Judge Cooper Denies Injunction But Keeps Newman Case Alive on Key Counts

“None of the complaints about [Newman’s] potential disability have been substantiated.” – Judge Cooper

NewmanOn February 12, the U.S. District Court for the District of Columbia denied a motion for preliminary injunction filed by Circuit Judge Pauline Newman, who has been at the center of a controversial inquiry into her current fitness to continue serving as a federal appellate judge. Despite acknowledging that all of the recent complaints against Judge Newman’s mental fitness continue to be unsubstantiated, the D.C. district court determined that most of Judge Newman’s requested relief was foreclosed by legal precedent limiting constitutional challenges to the Judicial Conduct and Disability (JC&D) Act. However, the court said it maintains jurisdiction over three of the 11 counts, and part of another, brought by Newman. The ruling has been touted as a blow to Newman’s case but it is arguably at least a mixed victory for her, as she retains several challenges and may have a chance to conduct discovery with respect to the allegations against her.

Newman’s Challenge to Section 332 Case Reassignment Mooted

Since Federal Circuit Chief Judge Kimberly Moore first identified a complaint against Judge Newman last April, Judge Newman has navigated a maelstrom of adversity in fighting unsubstantiated claims about her claimed lack of mental acuity. Days after appearing at IPWatchdog LIVE last September, Judge Newman was suspended from taking new case assignments pending the outcome of a mental fitness inquiry based on a complaint that, according to IPWatchdog Founder and CEO Gene Quinn, “contains wild factual inaccuracies.” One week ago, the Judicial Conference of the United States’ Committee on JC&D affirmed Judge Newman’s suspension over her claims that the Federal Circuit abused its discretion in failing to transfer the case to another circuit and that her suspension exceeded authority granted by the JC&D Act.

In its order denying injunctive relief, U.S. District Judge Christopher Cooper denied Judge Newman’s challenge to the judicial fitness inquiry stated under 28 U.S.C. § 332(d), which predates the JC&D Act and gives authority to reassign cases to address delays that interfere with the “expeditious administration of justice.” Judge Newman’s challenge to last June’s order upholding her suspension against new assigned cases was mooted by a sua sponte order by the Judicial Council last November 9 rescinding the suspension once Judge Newman’s case backlog had disappeared.

Although Judge Newman argued that her Section 332 challenge was not mooted because the challenged action was too short to be fully litigated and could possibly have been repeated, Judge Cooper “presumed” that Judge Newman would not repeat the behavior creating her case backlog. Further, Judge Cooper cited case law on separation of powers deeming it inappropriate for district courts to impute manipulative conduct to an entire roster of federal appellate judges.

Chief Judge Moore Must Answer Judge Newman’s Facial Challenges to JC&D Act

Judge Cooper then moved on to assess several of Judge Newman’s claims that the district court found to be constitutional challenges to the JC&D Act as applied, not facial challenges to the constitutionality of the statute. Such challenges are foreclosed from the district court by its interpretation of the no judicial review clause at 28 U.S.C. § 357(c) as discussed in McBryde v. Committee to Review Circuit Council Conduct (2001). While facial challenges to JC&D Act provisions are still available under McBryde, Judge Newman’s due process and constitutional challenges to the acts of the Judicial Council and Special Committee handling her judicial fitness inquiry were limited to the facts presented in the district court case, leading Judge Cooper to dismiss those challenges under McBryde.

In Judge Newman’s favor, the D.C. district court nixed a pair of jurisdictional arguments raised by Moore. First, Moore argued that the district court, as a court of original and not appellate jurisdiction, did not have the authority to review decisions of the Federal Circuit Judicial Council. While the Council may have been performing judicial duties, Judge Cooper ruled that the council was more like an administrative body and not an Article III court for purposes of decision review. Further, prudential concerns did not require dismissal of Judge Newman’s claims because the recent affirmance of the Judicial Council’s sanctions against Judge Newman proved that her serious and irremediable injury was no longer a mere possibility.

