Amicus Curiae Brief — 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.

No. 25-1101

In the

Supreme Court of the United States

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.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of A ppeals for the District of Columbia Circuit

BRIEF OF AMICUS CURIAE PROFESSOR

ANDREW C. MICHAELS IN SUPPORT OF

GRANTING THE CERTIORARI PETITION

A ndrew C. Michaels

Counsel of Record

University of Houston Law Center

4170 Martin Luther King Boulevard

Houston, TX 77204

(314) 323-2201

acmichaels@uh.edu

121023

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

STATEMENT OF AMICUS CURIAE . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I.

The Proceedings Against Judge Newman

And Surrounding Circumstances Strongly

Suggest An Appearance Of Bias . . . . . . . . . . . . . 5

A. The Initial Complaint and Actions . . . . . . . . 5

B. The Shift to Misconduct and Refusal

to Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

C. Apparent Misuse of En Banc

Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

D. Staff Complaints and

Mischaracterizations . . . . . . . . . . . . . . . . . . 14

E. Supposed Unanimity and The Question

of Motive . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

ii

Table of Contents

Page

II. The Apparent Bias Demonstrates The

Need For Review By This Court To

Ensure That Constitutional Challenges Can

Meaningfully Be Heard . . . . . . . . . . . . . . . . . . . . 19

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

iii

TABLE OF CITED AUTHORITIES

Cases

Page

Cuozzo Speed Techs. v. Lee,

136 S. Ct. 2131 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . 22

In Re Complaint No. 23-90015,

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

Johnson v. Robison,

415 U.S. 361 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

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) . . . . . . . . . . . 20, 21, 22, 23

Newman v. Moore,

151 F.4th 472 (D.C. Cir. 2025) . . . . . . 19, 20, 21, 22, 23

Rudisill v. McDonough,

2022 U.S. App. LEXIS 3067

(Fed. Cir. Feb. 3, 2022) . . . . . . . . . . . . . . . . . . . . . . . . 13

Rudisill v. McDonough,

4 F.4th 1297 (Fed. Cir. 2021) . . . . . . . . . . . . . . . . . . . 12

Rudisill v. McDonough,

55 F.4th 879 (Fed. Cir. Dec. 15, 2022) . . . . . . . . . . 6, 12

iv

Cited Authorities

Page

Rudisill v. McDonough,

601 U.S. 294 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . 6, 12

Webster v. Doe,

486 U.S. 592 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Statutes and Other Authorities

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

28 U.S.C. § 354(a)(3)(A) . . . . . . . . . . . . . . . . . . . . . . . . 1, 22

28 U.S.C. § 357(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Alexander Hamilton, Federalist No. 78 (1788) . . . . . . . 23

Josh Blackman, The Stealth Impeachment

of Judge Newman in the Federal Circuit,

FedSoc Blog (Apr. 24, 2023) . . . . . . . . . . . . . . . . . . . . 7

FedCircuitBlog, En Banc Cases (https://fedcircuit

blog.com/en-banc/cases/) . . . . . . . . . . . . . . . . . . . . . . 12

Fix the Court, Complaint Transfer Has Happened

More Than Two Dozen Times. It Should Happen

Again (Dec. 6, 2025) (available at: https://

fixthecourt.com/2025/12/complaint-transfer/) . . . . . 10

Paul Gugliuzza, Judicial Disability and the

‘Great Dissenter’, PatentlyO (May 11, 2023) . . . . . . 6

v

Cited Authorities

Page

Hugh C. Hansen, There’s No Excuse. 39 Years

of Judicial Excellence Rewarded w ith

Degrading Judicial Abuse (available at: https://

fordhamipinstitute.com/theres-no-excuse39-years-of-judicial-excellence-rewardedwith-degrading-judicial-abuse/) . . . . . . . . . . . . . . . . 18

In re Complaint No. 23-90015, Order (April 7,

2023) (available at: https://www.cafc.uscourts.

gov/release - of-pr ior- orders-in- ongoingjudicial-investigation/) . . . . . . . . . . . . . . . . . . . . . . . . . 8

In re Complaint No. 23-90015, Order

(August 29, 2025) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

In re Complaint No. 23-90015, Order (Fed. Cir.

March 24, 2023) (available at: http://bit.ly/

4pr3smb) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7

Edith Jones, Federal Judges Deserve Due Process,

Too, Wall Street Journal (Aug. 15, 2023) . . . . . . . 10

Ron D. Katznelson, Is There a Campaign to

Silence Dissent at the Federal Circuit,

Abstract (2023) (available at: https://dx.doi.org/

10.2139/ssrn.4489143) . . . . . . . . . . . . . . . . . . . . . . . 6, 18

David Lat, ‘Integrity’: An Interview With Judge

Pauline Newman, O rigina l Jurisdiction

(Jan. 17, 2024) (available at: https://davidlat.

