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12 “I would urge the Federal Circuit to refrain from releasing medical speculation and other open assertions violative of basic privacy rights…. Judges, above all other responsibilities, must respect and defend individual rights, including medical privacy.”
As one of the three Chief Judges to follow Chief Judge Michel, I commend his thoughtful and thorough analysis of the embarrassing and damaging petition challenging Judge Pauline Newman’s competency and compliance with Judicial Council orders. I would guess that all of those Chief Judges, including me, dealt with delicate issues involving aging colleagues, yet these occasions did not engender vast controversy and violations of medical privacy. I wished to add just a few thoughts from my perspective.
Shortly after learning of the petition questioning Judge Newman’s competence, I called her directly. We spoke of old memories and new developments, old cases and new cases, doctrinal divisions and directions at the Federal Circuit. In sum, within five minutes, I could easily and confidently assess that Judge Newman was as mentally sharp and capable as she had been for more than 40 years that I have known her well. Indeed, since that conversation, we have spoken at least once a week at all times of the day and evening. In all of those conversations, including a couple of in person meetings, I have not detected the slightest slippage in her mental acuity. Judge Newman’s current colleagues must have the same opportunities to assess for themselves her abilities. Thus, this prolonged proceeding, especially in the face of her entirely successful cognitive medical examination, becomes even more puzzling.
A Neutral Court Would Be Good. An Apology Would Be Better.
In recent weeks, perhaps in response to Judge Newman’s successful cognitive examination with a medical professional, the court has shifted to faulting Judge Newman for failing to comply with directions from the other judges and the committee appointed by the Chief Judge (and including the Chief Judge) to adjudicate Judge Newman’s fitness to serve. In our American judicial system, we pride ourselves on our commitment to judicial independence. Almost by definition, judicial independence means that our judicial system encourages individualism in both decision-making and the procedure underlying those decisions. Again, almost by definition, judicial independence means that judges, even a majority of judges, should not attempt to compel an individual judge to follow a prescribed course. In sum, a group of judges should recognize that giving orders and directions to a judicial colleague fails to fully respect both their individual colleague and the overarching principle of judicial independence. As is often the case with the “great dissenter,” Judge Newman has chosen her own path to demonstrate her competence and to address her colleagues’ concerns; once again she should be applauded for her independence, not castigated and not subjected to further pressure from the majority.
As Judge Michel notes, this case would be more fairly adjudicated in another court whose only motivation would be to protect the public performance and image of the federal judiciary. The district court’s suggestion of a mediator might also provide the neutrality and perspective necessary for a fair resolution. I might suggest, however, that the better outcome would be a few face-saving procedures to permit the court to say it has addressed the petition followed by a unanimous rejection of the petition as contrary to Judge Newman’s demonstrated competence.
By the way, in the course of those face-saving proceedings, I would urge the Federal Circuit to refrain from releasing medical speculation and other open assertions violative of basic privacy rights. Nothing is more unseemly than the release of accusations about private medical conditions, especially when other facts contradict and impeach those charges. Judges, above all other responsibilities, must respect and defend individual rights, including medical privacy. Moreover, if the court sees the wisdom of taking the most expeditious approach of rejecting the petition, the court should at that time take the opportunity to apologize to Judge Newman for compromising her privacy rights.
In the meantime, the court’s reputation continues to hemorrhage. It is time for the court to stop the bleeding and to welcome its most senior judge back to her revered place at head of the other judges.
Editor’s note: this article was updated with additional commentary from Judge Rader on July 12 at 7:27PM.
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Join the Discussion
12 comments so far.
Patent Practitioner
July 20, 2023 01:33 pmRe RK’s response to my comment below: Thanks, Ron.
It appears that my incomplete list (of Supreme Court cases involving Newman dissents) was narrower than yours because mine is limited to the decisions in which the Justices expressly discussed or quoted Judge Newman’s dissenting opinion. Your search set adds the cases in which the Supreme Court did not mention her by name.
My guess would be that Judge Dyk is the only other Federal Circuit judge who could claim a record at the Supreme Court that is in the same league as Judge Newman’s, but I believe he has a far smaller number of such cases (and, to be fair, a smaller number of dissents). A search for Supreme Court decisions mentioning Dyk dissents turns up 3 or 4, depending on how you count them, that have vindicated Judge Dyk and none that have disagreed: Perry v. MSPB, 582 U.S. 420 (2017) (vindicating Dyk’s dissent in another case), Impression Prods. v. Lexmark Int’l, Inc., 581 U.S. 360 (2017), and Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S, 566 U.S. 399 (2012)); see also Thryv, Inc. v. Click-To-Call Techs., LP, 140 S. Ct. 1367 (vindicating an en banc dissent that Dyk joined but did not author), and Bilski v. Kappos, 561 U.S. 593 (2010) (citing Judge Dyk’s concurrence approvingly).
