Newman’s Judicial Fitness Lawsuit Enters ‘Uncharted Territory’

Judge Pauline Newman’s new lawsuit against her Federal Circuit colleagues, who are leading an investigation into her fitness to remain on the bench, tests the boundaries of how a judge may be forced into retirement.

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 Kimberly A. Moore unfairly targeted Newman over her health and performance on the US Court of Appeals for the Federal Circuit, as well as directed her to submit to mandatory “neurological and neuropsychological examinations” and to disclose medical records. Newman’s lawsuit adds that members of her staff have been reassigned and that she’s been unconstitutionally suspended from hearing new cases while the probe plays out.

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.

Judge John R. Adams filed a similar lawsuit in 2017 to fight a psychiatric examination ordered after he was accused of misconduct and being disruptive by four fellow judges in the Northern District of Ohio. But the Sixth Circuit Judicial Council ultimately ended its investigation and withdrew the exam request, leading Adams’ lawsuit to be tossed as moot.

In another case from two decades ago, Judge John H. McBryde of the Northern District of Texas sued to shake the Fifth Circuit Judicial Council’s sanction against him—barring him from hearing new cases for a year—that had been issued over behavioral issues. The US District Court for the District of Columbia upheld the suspension and found it was narrowly tailored enough to avoid unconstitutionally removing McBryde as a 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.

Performance Metrics

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 Jimmie V. Reyna filed 13 such opinions, and Judge Timothy B. Dyk filed 11 during the same period, according to Gugliuzza’s data.

“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.