CAFC Committee Recommends Another Year of Sanctions Against Newman
“In light of the Supreme Court once again adopting Judge Newman’s views over those of her colleagues, perhaps a better explanation for this phenomenon is not Judge Newman’s disability, but her colleagues’ incorrect approach to resolving legal issues.” – Newman Response to Show Cause Order
Judge Pauline Newman speaking on a panel with Retired CAFC Chief Judges Paul Michel (center) and Randall Rader (right) at IPWatchdog’s Patent Litigation Masters 2024.
The Special Committee of the U.S. Court of Appeals for the Federal Circuit (CAFC) that has been investigating Judge Pauline Newman’s alleged misconduct for the past year today renewed its recommendation to sanction Newman in the form of a suspension from hearing cases at the panel or en banc level for an additional year.
The Committee consists of CAFC Chief Judge Moore and Judges Prost and Taranto. In August 2023, the panel issued a 319-page report recommending the sanction of suspension and characterizing Newman’s refusal to submit to medical testing by the Committee’s selected doctors as “serious misconduct” that has “[t]hwarted the process Congress created for determining whether a life-tenured judge suffers from a disability.”
Today’s report and recommendation rehashes the allegations made last year and renews the suspension, “subject to renewal if Judge Newman’s conduct persists and subject to reconsideration if Judge Newman’s conduct changes.”
Newman’s counsel, Greg Dolin of the New Civil Liberties Alliance (NCLA), has argued previously that this sanction amounts to a “floating” period of punishment that constitutes “coercive” action, rather than remedial, as required by the rules, and effectively equates to Newman’s removal from the court.
The CAFC also released a number of other documents today, including Newman’s June 28 response to the Committee’s “show cause order” asking her to explain why she should not be subject to a renewed sanction. In that response, Newman’s counsel argued that the proceedings “could and should have been terminated months ago in light of clear evidence of Judge Newman’s continued ability to exercise the functions of her life-tenured office.”
Among the examples provided was the U.S. Supreme Court’s April 2024 reversal of an en banc decision of the CAFC, which adopted the reasoning of Newman’s dissent. The response said this calls into question one of the main arguments the Committee relied on to call Newman’s mental fitness into question, namely, that she “would often author ‘opinions that no other member of the panels would join.’” The response explained: “In light of the Supreme Court once again adopting Judge Newman’s views over those of her colleagues, perhaps a better explanation for this phenomenon is not Judge Newman’s disability, but her colleagues’ incorrect approach to resolving legal issues.”
The response also pointed to the SCOTUS opinion as undermining the Committee’s other key gripe about Newman, namely that she takes too long to write opinions:
“The less time a judge spends on a matter, the greater the likelihood that such judge errs. There is room for reasonable disagreement as to where to strike that balance. Judge Newman prioritizes getting her opinions right, even at the (arguable) cost of delays. Her colleagues appear to prioritize speed, even at the (arguable) cost of getting more cases ‘wrong.’ Neither choice is particularly unreasonable, and neither suggests one’s inability to continue serving as a federal judge.”
The response also noted Newman’s’ numerous public appearances, interviews and remarks over the last year as evidence of her intellectual abilities and competence and said that Moore’s actions over the last year raise serious partiality concerns. For instance, Newman was not invited to substantively participate in the most recent Judicial Conference of the Federal Circuit and has been barred from most intra-court communications. “These actions constitute a tacit admission that Judge Newman has been suspended not just from hearing cases, but from her office,” said the response.
The Committee’s Report and Recommendation today denied claims that the sanctions imposed effectively remove her from office, however. “[R]enewing a one-year sanction suspending Judge Newman from hearing cases does not, as she argues, remove her from her office nor does it punish her again for past misconduct. Instead, it applies a new, limited sanction for continuing misconduct in the form of Judge Newman’s continuing refusal to cooperate with a duly authorized investigation.”
The report argued that if sanctions could not be renewed, any judge could engage in misconduct knowing their punishment would only be finite. “When Congress established the self-policing mechanism for the judiciary in the Act, it did not intend such a toothless regime that would leave Judicial Councils effectively unable to enforce cooperation with investigations,” the Committee said.
In Newman’s separate district court challenge of the Committee’s investigation, the U.S. District Court for the District of Columbia most recently dismissed the remaining counts in the case, and Dolin said they planned to appeal “within days, not weeks.”
Eileen McDermott
Eileen McDermott is the Editor-in-Chief of IPWatchdog.com. Eileen is a veteran IP and legal journalist, and no stranger to the intellectual property world, having held editorial and managerial positions at […see more]