subst ack.com /p/i nt eg r ity-an-i nt er v iewwith-judge-pauline-newman) . . . . . . . . . . 8-9, 16, 17, 18

vi

Cited Authorities

Page

Daryl Lim, I Dissent: The Federal Circuit’s

‘Great Dissenter,’ Her Inf luence on the

Patent Dialogue, and Why It Matters, 19

Vand. J. Ent. & Tech. L. 873 (2017) . . . . . . . . . . . . . . 5

Andrew Michaels, Judge Newman’s Recent

Dissents Show She Is Fit For Ser vice,

Law360 (June 6, 2023) . . . . . . . . . . . . . . . . . . . 5, 15, 16

Judge Paul Michel, Judge Newman’s Suspension

by the CAFC has Marred Faith in the Federal

Judiciary, IPWatchdog (Dec. 2, 2024) . 10, 11, 15, 18, 19

Newman v. Moore, Memorandum of Law in

Support of Plaintiff’s Motion for a Preliminary

Injunction, No. 1:23-cv-01334-CRC, D.I. 13-1

(D.D.C. Jun 27, 2023) . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Newman v. Moore, Petition for Rehearing En Banc,

No. 24-5173 (D.C. Cir. Sept. 19, 2025) . . . . . . . . . . . . . 7

Order of the Judicial Council of the Federal

Circuit (Sept. 20, 2023) . . . . . . . . . . . . . . . . . . . . . 14, 15

Randall Rader, The Federal Circuit Owes

Judge Newman an Apology, IPWatchdog

(July 12, 2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-12

Second CAFC Judgeship Opens as O’Malley

R e tir e m e n t An n o u n c e d , I P Wa t c h d o g

(July 28, 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

vii

Cited Authorities

Page

Chris Williams, Pauline Newman’s Doctor Has

Some Choice Words For The Judicial Panel

That Ruled Against Her, A bove T he L aw

(Aug. 8, 2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

1

STATEMENT OF AMICUS CURIAE

Amicus is a member of this Court’s bar, and a law

professor. He served as a law clerk to Judge Newman

from 2010-2012. He is interested in bringing light to the

Federal Circuit’s unfair treatment of Judge Newman

with the goal of safeguarding judicial independence and

preventing similar abuses of power going forward.1

SUMMARY OF ARGUMENT

This brief will serve to provide context and highlight

the appearance of bias against Judge Newman. When all

of the relevant details and circumstances are considered, a

strong appearance emerges that the investigation against

Judge Newman was, from the beginning, a biased attempt

to permanently remove her from judicial service.

The Judicial Conduct and Disability Act of 1980

expressly prohibits permanent removal. 2 Administrative

tribunals should not be permitted to circumvent this

prohibition (as well as constitutional guarantees) merely

by characterizing the removal as an indefinite series of

1. Amicus has no financial interest in the outcome of this

case. No counsel for a party authored this brief in whole or in

part, and no counsel or party made a monetary contribution. No

person other than amicus made a monetary contribution to the

preparation and submission of this brief. This brief is filed more

than ten days before the due date.

2. See 28 U.S.C. § 354(a)(3)(A)(“Article iii judges – Under

no circumstances may the judicial council order removal from

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

(emphasis added).

2

consecutive “temporary” suspensions. Judge Newman has

now been “suspended” for over three years, and counting.

This investigation was initiated, led, and directed

by Chief Judge Moore, who it seems may have begun

laying the groundwork for this illegal and inappropriate

action almost immediately upon assuming the office

of chief. Within months of assuming that office, Judge

Moore reduced Judge Newman’s caseload, allegedly

over concerns about her health, which Judge Newman

claims are fabrications. Unfortunately, Chief Judge

Moore’s multifarious role in these proceedings – serving

essentially as judge, jury, witness, accuser, and litigant –

is not conducive to a fair and impartial resolution of such

disputed factual issues.

Less than two years later, Chief Judge Moore’s initial

complaint faulted Judge Newman for allegedly issuing

an insufficient number of opinions, but did so without

counting her dissents, even though almost two-thirds

of her opinions in the period leading up to her removal

were dissents. Judge Newman has long been well known

as a frequent dissenter, so this decision not to include

her dissents was unlikely to have been an oversight,

demonstrating instead the slanted and adversarial nature

of the proceedings. Once Judge Newman’s dissents are

properly accounted for, her productivity was not the lowest

on the court, despite her reduced caseload.

In light of the apparently biased nature of the

investigative committee (consisting of Chief Judge Moore

and two of her chosen allies on the court), and informed

by her decades of personal experience with Judge Moore,

Judge Newman requested a transfer to a different circuit,

3

in accordance with the standard practice in these matters.

Judge Newman resisted the committee’s demands that

she submit immediately to a neurological examination

by an examiner of the committee’s choosing, fearing that

regardless of her actual performance, the results would be

portrayed as confirming her unfitness to continue service.

If the committee were truly interested in a prompt and

fair resolution of this matter, transferring it to another

circuit would have been the proper and standard course

of action. Instead, the committee denied the transfer, and

held Judge Newman guilty of misconduct for her refusal

to submit to what she reasonably perceived would be a

biased neurological examination. In an attempt to placate

the committee’s demands, Judge Newman has provided

the results from three separate qualified examiners, all

of which concluded that she was fit to continue judicial

service. All three reports were summarily dismissed by

the investigative committee, all but confirming Judge

Newman’s perception that the committee would not accept

any result other than one that justifies her permanent

removal from the bench.

