“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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Join the Discussion
22 comments so far. Add my comment.
Urvashi BhagatApril 21, 2023 05:28 pm
@B Judge Newman issued opinion in my case in 2018 TWELVE MONTHS after reply brief was filed. There was no oral argument.
I agree with Paul Morinville, “The real problem is that the creation of the Federal Circuit consolidated patent law into the hands of just 12 people.”
But I don’t find that Judge Newman is pro-innovation judge on the court. I think that all the judges have biases, and their biases rule their decisions. The most prudent way to handle that is to NOT consolidate patent law in the hands of a few. Each circuit should decide the cases in their circuit. This message needs to be conveyed to the senate.
AnonApril 20, 2023 09:23 am
Yes, that has been known and was a condition when the situation broke.
The more interesting aspect of the second order is the very accelerated timing request, the appearance of the second order being a coercive railroading and the fact that Judge Newman has engaged legal counsel for this set of events.
While her public comments have been to the tune of, “there will be a happy ending,” I am reminded of Dylan Thomas’ Do Not Go Gentle Into That Good Night.
AnonymousApril 19, 2023 10:46 pm
Judge Newman refused service of this complaint and such refusal was added as an additional charge of misconduct.
April 13 – https://cafc.uscourts.gov/wp-content/uploads/April%2013%20Order.pdf
AnonApril 19, 2023 11:26 am
I would not be surprised that the same detractors of Judge Newman (from a litigators’s group) would also be vocal against the opposite “high volume” work of certain Texas judges.
(The underlying connection of course is an animus against strong patent rights)
Tom SchneckApril 18, 2023 05:55 pm
A few years ago I attended a meeting of the State Bar of California with a panel on when you should retire or stop practicing law. A representative of the State Bar pointed to State Bar and ABA rules that indicate that a primary issue on practicing law is competency. The same should apply to judges. Reading her opinions, Judge Newman is analytical, thorough, respectful of precedent, balanced, mindful of colleagues and, by all measures IMO, competent. Being slow with opinions is nothing new to the CAFC. I agree with Gene.
BApril 18, 2023 05:03 pm
From the Complaint: “Judges and staff have reported extensive delays in the processing and resolution of cases.”
In re Villena took FIVE MONTHS after oral argument to release, and the opinion (minus boilerplate) consisted of less than 500 words of total garbage while ignoring every issue before Judges Stoll, Prost, and Hughes
I doubt Judge Newman has ever engaged in such poor performance or caused such an extensive delay.
BApril 18, 2023 04:17 pm
@ FCP “A fair reading of the documents also shows that it is not Chief Judge Moore on a rampage, but instead it is a much larger group of judges.”
I can guess a few based on Yu v. Samsung
“The allegations are simple: Judge Newman is not preforming her job.”
Good to know “the allegations” are enough. On issues of credibility, I put Newman first while so many of the other CAFC judges rank lower than a smear on a San Francisco sidewalk.
AnonApril 18, 2023 02:43 pm
You sound like a litigator with little to no knowledge of patent law. I noticed the inclusion of “practitioner,” but seriously doubt that you have a USPTO registration number.
PeteMossApril 18, 2023 08:41 am
I cheer when I read Judge Newman’s dissents. Biden and Fetterman both got elected and both have mental defects. Completely acceptable these days to have mental decline and still keep your job. Second, there are 2 reasons for everything. A good reason and a real reason. Sometimes, they are the same Sometimes not. Judge Newman’s mental health is an alleged good reason to get rid of her, but not the real reason.
Federal Circuit PractitionerApril 17, 2023 07:52 pm
Such a strange blog post.
A fair reading of the documents shows that Judge Newman is not performing as a full time judge. In addition, the rants about “why senior” shows a profound misunderstanding about senior status or a willful misrepresentation. Some senior judges preform non-courtroom task in order to fulfill their time commitment to the court and rarely see the inside of a courtroom. “Time commitment” is required of all judges, including Newman. Senior status was a face-saving route that Judge Newman refused.
A fair reading of the documents also shows that it is not Chief Judge Moore on a rampage, but instead it is a much larger group of judges. While it is unfortunate that this matter is public, the documents provide sufficient information to conclude that an investigation is warranted.
The allegations are simple: Judge Newman is not preforming her job.