Also notable was the decision’s discussion of Newman’s Count V, which “alleges that the JC&D Act is unconstitutionally vague in that it fails to ‘provide adequate notice of what constitutes a mental disability’ and ‘lacks minimum enforcement guidelines.’” The court maintains jurisdiction over Count V, though it was not at issue at the motion to dismiss stage. While Moore argued that this was a facial challenge disguised as an as-applied challenge, the court said “[t]his argument falters at its initial premise.” Judge Christopher Cooper continued:

“Judge Newman is not ‘clearly’ someone to whom the JC&D Act’s standard of disability applies because none of the complaints about her potential disability have been substantiated.”

The D.C. district court did dismiss the two facial challenges to the JC&D Act filed by Judge Newman that were part of her motion for preliminary injunctive relief. Judge Newman’s challenge to the JC&D Act’s delegation of judicial impeachment power had already been dismissed on its merits in McBryde. Further, the Special Committee’s complete discretion to compel compliance with judicial orders was supported by other case law establishing that the Constitution permits judges to enter sanctions against other judges.

Judge Cooper’s ruling also ordered Chief Judge Moore to provide an answer to Judge Newman’s remaining counts by March 13.

A Potential Windfall

Commenting on the decision today, IPWatchdog CEO and Founder Gene Quinn said it could very well be a positive for Newman. “Although some are already characterizing Judge Cooper’s Order as a serious blow to Judge Newman’s attempt to vindicate herself, the truth is much more complicated, and it may well wind up that this Order is ultimately a victory,” Quinn said. He added:

“While some counts brought by Judge Newman were dismissed (e.g., as applied constitutionality challenges), others were not (e.g., facial constitutionality challenges). The case will continue and could lead to discovery and depositions that will allow Judge Newman and her legal team to challenge the veracity of the allegations made in the complaint filed by the Federal Circuit against her.

Of particular importance, the question of whether the Judicial Conduct and Disability Act is unconstitutionally vague remains alive. Attorneys for the Justice Department argued that Judge Newman could not challenge the Act as being unconstitutionally vague because even if vague it would still clearly apply to her and this situation. Judge Cooper explained that there is no way to know at this point whether the statute clearly applies to Judge Newman such that it would foreclose a constitutional challenge “because none of the complaints about her potential disability have been substantiated.”

Based on this ruling, Judge Cooper could be prepared to allow Judge Newman to challenge the veracity of the allegations against her as the case moves forward. It is too early to tell for certain, with inevitable skirmishes to be fought, but the ruling today could (and perhaps should) mean that at least some fact discovery will be allowed, and potentially even depositions taken.

In short, Judge Newman may for the first time be given the opportunity to challenge the allegations made in the complaint filed against her by the Federal Circuit. We know that at least some of the allegations made are false (e.g., Judge Newman did not have a heart attack and never had a stent implanted). How much else of what is in the complaint against her will similarly be proved to be false, or at least misleading? Perhaps we will find out as Judge Newman’s lawsuit continues.”

Image Source: Deposit Photos
Author: michaklootwijk
Image ID: 71152011 


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Join the Discussion

13 comments so far. Add my comment.

  • [Avatar for S]
    February 20, 2024 01:25 pm


    Your conspiratorial rant about leftists is a charlatan’s seance, attempting to call forth the spirit of McCarthyism through the use of smoke, mirrors, and the semblance of honesty. It is a strategy that you appear to employ to create an “other” which justifies YOUR abandonment of critical thinking.

    Your argument that 96 year old Judge Newman’s cognitive ability is being unfairly questioned begins and ends with “I like Judge Newman and I don’t like Judge Moore, so this must be a hit job.” Patent law is supposed to have some respect for science, for objectivity. But you pick and choose what to believe like a sports fan picks a team to root for.

