Judge Pauline Newman’s lawyers have asked a full federal appeals court to review her challenge of a suspension from her duties on a different federal appeals court over concerns about her advanced age.
Newman, 98, has been suspended from her duties as a judge on the U.S. Court of Appeals for the Federal Circuit since 2023 and has battled her suspension in another federal court. Last month, a three-judge panel on the U.S. Court of Appeals for the D.C. Circuit declined to revive her lawsuit, which claims the suspension is unconstitutional, leading her to ask the full D.C. Circuit to consider an en banc review of her case.
“For over two years now, and with no end in sight, Pauline Newman, an active judge of the United States Court of Appeals for the Federal Circuit—an Article III court—has, through the actions of her colleagues, been completely deprived of the ability to exercise any of the functions of the office to which she has been duly nominated, confirmed, and appointed, and which the Constitution entitles her to hold during ‘good Behaviour,’” the filing said.
“As the panel recognized, this suspension ‘threatens the principle of judicial independence[,] may violate the separation of powers … [and] raise[s] due process concerns,’” the filing added.
The New Civil Liberties Alliance, which is representing Newman in the case, argues the three-judge panel only dismissed the lawsuit on procedural grounds based on a 2001 D.C. Circuit ruling in McBryde v. Committee to Review Circuit Council Conduct and Disability Orders of the U.S. Judicial Conference, which claimed the court had no jurisdiction over this kind of dispute. Within the ruling, the panel said it could not overrule McBryde, but did express some concern over the precedent and how the “seeming absence of a judicial forum to address Newman’s as-applied constitutional claims itself raises constitutional concerns.”
“The D.C. Circuit should grant Judge Newman an en banc hearing, decide her case on the merits, and restore her to her rightful place on the bench as a life-tenured Article III judge,” NCLA Senior Litigation Counsel Andrew Morris said in a statement Monday.
APPEALS COURT EXTENDS SUSPENSION OF 98-YEAR-OLD JUDGE OVER AGE CONCERNS
Newman’s suspension was extended in July for an additional year, with the Federal Circuit panel ruling that she should remain suspended from her job until she cooperates with its investigation into concerns over her age by undergoing the requested neuropsychological tests.
The investigation began in March 2023 after other judges and staff brought concerns to Federal Circuit Chief Judge Kimberly Moore about Newman’s alleged “inability to perform the work of an active judge based on their personal experience.” Newman has pushed back on these claims and insisted she is fit to continue as a judge, while also rejecting the need to take the requested neuropsychological tests.