NCLA urges the U.S. Court of Appeals for the Federal Circuit to comply with the mandatory statute governing the en banc process. The Federal Circuit must either permit the unlawfully suspended Judge Pauline Newman to participate in consideration of EcoFactor v. Google, or else vacate the order granting en banc rehearing in this case. The Judicial Council of the Federal Circuit has illegally barred Judge Newman from hearing new cases since March 2023, effectively removing her from office in violation of the Constitution. NCLA insists that the Federal Circuit cannot legally act in an en banc case without Judge Newman’s full involvement.

The federal statute allowing courts to hear cases en banc unmistakably requires an en banc court to include all judges in “regular active service” who are not recused. The history and the purpose of the legislative process further confirm that an en banc court must comprise all judges. The Federal Rules of Appellate Procedure and the Federal Circuit’s own internal rules point to the same outcome. Despite the Judicial Council’s orders suspending Judge Newman from cases, she remains in “regular active service.” The Supreme Court has defined an “active” judge as one who has not retired “from regular active service,” and Judge Newman has certainly not retired—nor has she recused herself from EcoFactor v. Google.