letters raising objections to the Special Committee’s investigation and orders. See FAC, Exs. QT. Counsel also

provided the Committee with medical records from one

of Judge Newman’s own doctors. FAC ¶ 16; id., Ex. Y

(filed under seal). On July 31, the Special Committee released its Report & Recommendation to the Judicial

Council. Mot. Dismiss at 15; id., Ex. 1. The report con-

50a

cluded that “there is, at a minimum, a reasonable basis

for concluding that Judge Newman may suffer from a

disability that renders her unable to perform the duties

of her office” and that her “failure to cooperate with the

Committee’s orders constitutes misconduct.” Mot. Dismiss, Ex. 1 at 31, 60. The Special Committee recommended that Judge Newman not be permitted to hear

new cases “for the fixed period of one year or at least until she ceases her misconduct and cooperates such that

the Committee can complete its investigation, whichever

comes sooner.” Id. at 110–11.

After receiving Judge Newman’s response, the Judicial Council adopted the Special Committee’s recommendations. Pl.’s Opp’n, Exs. A–B. The Council found

that the Committee had a reasonable basis to order

Judge Newman to undergo medical examinations and

submit medical records, and that her refusal to comply

“was not excused by good cause.” Pl.’s Opp’n, Ex. B at

37, 40. The Council therefore concluded that her “refusal, without good cause” “constitute[d] serious misconduct.” Id. at 72. The Council ordered that she not be

permitted to hear any cases “for a period of one year,”

“subject to consideration of renewal if [her] refusal to

cooperate continues after that time and to consideration

of modification or rescission if justified by an end of the

refusal to cooperate.” Id. at 72–73.

Judge Newman petitioned the Judicial Conference of

the United States for review of the Judicial Council’s order, and the Judicial Conference affirmed the order on

February 7, 2024. Defs.’ Notice of JC&D Comm. Order

[ECF No. 40] at 14. The Judicial Conference found that

(1) the Chief Circuit Judge and Judicial Council had not

abused their discretion by refusing to request transfer of

51a

the complaint to another circuit’s judicial council, (2)

Judge Newman had not shown good cause for refusing to

cooperate with the Special Committee’s investigation,

and (3) the sanction imposed by the Judicial Council did

not exceed its statutory authority. Id. at 14–29.

While the Judicial Council proceedings were still ongoing, Judge Newman filed this federal lawsuit. Compl.

She subsequently amended her complaint and now

brings eleven counts against the three judges on the

Special Committee (Chief Judge Moore and Judges

Prost and Taranto) in their official capacities and the Judicial Council of the Federal Circuit. FAC ¶¶ 4–7. (The

Court will elaborate on the specific claims later.) Judge

Newman also moved for a preliminary injunction, asking

the Court to enjoin the Defendants “from suspending

[her] from, or otherwise interfering with, the duties and

functions of the judicial office to which [she] was confirmed.” Prelim. Inj. at 2. At the Court’s suggestion, the

parties agreed to informal mediation with retired D.C.

Circuit Judge Thomas B. Griffith.3 See Joint Statement

on Notice of Mediation [ECF No. 17]; Mediation Referral Order [ECF No. 18]. Despite Judge Griffith’s best

efforts, the mediation proved unsuccessful. See Joint

Status Report [ECF No. 21] at 1. Defendants followed

with a motion to dismiss. Both motions are fully briefed,

and the Court heard argument on the motions on January 25, 2024.

The Court thanks Judge Griffith for his volunteer service.

52a

II. Legal Standards

A. Motion for Preliminary Injunction

“A preliminary injunction is an extraordinary remedy

that should be granted only when the party seeking the

relief, by a clear showing, carries the burden of persuasion.” Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir.

2004). To obtain a preliminary injunction, the moving

party must show: (1) that she is likely to succeed on the

merits of his claim; (2) that she is likely to suffer irreparable harm in the absence of preliminary relief; (3) that

the balance of equities tips in her favor; and (4) that a

preliminary injunction is in the public interest. Winter v.

Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). An absence of irreparable injury is fatal to a preliminary injunction motion. Chaplaincy of Full Gospel Churches v.

England, 454 F.3d 290, 297 (D.C. Cir. 2006). The D.C.

Circuit has suggested, without holding, that failure to

establish a likelihood of success on the merits also categorically forecloses preliminary relief. Sherley v. Sebelius, 644 F.3d 388, 393 (D.C. Cir. 2011); see also Changji

Esquel Textile Co. v. Raimondo, 40 F.4th 716, 726 (D.C.

Cir. 2022).

B. Motion to Dismiss

Defendants challenge this Court’s subject matter jurisdiction and argue that certain counts fail to state a

claim. The Court will therefore apply Federal Rules of

Civil Procedure 12(b)(1) and 12(b)(6).

