Over the past year 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) has continued without much fanfare. However, in the face of Defendant's Motion for Judgment on the pleadings the status quo is likely to change no matter now the District Court rules.
The opening paragraph of Judge Newman's brief opposing Defendant's motion demonstrates her intention not to go quietly. The brief avers 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"unilaterally" removed Judge Newman from the bench, the suspension being "extended by an unprecedented, unrecorded and unpublished vote of the Defendant Judicial Council" in a meeting that was "neither noticed nor memorialized."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." These actions constitute a "pattern of harassment" that "continues unabated to the present day" according to the brief, an allegation illustrated by refusing to permit Judge Newman to hire a judicial assistant (to which in her status as a Circuit Court judge she was entitled to do), removing the Judge from an internal e-mail distribution list, which deprived Judge Newman of information about the Court's business, and refusing her request to extend the term of one of her clerks. The Chief Judge and the Judicial Council were able to take these steps, according to the brief, because the legal authority they are based upon, the Judicial Conduct and Disability Act ("Disability Act"), 28 U.S.C. §§ 351–364, "unconstitutionally vest unfettered discretion in Defendants, which permits them, without impeachment, for all intents and purposes, to divest an Article III judge of her office."
To recap, the legal grounds for Judge Newman's complaint were the following:
• Claim I asserts "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 asserts that the Judicial Complaint is ultra vires for "improper removal [and] violation of separation of powers." This allegation is based on Judge Newman being removed from her duties before the special committee's investigation was concluded (which removal the Judicial Disability Act of 1980 codified at 28 U.S.C. § 354(a)(2)(A)(i) requires to be after the investigation according to the complaint).
• Claim III alleges Fifth Amendment violations of due process because the members of the Special Committee are also purported witnesses to the alleged judicial misconduct (the complaint stating that "[i]t has been established for centuries that one cannot serve as a 'judge in his own cause'").
• Claim IV asserts a First Amendment violation for unlawful prior restraint for the gag order, contrary to several Supreme Court cases prohibiting prior restraint on speech (Houston Cmty. Coll. Sys. v. Wilson, 142 S. Ct. 1253, 1259 (2022) (the First Amendment prohibits prior restraint on speech) and Alexander v. United States, 509 U.S. 544, 550 (1993)).
• Claim V asserts that the gag order is also ultra vires as being an unlawful prior restraint on speech.
• Claim VI asserts a Fifth Amendment violation for unconstitutional vagueness of the provisions of the Disability Act.
• Claim VII asserts 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 asserts a Fifth Amendment violation for unconstitutional vagueness regarding the Act's investigative authority, with regard to "authoriz[ing] compelled medical or psychiatric examinations of Article III judges or demands from special committees for Article III judges to surrender their private medical records." In particular, this allegation is directed to Section 353(c) of the Act.
• Claim IX alleges 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 alleges a Fourth Amendment violation for an unconstitutional search and seizure of a "compelled surrender of private medical records."
• Claim XI alleges 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 alleges 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."
Judge Newman's legal arguments are 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," the brief asserts.
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, the brief asserts, 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 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 Courts V, VII, VIII, and IX remain and are the subject of the Defendant's Motion for Judgment on the Pleadings and Judge Newman's motion in opposition thereto. The arguments Judge Newman through counsel asserts for these remaining Counts are that the Disability Act is unconstitutionally vague in defining what is a disability under the Act (Count V) and "its grant of investigative authority to the Special Committee (Count VII)" and that the Act authorizing the Council to "demand medical examinations and private medical records as a condition for maintaining one's Article III judicial office[] violates the Fourth Amendment's prohibition on unreasonable searches."
The brief sets forth the standard of review for a facial challenge to a statute authorizing warrantless searches to be a showing that the searches authorized by the statute are "unreasonable," citing City of Los Angeles, Cal. v. Patel, 576 U.S. 409, 419-20 (2015). Such a challenge can be brought when a law threatens to inhibit the exercise of constitutionally protected rights or allows for arbitrary and discriminatory enforcement the brief argues, citing Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 499 (1982). Importantly, the brief further argues that Judge Newman does not need to show that the Disability Act is unconstitutional in all of its applications, but rather that it creates "a danger of arbitrary and discriminatory enforcement" or "threatens to inhibit the exercise of constitutionally protected rights," citing Hoffman Ests, 455 U.S. at 494, 498.
