Federal Circuit Chief Moore Takes Action to Unseat Judge Newman

Federal Circuit Chief Judge Kimberly A. Moore filed a complaint alleging that fellow Judge Pauline Newman is unfit to fulfill her duties, sources with knowledge of the situation confirmed to Bloomberg Law.

The complaint filed under the 1980 Judicial Conduct and Disability Act also claims Newman, 95, hasn’t kept up with her workload, the sources who spoke on condition of anonymity said. That law establishes a process through which anyone can complain about a judge’s alleged lack of fitness. It can result in a wide range of sanctions, including a request for a judge to retire voluntarily.

Intellectual property blog, IP Watchdog.com, first reported the development at the US Court of Appeals for the Federal Circuit, often described as the nation’s top patent court.

The chief judge’s allegations against Newman for habitual delay in issuing decisions were called “unprecedented” by some attorneys and legal academics who spoke to Bloomberg Law.

Complaints under the Judicial Conduct and Disability Act against district and appellate judges often allege other types of misconduct, such as sexual harassment or ethics violations.

“There’ve been judges who exasperated their colleagues because they’re so slow and meticulous and write their own footnotes, but I’m not sure it ever occurred to anyone to use the misconduct process” to address it, said Arthur Hellman, a law professor at the University of Pittsburgh and an expert on the structure of the federal appellate court system and judicial ethics.

Newman was nominated to the Federal Circuit by former President Ronald Reagan and confirmed in 1984. Former President George W. Bush nominated Moore, now age 54, to the appeals court in 2006. She became chief judge in 2021.

It’s unclear if Moore’s allegations focus on Newman’s physical or mental abilities, or where the complaint is in the procedural process.

Newman has “always been one of the slower judges on the court,” one source said, but attributed her speed to being “an extraordinarily careful writer.”

One source said that the complaint could go through a committee investigation to collect evidence, and Newman may provide evidence to a judicial counsel. Following this, a seven-member body comprising appellate judges from a variety of circuits would come to a decision on the matter, the source said.

The Federal Circuit’s clerk’s office didn’t respond to requests for comment.

Complaint Process

The Judicial Conduct and Disability Act contains a provision that allows complaints to be transferred to other appeals courts for review and potential investigation. “I would expect that to happen here,” Hellman said.

“The fact that you have a chief judge initiating a complaint against a long-time colleague would suggest this ought to be handled by the chief judge and circuit council” of another federal appeals court, Hellman said.

Hellman said a complaint based on a judge’s habitual delay in reaching opinions is “unusual” and an “extraordinary step,” but not out of the question under federal rules.

“Delay in a single case is not misconduct, but if you have a pattern in a significant number of cases, it’s possible that that would be the basis of a complaint,” he said

Across the federal judiciary, 375 complaints were filed against appellate judges and 866 against district court judges in 2022, the last year for which there are statistics.

However, only 12 of those cases survived early dismissal.

If a circuit or district judge is eligible to retire but doesn’t do so, one sanction under the law involves certifying the disability of the judge so that an additional judge may be appointed.

Some judges hit with complaints retire to avoid investigations.

Senior Status?

IP Watchdog’s report further alleged that Moore gave Newman, who is 95, an offer to take senior status, and avoid the complaint process.

“It’s a very odd suggestion because senior status judges are permitted to continue hearing cases, often including a full load,” said one source with knowledge. The source said that while the status could also mean a reduced work load, the offer is confusing because “if somebody is incompetent, it shouldn’t really matter if they’re hearing one case or five cases.”

Former Newman clerk Brian Abramson, a vaccine law expert, said the judge despite her age was in good health. “I’ve spoken with her and visited in chambers with her in December, and she is certainly as lucid and possessed of her faculties as she’s ever been.”

Hellman cautioned, however, that senior-status judges only hear cases “at the pleasure of the chief judge.” He said the prospect of getting no cases could explain why Newman would’ve rejected going to senior status.

Potential Court Opening

If Newman took senior status, it would create a vacancy on the influential Federal Circuit, which has exclusive appellate jurisdiction over patent cases.

IP Watchdog’s report included speculation that Moore could be motivated to create a spot that the Biden Administration could then fill.

Alex Moss, a former law clerk for Federal Circuit Judge Timothy B. Dyk and executive director of the Public Interest Patent Law Institute, said she had only learned about the complaint from a press report and hadn’t seen the document. But she said suggestions that political motivations influenced Moore don’t add up.

“The idea Judge Moore would do this out of a desire to help President Biden is preposterous,” Moss said. “Among countless reasons, it ignores the fact that she was appointed by a Republican president, George W. Bush.

“It’s a shame this has become fodder for speculation,” she said. “Judge Moore and Judge Newman are both legends of the law who deserve the utmost respect. Speculating about their motives is wrong.”

—With assistance from Kelcee Griffis