Federal Circuit Special Committee Recommends One-Year Suspension of Judge Newman

By Kevin E. Noonan --

A Special Committee of Federal Circuit judges (consisting of Chief Judge Kimberly Moore, former Chief Judge Sharon Prost, and Judge Richard Taranto) that has been investigating for several months allegations against Judge Pauline Newman related to her competency to remain on the bench, released an Order on July 31st suspending the Judge from participating in the Court's business for a year.  The suspension, if imposed by the Judicial Council, is subject to review should Judge Newman agree to submit to neurological and psychiatric tests previously mandated by the Special Committee.  To date the Judge has refused, although she has provided evidence from her own medical specialists as to her competency.

The basis for a hearing held on July 13th (a redacted transcript of which is included as an Exhibit to the Order) and the Special Committee's Order is whether Judge Newman's refusal to comply was itself judicial misconduct, which the Committee found it was.  In its Order, the Committee sets forth the legal, procedural, and factual justifications for its actions and its decision in the Order.  These include a legal justification for the Committee's authority to conduct the investigation and issue its Orders, and the evidence supporting its basis for requiring the mandated medical and psychiatric examination and records that Judge Newman has failed, in their view, to provide.  Judge Newman has had no good cause for that conduct, according to the Order.  Accordingly, her refusal constitutes judicial misconduct.

The Order recognizes Judge Newman's distinguished career, but says that "[t]he question presented to this Committee, however, is not whether Judge Newman has had an extraordinary career or whether she has made important contributions to the law" but rather to address "the unenviable task of investigating . . . whether Judge Newman now suffers from a disability that renders her no longer capable of performing her job as a judge."  At the same time, the Order asserts that Judge Newman is responsible for "extraordinary delays in issuing opinions" (a substantive allegation about her performance) and "concerns about her mental fitness raised by numerous interactions with court staff" (allegations supported by information in Exhibits appended to the Order).

The Order goes on to lay the blame on Judge Newman, asserting that the Committee has been frustrated in the performance of their duties "under governing rules and statutes" by the Judge's "consistent refusal to cooperate."  These include the Judge's refusal to submit to "a neurological evaluation and neuropsychological testing ("medical examinations") by professionals selected by the Committee and to provide certain medical records," illustrating an unwillingness to recognized and address that "selected by the Committee" is at least part of the basis for the Judge's resistance.  (Judge Newman supplied such medical and psychiatric information from her own doctors, which did not satisfy the Committee.)  Indeed, the Order characterizes Judge Newman's behavior as unreasonable recalcitrance (complaining that the Committee had asked for this review "in some instances for the third time"; emphasis in Order).  And the consequence according to the Order is that the Committee has not been able to satisfy its statutory duty (which requires a "comprehensive written report"), the Order emphasizing that it has limited the inquiry to whether Judge Newman's resistance is itself judicial misconduct (a meta-style change in the issues that are the subject of the Order); as a consequence the Committee does not need to render a decision on the merits of their investigation.

The Order justifies the Committee's inquiry on the merits by the existence of "incon­trovertible data from the Clerk's Office establishing that Judge Newman (despite having a significantly reduced workload) is unable to complete her work in a timely fashion."  This evidence is that the Judge authored less than half the number of opinions (including dissents) than the average of the Court's judges (28 versus 61); these statistics are not consistent with a separate study by Professor Paul R. Gugliuzza (32 versus 47) albeit taken over a different timeframe; see "Judge Newman and the On-Going Attempts to Remove Her from the Federal Circuit").  (The Order responds by asserting that the public record is deficient, inter alia, for failing to take into consideration per curiam opinions.)  The Order further cites the length of time taken to issue an opinion (199 days versus 53 days) and the number of panels on which the Judge sat (65 versus 129), summarizing that the Judge "took four times as long to write half the opin­ions while sitting on half the number of cases as her colleagues."  Currently, the Order sets out, Judge Newman has "a backlog of seven opinions that have not issued, and they now average 230 days old."

