Judge Newman’s Fight: En Banc Petition and the McBride Problem

Mark Chenoweth: Welcome to “Unwritten Law” with Mark Chenoweth and John Vecchione. And we are here to talk about an en banc petition, petition for a rehearing en banc, John, that you filed, last month, in the saga of Newman v. Moore.

John Vecchione: Yes, we did file it. I will – I will say this. We have Andy Morris with us, who actually wrote it. So…

Andy Morris: Good morning.

John Vecchione: So, Andy and I, obviously, have been doing this for a long while. And Greg Dolan had argued before D.C. panel. And the D.C. panel came out with –

Mark Chenoweth: And he spent a lot of time on this, too, before he left.

John Vecchione: Oh yes, no question. But the D.C. came out with a very interesting opinion, right? And it basically said that this case called “McBride,” they were bound by it. And, but, they said maybe it was – maybe it was wrong the day it was decided, which –

Mark Chenoweth: And we know Judge McBride, because he was our judge in the district court case in Cochrane, of all things. So, it’s sort of funny that that this case would come back around, but it was his discipline case that is the precedent…

John Vecchione: That is part of that…

Mark Chenoweth: …here of relevance.

John Vecchione: So, I did not know that. I didn’t know it was in Cochrane. That’s what I didn’t know. So, anyway, so, it was kind of an invitation to ask for an en banc hearing, and the D.C. Circuit almost immediately asked for a response from the government, which hasn’t come in, but…

Mark Chenoweth: In 14 days…

John Vecchione: In 14 days.

Mark Chenoweth: …which is a prompt response, I think.

John Vecchione: Quick. So, Andy, what did we complain about?

Andy Morris: Well, first, I agree with you, except I’d say it’s even more unusual than that. And you said it was kind of an invitation, I think you said. I think it as close as a panel can come, while admitting it can’t – acknowledging that it can’t overturn precedent.

Mark Chenoweth: If it had been any closer, it would have been a sua sponte ordering…

Andy Morris: Yes, exactly…

of [inaudible – crosstalk] [: 00:02:14

Andy Morris: …really urging the court to take to take this matter. And my own view is that suggests there’s some weight in the underlying merits of the case. I think that that gives – that gives kind of momentum to cases like this, more than if it’s kind of something trivial. They’re not going to bother writing that kind of invitation to an en – to an en banc hearing, unless they kind of feel there’s some force to the whole case. And they use some language, a little bit, where they acknowledge that she’s raised. They use, again, careful terms such as – but that are significant because they’re so unusual, she’s raised serious arguments and those sort of things.

So, without getting ahead of ourselves, it suggests that they also are urging the court not only to revisit McBride, but saying there’s something you really need to look at here. So, I think that’s cause for looking – following this case closely. And then, that’s also enhanced by the fact that, as Mark said, the court so quickly asked for a response.

John Vecchione: McBride was long time ago. And this doesn’t come up so often, because, just like that, usually, they settle this amongst themselves. Somebody goes to, I don’t know, rehab, or does something, says they’re not going to do something again. And this is the thing. And one of the reasons, I think, it gets there is, is that the federal circuit’s been so intractable, that they’re not [inaudible – crosstalk] –

Mark Chenoweth: Well, we’ve said all along that if another circuit were to look at this, that it would be disposed of very quickly.

John Vecchione: Right. It just has to be transferred.

Mark Chenoweth: And they won’t transfer it. And here, you’ve got the D.C. Circuit looking at it, and it seems like they’re disturbed by the underlying pattern.

Andy Morris: No, those are great points. And another kind of point of context is that the fact that the federal circuit’s conduct has been so inexplicable, is maybe the diplomatic word, over the last several years.

John Vecchione: And accurate.

Andy Morris: And, yet, is protected within the deference provided, these judicial councils, by the statute, suggests concern with the framework of the statute. Because a savvy judge, who gets to be a head judge of a circuit, is capable of identifying deference, where she gets it, and pushing that deference as far as possible. And this framework…

Mark Chenoweth: Maybe even a little further.

