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District Court’s dismissal of Judge Newman’s case against Moore sets stage for appeal

“What the Federal Circuit is doing seems to me to be completely un-American. She’s been reviewed twice and she’s passed. It’s an embarrassment. Judge Newman deserves a parade, not this humiliation.” – Gene Quinn

The U.S. District Court for the District of Columbia today dismissed the remaining challenges to Judge Pauline Newman’s case brought to the U.S. Court of Appeals for the Federal Circuit (CAFC) by Chief Judge Kimberly Moore regarding her fitness to continue serving as a federal appellate judge. The decision sets the stage for an appeal that Newman’s attorney told IPWatchdog will take place “in days, not weeks.”

In February, a district court in D.C. ruled that most of Judge Newman’s relief was barred by legal precedent limiting constitutional challenges to the Judicial Conduct and Disability (JC&D) Act. But the court said it retained jurisdiction over three of the 11 counts and part of another, and allowed the case to proceed on those counts.

A long and winding road

Newman has been facing allegations about her physical and mental fitness to serve as a CAFC judge since April 2023. IPWatchdog first broke the news that Moore had filed a judicial complaint against Newman under the JC&D Act, alleging that she had probable cause to believe that Newman was unable to effectively discharge the duties of her office, alleging that she was slow in issuing her opinions, and that her colleagues on the court had concerns about her overall fitness to serve. Shortly thereafter, the CAFC made the complaint and other documents public, revealing that Moore claimed that Newman had an unidentified health issue and that a Special Committee of the Judicial Council, composed of Moore, Judges Prost and Taranto, had determined that the expert’s recommendation that Newman undergo a medical examination and evaluation was reasonable. Newman refused to submit to examinations by court-selected experts, and the board expanded the scope of its inquiry to consider whether Newman failed to cooperate in violation of Rule 4(a)(5) regarding judicial conduct and incapacity to practice.

In August 2023, the Special Committee accused Newman of “serious misconduct” and recommended that she be suspended from accepting cases for one year “or at least until she ceases her misconduct and cooperates in such a way that the Committee may complete its investigation,” and on September 20, 2023, the Board issued a 375-page order suspending Newman from all cases.

The district court complaint was filed in May 2023, alleging that Moore’s March 24 order was “rife with errors” and citing 12 allegations supporting her claim for relief. Specifically, Newman denied Moore’s claims that she suffered a heart attack and required coronary stent surgery “in the summer of 2021,” noting that she “has served on ten panels and issued at least eight (including majority, concurring, and dissenting) opinions” during that same period. Furthermore, as the complaint states, “even if the allegation were true, having coronary artery disease is simply irrelevant to fitness to serve as a judge.”

A separate decision was issued in February of this year by the Judicial Conference of the United States Committee on Judicial Conduct (Conference) and Disabilities, appealing the Board’s September order.

DC District Court rules in Moore’s favor

Today’s decision found that, with respect to counts eight and ninth in Newman’s complaint, which challenged the JC&D Act under the Fourth Amendment, Section 353(c) of the Act authorizes special committees to engage in activities that do not conflict with the Fourth Amendment. That provision says that special committees may “conduct as extensive an investigation as they deem necessary.” Newman argued that the provision “violates the Fourth Amendment to the extent that it authorizes the involuntary medical or psychiatric examination of an Article III judge” (count eight) or the “involuntary surrender of medical records belonging to an Article III judge” (count ninth) “without a warrant based on probable cause.” However, the court found that “(C)urrent Amendment does not prohibit the acquisition of information . . . provided by (a third party) to a government authority” and that Newman “has failed to establish that every application of the provision violates the Fourth Amendment.”

As to counts five and seven, which raised constitutional ambiguities, the district court initially kept count five alive in February, rejecting Moore’s argument that it was a facial objection disguised as an as-applied objection. The court stated at the time that “

Newman argued in point five that section 351(a) “of the JC&D Act is unconstitutionally vague because it fails to provide ‘adequate information about what constitutes a mental disability’ and ‘lacks minimal enforcement guidelines.’” But the court said today that Newman’s examples “at most…suggest that the statute is open to multiple interpretations” and that “a subjective provision is not unconstitutional.”

The Seventh Court questioned section 353(c) as vague. Newman argued that “(b)ecause there is no specific reference point” for the disability standard of section 351(a), “it necessarily follows that any inquiry into whether that standard is met will itself be
hopelessly vague.” She also said the problem with the order was that “defendants can compel Judge Newman to turn over private documents and then directly punish her for refusing to do so.” The court rejected both arguments, noting that the District of Columbia Circuit “found no constitutional flaw in this arrangement” and ultimately granted Chief Judge Moore’s motion for judgment on the pleadings.

Forge ahead

Newman’s legal counsel, Greg Dolin, senior litigation counsel at the New Civil Liberties Alliance (NCLA), said the decision was not entirely unexpected and that at its core, it was a case about “privacy-invading judicial requests” and whether federal judges can disregard the constitutional structure in which the president appoints judges and Congress initiates impeachment proceedings.

“Even if she were unfit, which she is not, the Committee still would not have the authority to suspend her,” Dolin explained. “Even if the results showed that what the Committee allegedly says is true, they still would not be able to remove her from the bench,” he added.

Dolin previously argued that the Board’s order imposing a one-year suspension on Newman, renewable if Newman elects to undergo Board-preferred medical examinations, constitutes “compulsory” action, not remedial action as required by law, and essentially amounts to removing Newman from the court.

An NCLA statement issued in February said that “Judge Newman’s indefinite suspension is unprecedented in the history of the American judiciary and exceeds the sanctions imposed on judges who have engaged in serious misconduct and irregularities.”

In September 2023, Judge Newman received a standing ovation during IPWatchdog LIVE and in May she participated in the IPWatchdog Patent Litigation Masters program, where she spoke on a panel with retired CAFC Chief Judges Paul Michel and Randall Rader, who shared her opinion that the Federal Circuit has lost direction in recent years, in a number of ways.

Newman also celebrated her 40th anniversary at CAFC this year, and IPWatchdog, along with friends and colleagues, gathered at her headquarters to pay tribute in March.

IPWatchdog founder and CEO Gene Quinn said Moore is simply punishing Newman and what the court is doing to her is “un-American”:

“This is sad news. Perhaps now that the district court has made its decision, the appellate court would be a more appropriate forum. What the Federal Circuit is doing seems to me to be completely un-American. Judge Newman does not suffer from any mental disability, and the Federal Circuit is punishing her because she will not submit to a psychiatric evaluation of her choice by a doctor of her choice. She has been evaluated twice and passed. This is embarrassing. Judge Newman deserves a parade, not this humiliation.”