DC Circuit Rejects Judge Newman’s Appeal in Suspension Case (2)

The DC Circuit affirmed the dismissal of Judge Pauline Newman’s lawsuit challenging her suspension from hearing cases at the Federal Circuit for refusing to sit for an independent psychological examination.

A three-judge panel said it could only consider Newman’s facial challenge to the constitutionality of the Judicial Conduct and Disability Act and not how the law was applied by Newman’s fellow judges in their investigation into her mental acuity.

Under DC Circuit precedent, “any recourse for Judge Newman must come from a judicial council or from the Judicial Conference, the entity statutorily empowered to review council decisions,” wrote Judge Bradley N. Garcia of the US Court of Appeals for the DC Circuit in a precedential opinion issued Friday.

It’s unclear if Newman will seek to have her appeal heard by the full DC Circuit or petition the US Supreme Court to take her case, but her lawyer, Greg Dolin of the New Civil Liberties Alliance, said the judge was far from giving up.

“We’re working through next steps,” Dolin said in a brief phone interview, “but there will definitely be next steps.”

Federal Circuit Chief Judge Kimberly A. Moore and the court’s Judicial Council declined to comment through a spokesperson.

Newman, who at 98 is the oldest active federal judge, was suspended from new case assignments at the US Court of Appeals for the Federal Circuit in 2023 as the court launched a formal investigation into her fitness to serve. She was suspended for one year that September, and benched an additional year in September 2024.

The judge made her case before the Federal Circuit’s Judicial Council but was rejected. She subsequently challenged that body’s decision at the Judicial Conference, also without success.

She filed a federal lawsuit in May 2023 seeking reinstatement, but the case was tossed in July 2024. She promptly appealed to the DC Circuit, raising both facial and as-applied constitutional arguments.

The DC Circuit panel dispatched the facial challenges quickly, concluding Newman herself acknowledged during the appeal that the law governing misbehavior and impairment of federal judges had certain legitimate applications, dooming that more broad-based attack.

But the panel wrestled with having to turn away Newman’s challenges to the way the law was applied when Moore and the rest of the Federal Circuit’s active judges suspended Newman after she refused to undergo medical examination or produce medical records.

Newman “has posed important and serious questions” about whether the investigative proceedings “comport with constitutional due process principles and whether her ongoing suspension comports with the structure of our Constitution,” Garcia wrote. “That we do not answer those questions is no indication that her arguments lack merit, nor signals how we might have addressed them if we were able.”

Garcia also hinted that the panel may be uneasy with a 20-plus-year old opinion they’re bound to follow, which strips the appeals court of jurisdiction to decide Newman’s as-applied challenges. Judges Patricia A. Millett and Cornelia Pillard joined the opinion.

Newman had “substantial” arguments that the length of her suspension “may violate the separation of powers,” Garcia wrote.

She had argued her suspension and its subsequent renewal effectively removed her from her post and that only Congress can remove a federal judge through its impeachment powers.

“The seeming absence of a judicial forum to address Newman’s as-applied constitutional claims itself raises constitutional concerns,” he added.

The Federal Circuit’s Judicial Council is represented by the US Justice Department.

The case is Newman v. Moore, D.C. Cir., 24-5173, affirmed 8/22/25.