Andy Morris: …protects that. Well, further than anticipated, I think…

Mark Chenoweth: Right. Right.

Andy Morris: …the further framework allows. And, so, that really tees up a problem with the statute. And that raises, not suggesting any rule, that raises a kind of concern that this is something, we’ve got to really pay attention to this case, and make the statute work with this – fix this case so the statute works, or it raises sort of broader concerns…

Mark Chenoweth: Right. If you don’t –

Andy Morris: …of that whole process.

Mark Chenoweth: Right. If you don’t fix it, so that it works for this case, then maybe the statute itself is going to have to be fixed, or set aside in part.

John Vecchione: And, so, the main problem of McBride was that there’s no real judicial review of the constitutional issues, right? And the district court said that. And he was another guy, who said, “Look, I’m bound by McBride,” right? And then…

Mark Chenoweth: And he was upheld on that.

John Vecchione: …and he was upheld. And, so, we actually asked for three things, for them to take a look at, as a full – as a full court. What did we ask for?

Andy Morris: And the first, I was kind of setting up the McBride point, is a tease on McBride, is the problem with the whole system. McBride is this 25-year-old case, that says that the federal courts, the Article III courts aren’t going to look at – aren’t going to review arguments that treatment of a judge violates the Constitution. McBride says, basically, and maybe some problems around the edges, but that McBride basically says, “You got to go back to your internal administrative process within your circuit. And if they don’t rule for you, you’re out of luck. We can’t look at it.”

And that’s why I brought up the point that there’s a problem with the statute, and that these, in our in our view, the federal circuit here has realized, it’s essentially unreviewable, and it keeps pushing this further and further and further, and doing things that we consider unlawful.

Mark Chenoweth: Well, and it also puts the judicial council in the position of having to reach the constitutional questions, and saying that the federal court can’t reach the constitutional questions. And that’s backwards from what we see in other administrative contexts, where the court has said, “No, no, no, you’re not competent, as an administrative body, to answer the constitutional questions. That has to be a real court that does that.”

Andy Morris: Yes, exactly. That’s another anomaly in this whole setup. And I think it’s worse, even worse, the judicial council is the only entity with the ability to reach those questions under McBride, and they can just sidestep them, as it has here…

Mark Chenoweth: Right. Right.

Andy Morris: …using deferential language, and nobody looks at them. And in fact, in the panel opinion, in the D.C. Circuit, I think it is, there’s language that urges the judicial council to take this seriously, or the judicial conference, which is the national level administrative body, to take these things seriously. But that, so far, hasn’t happened. So, the first thing we ask is to overrule McBride, so that a judge, who feels she’s being treated unlawfully by her internal body of colleagues, in her court, can get to an actual federal court, and raise her constitutional claims.

Mark Chenoweth: Right. And then, even if – even if it were the case that the judicial council, or the judicial conference were tackling these constitutional questions, yes, I understand that these bodies are comprised of federal judges, but they’re not operating in their capacity as federal judges, when they’re members of these administrative bodies. And, so, I think even if McBride were to say, “You can’t do it in the court. It has to happen over here,” I wouldn’t be very satisfied with that result. I really think that that litigant has a right to be in an Article III tribunal, as Jarkacy, he said, in a different context, with this kind of a claim.

Andy Morris: Yes. And that way, this case fits, interestingly, with other cases, NCLA has been pursuing, and with other developments in the law over the last, in particular, 10 years. And, again, even worse than you’ve gotten to, Mark, is on the other hand, this internal court groups hide behind the fact that, “Well, we’re just administrative.” And, so, they push that power, and then they use it in their – to their advantage when they can well.

Mark Chenoweth: Well, and the best way that they’re using it to their advantage is to say, “Well, we haven’t even reached the merits yet, Andy. This is just about your lack of cooperation with – with the – with the committee here. And as long as you’re not cooperating, we’re going to keep punishing you.”