If all of that were not enough, the timing and

circumstances further suggest that Chief Judge Moore

may have orchestrated an egregious misuse of Federal

Circuit en banc procedure in an attempt to portray

Judge Newman as incompetent by reversing one of her

recent panel majority opinions. The attempt backfired

when this Court reversed the en banc Federal Circuit,

agreeing with Judge Newman, and further demonstrating

the baselessness of the supposed reason for this entire

charade, i.e., that Judge Newman was mentally unfit to

continue service.

4

As for the lack of dissent within the court on this

matter, there is an appearance that other Judges on the

Federal Circuit, as well as staff members of the court, may

fear retaliation if they do not fall in line behind Chief Judge

Moore. Due to the appearance of bias, even members

of the bar who practice before the Federal Circuit fear

retaliation, making it more difficult for Judge Newman to

find public support and representation. The appearance of

bias is in itself thus directly harmful to Judge Newman’s

due process rights, even aside from the fact that it at

least suggests actual bias and a lack of impartiality in the

proceedings against Judge Newman.

Indeed, the panel below recognized that Judge

Newman’s as-applied due process arguments were

substantial, but found itself precluded from considering

them due to D.C. Circuit precedent. Nor did the Judicial

Conference, an administrative tribunal, meaningfully

consider Judge Newman’s due process arguments.

The panel also found itself barred by precedent from

considering whether the committee acted beyond the

scope of its statutory authority by effectively permanently

removing Judge Newman from office. This Court should

step in to correct that precedent and safeguard judicial

independence by ensuring that judges unlawfully targeted

by colleagues can receive meaningful judicial review of

their constitutional claims.

5

ARGUMENT

I.

The Proceedings Against Judge Newman And

Surrounding Circumstances Strongly Suggest An

Appearance Of Bias

A.

The Initial Complaint and Actions

Right from the initial complaint, the investigative

committee’s actions under the control and direction of

Chief Judge Moore had the appearance not of a good

faith attempt to amicably address concerns about a

colleague’s fitness, but rather of a premeditated attempt

to permanently remove Judge Newman from the bench.

To begin w ith, the initial complaint of March

2023 faulted Judge Newman for insufficient judicial

productivity, without accounting for her dissents. See In

re Complaint No. 23-90015, Order at 3 (Fed. Cir. March

24, 2023) (available at: http://bit.ly/4pr3smb) (“March 24

Order”). It is well known that Judge Newman has long

dissented frequently, and her dissents have provided

valuable contributions to the law, including laying the

groundwork for reversals by this Court. See, e.g., Daryl

Lim, I Dissent: The Federal Circuit’s ‘Great Dissenter,’

Her Inf luence on the Patent Dialogue, and Why It

Matters, 19 Vand. J. Ent. & Tech. L. 873 (2017). In the

year leading up to her involuntary removal, eleven of the

seventeen opinions authored by Judge Newman were

dissents. See Andrew Michaels, Judge Newman’s Recent

Dissents Show She Is Fit For Service, Law 360 (June 6,

2023).

Though her removal from service was initially

supposedly justified by alleged concerns about her

6

cognitive fitness, the opinions authored by Judge Newman

in the period leading up to her removal were eminently

reasonable, showing no evidence of a lack of fitness. See

id. Indeed, one of Judge Newman’s dissents issued mere

months before the investigation was commenced was

later vindicated in a reversal by this Court. See Rudisill

v. McDonough, 55 F.4th 879, 888-896 (Fed. Cir. Dec. 15,

2022) (en banc) (Newman, J., dissenting); Rudisill v.

McDonough, 601 U.S. 294 (2024) (reversing the Federal

Circuit and agreeing with Judge Newman).

The complaint’s failure to account for this important,

well known, and valuable aspect of Judge Newman’s

work, while at the same time faulting her for insufficient

productivity, is curious and itself strongly suggestive

of bias against her. Once Judge Newman’s dissents are

properly taken into account, multiple analyses have shown

that her productivity in the period leading up to her

removal was higher than some of her colleagues. See Paul

Gugliuzza, Judicial Disability and the ‘Great Dissenter’,

PatentlyO (May 11, 2023); Ron D. Katznelson, Is There

a Campaign to Silence Dissent at the Federal Circuit,

Abstract (2023) (available at: https://dx.doi.org/10.2139/

ssrn.4489143).

