“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.”
On Wednesday, April 12, IPWatchdog was first to break the news that U.S. Court of Appeals for the Federal Circuit Chief Judge Kimberly Moore has identified a judicial complaint against Judge Pauline Newman under the Judicial Conduct and Disability Act. In response to IPWatchdog’s report and subsequent reporting by other news outlets, the court on Friday issued a statement confirming the information provided by IPWatchdog’s sources and making the previously sealed documents public.
According to the March 24, 2023, redacted Order identifying the complaint against Newman, Moore is claiming she has probable cause to believe that Newman is unable to effectively discharge the duties of her office “by reason of mental or physical disability,” citing to 28 U.S.C. 351(a).
The Order alleges that there have been problems ongoing since the summer of 2021, when Newman allegedly suffered an unidentified health problem. Moore also refers to Judge Newman being slow to issue opinions, which those familiar with the Federal Circuit and Judge Newman know has been a point of friction dating all the way back to her appointment on the Federal Circuit. There are also vague allegations that unnamed colleagues have noticed recent mental decline in Judge Newman. Numerous staff and colleagues with knowledge of the complaint filed against Newman have contacted IPWatchdog to oppose the allegations being made against the judge.
Notwithstanding repeated mention of concerns relating to the “mental fitness” of Judge Newman, Chief Judge Moore implies that she was willing to resolve her grievance if Judge Newman agreed to take senior status. In fact, she specifically details a 45-minute conversation she had with Judge Newman where Judge Newman refused to consider senior status. It was after that conversation that Chief Judge Moore claims she realized no informal resolution would be possible.
As indicated in our first report, Moore’s initial willingness to accept Newman as a senior judge raises serious questions that are only exacerbated after reading the full contents of the March 24 Order. Why would Chief Judge Moore believe that keeping Newman on the court as long as she takes senior status would be a sufficient remedy when she allegedly engaged in “inappropriate behavior in managing staff by permitting one of her law clerks to exhibit unprofessional and inappropriate behavior,” for example? Furthermore, if Judge Newman really lacks mental fitness to serve, how does her taking senior status resolve her concern given that senior judges still hear cases and issue decisions?
In addition to the March 24 Order, the CAFC also released an April 13 Order today indicating that the special committee in charge of the investigation into Newman will include Judges Moore, Prost and Taranto. The Committee has found that an expert’s recommendation that Newman undergo medical testing and evaluation is warranted and gave Newman until April 11 to inform the Committee whether she would comply. Upon Newman’s failure to respond and also to accept service of documents related to the two Orders, the Committee has now expanded the scope of the investigation to consider whether Newman has failed to cooperate in violation of Rule 4(a)(5) for Judicial Conduct and Judicial Disability Proceedings.
Moore Should Recuse Herself
Chief Judge Moore being the complainant, issuing the Order to institute misconduct and removal proceedings, sitting as one-third of the Committee to investigate the charges she brought, and ultimately writing a report that will be sent to the Judicial Council seems a bit like Moore is acting as judge, jury, and executioner. Interestingly, however, the Rules for Judicial-Conduct and Judicial-Disability Proceedings require the Chief Judge to be a member of the investigative Committee unless recused, and recusal is not mandated simply because the Chief Judge is the complainant.
Notwithstanding, the optics for Moore are terrible. 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. Law360 is reporting that Judge Newman has hired lawyers to fight this matter—and under the Rules Newman does have a right to respond. And at some point, an experienced lawyer will identify Moore as a crucial witness who will need to be questioned, and whose testimony will be essential because, up until now, Moore has only provided nebulous, uncorroborated hearsay allegations from unidentified colleagues which she says raise concerns about Newman’s mental fitness. Obviously, Newman’s attorneys won’t be able to reply to such ambiguous hearsay, which will make Moore a critical witness during whatever discovery will unfold.
Discovery? Yes, discovery! IPWatchdog has learned that this unprecedented process has already led to Chief Judge Moore issuing a subpoena for the appearance of one of Judge Newman’s law clerks. So, if during this investigation the Committee has subpoena power to compel testimony, it would seem only fair within American judicial norms to allow Judge Newman to similarly compel testimony. And if I were representing Judge Newman, the first person I’d compel would be Chief Judge Moore because I’d need to know particulars surrounding the conversations that led her to have probable cause that Judge Newman is mentally incompetent because the dissents Newman has recently issued show no sign of mental decline, and those who attended her panel presentation at the U.S Patent and Trademark Office on March 24 tell IPWatchdog that there was no evidence that Judge Newman was suffering any mental decline.
If this matter proceeds with an Investigative Committee at the Federal Circuit, which it shouldn’t, Judge Moore absolutely must recuse herself. And given that we do not know which judges have allegedly complained to Moore about Judge Newman’s competence, it is presently impossible for Judge Newman to respond to these allegations. If fairness is really what is sought, this matter must be transferred to another judicial council, which is authorized by Rule 26 in exceptional circumstances. And if this does not qualify as an exceptional circumstance, I don’t know what ever would or could.
Newman Speaks Out
Late Friday afternoon, speaking at the 30th Annual IP Conference hosted by Fordham Law School, Judge Pauline Newman told those in attendance that she is “confident there will be a happy ending.” A recording of Judge Newman’s remarks is available here; they begin at 4:50.
“I know I’m surrounded by friends, and let’s worry about something else. There is lots more to worry about… than an occasional bit of turmoil.”
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