Pauline Newman, Judge, United States Court of Appeals for the Federal Circuit v. Kimberly A. Moore, Chief Judge, United States Court of Appeals for the Federal Circuit, et al.

The Disability Act authorizes each circuit’s judicial council, after investigation, to “order[] that, on a temporary basis for a time certain, no further cases be assigned to” a judge who engaged in misconduct or has a disability. 28 U.S.C. § 354(a)(2)(A)(i). The Act allows these orders to be reviewed by the Judicial Conference of the United States, but it limits further judicial review of the council’s “orders and determinations.” See 28 U.S.C. § 357(c) (“[A]ll orders and determinations . . . shall be final and conclusive and shall not be judicially reviewable on appeal or otherwise.”). Nothing in section 357(c), however, even purports to prevent litigants from seeking prospective relief that would restrain the council from issuing orders in the future. In March 2023, before any investigation, Chief Judge Kimberly Moore of the Federal Circuit told Judge Pauline Newman that she had been removed as an active judge and could either immediately retire or “negotiate senior status.” Judge Moore and the Judicial Council of the Federal Circuit then issued a series of administrative orders that prohibit Judge Newman from hearing or participating in any cases at the panel or en banc level. These orders are ultra vires, unlawful and unconstitutional. Judge Newman has challenged them and sought to enjoin the judicial council from issuing similar orders in the future. The D.C. Circuit, however, citing a 2001 decision of that court, held that 28 U.S.C. § 357(c)’s bar on judicial review allows her to assert only “facial” constitutional claims that challenge the constitutionality of provisions in the Disability Act, and strips the courts of jurisdiction to consider (i)