John Vecchione: And we’ve said it before, but I just want our listeners to know, the question is whether or not Judge Newman should be examined by the judicial council’s people…

Andy Morris: Chosen. They’re chosen doctors.

John Vecchione: …and they have not – they have not said –

Mark Chenoweth: Not just people, neuropsychologists.

John Vecchione: Right. Yes.

Mark Chenoweth: They want to probe her brain to see if she’s fit to continue service.

John Vecchione: Yes. Right.

Mark Chenoweth: That is – that is not in the Constitution.

John Vecchione: But the main thing about all that, even beyond that, is that they don’t say, “If she passes these tests, and reaches this thing, we’ll let her back on the bench.” They won’t say that.

Andy Morris: They won’t say that.

John Vecchione: And the way this is gone, I believe, they will, because of the way the opinions have already come, they will search – they will sift and search whatever comes out, find anything that’s bad. They’ll put that up the top, and they’ll ignore everything else. And then, they’ll say, “We’re the factfinder, and we’ve ignored all this information, and we’ve done this.” I mean, it’s not going to be fair. Come on.

Andy Morris: And tying that back to McBride, McBride is what slams the door on being able to – the ability to raise that with an actual court. And, so, they use the protection of this administrative process, and the deference they get, to keep the abuse, that I believe they’re engaging in, is to lock Judge Newman into this Groundhog Day, where they, every year, this judicial council just extends this suspension, and says, “Well, you’re still trapped within the administrative process, because we can’t get to an end – we can’t get to the end of the process. So, we’re just going to keep you in the middle of this process.” And with McBride still in place, she can’t get to a federal court.

Mark Chenoweth: Judge Newman as Bill Murray. I’m liking this analogy.

Andy Morris: Exactly. Yeah.

Mark Chenoweth: Yeah.

Andy Morris: That’s probably a first, but. So, we raised – we raised – and John, you asked about the three points, the first point is overrule McBride because it was wrong, and the reasons we’re talking about, and the others are for the merits of the case. And those two points, quickly, or, one, is that by effectively removing her, I would say, from office, sidelining her, they violate several aspects of the Constitution. In particular, it’s they violate Congress’s prerogative to control impeachment removal, and they also violate Article III’s guarantee of life tenure by taking away…

Mark Chenoweth: Her office.

Andy Morris: …by taking away her ability to decide cases, they essentially removed her. And the other is the argument.

Mark Chenoweth: It’s a – it’s a stealth impeachment. It’s a functional separation.

Andy Morris: Yes, stealth impeachment is a great term. And they repeatedly say, as you suggested, “Oh, we’re just suspending her every September for another year, because she won’t see our doctor instead of her doctor.” And they say, “That’s just an administrative thing, and so you can’t review it. You can’t – you can’t touch this.” And then, the third of the three, of the issues raised, are they’re violating Judge Newman’s constitutional due process rights, by refusing to transfer this to another circuit, let another set of judges look at it, who haven’t worked with her, and don’t have an agenda here.

John Vecchione: And aren’t fact witnesses.

Mark Chenoweth: Right. Yeah.

Andy Morris: And the gist of it is…

Mark Chenoweth: They’re not prosecutors, witnesses and judges.

Andy Morris: The gist of it is, they purported to start this based on observations of the witness of several of these judges.

Mark Chenoweth: They said she had a heart attack.

Andy Morris: And they won’t say who they were, but, now, they have a stake, obviously, in being right. And, so, there’s a number of serious problems with that. And the way, I keep looking at this, just as a, if I hadn’t gone to law school, and I weren’t tainted by all this knowledge person, is why wouldn’t you just, out of courtesy, respect the request of your 40-year colleague to say, “Can you just have somebody else decide this?” Judges do it all the time.

Mark Chenoweth: They do.

Andy Morris: They do it all the time.

Mark Chenoweth: They refuse all the time.

Andy Morris: They just say, “I’ll send this case down the hall.”

John Vecchione: And in fact, everybody, prior to this case, who this has ever happened to, when an appellate judge, who they served with, was the person, who they had to judge about whether or not they had a disability or not, they’ve all transferred it. It has never, not been transferred.

