“This decision is disgraceful and insulting, and it will define the infamous legacy of Chief Judge Moore and all the rest of the judges who turned their back on fundamental fairness and common sense.” – Gene Quinn
Just two days after hundreds in the intellectual property community stood for U.S. Court of Appeals for the Federal Circuit (CAFC) Judge Pauline Newman following her thoughtfully delivered words at IPWatchdog LIVE 2023, the CAFC’s Judicial Council released a 375-page Order suspending Judge Newman from all cases. The Council also released a slew of other documents today, including Newman’s August 31 response to the initial recommendation that she be suspended.
September 20 Order
The order makes official the July 31 recommendation of the Special Committee that Newman be suspended from taking on case assignments for one year, “or at least until she ceases her misconduct and cooperates such that the Committee can complete its investigation.” It says that Newman will be barred from hearing any cases at the panel or en banc level.
Today’s order also discredits the two independent medical reports Newman has undergone in lieu of submitting to the court’s preferred exams, calling them “not remotely an adequate substitute for the thorough medical examinations ordered by the Committee.”
Newman has voluntarily submitted to two independent mental health exams by two experts: George Washington University neurologist Dr. Ted Rothstein and Dr. Regina M. Carney, a full-time forensic psychologist at Miami Veteran’s Administration Medical Center, and an Assistant Professor in the Department of Psychiatry and Behavioral Sciences at the University of Miami’s Leonard M. Miller School of Medicine. “She was tested. She passed. Twice,” said Newman’s counsel at the New Civil Liberties Alliance (NCLA) recently.
But today’s order said the exams Newman was administered are insufficient to detect dementia and that “[t]he nature and importance of the job of an active judge, and the overwhelming evidence of behavior by Judge Newman indicating a cognitive decline, requires the more thorough and sensitive full neuro-psychological examination ordered by the Committee.”
Notably, the order opens by immediately stating Judge Newman’s age. It also alludes to an instance in which Newman allegedly told her former paralegal that Chief Judge Moore’s rule allowing five days to vote on opinions does not apply to her because former Chief Judge Markey used to allow 30 days for a vote. The order implies this demonstrates that Newman thought Markey was still Chief Judge, but it’s not clear from the corresponding affidavit that is the case, or precisely in what context the comment was made.
While the order refers to Newman as “a highly valued and respected colleague,” and says “her many contributions to the Court, to the patent system, and to the law are recognized by all,” it also accuses Newman and her counsel of aggressively seeking to “discredit this entire process by trying their case in the press while conjuring a narrative of ‘hostile,’ ‘disrespect[ful],’ and ‘appalling’ treatment marked by exercises of ‘raw power,’ all borne out of ‘personal animosity’ toward Judge Newman.” It characterizes the staff testimonials—many of which recount the frustration of IT employees with her lack of computer proficiency—as “essentially undisputed” and says the investigation does not constitute the “exceptional circumstances” required to warrant transfer to another circuit.
Newman still has a district court case pending against Chief Judge Moore and the Special Committee investigating her. Most recently, the Committee told the U.S. District Court for the District of Columbia that the federal judiciary was meant to police itself, and that Newman’s claim that the Judicial Conduct and Disability Act of 1980 is unconstitutional should be dismissed.
Newman’s Counsel Responds
Judge Newman’s counsel, Greg Dolin of the NCLA, told IPWatchdog that NCLA asked the Judicial Council to release their August 31 response to the Special Committee’s August 4 recommendation weeks ago, but for some reason the Council decided to publish the slew of documents accompanying their order all at once, today. The first footnote in the August 31 response notes that Newman requested the response be made publicly available. Instead, said Dolin, “they sat on it until today to bury it in an avalanche of releases.” Dolin said he received an email alerting him that the order would be published at 6:00am today, two hours before it went live. “It’s unnecessary, petty behavior,” Dolin said.
Dolin called out the order’s criticisms of the medical examinations Newman has submitted to, saying its characterization of the Modified Mini-Mental State Exam (3MS) administered by Dr. Carney as “not sensitive enough to detect dementia in early stages,” for example, is easily countered by other scientific articles and that both tests have been shown to be between 81% and 92% effective.
Additionally, Dolin said he believes the order is flatly illegal, citing to Rule 20 of the Rules for Judicial-Conduct and Judicial-Disability Proceedings, which requires a “fixed period” for suspending a judge from being assigned new cases. According to Dolin, the order calls for a floating period of one year that is renewable depending on whether Newman chooses to submit to the Council’s preferred medical examinations. Dolin also said the action taken here is not remedial, as required by the rules, but “coercive.”
Finally, Dolin said, the order conflicts with 28 U.S.C. Section 46 (c), which states that “A court in banc shall consist of all circuit judges in regular active service….” The order suspends Newman from sitting en banc as well, and responds to this discrepancy by explaining that “[t]he general directive in 28 U.S.C. § 46(c) that the court en banc ‘shall consist of all circuit judges in regular active service’ cannot trump that more specific authority and obligation granted to the Council for addressing situations of misconduct or disability.”
Dolin said they will appeal to the Judicial Conference of the United States within 45 days, and that the clock is also now reset for their response in the district court case, which is due 21 days after today’s order. The full NCLA press release is here.
IPWatchdog’s Founder and CEO Gene Quinn said of today’s order:
“This decision is disgraceful and insulting, and it will define the infamous legacy of Chief Judge Moore and all the rest of the judges who turned their back on fundamental fairness and common sense. One has to wonder whether the Judges of the Federal Circuit even understand what they have done. How many of the Judges who went along with Chief Judge Moore like lemmings will themselves wind up eventually requested to submit to a mental evaluation to prove that they remain fit? Frankly, all of the Federal Circuit should be forced to undergo evaluation because it seems none of them understand basic concepts of fairness and due process. The Federal Circuit has exposed itself as unprincipled and almost completely irrelevant. Outcomes are less predictable than a flip of the coin, and fear and intimidation run amok. It is time to end the Federal Circuit experiment.”
This article was updated to add Greg Dolin’s comments at 6:25PM EST.