Judge Newman’s productivity was not the lowest on

the court despite the fact that, as the complaint itself

noted, Judge Newman’s caseload had been reduced at

the direction of Chief Judge Moore, exacerbating the

apparent bias and unfairness in taking action against her

for supposed lack of productivity. Judge Moore assumed

the office of Federal Circuit Chief on May 22, 2021. The

complaint states that almost immediately after that,

in “summer of 2021,” Judge Newman’s “sittings were

7

reduced,” and then further reduced in 2022. See March

24 Order at 1.

The timing of these events suggests an appearance

that Judge Moore possibly began laying the groundwork

for her desired removal of Judge Newman almost

immediately upon assuming the office of Chief. Moreover,

the complaint rested on disputed factual statements. The

alleged basis for the initial reduction in the summer of

2021 was a supposed heart attack, which Judge Newman

claims is a fabrication. See Petition at 12, n.7. And the

stated reason for the further reduction of Judge Newman’s

caseload in 2022 was that Judge Newman supposedly

“fainted following an argument and was unable to walk

without assistance.” See March 24 Order at 1. Judge

Newman disputes this as well, and as her counsel has

pointed out, Chief Judge Moore is apparently the only

proffered witness to this alleged event. See Newman

v. Moore, Petition for Rehearing En Banc, No. 24-5173,

at 7, n.4 (D.C. Cir. Sept. 19, 2025). Observers have also

remarked as to how Judge Moore’s ubiquitous role in these

proceedings does not appear conducive to an impartial

hearing for Judge Newman. See, e.g., Josh Blackman,

The Stealth Impeachment of Judge Newman in the

Federal Circuit, FedSoc Blog (Apr. 24, 2023) (“Chief

Judge Kimberly Moore cannot be the judge, jury, and

executioner of Judge Newman.”).

B. The Shift to Misconduct and Refusal to

Transfer

Two weeks after the initial complaint, when Judge

New man was still unrepresented by council, the

investigative committee consisting of Chief Judge Moore

8

along with two of her chosen allies on the court, issued

another order demanding that Judge Newman submit

within four days to neurological testing conducted by

neurologists chosen at the direction of the committee, and

threatening to charge Judge Newman with misconduct

if she refused. See In re Complaint No. 23-90015, Order

at 2-3 (April 7, 2023) (available at: https://www.cafc.

uscourts.gov/release-of-prior-orders-in-ongoing-judicialinvestigation/); Newman v. Moore, Memorandum of

Law in Support of Plaintiff’s Motion for a Preliminary

Injunction, No. 1:23-cv-01334-CRC, D.I. 13-1 at 16 (D.D.C.

Jun 27, 2023) (“Preliminary Injunction Motion”). Less

than a week later, on April 13, 2023, the committee “made

good on its threat,” issuing another order expanding the

investigation into whether Judge Newman’s alleged failure

to cooperate constituted “additional misconduct.” See id.

The threatening and demanding nature of these

orders further suggested that the committee’s disposition

towards Judge Newman was more adverse than collegial.

In light of the circumstances suggestive of bias discussed

above, and informed by her decades of personal experience

with Judge Moore, Judge Newman requested that the

investigation be transferred to a different circuit. Judge

Newman reasonably did not trust that any examination

conducted at the direction of the committee led by Chief

Judge Moore would be conducted and interpreted fairly,

and reasonably feared that regardless of her actual

performance, such an examination would be portrayed

as conclusive evidence of her unfitness.

Judge Newman has publicly stated that she would fully

cooperate with an examination after transfer to a different

circuit. See, e.g., David Lat, ‘Integrity’: An Interview With

Judge Pauline Newman, Original Jurisdiction (Jan.

9

17, 2024) (available at: https://davidlat.substack.com/p/

integrity-an-interview-with-judge-pauline-newman)

(“Lat Interview”) (“Judge Newman said she’d be happy to

cooperate with an investigation – as long as it’s conducted

by a neutral party, namely, the judicial council of another

circuit.”); Petition at 15 n.11.

The committee refused to request the transfer, but

stated that it may reconsider that ruling after Judge

Newman submits to an examination, thus disregarding

Judge Newman’s primary reason for requesting the

transfer, i.e., that she did not trust that the testing would

be conducted and interpreted fairly. The committee

further denied Judge Newman’s request to at the very

least participate in the selection of examining doctors.

See Preliminary Injunction Motion at 21.

Judge Newman’s refusal to submit to what she

reasonably perceives may be a biased mental examination

process remains to this day the stated basis for her

suspension. See In re Complaint No. 23-90015, Order at

3 (August 29, 2025) (“The question before the Council

remains the same and is limited to whether Judge

Newman’s refusal to undergo the ordered testing

warrants the sanction imposed on September 6, 2024,

and the imposition of a further sanction now.”). If the

investigative committee had been truly interested in

resolving this matter and giving Judge Newman the

opportunity to return to service, it could have taken the

requested actions to have the matter transferred to a

neutral circuit at any point in the past three years. The

fact that it chose not to do so furthers the appearance that

its goal is instead to keep Judge Newman permanently

removed from service.

10

The refusal to transfer is out of step with the standard

practice in these investigations. As Judge Newman’s

council has pointed out, this was the first time in the

history of the Disability Act that a complaint against

a circuit judge which proceeded to the committee

investigation stage was kept within the same circuit. See,

e.g., Petition at 8. One recent analysis compiles a list of

at least seventeen instances where a complaint has been

transferred to a different circuit. See Fix the Court,

Complaint Transfer Has Happened More Than Two

Dozen Times. It Should Happen Again (Dec. 6, 2025)

(available at: https://fixthecourt.com/2025/12/complainttransfer/ ). A nother prominent legal commentator

observed that transfer to another circuit is “routine,” and

called the failure to transfer “completely inappropriate.”

See Lat Interview, supra.

The refusal to transfer has been criticized not only

by legal commentators, but also by current and former

members of the judiciary, as a deviation from the standard

practice, and particularly inappropriate in light of the

committee’s apparent bias against Judge Newman. For

example, Edith Jones, a current federal appellate judge

on, and former chief judge of, the Fifth Circuit called

the failure to follow the “usual practice” of transfer

“inexplicable,” and viewed the proceedings against Judge

Newman as “[a]t odds with fundamental due process.”