Secondly, the Order cites "extensive evidence" from more than 20 interviews with court staff (some of which are in the appended materials).  This evidence is characterized as reports of "deeply troubling interactions" which "sadly suggest(s) significant mental deterioration including memory loss, confusion, lack of comprehension, paranoia, anger, hostility, and severe agitation."  The Committee "strongly disagrees" with Judge Newman's characterizations of the evidence as "minutiae" and "petty grievances," asserting that these events "raise concerns about serious dysfunction on Judge Newman's part" and accordingly "amply warrant" the Committee's demand for medical and psychiatric testing (by their doctors not the Judge's).  The Order follows with a litany of descriptions of these accusations; interestingly in one anecdote a member of Judge Newman's staff refused to curtail her assisting the Judge in personal or scheduling matters, and when compelled to testify under oath this staff member invoked the Fifth Amendment repeatedly.  Another assistant according to the Order was threatened with dismissal by the Judge for his role in raising issues relating to the Judge's behavior, along with allegations by the Judge that the assistant had stolen undefined information when his computer went with him to another assistant's post within the Court.  This description is replete with stories that the Judge was "angry," speaking in an "angry voice," "pacing back and forth," and "mumbling" about alleged slights.  The Order ascribes to unnamed Court staff description of their interactions with the Judge as being "aggressive, angry, combative, and intimidating"; "bizarre and unnecessarily hostile"; making "personal accusations"; "agitated, belligerent, and demonstratively angry"; and "ranting, rambling, and paranoid."  This purported behavior (as well as the Clerk of Court advising staff either not to interact with the Judge or to bring a co-worker with them), the Order states, "does not evince merely bad behavior; it raises serious concerns about Judge Newman's cognitive functioning."  All of these vignettes are asserted in the Order as giving the Committee "ample justification" in its demands for physical and psychological examination.  Coupled with the Judge's refusal to comply the Committee finds her conduct to be "prejudicial to the effective and expeditious administration of the business of the courts" citing 28 U.S.C. § 351(a) and In re Complaint of Judicial Misconduct, C.C.D. No. 17-01 (U.S. Jud. Conf. 2017).

After setting forth the deficiencies in the medical and psychological testing Judge Newman has offered instead of the Committee's selected medical practitioners, and the importance and statutory bases for the Committee's investigation, the Order states its conclusion that Judge Newman's behavior amounts to judicial misconduct and recommends a one-year ban on the Judge sitting on any new cases until she complies with the Committee's demands.  The remainder of the Order sets forth a history of the proceedings against the Judge and the evidence accumulated relating to the Committee's inquiries (the identities of witnesses and experts being redacted, although their status and position within the Court's staff are noted).  The Order also sets for the Committee's legal and evidentiary justifications for the proceedings and the Order (the evidentiary bases being disclosed in part in the appended affidavits and other Exhibits).  From this evidence, the Committee concluded that:

Judge Newman's extended delays relative to her colleagues, coupled with her considerably lower productivity during the same period, is strong cause for concern that she suffers from a disability impairing her ability to carry out the responsibilities of her office.

And that:

The results of the Committee investigation demonstrate that Judge Newman's lower productivity is indicated in three ways: (1) she does not assign herself a comparable share of opinions (even considering her higher rate of dissenting) and takes unreasonable lengths of time to complete opinions she does assign herself (as detailed above); (2) she does not participate in motions panels, an important and time-consuming task required of active judges; and, (3) Judge Newman's participation in cases has substantially slowed over the last year: May 2022-April 2023.  From May 2022 through April 2023, the average active Federal Circuit judge participated in deciding 129 cases; Judge Newman in contrast participated in deciding only 65 cases.

Finally, the Order addresses the allegations (see below) raised by Judge Newman in her suit brought in District Court and rejects them, and further rejects any allegations of bias against the Judge.

The Committee's recommendation for a one-year suspension is mitigated by the Committee's further decision that it may be lifted should Judge Newman undergo the required tests by the Committee's chosen medical and psychiatric professionals and should those results rebut the allegations of unfitness raised in part by the Committee itself.

