Suspended Federal Circuit Judge Pauline Newman's lawsuit (see "Judge Newman and the On-Going Attempts to Remove Her from the Federal Circuit") against Chief Judge Kimberly Moore, and Circuit Judges Sharon Prost and Richard Taranto (in their roles as members of the Special Committee of the Judicial Council of the Federal Circuit responsible for the Order suspending Judge Newman) soon may be reaching an important milestone: the District Court overseeing Judge Newman's complaint will rule on Defendant Committee's motion to dismiss the remaining Counts (see "Judge Newman's Suit Continues"), now that the Committee recently filed its Reply brief to Judge Newman's opposition to its motion.
The Committee begins its argument regarding Judge Newman's constitutional challenge in Counts VII and IX by asserting that orders issued under the statute are per se reasonable and do not implicate the Fourth Amendment: "The statutory scheme ensures that orders issued in the ordinary course of investigations will be reasonable, the touchstone of the Fourth Amendment inquiry" they contend. Further, the Reply asserts the standard that the statute must be unconstitutional in all its applications for Judge Newman to prevail, which suggests that the Committee's position is that the statute cannot be applied in a particular instance that contravenes a judge's Fourth Amendment rights, and because there are "multiple applications of 28 U.S.C. § 353(c)'s investigation provision that are undisputedly constitutional" Judge Newman's facial challenge cannot prevail. Statutory support for the Committee's position includes that "the special committee is authorized to 'conduct an investigation as extensive as it considers necessary'" 28 U.S.C. § 353(c) which is not limited to the issues presented by Judge Newman relating to "medical examinations and private medical records," and that the "no set of circumstances" test for unconstitutionality in United States v. Salerno, 481 U.S. 739, 745 (1987), is controlling and supported by City of Los Angeles v. Patel, 576 U.S. 409 (2015), and Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008). Another statutory basis on which the Committee relies is that "in the absence of § 353's authority" the Committee "cannot even exist." The Committee's argument implies that Judge Newman had the burden to show that any action by the Committee would be unconstitutional ("certainly all coercive investigative steps"), thus apparently interpreting both the statute to authorize and the process to require investigative steps to be coercive. Under this interpretation, the Committee argues that the statute expressly provides its authority to take such steps, even to the extent they would otherwise violate a judge's Fourth Amendment rights.
The Committee rests its defense to Judge Newman's assertions of unconstitutionality on whether its actions are "reasonable," which it argues "depends on the context within which a search takes place," citing New Jersey v. T.L.O., 469 U.S. 325, 337 (1985), and cites authority "outside the 'crime control' context" in support (Indianapolis v. Edmond, 531 U.S. 32, 44 (2000)); see, e.g., National Treasury Employees Union v. Von Raab, 489 U.S. 656, 679 (1989)) (each of which involve employees). This involves a "balancing test" between "the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion," the Committee argues, citing O'Connor v. Ortega, 480 U.S. 709, 719–20 (1987) (plurality op.) (quoting United States v. Place, 462 U.S. 696, 703 (1983)), spurred by the existence of governmental "special needs" wherein requiring the government to obtain a warrant would be "impracticable." Regarding this requirement, the Committee argues that "finding a warrant requirement impracticable in a particular context is a possible result—not a necessary precondition—of an assertion of special needs."
The Reply also asserts that Judge Newman was entitled to "precompliance review" of the order, stating that "[a] judge subject to a special committee's investigative order under § 353(c) thus has ample 'opportunity to obtain precompliance review' of that order by challenging it before the neutral decisionmaker[s]' of the judicial council prior to the imposition of any penalty for noncompliance" under Patel. (While perhaps true, these assertions seem to ignore the imposition of the consequence of non-compliance -- suspension -- because Judge Newman exercised her right not to merely comply and does not address Judge Newman's assertions that the Special Committee of the Federal Circuit Judicial Council was not a "neutral decisionmaker" but instead "investigator, judge, and jury—and even, if necessary, witnesses.")
The Reply also asserts that Judge Newman could have "availed herself of the opportunity for Judicial Conference review by the judges drawn from across the country" under 28 U.S.C. § 331; id. § 357(a) (permitting a "judge aggrieved by an action of the judicial council under section 354" to petition the Judicial Conference); Rule 21(b)(1) (permitting a subject judge to petition the Judicial Conference's Committee on Judicial Conduct and Disability to review judicial council actions such as censures or suspensions); see Memorandum of Decision at 40, In re: Complaint of Judicial Misconduct, C.C.D. 17-01 (Comm. on Jud. Conduct & Disability Aug. 14, 2017)" (but note a seeming contradiction in the Committee's position discussed below). This factual disagreement is important because its existence is one of the bases for the Committee's argument that there is no Fourth Amendment violation by the Committee's actions ("These opportunities for precompliance review of a special committee's § 353(c)'s orders by neutral adjudicators render the statute consistent with the Fourth Amendment's requirements especially for § 353(c) orders that (as was true of the orders Plaintiff focuses on) are issued with individualized suspicion that the subject of the search had triggered the governmental need at issue.") That factual disagreement encompasses Judge Newman's contentions that:
Chief Judge Moore "unilaterally" removed Judge Newman from the bench, the suspension being "extended by an unprecedented, unrecorded and unpublished vote of the Defendant Judicial Council" in a meeting that was "neither noticed nor memorialized." Only after this suspension, the brief asserts, did the Chief Judge "instigate[]" an investigation over alleged physical infirmities (a heart attack and a fainting episode) that "Defendants themselves now acknowledge were false." [See "Judge Newman's Suit Continues".]
by asserting that "no § 353(c) investigation can even begin absent a finding of "probable cause" that the subject judge suffered from a disability within the meaning of the Act" and "[t]he individualized suspicion accompanying the types of investigative orders under § 353(c) that Plaintiff challenges strongly reinforces the reasonableness of searches conducted per such orders."
