Today, D.C. District Court Judge Christopher R. Cooper put an end to Judge Pauline Newman's lawsuit against her colleagues, granting the Federal Circuit Judicial Council's motion to dismiss Judge Newman's suit on due process and 4th Amendment grounds (see "Judge Newman and the On-Going Attempts to Remove Her from the Federal Circuit").
To recap, Judge Newman filed a complaint in May 2023, asserting 12 claims:
• Claim I asserted "improper removal [and] violation of separation of powers" based on Article III (life tenure of federal judges) and Article I (giving the House of Representatives the sole authority to remove a judge through impeachment after trial by the Senate).
• Claim II asserted that the Judicial Complaint is ultra vires for "improper removal [and] violation of separation of powers."
• Claim III alleged Fifth Amendment violations of due process because the members of the Special Committee are also purported witnesses to the alleged judicial misconduct.
• Claim IV asserts a First Amendment violation for unlawful prior restraint for the gag order.
• Claim V asserted that the gag order is also ultra vires as being an unlawful prior restraint on speech.
• Claim VI asserted a Fifth Amendment violation for unconstitutional vagueness of the provisions of the Disability Act.
• Claim VII asserted that the activities are ultra vires for unconstitutional examination because "[n]either the Act nor the U.S. Constitution authorizes compelling an Article III judge to undergo a medical or psychiatric examination or to surrender to any investigative authority her private medical records in furtherance of an investigation into whether the judge suffers from a mental or physical disability that renders her unable to discharge all the duties of office."
• Claim VIII also asserted a Fifth Amendment violation for unconstitutional vagueness regarding the Act's investigative authority.
• Claim IX alleged a Fourth Amendment violation for an unconstitutional search regarding the "compelled medical or psychiatric examination of an Article III judge without a warrant based on probable cause and issued by a neutral judicial official or a demonstration of constitutional reasonableness."
• Claim X alleged a Fourth Amendment violation for an unconstitutional search and seizure of a "compelled surrender of private medical records."
• Claim XI alleged a Fourth Amendment violation for "lack[ing] either a warrant issued on probable cause by a neutral judicial official or a constitutionally reasonable basis for requiring Plaintiff to submit to an involuntary medical or psychiatric examination."
• Claim XII alleged a Fourth Amendment violation for "lack[ing] either a warrant issued on probable cause by a neutral judicial official or a constitutionally reasonable basis for requiring Plaintiff to surrender her private medical records none of which bear on her fitness to continue serving as an Article III judge."
The District Court previously dismissed Counts II, III, IV, VI, X and XI for lack of subject matter jurisdiction and Count I and parts of Count VII under Fed. R. Civ. P. 12(b)(6). Thus, only Counts V, VII (in part), VIII, and IX remained before the Court, which was the subject of Judge Newman's motion in opposition (see "Judge Newman's Suit Continues") and the Judicial Council's reply (see "Special Committee of the Judicial Council of the Federal Circuit Replies").
Judge Newman's legal arguments were that, first, as an Article III judge she is "constitutional officer of this Republic, and not merely a federal employee" who "does not have a supervisor and does not need to meet any performance metrics to keep her job." "Congress alone has the power to remove her," her brief in opposition asserted.
Second, the operative statute, the Disability Act, lacks a definition of what constitutes a disability nor what factors are to be considered. Rather than relying on medical professionals, her brief asserted, the determination is left "in the hands of lay people like Chief Judge Moore and her colleagues, all without providing them with any tools to determine when a disability exists."
Third, there is no provision in the statute for judicial review of any Orders or actions taken pursuant to the statute, permitting violations of the Fourth Amendment, including "invasive searches of private medical information" and allowing "self-executing" administrative orders to be promulgated by the Judicial Council, "a wholly administrative body." The result is a regime where the Council can "employ and manipulate entirely standardless criteria in order to start and to continue investigations into and to impose unconstitutional sanctions on Article III judges." In this regard, the brief reminds the District Court that the putative grounds and factual justifications for the Council's Orders have "evolved" in the year since the proceedings began.
The Judicial Council replied, arguing with regard to Counts VIII and IX that the orders it issued under the statute, 28 U.S.C. § 353(c), are per se reasonable and do not implicate the Fourth Amendment. Regarding Judge Newman's Count V challenge of the disability provisions of the statute for vagueness, the Judicial Council argued that Judge Newman failed the requirement of a facial challenge to show that "the law in question is impermissibly vague in all of its applications," citing Crooks v. Mabus, 845 F.3d 412, 417 (D.C. Cir. 2017), and, on the merits, argued that the Act is not constitutionally vague because the Act permits a judicial council to "take action where a 'judge is unable to discharge all the duties of office by reason of mental or physical disability" under 28 U.S.C. § 351(a). And with regard to Count VII, the Judicial Council argued that that Judge Newman has not asserted any reason "to doubt the sufficiency of [the standard that] "an investigation [is] as extensive as [a Judicial Council] considers necessary" (other than the implication that this is no standard at all, being entirely discretionary to the whims of the Court's Judicial Council), and that the constitutional clarity of the statute is "settled law."