    Judge Newman believed that her emails were hacked, that she was bugged, she sometimes loses case materials, forgets her login information, her staff have noted memory loss and confusion, she treated her judicial assistant and a law clerk in an unprofessional manner, and a Doctor who has previously consulted on judicial disability matters recommended that she go through a full neurological exam. I LIKE Judge Newman’s opinions AND dissents but it is completely intellectually dishonest to chalk ALL of this to a deep state conspiracy in the Federal Circuit.

    Also, please elaborate who you think Biden is a “puppet” for. I’d love to hear your, no doubt fascinating, views of who really “pulls the strings” of government.

  • [Avatar for Anon]
    February 20, 2024 10:09 am


    That suspicion comes from the types of people that have been vocal about Judge Newman (typically NOT those with patent registration numbers and whose practice is the obtainment of patent protection).

    Couple this with the KNOWN proclivities of general attorneys to VEER SHARPLY LEFT – and the suspicion is well grounded.

    Add in for good measure, the usual ‘suspects’ that DO comment on patent blogs that are KNOWN to be of the Left of Center to Far Left viewpoint, their readiness to bash ANY politics at Center, Right of Center (and EVEN Left of Center), their known vocalizations against Judge Newman and the absolute silence as to the train wreck of Puppet Biden, and my case is EASY to see.

    As to ANY case from you about me — given how OFF you have consistently been — that would not be a wise move on your part.

    You have shown yourself to lack even a modest amount of ability to think critically (in the non-political sense).

  • [Avatar for S]
    February 19, 2024 08:53 am


    I find it interesting that you “suspect” that people concerned with Judge Newman’s capacity do not have a concern for President Biden’s.

    It’s almost like you assume people have no actually beliefs and instead support whatever or whomever is convenient for their own ideology.

    I’m guessing that’s from personal experience?

    Always a pleasure.

  • [Avatar for Anon]
    February 14, 2024 10:14 am

    Tellingly, I suspect that most all of those screaming for Judge Newman to be “set aside” are utterly silent as to the quite obvious lack of ability shown by President Biden,

    They exemplify the meme of the little doggy in the room on fire with “This is fine.”


    and yes, that is both indefensible and a clear sign of duplicity.

  • [Avatar for Charlie]
    February 13, 2024 06:52 pm

    Why would Judge Newman get discovery of her particular circumstances if all that survives is facial challenges? For example, Count V is a facial challenge to the statute’s definition of “disability.” Either that is objectively vague under a reasonable person standard or it isn’t. Nothing about the Federal Circuit’s complaint, investigation process, etc. bears on that question. All those particulars would be highly relevant to an as-applied challenge, but as-applied challenges aren’t permitted.

  • [Avatar for Gene Quinn]
    Gene Quinn
    February 13, 2024 03:06 pm

    @ Jake H-

    I don’t know what your vendetta is against Judge Newman, or perhaps just the elderly, but you really need to open your eyes.

    I did not imply or suggest that Chief Judge Moore’s demanded assessment was appropriate, fair or anything like that. In fact, I believe the exact opposite.

    Those who have spoken with Judge Newman, read her opinions that came out even after this saga began, and have watched multiple hours of video of her speaking over the last year know that the claims of Chief Judge Moore are false. There is absolutely no evidence that Judge Newman is showing signs of mental decline. There is plenty of evidence, however, of procedural irregularities. This is the first time that a request to transfer such a disciplinary matter to a neutral Circuit has been denied. Why?

    And you seem to completely ignore the reality that we know for absolute certain that at least some of what was verified in the complaint against Judge Newman is false. That is a huge concern. How can you take anything the Federal Circuit says at face value when we know without any doubt that some of the allegations are pure fiction?

    And your absurd comparison to a driver being intoxicated is both insulting and asinine. You rather comically and pathetically assume that because Moore says Newman is showing signs of mental decline she must be forced to take Moore’s demanded test. But what if she has not shown any signs of mental decline? What if much of what is in the complaint is false? Should she still be required to take an evaluation? Can police in your state demand a breathalyzer test even when drivers have shown no signs of intoxication? Of course not.

