Special Committee Charges Newman with ‘Serious Misconduct’, Blames Her for Delayed Transcript

The U.S. Court of Appeals for the Federal Circuit’s Special Committee that is investigating Judge Pauline Newman for misconduct today released a number of additional documents, including a 319-page one dated July 31 recommending Newman be suspended from taking on case assignments for one year, “or at least until she ceases her misconduct and cooperates such that the Committee can complete its investigation.”

The report includes a number of Exhibits and a transcript of an April deposition, but notably missing is the transcript of the July 13 hearing. A statement from the Committee says it “is prepared to release that transcript, but has been waiting for proposed redactions from Judge Newman since July 27. Once Judge Newman proposes any redactions or confirms that she has none, the transcript will be released promptly.”

After narrowing the focus of its investigation to the question of whether Newman’s refusal to undergo a neurological evaluation and neuropsychological testing by professionals selected by the Committee, to provide medical records, and to sit for an interview with the Committee constitutes misconduct, the Committee has now determined that “Judge Newman has not shown good cause for refusing to cooperate with the Committee’s orders and that her failure to cooperate constitutes misconduct under Rule 4(a)(5) of the Judicial Conduct and Disability Act.”

That rule stipulates that “[c]ognizable misconduct includes refusing, without good cause shown, to cooperate in the investigation of a complaint or enforcement of a decision rendered under these Rules.”

The order further characterizes Newman’s action as “serious misconduct” that has “[t]hwarted the process Congress created for determining whether a life-tenured judge suffers from a disability.”

The report includes affidavits based on more than 20 redacted interviews with court staff that the Committee says detail “deeply troubling interactions with Judge Newman that sadly suggest significant mental deterioration.”

A Heated (Non) Exchange

The April 12 deposition of Judge Newman’s law clerk is illustrative of the hostility this investigation has arguably caused in the court. The Special Committee repeatedly informed the clerk that she was required to cooperate with the Committee, as the proceeding was a “special investigation” rather than a standard court proceeding, but the clerk consistently invoked her Fifth Amendment right to remain silent under the advice of counsel. Chief Judge Kimberly Moore threatened to terminate the clerk for misconduct, but the clerk continued to invoke the Fifth. In one rare statement where she did not invoke her Fifth Amendment right, however, she told Judge Prost that “I’ve been given absolutely no information what this is about.” Her attorney further indicated that the clerk was given only one day to prepare for the interview, but clarified that the clerk would still invoke the Fifth Amendment even if given additional time to prepare.

Chief Judge Moore pressed the clerk on the importance of keeping the proceedings confidential throughout. The deposition took place the same day IPWatchdog first made the investigation public.

Other staff affidavits included in the report indicate that Judge Newman had concerns about her accounts being hacked and described Newman as “ranting, rambling, and paranoid”; recounted a fainting episode and frequent memory lapses; and more. However, the report also includes the findings of Dr. Ted Rothstein, Professor of Neurology at George Washington University, who concluded that Judge Newman’s cognitive function is “sufficient to continue her participation in her court’s proceedings.”

Many of the affidavits were from IT staff. Others came from a paralegal, a human resources staff member, the CAFC chief deputy and acting clerks, the court services coordinator, a Technical Assistant in the General Counsel’s Office, and others. The 300+-page document also include numerous email exchanges between Newman, Moore and court staff.

The additional documents made public today include:

• July 24, 2023 Letter
• July 12, 2023 Order
• July 12, 2023 Letter
• July 11, 2023 Order
• July 7, 2023 Order
• July 5, 2023 Brief

IPWatchdog Founder and CEO Gene Quinn had this to say of the July 31 misconduct order:

“Without having had a chance to review the entirety of the Special Committee’s sanction order in detail, the one thing that jumps out is the fact that the Federal Circuit continues hostilities against Judge Newman with a 111-page order at a time when parties are being forced to wait 13 months after briefing for an oral hearing. The Federal Circuit used to pride itself on a three-month turnaround, but now cases are left to languish waiting while the Chief Judge and the rest of the court spend extraordinary time attempting to impeach Judge Newman. It is truly ironic that Chief Judge Moore castigates Judge Newman for being slow when under her leadership parties are forced to wait for their day in her court.

Perhaps if Chief Judge Moore were more concerned about parties and less concerned about what has obviously become a vendetta, the Federal Circuit would maintain some relevance. Sadly, the Federal Circuit is destroying itself from within—and that is not limited to this crusade to get rid of Judge Newman. And, if and when the dirty laundry of the Federal Circuit is fairly aired, it could wind up with the Chief Judge being the one who is impeached. Indeed, someone should really start to raise serious questions about Chief Judge Moore—not only in context of this debacle, but also concerning the way she administers the court and interacts with her own clerks and other Federal Circuit employees.”

Newman’s Counsel Responds

Judge Newman’s counsel, Greg Dolin of the New Civil Liberties Alliance (NCLA), released the following statement late Friday night, commenting that the sprawling report came “without warning”:

“The Special Committee’s surprise actions undermine public confidence in the Judiciary, and prove, better than any argument that Judge Newman could make, that a transfer of this matter is—and always was—necessary.”

Mark Chenoweth, President and General Counsel at NCLA, said “[i]t is not surprising that the same judges who falsely accused Judge Newman of having a heart attack are unwilling to accept the medical opinion of Newman’s physician that she passed the cognitive assessment he gave her.” He added:

“This tribunal long ago sacrificed any semblance of due process in its concerted effort to keep their famously dissenting colleague off the bench no matter what the medical evidence shows about her competence. This flawed process has indelibly stained the Federal Circuit. If it succeeds, it will jeopardize the independence of all federal judges.”

The full NCLA press release, including excerpts from the IPWatchdog op-eds by retired CAFC Chief Judges Paul Michel and Randall Rader, is available here.