Fed. Cir. Judges Urged to Try Mediation in Newman Fitness Probe

A D.C. federal judge is recommending Judge Pauline Newman and her Federal Circuit colleagues use mediation to resolve the 96-year-old’s claims that a probe into her fitness to keep working should be transferred out of her colleagues’ jurisdiction.

During a Thursday status conference, Judge Christopher R. Cooper of the US District Court for the District of Columbia said the case “really cries out for some type of mediation” and questioned whether the parties have sat down to try to work things out more informally.

Cooper said he’d recommend a former federal judge who would be 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.

In her highly unusual complaint, Newman claims Federal Circuit Chief Judge Kimberly Moore and her other colleagues are too close to the ongoing investigation they launched into whether Newman has a disability that impedes her work. She’s asked for another circuit’s judicial council to preside over the probe. Newman also counters that she’s perfectly fine and has been improperly sidelined from hearing new cases while the dispute plays out.

Cooper gave the parties two days to discuss the mediation route. If they’re unable to reach a consensus on the approach, the claims will proceed to a federal court briefing on Newman’s motion for a preliminary injunction. Separately, a closed-doors hearing at the US Court of Appeals for the Federal Circuit is set for July 13 to discuss whether Newman’s refusal to cooperate with the internal probe constitutes sanctionable misconduct.

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

The case is NEWMAN v. MOORE et al, Fed. Cir., No. 23-cv-01334, status conference held 7/6/23.