An American (and Entirely Unnecessary) Tragedy

By Kevin E. Noonan --

Last month, at the Biotechnology Innovation Organization (BIO) Intellectual Property Counsels Committee (IPCC) conference in Washington, DC, the Honorable Judge Pauline Newman of the Federal Circuit gave a lunchtime address that was different from others she has given at many conferences in the past.  This one was heart-rending, inspirational, and illuminating, the subject being the circumstances and history around her suspension (going on two years now) from her duties and responsibilities on the Court.

Much of what the Judge discussed is public knowledge (see "Judge Newman and the On-Going Attempts to Remove Her from the Federal Circuit"; "Judge Newman Matter Continues"; "Federal Circuit Special Committee Responds to Judge Newman's Counsel's Request for Clarification Regarding Misconduct Hearing"; "Federal Circuit Special Committee Recommends One-Year Suspension of Judge Newman"; "Judge Newman Suspended for One Year by Federal Circuit"; "Judge Newman's Suit Continues"; "Special Committee of the Judicial Council of the Federal Circuit Replies"; "Judge Newman's Suit Comes to an End; Special Committee's Suspension Recommendation Adopted by Federal Circuit"; "Judge Newman Suspension Renewed") but the talk was more personal and disclosed more specifics about how Judge Newman experienced the situation as it developed.  It was foreshadowed (in retrospect) by the Court schedule of cases in early 2023 that did not include the Judge on any panel.  Not having any reason to suspect anything untoward was about to occur, the Judge thought she was being given a respite to catch up on her writing opinions on some cases on her docket.  That presumption of collegiality was shattered when, in early March 2023 the Chief Judge visited her in chambers and informed her that she should step down from the bench.  The putative reasons were that she had become incompetent and disabled due to having suffered a heart attack and evinced by fainting in the court hallways.  In Judge Newman's telling, both incidents came as a surprise to her (they never happened).  Nevertheless, the Chief Judge initiated the proceedings to have Judge Newman removed, which resulted in the Judicial Council recommending and the Judge's Federal Circuit colleagues voting unanimously that Judge Newman be suspended.  The Judge voiced surprise that such a vote was unanimous.

It is also well-known that Judge Newman did not accept this verdict and brought suit in the D.C. District Court based on her status as an Article III judge requiring impeachment under the Constitution; that she had been denied due process; and that the asserted predicate bases of the Federal Circuit's action were without merit.  Having lost the suit before the district court, Judge Newman has now appealed, and that process, the Judge estimated, is likely to take a few years to be resolved.

And in some ways that is the point, Judge Newman noted, saying that in every action or statement from the Chief Judge, the Judicial Council, or their Department of Justice counsel in her lawsuit what is mentioned in the first sentence or so is the Judge's age.  Noting that she is 97, the Judge acknowledged that the timetable of the appeal is not favorable, but with characteristic spirit said that if it is resolved within a few years we can all celebrate her centenary (which statement was enthusiastically received).  The Judge also said that her age was likely to be the cause of relative disinterest from Members of Congress and others who may be personally sympathetic but have not taken any action on her behalf.

The Judge spent a few minutes talking about the history of the Court and its beginnings, how it was at first opposed by some (including the ABA) and once established was led by such legal giants as Judges Rich and Markey.  At least some of this history was used as a backdrop to the state of the Court now, and Judge Newman's apprehension that many of her colleagues, and a large part of the patent bar, have been publicly reticent to speak out on the merits or process of her suspension (even if privately sympathizing with her).  The reason for this, Judge Newman posited, is fear -- fear of repercussions from those who have initiated and supported her suspension (analogizing this to the famous Nixon enemies list).  The Judge did not ascribe personal animus to those who have done so, however; pragmatically she attributed her suspension as being motivated by a desire to have a younger jurist appointed to the Court.  But it has not escaped her notice that her opinions have frequently been in dissent, and speculated that there may be some of her colleagues on the Court who would rather not be told they are wrong with the frequency with which she had done so when permitted to do so.

As has consistently been the case, the Judge was the antithesis of the caricature of a declining jurist whose time on the bench has past.  As always, Judge Newman was charming, engaging, entirely on top of the narrative and spoke without any sign of hesitation.  Judge Newman is rightly recognized as one of the "lion(esse)s of the law" she extolled in tribute to her earlier colleagues on the Federal Circuit and her commitment to the court as a venerable institution.  The contretemps of the past two years have been  misguided, unseemly, and regrettable, and while unlikely it is an outcome devoutly to be hoped that rationality and good sense prevails and Judge Newman be restored to the bench where she so evidently belongs.

Comments

[Connor]

If allowed to stand, this treatment of Judge Newman could readily be applied to other judges who have become unpopular with their colleagues. One can imagine a court with a majority of judges from one political party or the other ganging up on an outspoken member of the minority and excluding them from acting as a judge in this way, contrary to what was intended by their appointment. Other courts should step in and ensure that fair, unbiased procedures are followed for any removal.

[Bob]

The little respect I still had for Kimberly Moore and her colleagues has been lost with their treatment of Judge Newman. Instead of being indignant whenever there's a Newman dissent, Moore et al. should ask themselves what they got wrong and how they arrived at the wrong conclusion.

There's a statutory provision for advancing patent applications out of turn due to an inventor's age. It's a shame there isn't a similar provision for appeals from federal district court decisions. Truly, justice delayed is justice denied - and in this case, not just for Judge Newman, but for anyone who has to appeal to the CAFC.

[David Hoffman]

Well said, Kevin! I completely agree, having seen her comments at the IPCC luncheon with you.

[Nancy J Linck]

Why isn't BIO (and PhRMA) speaking out in support of the Judge? Their industry is the one industry that has to have IP protection, or their work will not be able to continue. Judge Newman supports strong patent rights in a way no other judge on the Federal Circuit does. If she is not allowed to sit anymore, their industry will pay the price. I'm baffled by their silence.