Mark Chenoweth: And the reason for that, John, is because in every one of those cases, they knew that that colleague would likely be continuing to serve with them, after the decision was made about discipline, and they didn’t want to create some sort of permanent rift. Here, the reason that they don’t care about creating that permanent rift is precisely what you said before. They have no intention of her ever returning to the bench to serve with them, so they don’t care.

John Vecchione: That’s exactly right. And let’s point something else out. It’s worse here, because the federal circuit all sits together, right? They all sit together downtown in the same building.

Mark Chenoweth: In the same building.

John Vecchione: It’s not like they’ve seen everything. It’s not like some of these circuits. They’re spread over a thousand miles, and they never see anyone, and they can say, “I didn’t run into this district court judge. I’ve never seen anything from that district court judge.” They all are there.

Andy Morris: And this is –

Mark Chenoweth: And I don’t know if all of our listeners understand the way that those courts were that is unusual. So, the sixth circuit, where I clerked, my judge was in Louisville. The main court was in Cincinnati. We had judges in Nashville, Memphis, Detroit, etc. So, it’s very unusual to have all of the judges, from the bench, with their chambers in the same courthouse.

y, [inaudible – crosstalk] [: 00:14:27

Mark Chenoweth: Lied on their travel reimbursement forms.

Andy Morris: None of those involves an observation of the fellow colleague judges, who are eyewitnesses to the conduct. Those other cases involve presentation of outside evidence to the colleagues, where this is not only the colleagues, in the same building, they are the first evidence cited, and the first complaint, is Judge Moore cited, at least representing the complaint, that other judges had said they observed something in conference and in working with her. So, this is different from every other case, and the judges, themselves. And then, they, as you know, in litigation, and other settings, just in life, when somebody starts something, and kind of is responsible for the initiation of some process, that person gets a stake in success. And, so, these judges observations would be overruled if she were able to get a doctor, and someone observed the doctors – get a doctor, that’s objective, and then disagreed with these judges. Then, they’ve been, they’ve themselves, personally, lost.

Mark Chenoweth: And it’s not even to say that a doctor would look at her and say, “Well, those things didn’t happen that you observed.” They might say, “Well, look, those are – those are indicative of something, but it’s not indicative of what you think it is,” and it doesn’t hamper her ability to do the job. This is just a senior moment, or whatever the case might be, that isn’t some sort of more difficult issue.

Andy Morris: Or she couldn’t use her spam folder right, or something like that for a couple of days.

Mark Chenoweth: Right. Exactly. Having IT problems is not something that should prevent an older person not having to work.

dy Morris: I did [inaudible] [: 0:16:03

Mark Chenoweth: I wasn’t gonna finger anybody on the staff of, but…

Andy Morris: Right. She had a warning to everybody here. One is she hit “reply all” on an email at one point, and that got significant coverage in one of the court – one of the…

John Vecchione: Opinions.

Andy Morris: …adminstrative body’s opinions.

John Vecchione: Yeah. And, well, I do want to also point out…

Mark Chenoweth: Raise your hand if you’ve never hit “repay all” when you didn’t mean to, you know.

John Vecchione: …well, there’s that. I mean, I can’t get network TV on my clicker. I got to get my sons to do it. So, I do think –

Mark Chenoweth: The fact that you still call it a “clicker” might be part of the problem.

Andy Morris: That was a giveaway.

John Vecchione: But the other thing is, would really, really, I think, crystallizes this case, is, while they’re saying that she had these disabilities, she wrote opinions that went to the Supreme Court, where her colleagues were wrong, and her dissent was right. And she wrote an opinion, that the Supreme Court affirmed, while they overturned theirs. Now, I mean, how disabled you can you be, when you write an opinion that’s upheld by the Supreme Court, at the same time, they’re all saying you can’t do your job. It’s incredible. It’s an incredible assertion.

Mark Chenoweth: Yeah. And not just upheld, but upheld on almost the same theory of the case, so.