Judge Newman’s former clerks are doing her and her legacy no favor by encouraging her to continue on that path that she has chosen.
mikeApril 17, 2023 02:38 pm
As usual, Paul Morinville nails it in the comments here.
AnonApril 17, 2023 01:06 pm
Inventor – clearly by voices my comment is about those outside of the CAFC.
The discussion AT POINT is how those involved AT the CAFC are creating bad optics for themselves.
Your attempted distraction is noted, and appropriately dismissed.
Glen Wade DuffApril 17, 2023 12:45 pm
Thank you Pauline for maintaining dignity in your response, even though it is obviously a difficult burden. I have appreciated your opinions (in our case and others) and value your continued work to be done to revive our patent system. Forever on “Team Pauline!”
Paul MorinvilleApril 17, 2023 12:03 pm
The real problem is that the creation of the Federal Circuit consolidated patent law into the hands of just 12 people. The initial set of judges were right for the job, but they died or retired. (Newman was the first judge appointed after its creation.) Over time, replacements have become anti-patent, which makes sense because Big Tech and other infringers have enough political power to control the slate of nominees that goes to the President. Patent law is politically silent, so the Senate just rubber stamps whatever the President nominates. Newman claims she is the last pro-innovation judge on the court. She is right and this attack is probably related to that.
InventorApril 17, 2023 12:00 pm
@Anon – Are there documented anti-patent views of Judge Moore or any others involved in this effort? Where can they be seen?
AnonApril 17, 2023 11:59 am
As for any objective elements that are being designated as deficient, are there any other official procedures for notice/corrective action less draconian then the chosen path?
I ask because even if taken as true for their asserted state of showing a deficiency to expectation, the age and lack of prior court addressing of known (?) assertions leads directly to the “bad optics” for Chief Judge Moore.
I would also point out that one of the asserted “objective metrics” is logically flawed in having a count of writing “majority” decisions. Hewing to this metric would actually engender violating judicial ethics by ‘enforcing’ a certain amount of “group think” and penalizing judicial independence.
Gene QuinnApril 17, 2023 10:55 am
@ S.A. Jr….
What I wrote is 100% correct. Chief Judge Moore has ONLY relied on hearsay from unidentified colleagues to support the allegations that Judge Newman is mentally incompetent. You are conflating the issue of whether she is slow to write opinions and the separate issue regarding the unsupported hearsay allegations regarding mental fitness.
Of course, I’m sure you knew you were conflating issues… I’m just calling you out on it for everyone to see.
BApril 17, 2023 09:21 am
@ S.A. Jr. “Actually, far from only hearsay, the complaint identifies objective data (which I assume is undisputed) showing that Judge Newman isn’t writing opinions or doing her job like the other judges.”
Most respectfully, I know of judges on the CAFC who outright engage in outlandish fictions and will misrepresent the time of day. If “doing her/his job” is the criteria, then about 1/2 the bench needs to go.
Pro SayApril 16, 2023 11:27 pm
Give ’em h.e.l.l., Pauline.
Give. Them. Hell.
Sam Alito JrApril 16, 2023 09:51 pm
Actually, far from only hearsay, the complaint identifies objective data (which I assume is undisputed) showing that Judge Newman isn’t writing opinions or doing her job like the other judges. Far below the norm for issuing opinions. You also forget that judge Newman refused to get a medical evaluation, as required (which is Itself judicial misconduct).
AnonApril 16, 2023 01:51 pm
What are the odds that the phrase from Chief Judge Moore – in the March 24 Order — of (emphasis added), “I have attempted to see whether a satisfactory informal resolution could be reached to resolve these concerns. I met with Judge Newman for approximately 45 minutes where I outlined the concerns about her inability to perform the work of an active judge and the concerns which had been expressed about her mental fitness. She refused to consider senior status saying that she was the only person who cared about the patent system and innovation policy. ” were taken out of context // missing context?
Is this the same Chief Judge Moore, so concerned about the appearance of impropriety, that has turned a blind eye to the shenanigans of turning a clearly dissenting view (her own) into a majority view?
See at least: https://patentlyo.com/hricik/2023/04/opinion-reported-unprecedented.html and linked comments therein.
AnonApril 16, 2023 12:57 pm
The only voices that I have heard against Judge Newman have been from those with a history of anti-patent rants.