The Reply justifies the Committee's actions here based on the:
"significance of the core interest Defendants advanced: ensuring that judges entrusted with the power to render decisions profoundly affecting the public in both immediate and lasting ways—e.g., issuing bail decisions, depriving individuals of liberty or property, making factual findings subject only to deferential review—do not suffer from disabilities that render them "unable to discharge all the duties of office" (or that they have not "engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts"). 28 U.S.C. § 351(a)"
(generalizing the issue to all judges rather than specifically to Judge Newman, i.e., in how these principles impact and were applied to the Judge in this instance).
The Reply also seems to assert that there is "[an]other side of the ledger" between the distinctions Judge Newman raised between an Article III judge and a government employee ("as an Article III judge she is a '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'") insofar as that status imposes a quid pro quo that a judges privacy interests are "qualified by the acceptance of a life-tenured judicial position" wherein their "lives and careers are routinely scrutinized during the confirmation process, and the same goes for their financial arrangements throughout their judicial tenure" and "investigations into misconduct or potential disability are fully authorized by the Act, and thus an established component of life tenure on the federal bench." In this regard, the Committee casts the dispute as one in which while Judge Newman's privacy interests must be given "weight," "they do not categorically trump the legitimate and significant objectives advanced by the statute, as they would have to do for Plaintiff to prevail in her facial challenge." In this regard, the Reply also notes that the provisions of § 353(c) are not "confined to investigations of Article III judges; it applies equally to magistrate judges and bankruptcy judges who do not enjoy life tenure or the constitutional status on which Plaintiff rests her argument." And the Reply turns Judge Newman's argument on its head, wherein the special role of the judiciary "underscores the importance of having investigatory means like those in the Act—which were deliberately designed to respect the special independence of the Judicial Branch—to uncover and address disability or misconduct among Article III judges" because of "the absence of the usual mechanisms for terminating an employee who cannot fulfill their duties."
The Reply attempts to rebut Judge Newman's argument that she was entitled "to resort to outside judicial officers to conduct even basic investigatory steps" by the need for expediency under the circumstances of purported judicial disability. However, this argument also seems to implicate the issue of compliance and Judge Newman's ability for challenging such "basic investigatory steps" that the Reply earlier asserted the Act provided. While it may be the case that "[r]equiring resort to judicial officers outside the congressionally defined judicial conduct and disability mechanism would functionally constitute the type of outside as-applied challenge that Congress has plainly and constitutionally deemed inconsistent with the Act's streamlined judicial "housekeeping" mechanisms," how else would Judge Newman have been about take advantage of the means provided for the Act (according to the Reply) to challenge the committee's requirements?
Turning to Judge Newman's Count V challenge of the disability provisions of the statute for vagueness, the Reply renews its argument that Judge Newman fails 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). On the merits, the Reply argues 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.'" 28 U.S.C. § 351(a). According to the Reply, the basis for its constitutional clarity is that it ties the definition of "disability" to whether a judge is "unable [to perform] all the duties of office," where disability is a term used "since the Founding" and thus presumed to have meaning based on "historical usage in the law," citing Arnett v. Kennedy, 416 U.S. 134, 160 (1974). This argument is bolstered by the constitutional clarity with which the misconduct provision of the Act has been acknowledged, which is a term is "arguably less precise than the relatively concrete assessment" of being unable to perform judicial duties according to the Reply. The Committee contends that "a vagueness challenge cannot succeed where the statutory standard is 'imprecise but comprehensible,' that is, where a conclusion whether the standard has been met 'may vary depending upon whom you ask,'" citing United States v. Bronstein, 849 F.3d 1101, 1107 (D.C. Cir. 2017) (citations omitted)" and faults Judge Newman for "never grappl[ing] with the vagueness standard or explain[ing] how the statute fails to meet that standard." According to the Reply, a law is not constitutionally vague when it "'call[s] for the application of a qualitative standard to real-world conduct'" under Bronstein nor because a statute must be drafted to be "both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning," citing Arnett.
The remainder of the Reply in this regard consists of the Judicial Council's contentions that Judge Newman has not rebutted its arguments in favor of the statute's constitutionally sufficient clarity.
Finally, turning to Count VII of Judge Newman's complaint that the investigation provision of the Act is unconstitutionally vague, the Reply brief contends 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). Nevertheless, the Reply asserts that the constitutional clarity is "settled law," relying on other, seemingly inapposite jurisprudence (particularly Kincaid v. District of Columbia, 854 F.3d 721, 729 (2017), discussing United States v. Batchelder, 442 U.S. 114 (1979)). "If the broad discretion over criminal charges and sentences at issue in those cases did not raise a constitutional problem, it follows that a provision merely granting investigative discretion cannot offend the Due Process Clause," the Reply asserts.
It is fair to say that to the extent Judge Newman's brief focused on the particulars of her circumstances and the justification vel non of the Judicial Council's actions in these proceedings, the Committee's Reply focuses more generally on how the statute is constructed to address the issue of judicial misconduct or inability of a judge to satisfy judicial responsibilities. Whether the case is dismissed or the remaining Counts are permitted to proceed will likely depend on how the District Court considers these different perspectives and their impact on Judge Newman's rights and interests, and whether they have been abridged.
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