“Absent impeachment proceedings, resignation, or imposition of sanctions under the Judicial Disability Act, there are no legal bases to deny the functions of an Article III judicial office to an individual who has been duly appointed to hold such an office ‘during good behaviour.’” – NCLA letter
The New Civil Liberties Alliance (NCLA), the firm representing U.S. Court of Appeals for the Federal Circuit (CAFC) Judge Pauline Newman in CAFC Chief Judge Kimberly Moore’s bid to oust her from the court, sent a letter today to the CAFC Chief Judge calling for the case to be transferred to a new circuit.
The letter charges that Moore has ordered that no new cases be assigned to Newman, that the complaint Moore identified against her “contains basic errors of fact”, and that Newman was not afforded enough time to respond to Moore’s numerous demands, among other accusations.
U.S. Supreme Court Chief Justice John Roberts also received a copy of the letter.
Examples of the factual errors in Moore’s complaint include that Newman’s Summer 2021 sittings were reduced compared to her colleagues, as she actually “served on ten different panels of the Court—more than any other judge but two,” according to the letter.
Moore also alleged that Newman has failed to cooperate. The NCLA letter explained:
“The basis for this allegation appears to be Circuit Judge Newman’s failure to respond within three days to a prior order that directed her to submit to a medical examination by an expert of the ‘special committee’s’ choosing. Leaving aside significant legal questions that such an order raises, three days is not sufficient time to obtain counsel and receive legal advice in responding to this order—protections to which Circuit Judge Newman is entitled under the governing statute and the rules. See 28 U.S.C. ß 358(b)(1); see also Jud. Conduct & Disability Proceedings 15(f).”
Furthermore, the letter said that Moore’s request for Newman to “undergo medical examination, provide medical records, and ‘sit down with the Committee for a video-taped interview’” would now be premature considering the NCLA is asking for the matter to be transferred to a different circuit. While the NCLA said it plans to reply to Moore’s Orders of April 7 and 17, it will do so only once the transfer request has been resolved.
The NCLA is calling for Newman’s judicial access and duties to be fully restored pending the investigation. According to the letter, Moore stated no legal authority or basis for precluding Newman from cases, but instead “sent an email to Circuit Judge Newman (copying all other members of the Court) stating that she ‘will not be assigned any new cases until these proceedings are resolved.’”
“Absent impeachment proceedings, resignation, or imposition of sanctions under the Judicial Disability Act, there are no legal bases to deny the functions of an Article III judicial office to an individual who has been duly appointed to hold such an office ‘during good behaviour,’” said the letter.
Furthermore, Moore has “deprived [Newman] of her secretarial assistance, one of her clerks, and had her ability to use the Court’s communication systems restricted,” all of which exacerbate the allegations against her regarding delay in the disposition of cases, the letter added.
Ultimately, the case must be transferred because there is no way for a “special committee” composed of witnesses who are members of the special committee itself as well as current and former members of the Federal Circuit to render a decision without the appearance of prejudice, the letter explained. As it will be a “highly visible” case, such a proceeding is also likely to “weaken public confidence” in the system.
The letter also cites precedent showing that it is standard practice to transfer a complaint about a Circuit Judge. “The practice of other courts over the years strongly suggests that a request for transfer is not only appropriate, but necessary.”
IPWatchdog first broke the news about Moore’s “identified complaint” against Newman on April 12.
Commenting on the matter following the Federal Circuit’s publication of the documents, IPWatchdog Founder and CEO Gene Quinn said Moore should at the very least recuse herself:
“While the Rules do not prevent Moore being the complainant and participating throughout the proceeding, the Rules do not seem to prevent her from recusing herself when prudence demands. And here, to ensure even a modicum of fairness, Moore really must recuse herself.”
NCLA’s President and General Counsel, Mark Chenoweth, said he hopes Moore reconsiders.
“I hope Chief Judge Moore thinks better of this misguided effort and either withdraws the complaint or—at the very least—transfers it to a judicial council where an impartial review of the facts can occur. Under the circumstances, there is no good reason not to take that wise step.”