On Monday, January 27, 2025, the New Civil Liberties Alliance (NCLA) announced that it has submitted an amicus curiae brief urging the U.S. Court of Appeals for the Federal Circuit to adhere to the statutory requirements governing en banc hearings. The brief particularly addresses the case of EcoFactor v. Google, asserting that Judge Pauline Newman, who has been suspended since March 2023, must be allowed to participate in the proceedings.
NCLA contends that the Judicial Council of the Federal Circuit has unlawfully barred Judge Newman from hearing new cases, effectively removing her from her judicial position in violation of constitutional principles. The organization emphasizes that the Federal Circuit cannot legally conduct an en banc hearing without Judge Newman’s involvement.
Federal law mandates that an en banc court must consist of all judges in “regular active service” who are not recused. NCLA argues that Judge Newman continues to be in regular active service, despite her suspension. The brief highlights that the Supreme Court has defined an active judge as one who has not retired from regular active service, and, as such, Judge Newman has neither retired nor recused herself from the case in question.
The amicus brief points out that the Federal Circuit’s internal rules and the Federal Rules of Appellate Procedure support this interpretation, reinforcing the requirement that all judges participate in en banc proceedings. NCLA insists that the only lawful actions available to the court are to either allow Judge Newman to participate in the rehearing or to vacate the order granting the rehearing entirely. Any other course of action, according to NCLA, would breach statutory guidelines and result in a decision from a court improperly constituted.
NCLA’s advocacy for Judge Newman is part of a broader effort to challenge her suspension, which is currently under litigation in the case of Newman v. Moore. NCLA has clarified that the amicus brief is filed in its own capacity and not directly on behalf of Judge Newman.
Greg Dolin, Senior Litigation Counsel at NCLA, stated that the exclusion of Judge Newman from the en banc court is indicative of unlawful actions by her fellow judges. He emphasized that an en banc court that does not include Judge Newman is improperly constituted and should refrain from acting.
Mark Chenoweth, President of NCLA, echoed these concerns, noting that the Federal Circuit had previously heard a case en banc without Judge Newman’s participation. He highlighted that the current situation is different due to one of the parties raising an objection to this process. Chenoweth reiterated that, according to federal law, Judge Newman must be allowed to participate or the rehearing must be canceled.
