The 95-year-old jurist’s case is one of very few in recent memory in which a sitting judge sued over fitness or disciplinary proceedings against them, lawyers and academics told Bloomberg Law.
And even those lawsuits haven’t generated case law that would inform Newman’s quest to be fully restored to her post, said Arthur Hellman, a law professor at the University of Pittsburgh.
“We’re really in uncharted territory here,” said Hellman, who specializes in the federal appellate court system and judicial ethics.
No Clear Analogues
Newman filed a complaint May 10 in D.C. federal court, alleging various constitutional violations, including under the First, Fourth and Fifth amendments.
It says Chief Judge
Moore launched the inquiry into Newman under the Judicial Conduct and Disability Act and made some details public last month.
“It’s extremely uncommon for judicial disability matters to even get to the point of formal proceedings, much less for the judge in question to sue to stop them,” said Paul Gugliuzza, a Temple University law professor specializing in intellectual property and appellate courts, in an email.
In another case from two decades ago, Judge
Ultimately, “neither of those cases established any very helpful precedents,” Hellman said, calling Newman’s present saga an “extraordinary situation.”
Still, he suggested Newman might find purchase with her argument that she’s been suspended too early in the process—before the Federal Circuit Judicial Council committee makes a final determination in its probe— and that such a suspension wrongly interferes with her status as a sitting judge.
Another key allegation Moore leveled against Newman is that the elder judge has failed to keep up with her case load—a premise that Newman’s complaint rejects.
During the summer of 2021, a period during which Moore alleged Newman suffered a heart attack, the new complaint said that Newman “was a member of ten different panels of the Court—more than any other colleague but two.”
Newman penned only nine majority opinions between June 2021 and December 2022, according to data Gugliuzza shared with Bloomberg Law before its Thursday publication in a blog post. That amounted to 2% of the court’s total opinions issued during those months, according to Gugliuzza, who analyzed the number of cases that each of the 10 active Federal Circuit judges handled during that period.
However, she also wrote 23 separate concurring or dissenting opinions in other cases, roughly twice as many as the other most-active dissenters on the court. Judge
“The number of opinions written is perhaps the best objective measure we have about whether a judge is ‘unable’ to do the job, which is ultimately the relevant question,” Gugliuzza told Bloomberg Law in an email. “Maybe Judge Newman’s cases move slowly, but they’re still being resolved.”
In the meantime, several members of the patent bar expressed regret about the way the saga is playing out.
Alex Moss, executive director of the Public Interest Patent Law Institute, said she was “struck by the tone” of Newman’s complaint.
“While anger is understandable, it doesn’t seem particularly helpful,” she wrote in an email. “It makes me sad to see this kind of open conflict between judges I respect and admire so much.”
The case is Newman v. Moore, D.D.C., No. 23-cv-01334, filed 5/10/23.
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