IP Law Daily, FEDERAL CIRCUIT NEWS: Supreme Court asked to mandate review of orders suspending Federal Circuit Judge Newman, (Mar 23, 2026)

By Carolin Dennis, B.Sc., LL.B., LL.M.

The petition for certiorari argues that the Judicial Council exceeded its statutory powers and violated the Constitution and the Disability Act by effectively removing Newman despite Article III’s promise of life tenure.

In a petition for certiorari, the New Civil Liberties Alliance (NCLA) has asked the U.S. Supreme Court to mandate judicial review of administrative orders that have kept Federal Circuit Judge Pauline Newman off the bench for three years. The petition asks the Supreme Court to rule that the Disability Act does not prohibit courts from reviewing orders that go beyond a chief judge’s or judicial council’s rightful power, nor does it stop judges from seeking injunctive relief in federal district court to prevent future unlawful actions by a judicial council (Newman v. Moore, No. 25-1101 (U.S. Mar. 19, 2026)).

According to the petition, 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 prohibited Judge Newman from hearing or participating in any cases at the panel or en banc level. Judge Newman challenged them and sought to enjoin the judicial council from issuing similar orders in the future. The D.C. Circuit Court of Appeals held that The Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 (Disability Act) bars review of the unlawful actions taken against Judge Pauline Newman. The D.C. Circuit cited McBryde v. Committee to Review Circuit Council Conduct and Disability Orders of Judicial Conference of the United States (D.C. Cir. 2001) and held that 28 U.S.C. § 357(c)’s bar on judicial review allows Judge Newman to assert only “facial” constitutional claims that challenge the constitutionality of provisions in the Disability Act, and strips the courts of jurisdiction to consider any “as-applied” constitutional claims. The NCLA petitioned the Supreme Court for a writ of certiorari on behalf of Judge Newman to restore the critical aspects of judicial lifetime tenure and judicial independence that the Constitution safeguards.

The petition presents two questions about the Disability Act (28 U.S.C. § 357(c)) that bars judicial review of judicial council orders and determinations: (1) Does 28 U.S.C. § 357(c)’s bar on judicial review of previously issued “orders” and “determinations” apply to ultra vires acts that exceed the scope of authority conferred by the Disability Act and the Constitution? (2) Does 28 U.S.C. § 357(c)’s bar on judicial review of previously issued “orders” and “determinations” deprive a court of jurisdiction to consider claims that seek forward- looking relief to enjoin future unlawful actions?

Judge Newman has raised a host of constitutional challenges to her suspension orders, and claimed that the judicial council has exceeded the scope of its statutory powers and violated the Constitution and the Disability Act by effectively removing her from office despite the life tenure promised by Article III. Therefore, the Supreme Court should grant certiorari to decide whether and to what extent Judge Newman can collaterally attack the previously issued suspension orders under section 357(c), notwithstanding its prohibition on judicial review, on the ground that the statute shields only the “orders” and “determinations” issued within the scope of constitutionally conferred authorities.

According to the petition, the orders and sanctions against Judge Newman are ultra vires and thus not authorized by the Disability Act, and that even if section 357(c) can be viewed as limiting the judiciary from disturbing the past orders or determinations of the judicial council, it allows litigants to seek prospective judicial relief that prevents the issuance of unlawful or allegedly unlawful orders in the future. The petition alleges that McBryde failed to recognize that section 357(c) preserves the rights of litigants to sue for prospective relief that enjoins the issuance of future orders and determinations under the Disability Act. Section 357(c), at most, bars judicial review of past orders and determinations; it does nothing to stop Judge Newman (or other litigants) from suing to enjoin a judicial council’s future actions. Judge Newman alleges that the respondents will renew her one-year suspension orders indefinitely, and it seeks prospective relief that will enjoin the respondents from issuing future suspension orders against her. As nothing in section 357(c) bars courts from enjoining future conduct that is alleged to violate statutory or constitutional rights, the Supreme Court should also make clear that section 357(c) allows litigants to seek prospective relief that enjoins future unlawful (or allegedly unlawful) actions.

The petition also argued that a writ of certiorari should be granted in light of the intervening decision in Bowe v. United States, 146 S. Ct. 447 (2026). However, if the Court is unwilling to grant certiorari and decide the questions presented, it should at least grant, vacate, and remand the petition so that the D.C. Circuit may reconsider its decision in light of the intervening ruling in Bowe.

The petition also contended that Judge Newman’s colleagues have thus far succeeded in silencing her frequently dissenting voice on the court, despite her presidential appointment and lifetime tenure. Her effective removal from the bench has had a dramatic effect on the number of dissents issued in the Federal Circuit. One recent study concluded that since Judge Newman’s removal from the bench, the rate of dissent in the Federal Circuit has dropped from 12% to 4%. This means that other judges are dissenting less often than they used to when Judge Newman was actively participating and setting a good example. On the other hand, perhaps what has happened to Judge Newman has raised the perceived costs of dissenting and intimidated some judges at the margins from authoring dissents. Either way, the Federal Circuit and those who litigate before it are worse off with the lack of vibrant dissent to stimulate more careful thinking and adjudicating, according to the petition.

Therefore, the petition asserts, it is imperative for the Supreme Court to step in and issue a strong statement in support of judicial independence and make it clear that the only appropriate method of removing a federal judge is through the constitutional impeachment process.

The Case is No. 25-1101.

Judge: NA

Attorneys: Jonathan F. Mitchell (Mitchell Law PLLC) for Pauline Newman. D. John Sauer, U.S. Department of Justice, for Kimberly A. Moore.

News: Patent FedCirNews