Newman Accuses Fed. Cir. of Concealing Files to Control News (1)

The Federal Circuit’s chief judge is fighting the release of documents related to Judge Pauline Newman’s suspension to control the media narrative surrounding her removal from the court, 97-year-Newman said in a Thursday filing.

Newman urged the US Court of Appeals for the D.C. Circuit, where she is appealing the dismissal of her lawsuit seeking reinstatement, to unseal four filings because her colleagues’ “word salad” opposition fails to demonstrate “the slightest harm” from disclosure, she said in a reply to her motion to unseal. The documents illustrate Chief Judge Kimberly Moore and the Federal Circuit’s Judicial Council’s “ever-changing and ever-expanding demands for Judge Newman’s medical records” and are relevant to her due process arguments, the reply said.

Newman was appointed to the Federal Circuit in 1984 and is the nation’s oldest active judge. She refused to undergo independent neurological testing or turn over medical records during the Judicial Council’s probe into her fitness in 2023, which the council said merited suspension.

The four documents, including a December 2024 gag order, are part of a supplemental appendix from administrative proceedings by the Federal Circuit’s Judicial Council investigating Newman’s mental fitness. She moved to unseal the documents on Dec. 9, arguing they 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.

Moore and the council opposed the motion on Dec. 19, claiming the D.C. Circuit doesn’t have authority to unseal documents and sealing is necessary to “protect broader interests in ensuring the fairness and integrity of the process.”

While the Federal Circuit said it will release the documents themselves in “a matter of weeks,” Newman argued the court doesn’t “explain why these additional weeks are needed, what needs to be accomplished during these weeks, nor how this delay will improve ‘the fairness and integrity of the investigative process.’”

The motion said the Federal Circuit’s true concern is merely controlling the media narrative because the law doesn’t allow “withholding documents and then releasing them only at the pleasure of the chief judge as a permissible basis for refusing to make material public.”

Newman claimed the Special Committee released its Report and Recommendation before receiving her response, then withheld her replies until the Judicial Council issued final orders. This selective disclosure indicates her opponents sought “favorable press coverage” and reinforces why the court should reject their opposition to unsealing, according to the filing.

Newman acknowledged the need for confidentiality to protect witnesses, but argued it’s irrelevant here, because the investigation is complete and the documents contain no confidential witness names, national security information, trade secrets, or any sealable material.

Further, the DC Circuit has the authority to unseal the documents because the appellees are not “a court,” but participants in an agency process, Newman argued.

The Federal Circuit declined to comment.

Moore and the Federal Circuit Judicial Council are represented by the US Justice Department. Newman is represented by the New Civil Liberties Alliance.

The case is Newman v. Moore, D.C. Cir., No. 24-05173, reply filed 12/26/24.