Edith Jones, Federal Judges Deserve Due Process, Too,

Wall Street Journal (Aug. 15, 2023). And Paul Michel,

a former Chief Judge of the Federal Circuit who served

alongside both Judge Newman and Judge Moore, wrote

that “the appearance of bias against [Judge Newman] by

the chief judge is hard to dismiss,” finding the refusal to

transfer the investigation “troubling.” Judge Paul Michel,

11

Judge Newman’s Suspension by the CAFC has Marred

Faith in the Federal Judiciary, IPWatchdog (Dec. 2,

2024).

In an attempt to placate the committee’s demands

without submitting to a biased examination, Judge

Newman submitted three mental examinations, all of

which found Judge Newman mentally fit to continue

judicial service, yet all of which were summarily dismissed

by the committee. See Petition at 2, n.4, 14-15; Judge Paul

Michel, supra (“Judge Newman submitted to extensive

evaluations by three renowned neurological experts . . . .

Although they found her entirely fit both mentally and

physically to ably perform the duties of an appellate judge,

their reports were essentially ignored or discounted.”).

Moreover, the committee appears to have malevolently

mischaracterized one of the evaluations, incorrectly

claiming that Judge Newman “failed 80% of the memory

related questions,” which the examining doctor responded

was a “distortion” and “very inappropriate.” See Chris

Williams, Pauline Newman’s Doctor Has Some Choice

Words For The Judicial Panel That Ruled Against Her,

A bove The Law (Aug. 8, 2023).

The committee’s slanted characterizations of her

submitted evaluations all but confirm the reasonableness

of Judge Newman’s refusal to submit to an examination

conducted at the direction of the apparently biased

committee. Indeed, yet another former chief of the

Federal Circuit spoke out in favor of a transfer and called

the “prolonged proceeding” against Judge Newman

“puzzling,” “especially in the face of her entirely successful

cognitive medical examination.” Randall Rader, The

12

Federal Circuit Owes Judge Newman an Apology,

IPWatchdog (July 12, 2023).

C.

Apparent Misuse of En Banc Procedure

If all of that were not enough, the facts and

circumstances further suggest that the Federal Circuit,

under the leadership of Chief Judge Moore, may have

misused en banc procedure in an apparent attempt to

demonstrate Judge Newman’s supposed incompetence,

an attempt which backfired when this Court reversed the

Federal Circuit, vindicating Judge Newman’s opinion and

competence.

The single case in the entire year of 2022 that the

Federal Circuit decided en banc involved a rather arcane

issue of statutory interpretation related to benefits for

veterans. See FedCircuitBlog, En Banc Cases (https://

fedcircuitblog.com/en-banc/cases/) (listing Rudisill v.

McDonough as the only case decided en banc in 2022).

Judge Newman’s thorough and well-reasoned panel

majority opinion in the case held that the veteran, James

R. Rudisill, was entitled to the education benefits he

sought, affirming the ruling of the Court of Appeals for

Veterans Claims. See Rudisill v. McDonough, 4 F.4th 1297

(Fed. Cir. 2021). Yet the en banc Federal Circuit reversed

the opinion, 10-2, over a dissent by Judge Newman. See

Rudisill v. McDonough, 55 F.4th 879 (Fed. Cir. Dec. 15,

2022) (en banc). This Court then reversed the Federal

Circuit, agreeing with Judge Newman and holding that

the en banc Federal Circuit’s interpretation was incorrect

– contrary to not only the clear text of the statute, but also,

if there had been any ambiguity, to the pro-veterans canon

as well. See Rudisill v. McDonough, 601 U.S. 294 (2024).

13

It seems curious that the Federal Circuit went so

far out of its way to misinterpret a statute so as to deny

U.S. veterans the benefits that Congress had lawfully

granted them, overruling what should have been routine

affirmance of the Veterans Court, and making this the

one case in the entire year deemed worthy of en banc

decision. However, the timing of events is consistent with

the possibility that Chief Judge Moore may have used her

influence to corral the court into taking the case en banc

in order to help lay the groundwork for her planned ouster

of Judge Newman.

The order granting en banc consideration issued in

February 2022, less than one year after Judge Moore

assumed the office of chief, and around the time Judge

Newman’s sittings were being reduced according to the

complaint, as discussed supra. See Rudisill v. McDonough,

2022 U.S. App. LEXIS 3067 (Fed. Cir. Feb. 3, 2022) (en

banc). And the en banc decision issued in December of that

year, shortly before Judge Newman was removed from

hearing new cases altogether in March 2023.

The entire episode at least illustrates the biased and

skewed perspective that Judge Newman’s colleagues

hold about her supposed incompetence, contrary to this

Court’s views, and furthers the appearance that Chief

Judge Moore began laying the groundwork for her

premeditated removal of Judge Newman from the bench

almost immediately upon assuming the office of chief.

14

D.

Staff Complaints and Mischaracterizations

The appearance of bias and premeditation against

Judge Newman is additionally consistent with and

furthered by the committee’s actions and characterizations

relating to one of Judge Newman’s former staff members.

