96-Year-Old Judge, Federal Circuit Must Mediate Fitness Dispute

A D.C. federal judge ordered 96-year-old Judge Pauline Newman and her colleagues on the Federal Circuit to mediate a contentious dispute over whether Newman is fit enough to keep serving on the bench.

Judge Christopher R. Cooper of the US District Court for the District of Columbia on Tuesday directed the parties to set up informal resolution talks with retired appellate Judge Thomas P. Griffith, special counsel at Hunton Andrews Kurth LLP.

Mediation would begin a new chapter in an unusually public employment clash within the judiciary, which has sparked renewed debate over lifetime appointments.

See the full timeline: A Visual Timeline of 96-Year-Old Judge Newman’s Fitness Probe

Cooper’s order will not interfere with a Thursday closed-doors hearing at the US Court of Appeals for the Federal Circuit, Newman’s attorney Greg Dolin told Bloomberg Law. A special committee of the appeals court’s Judicial Council is scheduled to discuss whether Newman’s refusal to cooperate with the probe into her fitness amounts to sanctionable misconduct.

However, the order pauses briefing on Newman’s pending motion for a preliminary injunction, which seeks to restore her to an active caseload on the Federal Circuit.

The appeals court didn’t immediately respond to a request for comment.

Newman sued her colleagues after they prevented her from hearing new cases and carrying out other judicial functions as part of the Federal Circuit Judicial Council’s investigation into her fitness.

At a hearing last week, Cooper said he was prepared to recommend someone well suited to mediating the issues, including to what extent Newman should be required to give up medical records and submit to neurological testing, as well as what the scope of her duties should be in the meantime.

While Griffith sat on the District of Columbia Circuit, he served on the special committee that sets the ethical standards that govern the federal judiciary.

In her complaint, Newman claimed Federal Circuit Chief Judge Kimberly Moore and her other colleagues are too close to the ongoing investigation, which they initially launched to determine if Newman has a disability that impedes her work.

She’s asked for another circuit’s judicial council to preside over the probe. Newman has also argued that she’s in fine health and has been improperly sidelined from hearing new cases while the dispute plays out.

Cooper’s order states that by Aug. 2 the parties should update him on the outcome of the mediation.

The New Civil Liberties Alliance represents Newman. The US Department of Justice represents the government.

The case is Newman v. Moore, D.D.C., No. 1:23-cv-1334, order 7/11/23.