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DC Court Rejects Newman's Bid for Injunction Against CAFC's 1-Year Ban on Judge

The U.S. District Court for the District of Columbia on Feb. 12 dismissed a host of claims from U.S. Court of Appeals for the Federal Circuit Judge Pauline Newman against three of her colleagues for their investigation on Newman's fitness to continue serving on the court. Judge Christopher Cooper also rejected Newman's bid for an injunction against the CAFC Judicial Council's one-year ban on Newman hearing new cases at the court (see 2309200024) (Hon. Pauline Newman v. Hon. Kimbelry Moore, D.D.C. # 23-01334).

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The judge tossed some of Newman's claims for lack of jurisdiction and some for a failure to state a claim, though some of Newman's arguments against the investigation will proceed, since the three judges didn't argue that they contained any procedural defects and the court said it can review facial challenges to the constitutionality of the Judicial Conduct and Disability Act.

Cooper noted that Newman asked the district court to "break ranks with higher courts" in rejecting the judiciary's "self-regulatory regime." The judge said he "must decline the invitation."

The judge held that Newman's challenge to a June 2023 order suspending her from being assigned new cases while the investigation took place was moot. The Judicial Council's order barring her from being assigned new cases for one year mooted the challenge to the three-judge panel's preliminary order, the court said. The Judicial Council's order vacated the previous order.

Cooper held that an exception to mootness doesn't apply since "there is no reasonable expectation that Judge Newman will be subject to the same action again." The court must presume that Newman will not repeat the "misconduct" that led to the June 5 order, which was the accumulation of a "backlog of cases," the court said. While Newman said her speed in issuing opinions won't likely change, the court noted that her "speed in issuing opinions is a factor within her control" and she was able to clear a recent backlog.

The voluntary cessation of the June 5 order also does not find a way around the mootness doctrine, the court said. There are doubts on whether a non-private defendant should be able to use this exception to mootness, though Cooper declined to adopt a "bright-line rule that the exception can never be applied against public-sector defendants." The court said it "would seem inappropriate" for the district court to "impute manipulative conduct" to the "entire roster of Federal Circuit judges save one."

The court then turned to Newman's challenges to the Judicial Conduct and Disability Act, finding that the statute, as interpreted by the U.S. Court of Appeals for the D.C. Circuit in McBryde v. Comm. to Rev. Cir. Council Conduct & Disability Ord. of Jud. Conf. of U.S., bars district courts from reviewing "as-applied challenges" to the act. Since six counts of Newman's complaint "raise as-applied challenges," Section 357(c) of the act, which says all orders issued under the act are not judicially reviewable, bars judicial review, the court said.

Cooper said that the court has original jurisdiction to hear Newman's "facial challenges" to the Judicial Conduct and Disability Act. The court said that while the Judicial Council was performing a "judicial" function when it suspended Newman for one year, "it is not a court of appeals" and thus "not equivalent to the Federal Circuit." The Judicial Council is more akin to an "administrative body," so instead of placing the council under Article III's hierarchy, "the Court will look to the framework for judicial review of agency adjudications," which permits judicial review here.

As a result, the court said it has jurisdiction to hear five of Newman's claims, which allege improper removal and a violation of separation of powers, unconstitutional vagueness of the act's disability provision, unconstitutional vagueness of the act's investigative authority and two separate unconstitutional searches.