Federal Circuit Judicial Council Won’t Restore Newman to Case Assignments

The Judicial Council of the Federal Circuit has denied Judge Pauline Newman’s request to be restored to the rotation of new case assignments pending a Special Committee’s investigation into her fitness to serve on the court. The Committee referred Newman’s request to the Judicial Council, which construed it as a request for reconsideration of its previous decision to preclude the assignment of new cases to Newman, and determined again that she should not be allowed new case assignments.

According to the June 5 Order, when the Council first considered whether to preclude Newman from new assignments, concerns had already been raised by staff about her mental fitness and she had nine opinions pending, four of which were over 120 days old and one of which was 454 days old, putting her in violation of Federal Circuit Clerical Procedures #3, paragraph 15, which says that “new cases will not be assigned to any judge with four or more opinions over six months old or two or more opinions over one year old.” The Order added that her backlog would have been even larger if not for intervention in the form of transferring some of her cases to other judges, and that it was especially concerning considering her workload was already reduced compared with her colleagues.

Upon reconsideration, the Council explained that its concerns have “not abated.” The Order continued:

“To the contrary, they have increased. Since the Council’s March action, Judge Newman has issued only two of her majority opinions. She still has a backlog of seven opinions, three of which have been pending for over 200 days and all of which have been pending for over 100 days. Four of them, moreover, are cases submitted without argument that are generally among the most expeditiously resolved. These are all opinions which she assigned to herself yet has been unable to circulate to the panels for vote.”

The Order reiterated claims from Federal Circuit Chief Judge Moore in her identification of a complaint that Judge Newman is significantly slower to issue opinions, citing statistics that show the average time to issuance after assignment for other judges was 58 days, while it was approximately 199 days for Newman. “The Council is concerned that assigning additional cases to Judge Newman now will only interfere with her ability to clear her current backlog and exacerbate delays in her already long-delayed opinions,” wrote the Council.

The Council also cited the Special Committee’s May 16 Order as further bolstering its decision to preclude Newman, noting that “[t]he information the Committee has detailed in its order of May 16 raises, at a minimum, a reasonable concern that Judge Newman may suffer from a disability that renders her incapable of carrying out the duties of her office and thus incapable of issuing her opinions more promptly.”

The May 16 Order included a number of scathing complaints made by staff, such as that Newman is paranoid and convinced that people are hacking into her computer; that she thought her phones were being bugged; and that she has mentally deteriorated to the point of not remembering how to log on to her computer.

Newman’s counsel, the New Civil Liberties Alliance (NCLA), has characterized the removal of Newman from cases prior to the conclusion of the investigation as posing “significant constitutional difficulties because it impinges on the Constitution’s guarantee that federal judges hold and exercise the functions of their office ‘during good behaviour.’ [Moore’s] action also violates due process of law and raises serious concerns about [her] ability to conduct this investigation impartially,” wrote the NCLA.

In separate orders issued June 1 and June 5, the Special Committee narrowed the focus of its investigation to whether Newman’s refusal to undergo medical examination and to provide medical records constitutes misconduct, and agreed to publicly release a number of documents at the request of Newman’s counsel, respectively.

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