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Battle of the judges: Newman fires back against Moore


Pauline Newman, the 95-year-old judge at the Federal Circuit, argued that orders by Chief Judge Kimberly Moore investigating her capabilities are unconstitutional

Judge Pauline Newman filed an action against Chief Judge Kimberly Moore and other defendants at the District Court for the District of Columbia on Wednesday, May 10, in response to a judicial complaint against her.

It emerged in April that Moore had issued an investigation over Newman’s alleged inability to carry out her functions under the Judicial Disability Act of 1980.

Moore’s order, issued on March 24, stated that Newman took more time than was allowed to vote on other judges’ opinions, took 179 days longer than the court average to issue her opinions between October 2020 and September 2021, and 139 days longer between October 2021 to the present.

She issued the investigation after several judges and staff members expressed concerns about Newman’s inability to perform as an active judge.

Medical concerns

Newman, aged 95, argued in the May 10 brief that the actions taken by Moore had unlawfully removed her from hearing cases.

She added that she was, and would continue to be, irreparably harmed unless the order excluding her from her regular duties as an Article III judge was declared to be unconstitutional.

According to the brief, the March 24 order alleged that Newman was hospitalised after suffering a heart attack and was undergoing coronary stent surgery. These details had been redacted from the version of the order that was made public.

Newman said that this allegation wasn’t true, noting that she had sat on 10 panels and issued at least eight opinions during the time when she supposedly had the heart attack. It would have been extremely unusual for anyone, let alone someone of her age, to serve through that period in that way if she had suffered a heart attack, the complaint said.

“Besides which, even were the allegation true, having coronary artery disease is simply irrelevant to one’s ability to be able to carry out judicial functions,” the brief stated.

The complaint also stated that the special committee investigating Newman had issued an order on April 7 demanding that Newman undergo neurological and neuropsychological examinations before physicians of the special committee’s choosing. She was given until April 11 to respond to this order.

As the complaint pointed out, Moore then issued an order on April 13 noting that the investigation would be expanded into whether Newman had failed to cooperate because Newman hadn’t responded by the April 11 deadline.

The special committee also demanded that Newman share private medical records on April 17, the brief said.

The orders requiring Newman to undergo medical examinations or to submit her private medical records should be unconstitutional, according to the complaint.

Reassignments and gag orders

The chief judge had also reassigned Newman’s paralegal to another office on April 19, the complaint said.

“Chief Judge Moore refused to permit Judge Newman to hire a replacement judicial assistant, thus leaving her office short-staffed. This has greatly impaired Judge Newman’s ability to accomplish her judicial duties such as processing her opinions, answering phone calls and emails from her colleagues and the like.”

The brief also stated that Moore had issued a gag order, on May 3, which threatened Newman and her counsel with sanctions if any of them publicised the ongoing investigation. The chief judge shouldn’t be allowed to stop Newman from publicising these proceedings, the complaint stated.

Moore had unilaterally removed Newman from all future sittings of the court until the disciplinary proceedings were resolved, according to the brief. The complaint argued that the Judicial Disability Act of 1980 didn’t authorise a chief judge to issue orders that prevented an active Article III judge from being assigned new cases while an investigation was underway.

“‘Sentence first – verdict afterwards’ is a notorious and textbook example of deprivation of due process known even to children’s literature,” the brief stated.

The complaint added that the investigation violated due process because the special committee investigating Newman was composed of witnesses to her alleged disability. Moore, Judge Sharon Prost and Judge Richard Taranto were on this committee and were also listed as defendants.

The Judicial Council of the Federal Circuit was listed a defendant too.

The brief added that the Judicial Disability Act of 1980 was unconstitutionally vague because it failed to provide adequate notice of what constituted a mental disability that rendered a judge “unable to discharge all the duties of office”.

The latest development lays bare what is a deepening conflict at the Federal Circuit, which hears all appeals of patent cases in the US.

Newman, who allegedly previously claimed she was the “only person who cared about the patent system and innovation policy”, is being represented by the New Civil Liberties Alliance.

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