NCLA approaches Supreme Court to review CAFC’s removal of Judge Pauline Newman
NCLA approaches Supreme Court to review CAFC’s removal of Judge Pauline Newman
States that similar tactics could be used in other case
The non-profit public interest law firm, New Civil Liberties Alliance (NCLA), has filed a petition in the Supreme Court for a writ of certiorari. It has pleaded before the top court to review its case against the Court of Appeals for the Federal Circuit (CAFC) Chief Judge Kimberly Moore for removing Judge Pauline Newman from her duties in the court “unlawfully”.
Judge Newman has been battling Judge Moore and the CAFC since April 2023.
The NCLA President and Chief Legal Officer, Mark Chenoweth, called Judge Newman’s case, “The most important battle in America to restore judicial independence. If the Great Dissenter’s colleagues can remove her from the bench in this slipshod fashion, then other federal judges cannot be secure in their lifetime tenure. Judges everywhere are watching the Supreme Court closely to see what it does.”
The Special Committee of the Judicial Council of the CAFC investigating Judge Newman’s matter comprises Judge Moore, Judge Kimberley Prost and Judge Richard G Taranto.
The matter dates to May 2023, when Judge Newman complained before the U.S. District Court for the District of Columbia against the Special Committee, calling Judge Moore’s 24 March 2023 order.
Judge Moore had characterized Judge Newman as unfit to carry out her duties on the court. Adding they were “riddled with errors”, he cited 12 cases that required claims for relief.
In August 2023, the Committee issued a 319-page report recommending the sanction of suspension. When Judge Newman refused to submit to medical testing by doctors chosen by the panel, the Committee termed her action “serious misconduct, which thwarted the process created by Congress for determining whether a life-tenured judge suffers from a disability.”
However, Judge Newman appealed the July 2024 dismissal of her case against the CAFC in early December the same year, after the District Court for the District of Columbia dismissed the remaining counts in her challenge.
In August 2025, the U.S. Court of Appeals for the District of Columbia Circuit affirmed a district court’s dismissal of Judge Newman’s case against Judge Moore.
But the Court stated, “Judge Newman has posed important and serious questions about whether these Judicial Conduct and Disability Act proceedings comport with constitutional due process principles and whether her ongoing suspension comports with the structure of our Constitution.”
In its 2025 order, the D.C. Circuit agreed with the district court, stating:
1) Precluded by precedent in the McBryde v. Committee to Review Circuit Council Conduct & Disability Orders of the Judicial Conference of the United States, 264 F.3d 52 (D.C. Cir. 2001) from deciding Judge Newman’s statutory and as-applied constitutional challenges to the Judicial Conduct and Disability Act of 1980.
2) Judge Newman’s facial constitutional challenge to the Act’s case-suspension provision fails because even she agreed that it has other constitutional applications. But the court also took pains to point out that it was not commenting on the merits of Judge Newman’s case or whether McBryde is good law.
Meanwhile, the recent petition of the NCLA poses two questions before the Supreme Court:
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?
The NCLA petition stated, “For three years the Federal Circuit has been operating short-handed because the judges of that court have summarily removed its longest-serving and most storied jurist (its ‘great dissenter’) from the bench.”
It added, “Every judge who gets crosswise with her chief judge or her colleagues must now worry whether similar tactics could be used to remove them.”
Moreover, the petition contended that the orders and sanctions against Judge Newman were ultra vires. Therefore, not authorized under the Disability Act.
It furthered, “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.”
Until now, the Judicial Council has issued three one-year suspension orders against Judge Newman, barring her from hearing or taking part in matters, including en banc cases.
The petition has sought relief from the Supreme Court.
It pleaded, “To hold that Section 357(c) does not preclude jurisdiction over challenges to ultra vires orders and determinations and to hold that the Section allows litigants to seek prospective relief that enjoins the issuance of future orders or determinations.”
The NCLA submitted that cert should be granted as per the intervening decision in the Bowe v. United States, 146 S. Ct. 447 (2026) case, wherein it was held that Congress must speak unambiguously about “jurisdiction-stripping provisions, which must otherwise be construed according to their enacted language.”
It added, “Like the statute at issue in the Bowe case, the language of Section 357 is ‘both narrow and specific,’ as it insulates only previously issued ‘orders and determinations’ from judicial review.”
The non-profit public interest law firm has further contended that, since Judge Newman, known as the court’s ‘great dissenter’, has been absent from cases, there has been a “dramatic effect on the number of dissents issued in the Federal Circuit.”
The petition cited the study by Professor Dennis Crouch, terming the rate of dissent in the Federal Circuit dropping from 12 percent to 4 percent before Judge Newman’s removal. It added, “This means that other judges are dissenting less often than they used to when Judge Newman was actively participating and setting a good example.”