Regarding Counts VIII and IX, Judge Newman's argument relates to the constitutionality (or lack of it) of the scope and type of searches the Disabilities Act permits (at least as demanded by this Judicial Council), specifically the "investigation" provision, 28 U.S.C. § 353(c). The brief argues that this scope in practice violates Fourth Amendment prohibitions against unlawful searches and seizures, specifically "by authorizing special committees to compel medical examinations and the production of medical records without a warrant or a demonstration of constitutional reasonableness." The challenges are "facial, not as applied," citing City of Los Angeles v. Patel for the standard that a facial challenge is not required to show that a law is unconstitutional in all of its applications, countering the Defendant's position that the existence of some legitimate searches rebuts Judge Newman's facial challenge. The brief cites additional language from the Supreme Court that "when assessing whether a statute meets this standard, the Court has considered only applications of the statute in which it actually authorizes . . . conduct" (emphasis in brief); 576 U.S. at 418. Accordingly, instances where a search under the Disabilities Act is performed with acquiescence or consent are irrelevant to the legal inquiry under Patel. Indeed, according to the brief a requirement in a facial challenge of a showing of unconstitutionality in all of a statute's applications "would preclude facial relief in every Fourth Amendment challenge to a statute authorizing warrantless searches" under Patel.
The brief also argues that the Disability Act violates the Fourth Amendment because while the Judicial Committee's orders may be based on "reasonable suspicion" of the subject judge's disability, under the Fourth Amendment searches conducted outside the judicial process without a warrant must have a showing of constitutional reasonableness that is absent here. Moreover, the brief asserts that the "special needs" exception, which applies to certain administrative searches, does not apply to the Disability Act because obtaining a warrant is not impracticable in this case and the burden of obtaining a warrant would not frustrate the government's purpose behind the search. The "special needs" exception applies, according to the brief, when "special [government] needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable," citing Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653 (1995) (quoting Griffin v. Wisconsin, 483 U.S. 868, 873 (1987)) (emphasis in brief). That is not the case here, where the acceptable standard for impracticability is not satisfied (being that obtaining a warrant must "seriously disrupt the routine conduct of business," citing O'Connor v. Ortega, 480 U.S. 709, 722 (1987), or "when 'the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search,'" citing New Jersey v. T.L.O., 469 U.S. 325, 340 (1985) (quoting Camara v. Municipal Court, 387 U.S. 523, 533 (1967)). And even should Defendants be able to make such a showing, whether a warrant is required is subject to a "balancing test" between government interests and individual privacy interests, under Skinner v. Railway Lab. Execs.' Ass'n, 489 U.S. 602, 619 (1989)). Judge Newman argues that the cumulative impact of this case law is that Defendants were required to show both that the special exception applies and that obtaining a warrant would have been impracticable, which they did not do, according to her brief, providing an analysis and assessment of the cases advanced by Defendants in support of their position and the inapplicability thereof ("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 brief takes particular apparent umbrage at assertions in Defendant's Motion to Dismiss that "special committees can require medical examinations without a warrant because 'psychological testing and psychiatric interviews are a routine feature of occupations which involve stress and sensitive interpersonal contact,'" and that in this respect, "[t]here is no reason to distinguish between [government] employees and judicial officers." First, the brief asserts that "there is an obvious need to distinguish mere employees who constitutionally speaking are not meant to be independent or to enjoy any tenure protections and Article III judges who enjoy such protections precisely because they are meant to be independent." Second, the brief challenges the assertion that subjecting Article III judges to such medical examinations is routine, stating that "an Article III judge has never before undergone compelled medical testing of any kind . . . [i]n the 44 years the Disability Act has been in effect (and the 235-year history of the federal judiciary), medical testing has been ordered once and has never taken place" (and in that case the Judicial Council discontinued their efforts when the judge contested the Order). Unlike the governmental employees in the cases Defendants asserted in support of their Motion to Dismiss, Judge Newman asserts that "Article III judges are officers of the United States, appointed by the President with the advice and consent of the Senate, [that] "hold their positions for life" and "the Constitution and the Supreme Court guard these judges' independence," citing Mistretta v. United States, 488 U.S. 361, 410 (1989), for the latter proposition and for the proposition that "no Act can authorize the President (or by extension anyone else) "to remove, or in any way diminish the status of Article III judges, as judges" (emphasis in brief). Article III judges "are removable only by the Senate, not by a supervisor who might search their offices or subject them to medical testing, and not by their circuit's judicial council" under Mistrella the brief argues. Finally, adopting Defendants' position would deny Article III judges from judicial review "both ex ante and ex post" putting the judge in a less favorable position ("have less constitutional protection") than other governmental employees (emphasis in brief). And being thus denied judicial review is exacerbated by Judicial Councils, as Defendants would have it, being "investigator, judge, and jury—and even, if necessary, witnesses."
