CAFC Judges Say Newman's Claims in DC Court on Fitness Investigation 'Straightforwardly Dismissed'
All of Judge Pauline Newman's claims against her colleagues on the U.S. Court of Appeals for the Federal Circuit's investigation of her fitness to continue serving on the bench are "straightforwardly dismissed," judges Kimberly Moore, Sharon Prost and Richard Taranto said in a reply brief supporting their motion to dismiss the case (Hon. Pauline Newman v. Hon Kimberly Moore, D.D.C. # 23-01334).
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Filing the brief in the U.S. District Court for the District of Columbia, the judges said that should Newman's complaint survive the straightforward reasons for dismissal, the case should be dismissed because the court "has no original jurisdiction to review this collateral attack on actions of the Federal Circuit's Judicial Council." The Judicial Council's decision to suspend Newman from being assigned new cases is a "judicial act," so Newman "must seek review in a court with appellate jurisdiction over the Federal Circuit," the brief said.
Additionally, Newman chose not to counter the three judges' claim that the D.C. court should decline jurisdiction due to the pending misconduct proceedings and the chance the Judicial Council could take further action beyond an initial order, set on June 5, suspending Newman from being assigned new cases while the investigation proceeded. "Those uncontested comity and exhaustion principles independently justify dismissal," the brief said.
Moore, Prost and Taranto said that Newman's challenges to the judges' actions are "unavailing" since the 96-year-old judge "essentially concedes that judicial councils" can suspend case assignments and only raises procedural and duration-related claims against the June 5 order. However, this order was "only temporary."
The case stems from the fitness investigation launched in March on Newman's ability to effectively do her job considering her physical and mental well-being. After narrowing the proceeding to Newman's hindrance of the investigation, the three judges recommended barring Newman from receiving new cases for a year. The recommendation was enacted by the court's Judicial Council (see 2309200024).
Newman filed the present action in the D.C. court to claim that the proceeding violates the U.S. Constitution and strips her of her due process rights. The judge's challenge, however, is of the June 5 order, which has been revoked in light of the Judicial Council's order barring new case assignments to Newman for a year. Moore, Prost and Taranto said that Newman's case now boils down to three challenges: a claim against the June 5 order, constitutional challenges to actions taken by the three-judge panel, and facial challenges to the constitutionality of the Judicial Conduct and Disability Act.
The judges said this first claim is moot since the June 5 order was vacated; the second argument "is expressly barred from review by" the Act; and the third claim "does not exist." Newman "cannot use a revisionist reading to amend through her opposition brief," the brief said. "Regardless, Defendants moved to dismiss her purported improper-removal and due-process claims on their merits. In response, Plaintiff has little, if anything, to say. And for good reason: binding precedent forecloses both claims."