Ron Katznelson
July 17, 2023 01:36 pmPC,
You generally make important point, which I discuss in my article. However, your information above is incomplete. See my analysis at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4489143 . Appendix A shows that for Federal Circuit decisions reviewed by the Supreme Court in which Judge Newman authored a dissent, the Supreme Court vindicated her dissent when reversing the majority decision in 17 out of 23 times. About 75% of the time. Of those 17 cases, 9 were in the last decade.
Patent Practitioner
July 16, 2023 03:42 amCommenter ‘Thomas Jackson’ refers to Judge Newman’s significant dissents. It may be useful to recite some facts about their impact.
The Supreme Court has reversed or vacated the Federal Circuit, and adopted the position of Judge Newman in dissent below, seven times that I can find, including very recently: once in the 2019 Term, once in the 2017 Term, twice(!) in the 2014 Term, once in the 2007 Term, once in the 2004 Term, and once in the 1999 Term. By comparison, the Court has rejected her position in dissent below in only four cases (once in each of the 2015, 2013, 2007, and 1989 Terms), and in three of those cases her position garnered the support of multiple dissenting justices.
Of course, what a judge did when she was younger does not necessarily say what she can do when she is older. But the truly remarkable thing about her record above is that the Supreme Court’s appetite for accepting her dissents has only increased, and even seems to be accelerating, the older she gets. She wrote her opinion in all seven cases in which the Supreme Court has adopted her position when she was over the age of 70. (She celebrated her 96th birthday last June 20.) In five of those cases, she was over the age of 80. And in the last two (Maine and SAS) she issued her dissent at the age of 89.
To put it another way, four of the cases where the Justices have accepted her dissenting position were in just the last 10 years; and in those cases she issued her dissent when she was at least 85 years old.
What other federal judge in the history of the country can claim a record even approaching that?
Me. Cmty. Health Options v. United States, 140 S. Ct. 1308 (2020 (adopting Judge Newman’s positions in dissent below that (i) the Affordable Care Act obligated the Government to pay participating insurers the full amount calculated under the Act, (ii) the obligation survived Congressional appropriations riders, and (iii) the obligation could be sued upon under the Tucker Act). She issued her dissent at the age of 89.
SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348 (2018) (adopting Judge Newman’s position in dissent below that 35 U.S.C. §318(a) requires deciding patentability of every claim challenged in instituted IPR petitions). She issued her dissent at the age of 89.
Commil USA, LLC v. Cisco Sys., 575 U.S. 632 (2015) (adopting Judge Newman’s position in dissent below that good-faith belief in patent’s invalidity is not defense to induced infringement). She issued her dissent at the age of 86.
Limelight Networks, Inc. v. Akamai Techs., Inc., 572 U.S. 915 (2014) (adopting Judge Newman’s position in dissent below that liability for inducement of patent infringement requires direct infringement). She issued her dissent at the age of 85.
Bilski v. Kappos, 561 U.S. 593 (2010) (agreeing with Judge Newman’s position below that the en banc Federal Circuit’s “machine-or-transformation” test for patent-eligibility was wrong, but disagreeing with her that the claims-at-issue were patent-eligible) (see 561 U.S. at 618 (Stevens, J., concurring in judgment)). She issued her dissent at the age of 81.
Merck KGaA v. Integra Lifesciences I, Ltd., 545 U.S. 193 (2005) (adopting Judge Newman’s position in dissent below that 35 U.S.C. § 271(e)(1) safe harbor was not foreclosed, except that Supreme Court remanded to district court instead of reversing outright). She issued her dissent at the age of 75, about two weeks before her 76th birthday.
Nelson v. Adams USA, Inc., 529 U.S. 460 (2000) (adopting Judge Newman’s position in dissent below that adding party and simultaneously amending judgment to individually obligate that party violated Fed. R. Civ. P. 15). She issued her dissent at the age of 71.
Cuozzo Speed Techs., LLC v. Lee, 579 U.S. 261, 272-273 (2016) (rejecting, with Justices Alito and Sotomayor dissenting, Judge Newman’s position in dissent below that the “no appeal” provision of 35 U.S.C. § 314(d) is limited to interlocutory appeals).
Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208 (2014) (rejecting Judge Newman’s position in dissent below that claims-at-issue were patent-eligible under 35 U.S.C. § 101).
John R. Sand & Gravel Co. v. United States, 552 U.S. 130 (2008) (rejecting, with Justices Stevens and Ginsburg dissenting, Judge Newman’s position in dissent below that statute of limitations for Court of Federal Claims actions was waivable). She wrote her dissent when she was 80.
Eli Lilly & Co. v. Medtronic, Inc., 496 U.S. 661 (1990) (rejecting, with Justices Kennedy and White dissenting, Judge Newman’s position in dissent below from denial of rehearing en banc that 35 U.S.C. § 271(e)(1) safe harbor should not be construed to encompass medical devices).
