Chief Judge Moore Said to Be Petitioning to Oust Judge Newman from Federal Circuit

IPWatchdog has learned from several sources this week that U.S. Court of Appeals for the Federal Circuit (CAFC) Chief Judge Kimberly Moore has filed a judicial complaint against Judge Pauline Newman under the Judicial Conduct and Disability Act. According to those who have seen the complaint, Moore is claiming she has probable cause to believe that Newman is unable to effectively discharge the duties of her office.

Sources tell IPWatchdog that Chief Judge Moore primarily makes two separate allegations against Judge Newman. First, that Judge Newman is slow to issue opinions, which affects the administration of justice. Second, Moore has apparently heard stories from colleagues and others at the court that cause her to have concerns about Judge Newman’s overall ability to serve.

Numerous staff and colleagues with knowledge of the complaint filed against Newman have contacted IPWatchdog to both confirm the filing of the complaint and to vehemently oppose the allegations being made about Judge Newman’s competence.

Notwithstanding these concerns relating to Judge Newman’s competence, IPWatchdog has learned that Chief Judge Moore was willing to resolve her grievance with Newman if she agreed to take Senior Status. Sources tell IPWatchdog that Judge Newman refused to consider Senior Status, which led Chief Judge Moore to file a complaint under the Judicial Conduct and Disability Act challenging Newman.

If true, Moore’s willingness to accept Newman as a Senior Judge raises very serious questions. If Judge Newman has really reached the point where she must be removed from office, why would a move to Senior Status be an appropriate remedy? Senior Judges still hear cases and typically carry one-third the case load of an active judge. So, why would a reduced caseload be an appropriate remedy if Chief Judge Moore has probable cause to believe Judge Newman is no longer mentally or physically competent?

Why Now?

The apparent charge that Judge Newman is slow to issue decisions is hardly a new complaint. I have long heard rumors about the need to cajole Newman into issuing decisions more quickly, so this seems to be a historic institutional problem rather than anything that has to do with her mental or physical fitness to serve. So, why, now, has it risen to the level of grounds for removal from office?

Still, the incongruity in the relief seemingly sought by Chief Judge Moore’s complaint is most concerning. Is Judge Newman not competent to remain a judge at all? And if not, why would her accepting Senior Status satisfy Moore? Some familiar with this unfortunate episode tell IPWatchdog on condition of anonymity that they wonder whether there is some other agenda. If Judge Newman were to voluntarily assume, or involuntarily be forced into, senior status there would be an immediate opening on the Federal Circuit, and plenty of time for the Biden Administration to fill the vacancy. Some have expressed concern to IPWatchdog that an immediate opening on the Federal Circuit that can be filled by the Biden Administration may be the end goal. While this motivation seems far-fetched, attempting to force out Judge Newman in this fashion seems unusual and likely to set up an ugly and embarrassing battle.

Recent Dissents

Regardless of the end goal, timing or incongruity of the remedy apparently sought, this entire episode will no doubt come as a shock to everyone who has read Judge Newman’s recent dissents. Newman has filed dissenting opinions in at least two recent cases that show no signs she is suffering from any disability. Earlier this month, she dissented from the majority’s holding that that SAS Institute, Inc. failed to establish copyrightability of its asserted software program elements, arguing the ruling “contravenes the Copyright Act and departs from the long-established precedent and practice of copyrightability of computer programs” and that it represents a “far-reaching change.” And in another dissent filed in late March, she disagreed with the majority’s decision to uphold Universal Electronics’ patent claims, opining that the claims would have been obvious. These dissents are classic Newman dissents, do not read as if they were written by law clerks, and do not show signs of decline or disability, only adding further intrigue and speculation into what is really going on at Madison Place NW.