The District Court's opinion granting the Judicial Council's motion to dismiss addresses the four remaining Counts in two groups: Counts VII and IX on unconstitutionality grounds and Counts V and VII for vagueness. For Count VIII and Count IX comprised facial challenges on 4th Amendment grounds against the Judicial Conduct & Disability ("JC&D") Act, 28 U.S.C. §§ 353(a), (c) empowering the Chief Judge to form a committee to investigate the allegations against Judge Newman. Judge Newman alleged that § 353(c) "violates the Fourth Amendment to the extent it authorizes a compelled medical or psychiatric examination of an Article III judge" (Count VIII) or "a compelled surrender of medical records belonging to an Article III judge" (Count IX) "without a warrant based on probable cause." The opinion recites the burden for prevailing on such a facial challenge to be that the statute is "unconstitutional in all of its applications," citing Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008). The Court found the statute not to be facially invalid because a special committee under the statute could engage in investigations that "do[] not run afoul of the Fourth Amendment," citing Florida v. Bostick, 501 U.S. 429, 434 (1991); United States v. Miller, 425 U.S. 435, 443 (1976); and United States v. Simons, 206 F.3d 392, 395–96, 398 (4th Cir. 2000) (notably, all of which had to do with court employees, a status which Judge Newman argued does not properly describe an Article III judge ("it should be noted that Judge Newman is not an employee, but an independent constitutional officer and that neither Chief Judge Moore, nor the Special Committee, nor the Judicial Council are her 'supervisors'" as was the case in many of the decisions cited by Defendants in their Motion"). The opinion rejects the distinction Judge Newman drew that a Chief Judge could always interrogate a court employee, on the grounds that a special committee could not do so (but apparently ignoring the fact that this special committee had as a member the Chief Judge herself). The Court also ignored Judge Newman's distinctions with the circumstances of City of Los Angeles, Calif. v. Patel, 576 U.S. 409, 415, 418 (2015), and further applies more general standards for facial challenges (e.g., regarding drones and the FAA; see Brennan v. Dickson, 45 F.4th 48 (D.C. Cir. 2022), that seem somewhat far afield from the case before the Court).
Regarding Count V and Count VII for vagueness, Judge Newman's contentions were that the JC&D Act violates the due process clause of the Fifth Amendment and were unconstitutionally vague. As for Count V, the Court says that statutes are not impermissibly vague "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,'" citing United States v. Bronstein, 849 F.3d 1101, 1107 (D.C. Cir. 2017). Based upon "the text, legislative history, and implementing rules of the JC&D Act, section 351(a)" the Court held the statute not to be unconstitutionally vague. According to the Court, the text defines the standard of conduct to be the "duties of [judicial] office" (which is not vague inter alia because "judges, the only individuals against whom § 351(a) can be enforced, are well aware of their duties" and because judges swear an oath to "faithfully and impartially discharge and perform all the duties incumbent upon" them" under 28 U.S.C. § 453). The Court also relies upon the legislative history to the effect that the statute is directed towards "judicial transgression" (which, on its face, seems to be more directed to outcome rather than process, which is what seems to be at issue here and behind Judge Newman's complaint). Citations to the Code of Judicial Conduct and the Canons of Judicial Ethics of the American Bar Association also seem inappropriate in this case because, after all, the basis for Judge Newman's suspension was contrary to neither of these canons but was based on the Judge's allegations that the "independent neurological testing and provide it relevant medical records" was outside the scope of the special committee's powers and an infringement on her due process and privacy rights. And the "[e]xamples of disability" including "substance abuse, the inability to stay awake during court proceedings, or impairment of cognitive abilities that renders the judge unable to function effectively" under JC&D R. 4(c) of the Rules for Judicial-Conduct and Judicial-Disability Proceedings do not seem to apply to Judge Newman's circumstances, either, although they are cited by the Court in support of the lack of vagueness in the statute. The Court rejects Judge Newman's rebuttals to the special committee's arguments as being subjective ("which is not unconstitutional") and interprets the distinctions Judge Newman makes between a federal employee and an Article III judge by citing definitions of "judicial independence" as "not giv[ing] 'judges "absolute freedom from" discipline or sanctions that fall short of removal or salary diminution," 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)), citing these as "accepted limits on judicial independence."
Regarding Count VII, the Court asserts that the investigative provisions of the JC&D Act fall within the scope of prohibition in neither 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," citing Beckles v. United States, 580 U.S. 256, 266 (2017), and El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 856 n.4 (D.C. Cir. 2010). This is because, in the Court's view, "[i]t 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." The Court finds the scope of the special committee's powers to be consistent with activities of federal prosecutors and agencies. The Court further rejects what the opinion terms "tangential arguments" by Judge Newman, the first that the statute provides no standards (the opinion having set forth its opinion on these standards) and the second that the special committee can compel the Judge to disclose private documents and "directly sanction" her for not doing so (the opinion characterizing this argument as "repackaging" an argument made in an earlier round of motions that the Court rejected, and further that the special committee has no enforcement power, which is reserved to the Judicial Council which have such power).
Thus ends Judge Newman’s attempts to regain her position on the Federal Circuit (absent appeals, of course). This unfortunate situation has harmed the stature of the Court. Judge Newman deserved better. Her wonderful and admirable legacy, on the other hand, remains and will be long remembered.
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