As “[f]ederal courts are courts of limited jurisdiction,” Kokkonen v. Guardian Life Ins. Co. of Am., 511

U.S. 375, 377 (1994), a court must ensure it has subject

matter jurisdiction over a claim before proceeding to the

merits, Moms Against Mercury v. FDA, 483 F.3d 824,

53a

826 (D.C. Cir. 2007). On a motion to dismiss for lack of

subject matter jurisdiction, the plaintiff bears the burden of establishing jurisdiction. Knapp Med. Ctr. v. Hargan, 875 F.3d 1125, 1128 (D.C. Cir. 2017). The Court

must “accept all well-pleaded factual allegations as true

and draw all reasonable inferences from those allegations in the plaintiff’s favor,” but need not “assume the

truth of legal conclusions” in the complaint. Williams v.

Lew, 819 F.3d 466, 472 (D.C. Cir. 2016) (cleaned up). The

Court also “may consider materials outside the pleadings

in deciding whether to grant a motion to dismiss for lack

of jurisdiction.” Jerome Stevens Pharms., Inc. v. FDA,

402 F.3d 1249, 1253 (D.C. Cir. 2005).

To survive a Rule 12(b)(6) motion, a complaint must

contain sufficient factual allegations, accepted as true, to

“state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is plausible on its face if it “pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. A court

evaluating a Rule 12(b)(6) motion will “construe the

complaint ‘liberally,’ granting plaintiff ‘the benefit of all

inferences that can be derived from the facts alleged.’”

Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004)

(quoting Kowal v. MCI Commc’ns Corp., 16 F.3d 1271,

1276 (D.C. Cir. 1994)). However, a “court need not accept

a plaintiff’s legal conclusions as true, . . . nor must a court

presume the veracity of legal conclusions that are

couched as factual allegations.” Alemu v. Dep’t of ForHire Vehicles, 327 F. Supp. 3d 29, 40 (D.D.C. 2018) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2009)).

54a

III. Analysis

A. Judge Newman’s Challenges to Judicial Council

Action Taken Pursuant to 28 U.S.C. § 332(d) Are

Moot

Defendants’ first line of attack asserts that Judge

Newman’s challenges to Judicial Council action taken

pursuant to 28 U.S.C. § 332(d) are moot. “A case becomes moot — and therefore no longer a ‘Case’ or ‘Controversy’ for purposes of Article III — when the issues

presented are no longer ‘live’ or the parties lack a legally

cognizable interest in the outcome.” Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (cleaned up). Even where

claims presented a live controversy when filed, the

mootness doctrine “requires a federal court to refrain

from deciding it if events have so transpired that [a judicial] decision will neither presently affect the parties’

rights nor have a more-than-speculative chance of affecting them in the future.” Clarke v. United States, 915

F.2d 699, 701 (D.C. Cir. 1990) (en banc) (cleaned up); see

also Arizonans for Off. Eng. v. Arizona, 520 U.S. 43, 67

(1997) (“To qualify as a case fit for federal-court adjudication, an actual controversy must be extant at all stages

of review, not merely at the time the complaint is filed.”

(cleaned up)).

The Judicial Council’s November 9 order rendered

Judge Newman’s § 332(d) challenges moot. Recall that

on June 5, citing its authority under § 332(d), the Judicial

Council excluded Judge Newman from new case assignments because she had accumulated a backlog of opinions that had been pending for more than one hundred

days. FAC, Ex. O at 3–4. On November 9, the Judicial

Council sua sponte vacated the June 5 order because

Judge Newman’s final backlogged opinion had issued the

55a

day before. Defs.’ Reply, Ex. 4 at 2. Because the Judicial

Council vacated the June 5 opinion, any challenge based

on § 332(d) is moot.4 See Freeport-McMoRan Oil & Gas

Co. v. FERC, 962 F.2d 45, 46 (D.C. Cir. 1992) (finding a

case “plainly moot” when the agency’s “challenged orders . . . were superseded by a subsequent [] order”);

Am. Wild Horse Pres. Campaign v. Salazar, 800 F. Supp.

2d 270, 271 (D.D.C. 2011) (“[Because] [the] administrative decision [] was rescinded after the filing of the complaint, . . . the action is now moot.”).

Indeed, Judge Newman does not contest that the

June 5 order is moot; she instead contends that an exception to the mootness doctrine rescues her § 332(d)

claims. See Pl.’s Surreply at 1. First, she argues her

claims are “capable of repetition, yet evade[] review.”

City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983).

And second, she contends the Court retains jurisdiction

because “voluntary cessation of allegedly illegal conduct

does not deprive a court of power to hear and determine

the case.” Am. Bar Ass’n v. F.T.C., 636 F.3d 641, 648

(D.C. Cir. 2011) (quoting County of Los Angeles v. Davis,

440 U.S. 625, 631 (1979)). Neither mootness exception

applies.

