Federal Circuit Judges Critique Newman’s Clean Bills of Health

A trio of judges said Friday that doctors’ examination reports Judge Pauline Newman has presented as part of her legal effort to fight her suspension at the Federal Circuit contained major errors and unscientific conclusions.

Newman—who at 97 is the oldest active federal judge in the country—was benched by her colleagues on the US Court of Appeals for the Federal Circuit Judicial Council after refusing to cooperate with a probe into whether she has a cognitive disability. She has pointed to a series of medical examinations she voluntarily underwent to bolster administrative and legal challenges to her suspension.

Most recently, Newman in September highlighted a report in which California neurosurgeon Aaron Filler called her “fully capable” and a “super-ager” based on images of her brain and an interview he conducted with her.

But a group of medical specialists consulted by a three-judge investigative committee handling the disability case poked holes in Filler’s work and questioned its reliability in an order released Friday and signed by Chief Judge Kimberly A. Moore and Judges Sharon Prost and Richard G. Taranto.

The order lays out the findings of neurologist James Noble, clinical neuropsychologist Jonathan DeRight, and diagnostic radiologist Jason Johnson, and seeks a written response from Newman by Feb. 20. Each of the judges took issue with the notion that Filler’s use of a CT Perfusion brain-scanning technique he pioneered could rule out a mental impairment or serve as a substitute for a more comprehensive type of testing.

Noble said in an exhibit attached to the order that “CT Perfusion can only demonstrate that a region of the brain is effectively receiving blood,” noting that areas of the brain that have sufficient blood flow “can still be dysfunctional.”

DeRight similarly faulted the Filler report for not addressing “all possible causes of cognitive impairment” and called Filler’s conclusions from his interview of Newman “highly subjective, unscientific, and unreliable.”

The order also raises questions about redactions to the publicly available version of Filler’s report that’s part of the administrative record. The judges said certain redactions that were sought by Newman “present a one-sided and arguably distorted account” of Filler’s findings. Specifically, the order says, Newman “generally chose not to redact” medical “information that presented normal results” but sought to keep from public view information that “might present a different overall picture.”

In the order, the judges also sought Newman’s response to their request to unseal certain redacted information from the report.

Newman’s lawyer Greg Dolin of the New Civil Liberties Alliance said the suspended jurist offered to let the Federal Circuit’s investigative committee cross-examine Filler themselves if they had questions or concerns about his report. It’s unclear, he said, whether Newman will be given a similar opportunity to depose or cross-examine the trio of doctors consulted by the council.

Dolin said the committee’s reports seemed to give complete credence to observations of Newman from court staffers while giving none to the judge’s own statements about her health. The judge still wants an opportunity to cross-examine the staffers to see if their recollections and memories hold up and provide a reliable assessment, he said.

In any event, Dolin said, the decision to sideline an appointed federal judge should be “in her own hands or in the hands of Congress—even if a judge is completely corrupt, or disabled, or unwilling to work, which she is not.”

The case is In Re Complaint, Jud. Council Fed. Cir., 23-90015, Order 2/7/25.