D.C. Court’s Dismissal of Judge Newman’s Case Against Moore Sets Stage for Appeal
“What the Federal Circuit is doing strikes me as entirely un-American. She has twice been evaluated and passed. This is 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 counts in Judge Pauline Newman’s challenge to U.S. Court of Appeals for the Federal Circuit (CAFC) Chief Judge Kimberly Moore’s inquiry into her fitness to continue serving as a federal appellate judge. The decision sets the stage for an appeal, which Newman’s lawyer told IPWatchdog will happen “within days, not weeks.”
In February, the D.C. district court determined that most of Judge Newman’s requested relief was foreclosed by legal precedent limiting constitutional challenges to the Judicial Conduct and Disability (JC&D) Act. However, the court said it maintained 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 battling accusations about her physical and mental ability 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 claiming she has probable cause to believe that Newman is unable to effectively discharge the duties of her office, alleging that she is slow to issue opinions and that colleagues on the court had concerns about her overall ability to serve. Soon after, the CAFC made the complaint and other documents public and it was revealed that Moore was claiming Newman had suffered an unidentified health problem and that a Special Committee of the Judicial Council composed of Moore and Judges Prost and Taranto determined that an expert’s recommendation that Newman undergo medical testing and evaluation was warranted. Newman refused to undergo testing by the court’s chosen experts and the Committee then expanded the scope of the investigation to consider whether Newman has failed to cooperate, in violation of Rule 4(a)(5) for Judicial Conduct and Judicial Disability Proceedings.
In August 2023, the Special Committee charged Newman with “serious misconduct” and recommended she be suspended from taking on case assignments for one year, “or at least until she ceases her misconduct and cooperates such that the Committee can complete its investigation” and on September 20, 2023, the Council released 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 “riddled with errors” and citing 12 counts warranting claims for relief. Specifically, Newman denied Moore’s allegations that she suffered a heart attack and had to undergo coronary stent surgery “during the summer of 2021,” noting that she “sat on ten panels and issued at least eight (including majority, concurring, and dissenting) opinions” during that same time period. Furthermore, said the complaint, “even were the allegation true, having coronary artery disease is simply irrelevant to one’s ability to be able to carry out judicial functions.”
Separately, in February of this year, the Judicial Conference of the United States’ Committee on Judicial Conduct (Conference) and Disability issued its decision in Newman’s appeal of the Council’s September order.
D.C. Court Sides with Moore
Today’s decision found that, as to counts eight and nine of Newman’s complaint, which presented facial challenges to the JC&D Act under the Fourth Amendment, Section 353(c) of the Act authorizes special committees to engage in conduct that does not run afoul of the Fourth Amendment. That provision says special committees may “conduct an investigation as extensive as it consider[ed] necessary.” Newman argued that the provision “violates the Fourth Amendment to the extent it authorizes a compelled medical or psychiatric examination of an Article III judge” (Count Eight) or “a compelled surrender of medical records belonging to an Article III judge” (Count Nine) “without a warrant based on probable cause.” But the court said “[T]he Fourth Amendment does not prohibit the obtaining of information . . .conveyed by [a third party] to Government authorities” and that Newman “has not shown that every application of the provision offends the Fourth Amendment.”
As to counts five and seven, which had to do with constitutional vagueness, the district court initially kept count five alive in February, rejecting Moore’s argument that this was a facial challenge disguised as an as-applied challenge. The court said at the time “[t]his argument falters at its initial premise” because “Judge Newman is not ‘clearly’ someone to whom the JC&D Act’s standard of disability applies because none of the complaints about her potential disability have been substantiated.”
Newman had argued in Count five that Section 351(a) of “the JC&D Act is unconstitutionally vague in that it fails to ‘provide adequate notice of what constitutes a mental disability’ and ‘lacks minimum enforcement guidelines.’” But the court said today that the examples Newman provided of this “at most…suggest that the statute is subject to multiple interpretations” and “a subjective statute is not an unconstitutional one.”
Count seven challenged Section 353(c) as vague. Newman argued that “[b]ecause there is no defined reference point” for § 351(a)’s disability standard, “it necessarily follows that any inquiry into whether that standard has been met will itself be
hopelessly vague.” She also said that the problem with the provision is that “Defendants can compel Judge Newman to turn over private documents and then directly sanction her for declining to do so.” The court rejected both arguments, noting that the D.C. Circuit “has found no constitutional defect in that arrangement,” and ultimately granted Chief Judge Moore’s motion for judgment on the pleadings.
Forging Ahead
Newman’s counsel, Greg Dolin, who is Senior Litigation Counsel with the New Civil Liberties Alliance (NCLA), said the decision was not entirely unexpected and that, at its core, this is a case about the court’s “privacy-invading demands” and whether federal judges can flout the constitutional structure in which the president appoints and congress impeaches judges.
“Even assuming she was unfit, and she’s not, the Committee still would not have power to suspend her,” Dolin explained. “Even if the outcome showed what allegedly the Committee says is true, they would still be powerless to remove her from the bench,” he added.
Dolin has argued previously that the Council’s Order imposing a floating period of one year that is renewable depending on whether Newman chooses to submit to the Council’s preferred medical examinations constitutes “coercive” rather than remedial action, as required by the rules, and essentially amounts to Newman’s removal from the court.
An NCLA statement issued in February said that “Judge Newman’s indefinite suspension is unprecedented in American judicial history, exceeding sanctions imposed on judges who committed serious misconduct and improprieties.”
In September 2023, Judge Newman got a standing ovation at IPWatchdog LIVE, and in May, she participated in IPWatchdog’s Patent Litigation Masters program, where she spoke on a panel with retired CAFC Chief Judges Paul Michel and Randall Rader, who echoed her sentiment that the Federal Circuit has lost its way in recent years, in more ways than one.
Newman also celebrated 40 years with the CAFC this year, and IPWatchdog joined with friends and colleagues in her chambers to honor her in March.
IPWatchdog founder and CEO Gene Quinn said that Moore is simply punishing Newman and that what the court is doing to her is “un-American”:
“This is unfortunate news. Perhaps now that the district court has made its decision the appeals court will be the more proper forum. What the Federal Circuit is doing strikes me as entirely un-American. Judge Newman does not suffer from any mental disabilities, and the Federal Circuit is punishing her because she will not take the mental evaluation of their choosing administered by the doctor of their choosing. She has twice been evaluated and passed. This is an embarrassment. Judge Newman deserves a parade, not this humiliation.”