Judge Newman for her part has filed suit in the District Court for the District of Columbia on allegations that the Special Committee's actions violate Article III of the Constitution (regarding life tenure for federal judges) and Article I (that the House of Representatives has sole authority to remove a federal judge from office); Fifth Amendment violations of due process; First Amendment violations related to a "gag order" against the Judge; and Fourth Amendment violations for unconstitutional search relating to the compulsory medical and psychiatric examinations.  That suit is ongoing, but the parties are under an Order by the District Court to submit to "informal" mediation that will be overseen by Thomas Griffith, a retired judge on the Court of Appeals for the D.C. Circuit.

Judge Newman has recently given interviews to IP Law 360, Bloomberg Industry Group  and the Bloomberg's On the Merits podcast, the Washington Post, and Clause 8 podcast to explain her beliefs on the falsity of the allegations against her and why the Special Committee has taken its actions against her.

Two former Chief Judges of the Court, Judge Paul Michel and Judge Randal Rader, have spoken out in the Judge's defense (see "Chief Judge Moore v. Judge Newman: An Unacceptable Breakdown of Court Governance, Collegiality and Procedural Fairness" and "The Federal Circuit Owes Judge Newman an Apology," respectively) and Dr. Ron Katznelson has published a study on possible motivations other than Judge Newman's competency that may have factored in the creation of the Special Committee and its recent actions.

It is likely that the Judicial Council will follow the Committee's recommendation and suspend Judge Newman from participating in the Court's business.  In view of her age, this is a significant sanction, imposed not on the asserted basis that Judge Newman cannot satisfy the requirements of her office but that in challenging the allegations against her she has committed judicial misconduct.  However this matter resolves, it is a sad chapter and perhaps ultimately an end to an illustrious career diminished (regardless of the encomiums to it contained in the Order) by these proceedings against her.

Comments

[Karen]

Honestly, with all the ridiculous stuff going on now with the courts, I have no idea if this is legit or another hit job. Anyone know?

[Alex]

Am I reading the same documents as everyone else?

Judging by the reaction in the legal press and blogosphere, the overwhelming view seems to be that this is the result of other judges (Moore?) and/or some sort of nefarious industry lobby out to "get" Judge Moore as a result of personal disagreements or annoyance at her frequent dissents.

Reading the documents appended to the Order, however - which include a huge number of affidavits given under oath, and largely unredacted email correspondence - the picture that comes across to me is of someone very sadly in the grip of severe dementia, who is unwilling or unable to recognise that fact. All of the characteristic behaviors are there, plain for everyone to see, unless those affidavits are wilfully false.

[Karl Dresdner]

Judge Pauline Newman is 96 years old. Old Judges need to be treated like ordinary people and not like monarchs. The legal system needs to install a mandatory retirement age for All Judges.

[Connor]

At the least, isn't Chief Judge Moore also a witness (as demonstrated by inclusion of her email correspondence with Judge Newman about the judicial assistant position (page 200 of the Report))? So for that very reason shouldn't another court have been handling this already? The affidavits from staff seem to reflect some loss of cognitive function by Judge Newman (tragically), yet the Court's insistence on being involved in the proceedings only further confuse the issues and cast doubt on their fairness. If this is how they treat an honored colleague who is apparently in decline, how can any litigant have faith in a process they oversee?

[Kevin E Noonan]

The doctor who provided the results of his neurological and psychological examinations of Judge Newman has criticized the report; see:

https://news.bloomberglaw.com/ip-law/doctor-who-examined-96-year-old-judge-slams-suspension-report

All the public can review are the Judge's decisions and dissents, which show no evidence of impairment in how she performs the only duties relevant to her tenure on the bench.

[Alex]

How do we know that the decisions and dissents are actually Judge Newman's work to any significant degree?

The sworn affidavits annexed to the report and recommendation could be taken to suggest that much of the drafting is done by her law clerks, and that the significant delays in issuing her decisions/dissents are attributable to the delay in receiving her edits to those drafts.

I am not saying that this is definitely the case. I cannot know. But neither can anyone else, absent further information. Given the decline in cognitive function suggested by the other events recounted in the affidavits, it is unsafe to assume that "decision/dissent bearing Judge Newman's name" can be equated with "decision/dissent authored wholly or in large part BY Judge Newman".

Judge Newman and/or her clerks would need to be willing to give oral testimony under oath in order to clarify this one way or another. And not simply to invoke the Fifth Amendment in reply to every question.