The first exception requires two circumstances to be

“simultaneously present: (1) the challenged action is in

its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to

Any challenge based on the March 8 order is also moot for similar reasons. In the June 5 order, the Judicial Council reviewed

the March decision “de novo” and voted to suspend Judge

Newman from case assignments.

56a

the same action again.” Lewis v. Cont’l Bank Corp., 494

U.S. 472, 481 (1990) (cleaned up). The June 5 order satisfies the first requirement as courts assume “orders of

less than two years’ duration ordinarily evade review.”

McBryde, 264 F.3d at 55–56. But it flunks the second because there is no reasonable expectation that Judge

Newman will be subject to the same action again. “When

considering the likelihood that an injury will be repeated,

the Supreme Court has in general ‘been unwilling to assume that the party seeking relief will repeat the type of

misconduct that would once again place him or her at

risk of that injury.’” Id. at 56 (quoting Honig v. Doe, 484

U.S. 305, 320 (1988)). The Court must therefore presume

that Judge Newman will not repeat the “misconduct”

that led to the imposition of the June 5 order — that is,

accumulate a “backlog of cases.” FAC, Ex. O at 4.

Judge Newman attempts to sidestep this presumption by declaring it “unlikely” that her “speed in issuing

opinions will change.” Pl.’s Sur-reply at 2. But her speed

in issuing opinions is a factor within her control. Indeed,

she was able to clear her recent backlog, leading to the

vacatur of the June 5 order. Defs.’ Reply, Ex. 4 at 2. And

the Supreme Court has declined to find the case or controversy requirement satisfied “where, as here, the litigant[] simply ‘anticipate[s] violating’” a valid rule. See

United States v. Sanchez-Gomez, 584 U.S. 381, 394

(2018) (quoting O’Shea v. Littleton, 414 U.S. 488, 496

(1974)); see also id. at 393 (“Our decisions in [prior] civil

cases rested on the litigants’ inability, for reasons beyond their control, to prevent themselves from transgressing and avoid recurrence of the challenged conduct.”). The analysis might be different if Judge Newman were seeking to challenge the Judicial Council’s au-

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thority to issue case-backlog rules in the first instance.5

See, e.g., O’Shea, 414 U.S. at 497 (“[We] are [] unable to

conclude that the case-or-controversy requirement is

satisfied by general assertions . . . that in the course of

their activities respondents will be prosecuted for violating valid criminal laws.” (emphasis added)). But she is

not. She rather challenges the punishment the Judicial

Council imposed (or might impose) for violations of the

rules.

The voluntary cessation exception does not save

Judge Newman’s § 332(d) claims either. “As a general

rule, a defendant’s ‘voluntary cessation of allegedly illegal conduct does not deprive’” a court of jurisdiction.

Am. Bar Ass’n v. F.T.C., 636 F.3d at 648 (quoting Davis,

440 U.S. at 631). But that general rule does not apply

here for two reasons. First, the D.C. Circuit has characterized the voluntary cessation exception as “focused on

preventing a private defendant from manipulating the

judicial process.” Clarke, 915 F.2d at 705 (D.C. Cir.

1990). And it has expressed “doubt” about whether

courts should “impute such manipulative conduct” to

Congress, a non-private defendant and a coordinate

branch of government. Id. Defendants therefore contend

that the voluntary cessation exception does not apply to

them as government actors. Defs.’ Resp. to Sur-Reply at

2. The Court hesitates to adopt a bright-line rule that the

exception can never be applied against public-sector defendants. But Defendants’ point is well taken in this context. Though separation-of-powers concerns do not ani5.

Of course, such a challenge would be unlikely to succeed given

the Supreme Court’s explicit endorsement of “backlog” rules.

See Chandler, 398 U.S. at 85.

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mate the analysis as in Clarke, “it would seem inappropriate” for this district court “to impute [] manipulative

conduct” to the entire roster of Federal Circuit judges

save one. Clarke, 915 F.2d at 705; see also Chandler, 398

U.S. at 94 (Harlan, J., concurring) (“[D]irect review by a

district judge of the actions of circuit judges would present serious incongruities and practical problems.”).

Second, regardless whether the voluntary cessation

exception applies to government defendants, “[t]he established law of this circuit is that the [] exception . . . has

no play when the [defendant] did not act in order to

avoid litigation.” Alaska v. U.S. Dep’t of Agric., 17 F.4th

1224, 1229 (D.C. Cir. 2021) (cleaned up). Judge Newman

opines that the “Defendants vacated the June 5 Order

strategically and solely to avoid risking an unfavorable

judicial decision.” Pl.’s Sur-

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