Judge Newman Seeks to Move Fitness Complaint From Fed. Cir. (1)

The Federal Circuit’s oldest and longest serving judge is seeking to move the chief judge’s complaint about her fitness to remain on the bench to a different circuit so a potentially more neutral venue can handle the unusual personnel dispute.

Judge Pauline Newman, 95, is represented by the New Civil Liberties Alliance. The group filed a letter Friday to the US Court of Appeals for the Federal Circuit and the US Supreme Court requesting that circuit transfer, NCLA attorney Greg Dolin told Bloomberg Law exclusively. The group released its letter later Friday afternoon.

The internal court battle has spilled into public view over the past week, raising thorny issues about the process for addressing a judge’s alleged physical and mental impairments. It’s also renewed questions about lifetime judicial appointments.

As Chief Judge Kimberly Moore both initiated the complaint and is in a position to adjudicate it, it would be better for “public confidence” to move the case outside of the Federal Circuit, said Dolin, who formerly clerked for Newman.

Supreme Court Chief Justice John Roberts received a copy of the letter because he is the justice assigned to handle emergency matters at the Federal Circuit, and because he’s head of the federal judiciary’s governing body, Dolin said.

The letter notes that Newman’s colleagues overseeing the probe could be called “as fact witnesses in the proceeding, and it questions whether any Federal Circuit committee can “investigate or render any determination, without creating the appearance of prejudice—if not actual prejudice.”

A Federal Circuit spokesperson didn’t immediately respond to a request for comment.

Judicial Conduct and Disability Act

Moore launched the proceeding against Newman under the Judicial Conduct and Disability Act, questioning her physical and mental ability to remain an active judge.

Newman has received a reduced workload since 2021, after she fainted following an oral argument session and experienced at least one other health-related incident, according to Federal Circuit orders related to the complaint that were unsealed last week.

When Moore and other colleagues tried to coax Newman to take senior status at the court, Moore wrote in the orders that Newman “became angry” and has been unreceptive to Moore and other colleagues’ communication attempts.

Moore recited concerns from court staff that Newman “may suffer from impairment of cognitive abilities (i.e., attention, focus, confusion and memory)” that render her unable to perform case-related and administrative duties.

Newman and the NCLA “fully intend to contest the substance of the allegations,” Dolin said. NCLA says its mission is to “tame the unlawful power of state and federal agencies,” according to its website.

The group has also asked that Newman be immediately restored to her full capacity as a Federal Circuit judge, including access to a full complement of law clerks as well as courthouse technology and support systems.

Sources previously told Bloomberg Law that it’s hard to say how the probe will shake out given the uncharted territory that the complaint ventures into, but “internal tensions” are one reason a circuit transfer might be requested.

Nominated by President Ronald Reagan, Newman became the Federal Circuit’s first direct appointee in 1984. The appeals court, considered to be the nation’s top patent tribunal outside of the Supreme Court, was created after the Court of Customs and Patent Appeals and the appellate division of the US Court of Federal Claims merged.

In her nearly 40 years on the court, Newman has gained a reputation as one of its most prominent dissenters.

Moore, 54, was nominated by President George W. Bush and joined the Federal Circuit in 2006. She succeeded Judge Sharon Prost as chief judge in 2021 and is known as a sharp questioner and colorful opinion writer.

The dispute is IN RE COMPLAINT NO. 23-90015, Fed. Cir.

—with assistance from Riddhi Setty