Deny Oldest US Judge’s Case for Reinstatement, Colleagues Argue

Federal Circuit Judge Pauline Newman’s lawsuit seeking reinstatement following a probe into the 96-year-old’s mental wherewithal should be tossed, her appeals court colleagues told a Washington, D.C., federal district judge.

Newman’s fellow jurists on the US Court of Appeals for the Federal Circuit voted unanimously in September to bar her from getting new case assignments—a punishment for her refusal to submit to a full neurological exam ordered by an investigative panel. They defended their decision in a filing late Friday responding to Newman’s bid for immediate reinstatement and her brief opposing dismissal of her lawsuitin US District Court for the District of Columbia.

Newman’s suit challenges her suspension, which is for a year, and an earlier one imposed while an investigative committee of Federal Circuit judges was looking into allegations about her health and productivity. The judges’ latest response says the suit must be dismissed, restating previous arguments that Newman can challenge her suspension only through the US Judicial Conference or at the US Supreme Court.

Her colleagues allege Newman’s no longer able to perfom simple tasks, lacks focus and has accused the court’s IT staff of hacking her computer. The outbursts detailed in filings “were only the tip of the iceberg,” according to Friday’s reply brief. “While those significant concerns about Judge Newman’s fitness persist today, the circumstances surrounding her amended complaint do not. Judge Newman has steadfastly re-fused to comply with the Special Committee’s common-sense requests that she undergo specified cognitive testing, provide specified medical records, or even participate in an inter-view with the Committee.”

In Friday’s filing, her colleagues argued that the earlier of the two suspensions, issued on June 5 and a major focus of Newman’s suit, was vacated on Nov. 9 after Newman cleared her case backlog a week earlier. Her lawsuit should therefore be dismissed as moot, they argued.

Other parts of her suit, the judges argued, are barred by the statute governing judicial misconduct and disability investigations.

If any of Newman’s legal arguments overcome those objections, they stated, then she should bring the challenges at the Supreme Court, which sits above the Federal Circuit, and not the district court where she sued. Her district court suit could see her immediately returned to full judicial duties if her preliminary injunction is approved.

Newman indicated through her lawyer that she is appealing her suspension separately at the Judicial Conference’s Committee on Judicial Conduct and Disability.

Proceedings at the committee, which consists of seven circuit and district court judges, are confidential until the issuance of a final decision. And “there’s really no way of knowing” how long the committee will take to issue a ruling, said Arthur Hellman, a law professor at the University of Pittsburgh who has written extensively about judicial ethics.

Public Drama

Federal Circuit Chief Judge Kimberly A. Moore launched the fitness probe in late March in the wake of Newman allegedly suffering a cardiac incident—the details of which have been hotly contested—and amid concerns over her productivity.

From the beginning, the proceeding was unprecedented in its public nature.

Though judicial disability investigations tend to be carried out quietly and behind the scenes, that has not been the case for Newman. Her supporters have rallied to her defense in newspaper editorials and several patent law groups have honored her even as she tussles with with her colleagues.

New Civil Liberties Alliance represents Newman. The Justice Department represents the Federal Circuit Judicial Council and members of its special investigative committee.

The case is Newman v. Moore, D.D.C., 1:23-cv-1334, reply brief 11/17/23.