Thomas Jackson
July 15, 2023 11:47 amI am pleased that Judge Rader has joined Judge Michel, further suggesting that an apology is due. The Committee of Three has taken control while the Council comprises all judges except Judge Newman. As I have already stated in one comment, Judge Pauline Newman is 95 years young. She has been with the CAFC since its origin in 1982. Her dissenting opinions over the years have been extremely essential in balancing decisions and voicing important issues often neglected by the rest of the court. I have suggested that when all judges in the Council except Judge Newman wish to continue their harassment that there may be some political motivation behind their attack. Let us hope that, for example, the CAFC pass what facts substantiate their claims to the 4th Circuit. I am not sure what facts there are and tend to believe the independent medical and psychological results found by Judge Newman’s doctors that Judge Newman is perfectly capable of continuing her 41 years of service to the CAFC.
Pro Say
July 14, 2023 11:03 am“would any honest person really think that something is not off with an FCP who ignores actual evidence and facts?”
There. Fixed.
Anon
July 14, 2023 07:24 amFCP,
Fair enough question about possible conflicts of interest, although your assertion lacks merit at its foundation as to just why this publication would have any particular “party line” to be pushed.
But just as that may be fair enough, let’s see why YOU (and other litigators) are pushing so heavily in a different direction, especially as YOUR desired narrative does not jibe with the plethora of available facts (and not just from the two retired Chief Judges that you so easily impugn, but from all types of people that interact with Judge Newman as well as the factual dissertation from Ron Katznelson).
Why are you so bent on a narrative so opposed to the facts at hand?
Federal Circuit Practitioner
July 14, 2023 01:24 amHow many thousands of dollars have Paul Michel and Randy Rader been paid by IPWatchdog for participating in seminars? Their photos show up this week in an advertisement for a seminar. At a minimum, each opinion piece by these two should disclose that they are business partners with this publication. At least that might help explain why they are so intent on supporting the party line of this publication.
Why has Rader and Michel failed to address the bizarre facts surrounding Judge Newman taking on a substantially reduced role? She told her colleagues that she needed a reduced work load due to a heart attack, but now claims (through her lawyers) that she never had a heart attack. Did she falsely tell her colleagues that she had suffered a heart attack or did she forget that she had a heart attack or did all of her colleagues misunderstand whatever she said in order to get a reduced work load?
Skip the names of the judges involved — would any honest person really think that something is not off with a judge who will not or cannot issue timely opinions?
B
July 13, 2023 11:37 amFYI “Judge Newman’s Not Sure The Fed. Circ. ‘Can Be Salvaged'”
https://www.law360.com/ip/articles/1698074?nl_pk=b0afc0d3-ff9a-4c4a-b2e8-639c0bebe4d7&utm_source=newsletter&utm_medium=email&utm_campaign=ip&utm_content=2023-07-13&nlsidx=0&nlaidx=0
Nancy J Linck
July 13, 2023 09:16 amMy thanks to Judge Rader for expressing his views regarding the comments of Judge Michel. Like Judge Rader, I have known and stayed in contact with Judge Newman for almost 40 years and have not observed any decrease in her mental capacity or in her very thoughtful approach to deciding cases. Her thinking has always been “out of the box”, and designed to be thorough and fair, regardless of the time and effort it took to get it right. That was and remains true regardless of the subject matter in a case before her. Pro se MSPB appellants get the same consideration as appellants represented by litigation counsel in high profile patent cases.
It is difficult to understand how mediation will address the dispute in this matter. CJ Moore wants Judge Newman to either take senior status or retire; Judge Newman wants to retain her present position as an active Federal Circuit judge — a position to which she is fully entitled. Thus, I agree with Judge Rader that “the better outcome would be a few face-saving procedures to permit the court to say it has addressed the petition followed by a unanimous rejection of the petition as contrary to Judge Newman’s demonstrated competence.” In my view, that is the only outcome of which I am aware that would be fair to Judge Newman and begin to restore the public’s faith in the justice and fairness of the Federal Circuit.
Anon
July 12, 2023 06:34 pmAlas, there is a notable contingent of litigators (that happen to strongly coincide with anti-patent, Efficient Infringement positions) that seek to entirely blame Judge Newman.
Pro Say
July 12, 2023 01:56 pmAs is usual, Judge Rader gets it right yet again.
Just imagine how much different — and materially better — things would be were he or Judge Michel still Chief Judge.
Just imagine.
Julie Burke
July 12, 2023 01:06 pmThank you, Chief Judge Rader and Chief Judge Michel, for speaking up in support of Judge Newman as she valiantly responds to personal and professional attacks which frankly reek of gendered ageism.
https://pubmed.ncbi.nlm.nih.gov/33510682/