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Today, Judge Christopher R. Cooper of the U.S. District Court for the District of Columbia issued a memorandum opinion and order in Judge Newman’s lawsuit, which asserts facial and as-applied constitutional challenges to the Judicial Conduct and Disability Act and the statutory provision creating circuit judicial councils. The opinion and order denies Judge Newman’s motion for a preliminary injunction that would have “prohibit[ed] 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.” The opinion and order also grants the defendants’ motion to dismiss all but three of Judge Newman’s claims based on lack of jurisdiction and failure to state a claim. Here is the introduction to the opinion and order.

Newman v. Moore

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 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.

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 common-sense 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 selfregulatory 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. § 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.