Even if the special needs exception could apply, according to Judge Newman, the District Court cannot determine at the pleadings stage whether a warrantless search is reasonable. The requirement for a balancing test under the Fourth Amendment between governmental rights and individual privacy rights is inconsistent with dismissing Judge Newman's challenge to the Judicial Council's actions without the District Court having the opportunity to consider the evidence (and Judge Newman the opportunity to present such evidence) (and even if the Court were to do so on the current record Judge Newman argues Defendants' motion should be denied) according to the brief.
Judge Newman further argues that the Disability Act fails to articulate any standard for "judicial disability," contrary to other Acts of Congress related to disabilities in other contexts. The history of the Act is evidence of this standardlessnes, "[b]egin[ning] with this case," Judge Newman asserts:
Throughout both this litigation and the administrative process within the Judicial Council, Defendants have not even been able to articulate what judicial duties Judge Newman is unable to perform. At most, they have alleged that Judge Newman is able to perform those duties slowly. Defendants have not been able to point to a single opinion (whether majority, concurring, or dissenting) that was not well-written or otherwise fell below any conceivable standard of judicial craftsmanship. Nor have they pointed to any behavior that Judge Newman may have exhibited on the bench or in conference that indicates (or would even cause one to suspect) an inability to perform the functions of judicial office.
Indeed, the "disability" allegations against Judge Newman throughout these proceedings read like a Chinese menu with Defendants making and withdrawing seemingly haphazard allegations. For example, in the initial order launching administrative proceedings against Judge Newman, Chief Judge Moore alleged (based apparently on a thirdhand remark from Judge Newman's former judicial assistant) that she suffered a heart attack. But no explanation was given as to why a heart attack—a not uncommon malady—would make one unable to perform duties of an appellate judge. The same goes to the allegations (also erroneous and apparently since abandoned) that Judge Newman had a fainting spell and had difficulty walking significant distances. Surely, an ability to walk without resting is not even remotely indicative of one's ability to reason through and write about legal issues. Yet, it was these allegations that allowed Chief Judge Moore to kick-start the administrative process against Judge Newman.
(The brief includes several other statements by other members of the Judicial Council supporting Judge Newman's argument of the standardlessness of the term "judicial disability," as well as examples of other conditions having more significant impacts on a judge's ability to perform her duties, that have not provided a basis for suspending her from the bench.) The situation is worsened, as the brief sets out, because "[a]t no point have the Defendants ever suggested that were Judge Newman to receive medical clearance the administrative proceedings against her would be terminated and she would be restored to the calendar," which "further confirms the latent subjectivity at play."
Finally, Judge Newman asserts that the Act's grant of unfettered investigatory authority fails to articulate any standards for launching or continuing an investigation or for demanding cooperation, and is therefore void for vagueness. Such investigations "have no boundaries," which circumstances permit "arbitrary and discriminatory enforcement." The role of gatekeeper imposed on the Chief Judge under the Act in determining whether a complaint is sufficient to commence proceedings such as this one is "simply ouroboric" insofar as the statute provides no definition for the Chief Judge to apply in making her determination. The brief further asserts that Judge Newman does not object to being investigated ("[i]n this country, anyone is free to 'investigate' anyone for any reason and on any topic. To the extent that Defendants wish to ask questions, write reports, and even urge Congress to remove Judge Newman, they are free to do so"). The issue, and the significance of the statutory vagueness, is "whether Defendants can compel Judge Newman to turn over private documents and then directly sanction her for declining to do so") (emphasis in brief). As a consequence:
[A] Chief Judge (and then the Special Committee) can decide, without meeting any standards whatsoever, to launch the investigation, expand it, request whatever records they deem appropriate, and then impose self-executing sanctions (without any outside supervision by an Article III court) all without the benefit of a clearly defined standard of behavior for the judge being investigated to adhere to. And as this very case shows, because the Act confers such an unlimited power on Defendants, it authorizes them to conduct an interminable investigation and to continue sanctioning a judge in Plaintiff's position whenever the Plaintiff does not completely accede to whatever demands a Special Committee or a Judicial Council might conjure up.
(which is true even should a Chief Judge "make entirely unsubstantiated allegations" and then "empanel a special committee which can then proceed to an investigation entirely untethered from the initial allegations," a position consistent with the Council's own arguments and assertions earlier in the course of this case according to Judge Newman).
"In short, the Act's combining of the power to investigate without any limits or well-defined causes with the power to sanction a subject judge who declines the outlandish demands that accompany the investigation renders the provision unconstitutionally vague," Judge Newman's brief concludes.
The District Court is expected to rule on Defendants' Motion to Dismiss the remaining Counts of Judge Newman's complaint in due course after the Judicial Council files its Reply brief.
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