Judge Newman Asks Full D.C. Circuit to Make Good on 'Virtual Invitation' for En Banc Review

""We are taking the D.C. Circuit panel up on its virtual invitation to review the case en banc. Judge Newman has been kept from her duties for more than [two] years unconstitutionally, and it should end." - John Vecchione, Senior Litigation Counsel at NCLA U.S. Court of Appeals for the Federal Circuit (CAFC) Judge Pauline Newman has filed a petition for rehearing en banc with the U.S. Court of Appeals for the D.C. Circuit, which in August affirmed a district court's dismissal of her case against CAFC Chief Judge Kimberly Moore for suspending her from judicial duties."

""In its decision, the D.C. Circuit panel said that "as a panel of this court, we are unable to overrule McBryde, and so do not resolve whether McBryde was rightly decided. To be sure, there are substantial arguments that-if judicial councils and the Conference are properly regarded as administrative bodies-the McBryde majority misapplied the clear-and-convincing-evidence test when interpreting Section 357(c)." Newman's petition therefore argued that McBryde is preventing courts from addressing on the merits issues that the court conceded are "important and serious.""

Judge Pauline Newman filed a petition for rehearing en banc at the D.C. Circuit after that court affirmed a district court's dismissal of her suit against CAFC Chief Judge Kimberly Moore for suspending her from judicial duties. The D.C. Circuit acknowledged important questions about whether Judicial Conduct and Disability Act proceedings and her suspension comport with constitutional due process and the constitutional structure. Newman's counsel, the New Civil Liberties Alliance, asks the full court to overrule or limit McBryde, arguing McBryde misapplies the clear-and-convincing-evidence test and prevents merits review of significant constitutional issues.

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