A new paralegal was installed in Judge Newman’s

chambers shortly after Judge Moore assumed the office

of Chief in May 2021. Almost as soon as the investigation

began, this staff member testified against Judge Newman,

which testimony was cited heavily in the council’s order.

See Order of the Judicial Council of the Federal Circuit,

Affidavit 1, para. 1 (Sept. 20, 2023) (“I worked as Judge

Newman’s paralegal from Dec. 28, 2021 until April 19,

2023”) (“Paralegal Affidavit”). Reliance on the paralegal’s

claims is suspect, for one thing because the staff member’s

continued employment depends upon remaining in the

good graces of Chief Judge Moore. See Preliminary

Injunction Motion at 26.

Former Federal Circuit Chief Paul Michel (who

is obviously in a very good position to understand the

potential influence of that position), questioned the

propriety of the committee’s reliance on staff testimony,

stating:

Because the chief judge (the chief accuser)

made clear she wanted Newman off the court,

the staff witnesses could plausibly have felt

under pressure to misstate or exaggerate in the

affidavits the chief judge asked them to file. The

risk of ‘Command Influence’ is a phenomenon

not limited to the military. Without cross-

15

examination of these staff employees, how

can anyone know the reliability and candor of

their affidavits? Moreover, how are non-judge

staff members competent to assess a judge’s

competence to decide cases?3

Michel, supra.

Moreover, the council’s uncharitable characterizations

of the paralegal’s testimony regarding Judge Markey

furthers the appearance of bias against Judge Newman.

The paralegal testified that Judge Newman had at one

point stated that “Chief Judge Markey [had] at some

time in the past told her she could take up to 30 days to

vote” on circulating opinions, in contrast to the court’s

current rules which required a vote within five days. See

Paralegal Affidavit at para. 22 (emphasis added). The

Judicial Council, however, has essentially portrayed this

statement as indicating that Judge Newman believed

Judge Markey to still be alive. See Order of the Judicial

Council of the Federal Circuit at 21-22 (Sept. 20, 2023)

3. The paralegal stated, for example, that after Judge

Newman would make edits to draft opinions written by law clerks,

the “clerks then would often need to make substantial corrections

to clean up and clarify these revisions because of the deterioration

of the quality of the now-revised opinion.” Paralegal Affidavit at

para. 21. Reliance on this testimony is indicative of bias, as the

paralegal is frankly in no position to judge whether the quality

of the opinions had deteriorated. To the contrary, this Court

vindicated one of Judge Newman’s most recent opinions after the

en banc court reversed it (over her dissent). See Part I(C), supra.

Amicus’ analysis of Judge Newman’s opinions in the period prior

to her ouster found that they were of high quality. See Michaels,

Law 360, supra.

16

(“Judge Newman said that she did not have to comply with

this rule because Chief Judge Markey told her she could

take 30 days to vote. Chief Judge Markey has been dead

for 17 years and has not been a member of the Court for

32 years.”). Contrary to this portrayal, the paralegal’s

testimony as to Judge Newman’s alleged statement (even

if believed) is entirely consistent with her simply noting

that the rule was different in the past.

The portrayal of Judge Newman as confused about the

corporeal status of Judge Markey also seems implausible

in light of the many recent testimonials regarding Judge

Newman’s lucidity (not to mention the three neurological

examinations that she passed, discussed earlier). See, e.g.,

Michel, supra (“Over the last two years, members of the

bar have heard her speak repeatedly and lucidly at public

events.”). For example, one prominent legal commentator,

after meeting with Judge Newman and her clerks in

chambers for about four hours, and then later interviewing

her on his podcast for another hour, stated that he was

“now of the view that she’s completely lucid and sane,” and

that he had reason to “disbelieve or at least question” the

“gossipy details in Chief Judge Moore’s various reports

that made Newman sound, well, totally out of it.” See Lat

Interview.

E. Supposed Unanimity and The Question of

Motive

One predictable response to the suggestion of bias

has been that, although many have spoken up in Judge

Newman’s defense, including former Federal Circuit

judges, no active Federal Circuit judge has dissented

publicly from the court’s actions against her. However, one

17

fairly obvious explanation for this is that active Federal

Circuit judges fear retaliation from the court’s current

chief.

The article by former Federal Circuit Chief Paul

Michel explicitly suggested as much. See Michel, supra

(“Given the chief judge’s apparent animus against Judge

Newman, how can she herself be regarded as an impartial

adjudicator? Even the impartiality of the other judges

may be questioned if, like the staff, they were perhaps

fearful of adverse consequences if they failed to support

the wishes of the chief judge.”). Again, as a former chief

of the Federal Circuit, Judge Michel is in a uniquely

knowledgeable position to understand the power and

influence that comes with that role, as well as how it could

potentially be abused.

In this regard, it is also worth noting that another

active Federal Circuit judge, Judge Katherine O’Malley,

announced her retirement only about two months after

Judge Moore assumed the position of Chief. See Second

CA FC Judgeship Opens as O’Malley Retirement

Announced, IPWatchdog (July 28, 2021). Judge O’Malley

(much like Judge Newman) was known as an independent

minded judge who was not afraid to dissent. The timing

of her retirement, at the age of only 64, is curious and at

the very least consistent with the possibility that Judge

Moore has shown a willingness to misuse her influence

as chief and bully those who do not fall in line behind her.

