D.C. Circuit Can’t Unseal Newman Files, Federal Cir. Argues (1)

The D.C. Circuit doesn’t have the authority to unseal documents related to the Federal Circuit’s suspension of Judge Pauline Newman, that court’s chief judge argued.

An appellate court may unseal only records it restricted and those sealed by a lower court under its jurisdiction—not documents controlled by another appellate court—according to a redacted opposition to Newman’s motion to unseal filed Thursday in the US Court of Appeals for the District of Columbia Circuit.

US Court of Appeals for the Federal Circuit Chief Judge Kimberly Moore and a special committee of the Judicial Council of the Federal Circuit also said the records Newman asked to unseal were made confidential by judicial misconduct and disability proceedings, and nothing in the law governing such actions allows the subject to waive that confidentiality.

“While these confidentiality requirements exist in part to protect the judge subject to the complaint, they also protect broader interests in ensuring the fairness and integrity of the process,” Moore and the special committee wrote.

Newman, who was appointed to the Federal Circuit in 1984 and is the nation’s oldest active judge, refused to undergo independent neurological testing or turn over medical records during the Judicial Council’s probe into her fitness. The council said the refusal merited suspension, which Newman called “an unconstitutional end-run around impeachment.”

Newman is now appealing the dismissal of her May 2023 lawsuit seeking reinstatement. She argued in her Dec. 9 motion to unseal that the documents don’t implicate anyone’s privacy interests, other than hers, and don’t name any witnesses or complainants who were interviewed by the special committee.

“No justifiable reason exists to keep these documents under seal, and the law requires that they be made public,” Newman’s motion said.

Moore and the special committee plan to release Newman’s requested materials once redactions are made and after “an appropriate stage” of the committee’s investigation, which could be completed sometime after the holidays, according to the opposition filing.

Andy Morris of the New Civil Liberties Alliance, counsel for Newman, said in an emailed statement the opposition didn’t identify any legal reason to block public disclosure of the information. Newman wants to make the information public and will be filing a reply, he said.

“Under the governing law, vague statements that the Special Committee wants to ‘protect the integrity of the process’ are no basis for keeping this information from the public,” Morris said.

Moore and the Federal Circuit Judicial Council are represented by the US Justice Department.

The case is Newman v. Moore, D.C. Cir., No. 24-05173, opposition filed 12/19/24.