Federal Circuit Probe of Judge’s Fitness Risks Protracted Battle

The potential for a drawn-out judicial clash lies ahead for a panel of Federal Circuit jurists digging into their chief’s allegations that 95-year-old Judge Pauline Newman is unfit to serve on the bench.

Though the judges may want to resolve the matter quickly, scholars as well as several lawyers who’ve recently examined the process said tricky procedural questions could bog down the probe.

Last week, the US Court of Appeals for the Federal Circuit’s Judicial Council announced a special committee investigation into Newman’s health.

A March 24 order unsealed by the court and signed by Chief Judge Kimberly A. Moore said Newman had two serious health events, including an incident where she fainted following an oral argument. Moore also noted fielding complaints that the judge “may suffer from impairment of cognitive abilities.”

Moore filed the misconduct complaint that led to the probe. In compliance with legal standards, the chief judge also is required to be on the investigative committee.

“The special committee and council will try to proceed as quickly as possible, with due process and the obligation of fairness, because to have this hanging over the court is a terrible thing,” 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.

However, the committee also took steps to have Newman undergo medical testing, as described in a separate April 13 order, and Newman has reportedly refused to cooperate. Hellman said the standoff could be extremely difficult to resolve.

“One of the open questions is whether the Judicial Council has the authority to order a mental examination of a judge who’s resisting,” he said. “That could be very, very prolonged.”

Disability Concerns

Most complaints filed against judges under the the 1980 Judicial Conduct and Disability Act deal with misconduct rather than disability, and most disability concerns are dealt with informally without a formal process or publicity.

“The argument against a mandatory retirement age for federal judges and justices has always been that their family members and friends and colleagues will tell them when its time to go and they will take that advice,” David R. Garrow, an American legal historian, said.

That’s not always how it works in reality, however, Garrow said. The most well known case of the informal process failing may be the US Supreme Court with Justice William Douglas, who refused to step down despite his inability to carry out his duties. The Supreme Court—despite Justice Byron White’s disagreement—privately decided that Justice Douglas’ vote wouldn’t count.

“What we have here is Judge Moore has made multiple repeated private informal efforts—and I gather multiple of her colleagues have, too—to convince Judge Newman to step away from her duties, and just like Justice Douglas back in the 1970s, zero success,” he said.

As a result, questions about the process, including forced medical examination, haven’t been tested in the courts. Newman’s case could open the door for such a challenge, Hellman said.

A court got close at least once, after a judicial council made up of judges in the Sixth Circuit sought a psychiatric examination of Ohio federal Judge John R. Adams after he was accused of misconduct and being disruptive by four fellow judges.

Adams, who serves on the US District Court for the Northern District of Ohio, fought the testing and filed suit in federal court in Washington. But the Sixth Circuit judicial council ultimately ended its investigation and withdrew its directive that the judge undergo a mental health evaluation.

Potential Transfer?

There continues to be uncertainty among practitioners and academics on what to expect next, given the uncharted territory that the complaint ventures into.

Hellman said a transfer of the case to another federal appeals court is still possible. Typically, though, a chief judge would request a transfer before an investigative committee is formed.

“If there’s a feeling among Newman’s supporters that there is bad blood between Moore and Newman, that could be a reason to ask for a transfer,” he said.

The purpose of the complaint process, he continued, “is to get a result more likely to be accepted by all sides, so internal tensions would be a good reason to request a transfer.”

Unintended Consequences

The last known instance of impropriety at the Federal Circuit was tied to Judge Randell Ray Rader—who resigned in 2014—according to Charles Duan, a member of the U.S. Patent and Trademark Office’s Patent Public Advisory Committee and a professor at American University’s Washington College of Law.

Rader resigned after he breached an ethical obligation by sending a complimentary email to a member of the Federal Circuit bar, asking that the member show other members as well.

“We know the Court will not tolerate impropriety from the bar or bench given what happened when then-judge Randall Rader’s misconduct came to light,” said Alex Moss, a former law clerk for Federal Circuit Judge Timothy B. Dyk and executive director of the Public Interest Patent Law Institute. “Whatever is happening now is a far cry from that.”

Duan and other attorneys said an order against Newman may have unintended consequences for the appellate court.

“My guess is that there are concerns that if a Federal Circuit judge seems to be pushed out, that it is problematic for the court’s reputation,” Duan said.

The impact on the reputation of the judges involved might not be known until a final determination is reached through the investigation, said Joshua Landau, senior counsel of innovation policy at the Computer & Communications Industry Association.

In any case, judicial working relationships may already be a casualty of this fight, he said. Public knowledge of the orders “may result in less collegiality at the circuit and less willingness to be open with one another.”