As for why Chief Judge Moore would be motivated

to use her power and influence against Judge Newman,

although personal motives are often complicated and multifaceted, the circumstances suggest some possibilities. One

18

is that Judge Newman’s frequent dissents are bothersome,

and indeed, one commentator has attempted to quantify

the degree of additional work created by such dissents.

See Katznelson, supra, at 37 (finding that replacing Judge

Newman with another judge that dissents less frequently

“would result in substantial authorship workload reduction

by an average of more than 5% for each of her colleagues”).

T he c i r c u m st a nc e s a l so sugge st t h at some

interpersonal tensions may have been at play. Former

Chief Judge Michel, who served alongside Judge Moore

and Judge Newman for many years, referred to “the

chief judge’s apparent animus against Judge Newman.”

Michel, supra. David Lat has referred to “interpersonal

issues between Chief Judge Moore and Judge Newman.”

Lat, supra. Professor Hugh C. Hansen, who long hosted

the Fordham IP Conference attended by some Federal

Circuit judges, has written that “Judge Newman gets

more positive critical attention than the chief judge,” and

that Judge Newman’s “dissents are causing some internal

discontent that the chief judge would like to be able to

remove and get credit for.” See Hugh C. Hansen, There’s

No Excuse. 39 Years of Judicial Excellence Rewarded

with Degrading Judicial Abuse (available at: https://

fordhamipinstitute.com/theres-no-excuse-39-years-ofjudicial-excellence-rewarded-with-degrading-judicialabuse/); see also Michel, supra (“just this year and last,

[Judge Newman] has been the recipient of many awards

and much adulation by the bar”). And in early 2023, just

before the formal investigation against Judge Newman

was launched, the American Intellectual Property Law

Journal published a symposium issue which featured an

article by Judge Newman as the lead article, ahead of an

article by Chief Judge Moore. See https://www.aipla.org/

detail/journal-issue/quarterly-journal-50-4.

19

Regardless of the motive, when the details and

circumstances are presented and considered, the

appearance of bias against Judge Newman is unmistakable.

II. The Apparent Bias Demonstrates The Need

For Review By This Court To Ensure That

Constitutional Challenges Can Meaningfully Be

Heard

The apparent bias in the investigation against Judge

Newman demonstrates the need for reconsideration of

the D.C. Circuit precedent which bars Article III courts

from meaningfully considering whether such judicial

investigations comport with the constitution, as well as

whether they are beyond statutory authority.

The panel decision below all but recognized as much,

stating that the “seeming absence of a judicial form to

address Newman’s as-applied constitutional claims itself

raises constitutional concerns.” Newman v. Moore, 151

F.4th 472, 485 (D.C. Cir. 2025). The panel also recognized

Judge Newman’s argument that “the refusal to transfer

her case to a different circuit deprived her of an impartial

tribunal,” which the court stated “if correct would raise

due process concerns.” Id.

As detailed above, there has been an appearance

of bias in the proceedings against Judge Newman,

strongly suggesting that she has indeed been deprived

of an impartial tribunal, and thus raising serious due

process concerns. Moreover, even aside from the fact

that it suggests actual bias, the appearance of bias itself

implicates due process concerns. See, e.g., Michel, supra

(“the mere appearance of bias is regarded as being just

20

as harmful to justice as actual bias”). For example, the

appearance of bias has made it more difficult for Judge

Newman to find representation and public support in

this matter, because members of the bar who practice

before the Federal Circuit are understandably fearful of

retaliation. See Brief of Amicus Curiae Bar Association of

District of Columbia in Support of Petitioner at 4 (“These

practitioners fear, whether justified or not, that publicly

supporting Judge Newman’s effort might adversely impact

their own appeals”).

The panel was barred by its own precedent from

meaningfully considering Judge Newman’s constitutional

arguments. Specifically, the panel pointed to the D.C.

Circuit decision in McBryde as holding that it was

barred from considering Judge Newman’s as-applied

constitutional challenges, and could consider only her

facial constitutional challenges. See Newman v. Moore,

151 F.4th at 476 (citing 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)). And under D.C. Circuit precedent,

Judge Newman’s facial challenges failed merely because

challenged provisions of the Disability Act have possible

constitutional applications. See id., at 476. The court was

thus barred from considering whether the investigation

against Judge Newman has met the constitutional

standards of due process.

The panel below (applying McBryde) held that asapplied review was precluded by the text of the Disability

Act, which states that “all orders and determinations” of

a judicial council or the Judicial Conference “shall not be

judicially reviewable on appeal or otherwise.” See id. at 479

(quoting 28 U.S.C. § 357(c)). But as the court recognized,

21

this language should not be interpreted to preclude

all constitutional challenges, as it would raise “serious

constitutional questions” if a statute were “construed

to deny any judicial forum for a colorable constitutional

claim.” See id. (citing Webster v. Doe, 486 U.S. 592 (1988)).

Where the D.C. Circuit goes wrong, however, is in holding

that only facial constitutional challenges may be raised. In

light of the strong appearance of bias against her, Judge

Newman’s as-applied constitutional challenge is certainly

colorable, and thus the D.C. Circuit precedent denying its

review in a judicial forum raises serious constitutional

questions which should be considered by this Court.