John Vecchione: Right. Correct. So, that’s the type of thing she was writing, while they’re saying she’s not able to be an appellate judge. It’s absolutely outrageous.

Andy Morris: Right. And that was written several – four months or something before they pulled the trigger on this.

Mark Chenoweth: Even less, I think, because I think – I think it was published in December, and it was the descent, so presumably came late in the process. And it was February, when they started moving against her.

s: [Inaudible – crosstalk] [: 00:17:42

Mark Chenoweth: Two former chiefs.

Andy Morris: …went public, saying that there are several problems with this, and criticized the current court. And, again, to my knowledge…

John Vecchione: Never happens.

Andy Morris: …that is unheard of.

John Vecchione: Yeah. That’s very rare.

Interviewee : Yeah. This is – this is a truly very, very unusual case, and I think it’s significant abuse by the judicial council of the federal circuit. The pushback, and the big fact on the other side, to get it out, is that the chief judge has been successful in getting unanimous sign-off on the different actions here. And, so, someone coming in, as, maybe, the district court, or somebody mentioned at one point is, “Well, but she’s gotten,” I think the judicial conference, the national body, mentioned it, “Well, they keep getting unanimous orders.” And, so, that’s kind of the strongest point they have, is that in these different actions, that the chief judge who initiated this, and has been active in it, has succeeded in getting everyone else to sign off.

Mark Chenoweth: But we don’t know all the facts behind that.

Andy Morris: Oh, yeah…

Mark Chenoweth: Yeah.

Andy Morris: …I’m just saying the outcome.

Mark Chenoweth: Sure.

Andy Morris: And litigation wise, that’s an interesting fact about group dynamics.

Mark Chenoweth: Right. That’s what I was just gonna say. I think that’s more of a group dynamics point than a, necessarily, unanimity of thought point. We don’t have the government’s response yet. It’s due any day, unless the shutdown somehow slows it down. I think it’s due October 3rd. They were given 14 days from – I’m not sure if it was 14 days from the 19th…

John Vecchione: No, two days after that.

Mark Chenoweth: …or if it was due two days after that, that the 14 days started. So, but that’ll be coming up here within the next very short period of time. And then, we’ll have a decision from the court, whether to grant the rehearing en banc or not. If they grant the rehearing, will it necessarily be on all of these questions, Andy, or would they maybe just decide the McBride question, and leave the merits alone?

Andy Morris: They can do what they want. So, I don’t want to – I don’t want to predict. We’d like them to take all these at once. It seems to make more sense…

Mark Chenoweth: Yeah, so, there’s efficiencies.

Andy Morris: …so there’s follow-up quickly on the heels. There’s no reason to reverse McBride, and send it back in some way. So, I think it makes sense for them to do it at once. But I don’t know what you all think about that.

John Vecchione: I, also, think, that at this stage, that this has been two years, and judge Newman is 97, 98 years old…

Mark Chenoweth: Yeah, 98. Mm-hmm.

John Vecchione: …so, I do think that – I do think that they should take all of it, and they probably will take all of it, because it’s all there. I mean, this got to be interesting to judges, right?

Andy Morris: And regardless of her age, I keep jumping in on this point, she’s a federal judge, life-tenured federal judge, who’s been barred from hearing any cases for, now, two full years. They just renewed for a third year. So, even if she’s 35 years old, they’ve removed a federal judgment bench, which is a big deal.

Mark Chenoweth: This will be the equivalent of the Supreme Court telling Ruth Bader Ginsburg, “Well, now that you’ve been diagnosed with pancreatic cancer, you need to focus on that. You can’t hear any more cases.”

Andy Morris: Yeah, that would have riled up a few people.

Mark Chenoweth: I think that might have gotten more national attention. But it’s the same thing. This the same thing. It’s just one level down…

Andy Morris: Yeah, that’s a great comparison.

Mark Chenoweth: …at the federal circuit. Right?

Andy Morris: That’s a great comparison.

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