  • [Avatar for Anon]
    February 13, 2024 01:58 pm

    Jake H,

    Your Ageism is showing.

    If you had been following along (and not wanting to make snap and uninformed proclamations), you would have noted that Judge Newman is NOT the most inefficient judge on the bench – notwithstanding her large percentage of dissents.

    Quite frankly, your “sympathy” is not required.

    I would settle for your opening of your eyes.

  • [Avatar for Jake H]
    Jake H
    February 13, 2024 11:44 am

    Mr. Quinn – As I wrote, when my state requires an elderly person to pass a driver’s exam, the person doesn’t get to say “well, Acme Driving School is acredited, highly respected, and they say I’m competent to drive – I demand you accept that.” (As an aside, goodness knows that even without all the reports on Newman, somebody 96 years old is as suspect for severe cognitive decline as a 70 year old driver is for driving skill). *IF* Newman’s complaint was that the person the Fed Cir proposed was biased and wanted a doctor agreeable to BOTH sides, while I don’t know if the Fed Circuit has to agree, I would be more sympathetic. But as I understand, and as you seem to imply here, that’s not the case – she simply proceeded to arrange for her own tests and demand that they be excepted. Come on. Similarly, what happens when a driver shows signs of being intoxicated and they refuse a breathalyzer? Do they get to say “I don’t trust that breathalyzer – here, use mine – it’s made by a very respected company?” No, they get a presumption that they failed the test. As to whether it was fair for the Federal Circuit to make the ruling? Well, that’s the one ground she’s being permitted to challenge, but don’t attack the court for following the law’s process.

  • [Avatar for Anon]
    February 13, 2024 10:56 am

    Jake H,

    Your accusation of “deceptive” is itself deceptive.

    And you are incorrect as to “the reason why,” as not one but two medical reports are on the record.

    What is amazing though, is that you scream out that a fifth grader could see through “the charade” but cannot yourself see through the charade of this being a witch hunt against Judge Newman.

  • [Avatar for Gene Quinn]
    Gene Quinn
    February 13, 2024 10:37 am

    @ Jake H-

    You are wrong. The reason the claims against Judge Newman are unsubstantiated is because the factual assertions made in the complaint have not be subjected to any kind of cross examination.

    We know for 100% certain there are things in the complaint against Judge Newman that are false. Knowing that a reasonable person would wonder if there are other things that are said in the complaint that are also false.

    If and when the factual assertions are challenged I predict we will see other statements that are false, and others (potentially many others) that are misleading.

    As far as a mental evaluation, Judge Newman has had two, and received exceptional scores in both. The Federal Circuit is ignoring those tests, presumably because they want to have a certain physician administer a specific test. Why?

    And why must Chief Judge Moore be the judge, jury and executioner? There are plenty of procedural irregularities here that would raise great concern in reasonable minds.

  • [Avatar for Jake H]
    Jake H
    February 13, 2024 09:17 am

    Another IP “Watchdog” article on Newman, another deceptive spin. The reason the claims against Newman aren’t “substantiated” is she refused the independent evaluation demanded of her (something Law360’s article put front and center) and tried to substitute her own. When the state requires old people to take a periodic driving test at the DMV, they don’t get to substitute their own. A fifth grader could see through this charade.

    And again, the federal employee she threatened to imprison with a false claim of hacking and spreading her emails goes unmentioned because, well, who has time to talk about the little people when mega corporate IP holders are concerned.

  • [Avatar for Model 101]
    Model 101
    February 13, 2024 08:59 am

    There are about 80,000 inventors behind you Polly.

    Have no fear and keep it going!

  • [Avatar for Pro Say]
    Pro Say
    February 12, 2024 07:16 pm

    Keep up your righteous, honorable fight Polly!

    The great majority of IP stakeholders — though silent because of their fear of the CAFC — are behind you 100%.

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