It is no answer to say that such challenges could be

reviewed by the Judicial Conference, first because the

Judicial Conference is an administrative body rather

than a judicial one. See Newman v. Moore, 151 F.4th at

480 n.1 (“our court has treated judicial councils and the

Judicial Conference as administrative rather than judicial

bodies”); see also id. at 486 (“The result of faithfully

applying McBryde is that Judge Newman cannot raise

her as-applied constitutional arguments in any Article

III Forum.”). Moreover, even if it were to be considered

a judicial body, the Judicial Conference, as demonstrated

by this case, cannot be relied upon to seriously consider

as-applied constitutional challenges, and is thus no

substitute for Article III review of such issues. See

id. at 482 n.3 (“neither the Judicial Council’s orders

nor the JC&D Committee’s decision explicitly reflects

genuine consideration of Judge Newman’s constitutional

arguments”).

This Court has in other cases interpreted jurisdictional

bars similar to the one at issue here not to necessarily

22

preclude review of constitutional due process issues in

administrative proceedings. See Cuozzo Speed Techs. v.

Lee, 136 S. Ct. 2131, 2142 (2016) (“we do not categorically

preclude review of a final decision where . . . there is a due

process problem with the entire proceeding”); Johnson

v. Robison, 415 U.S. 361 (1974) (finding that a statute

precluding review of “any question of law or fact . . . ” does

not bar review of constitutional challenges).

The constitutional concerns at issue here are all

the more serious in light of the unprecedented and

unauthorized sanction imposed, which has on any realistic

assessment amounted effectively to removal from service.

See e.g., Michel, supra (“the effective removal is not based

on a proven disability, but only Judge Newman’s refusal to

be tested by experts selected, directly or indirectly, by the

chief judge and the court”). The Disability Act authorizes

only suspension “on a temporary basis for a time certain.”

See Newman v. Moore, 151 F.4th at 477 (quoting 28 U.S.C.

§ 354(a)(2)(A)(i)). Moreover, the Act explicitly makes clear

that “judicial councils are prohibited from ordering the

removal from office of any Article III judge appointed to

hold office during good behavior.” Id. (citing 28 U.S.C.

§ 354(a)(3)(A)). The investigative committee thus acted

beyond the scope of its statutory authority in effectively

removing Judge Newman from service. But the court

below (again applying McBryde) improperly found itself

barred from considering whether the administrative body

exceeded its statutory authority. See id. at 480-81.

This Court has however suggested that jurisdictional

bars need not preclude judicial review of whether an

administrative body has acted beyond its statutorily

prescribed limits. See Cuozzo, 136 S. Ct. at 2142 (“nor

23

does our interpretation [of the jurisdictional bar] enable

the agency to act outside its statutory limits”); cf. Loper

Bright Enters. v. Raimondo, 603 U.S. 369, 412 (2024)

(“Courts must exercise their independent judgment

in deciding whether an agency has acted within its

statutory authority . . . .”). Judge Newman has been denied

meaningful review of these arguments as well, further

demonstrating the insufficiency of relying upon review by

the Judicial Conference, and the need for review by this

Court. See Newman v. Moore, 151 F.4th at 482 n.3 (“None

of the orders appear to address any argument by Judge

Newman that her suspension violates the Constitution by

effectively removing her from office.”). Moreover, at the

time of the Judicial Conference order, Judge Newman’s

suspension was still in its first year, and the order reasoned

merely that “a one-year suspension of cases is not grossly

in excess of other suspensions imposed under the Act.”

See In Re Complaint No. 23-90015, C.C.D. No. 23-01 (U.S.

Jud. Conf. Feb. 7, 2024). The “suspension” is now in its

third year, and counting.

Finally, the panel below recognized that “Judge

Newman presents substantial arguments that her

suspension . . . threatens the principle of judicial

independence and may violate the separation of powers,”

but again was precluded by D.C. Circuit precedent from

considering these arguments. Newman v. Moore, 151

F.4th at 485. There is often a possibility that independent

thinkers like Judge Newman may provoke the ire of

some colleagues, but Article III’s guarantee of lifetime

tenure exists precisely to ensure that Judges may remain

of independent mind. See, e.g., Alexander Hamilton,

Federalist No. 78 (1788) (“The standard of good behavior

for the continuance in office of the judicial magistracy

24

. . . . is the best expedient which can be devised in any

government, to secure a steady, upright, and impartial

administration of the laws.”). Without meaningful

constitutional review, chief judges inclined to abuse their

power have the potential to stifle dissent, undermining

judicial independence as well as the constitutional design.

This Court should thus step in to review the D.C.

Circuit precedent barring Article III consideration of

as-applied constitutional and beyond statutory authority

challenges under the Judicial Conduct and Disability Act,

so as to safeguard judicial independence and prevent

similar abuses of power in the future.

25

CONCLUSION

For the foregoing reasons, amicus respectfully

requests that the Court grant certiorari in this case.

Respectfully submitted,

A ndrew C. Michaels

Counsel of Record

University of Houston Law Center

4170 Martin Luther King Boulevard

Houston, TX 77204

(314) 323-2201

acmichaels@uh.edu