Sanctions Report for 96-Year-Old Judge Sparks Shock, Sadness

Sanctions that could sideline for a year the nation’s oldest active federal judge due to mental fitness concerns sent reverberations through the legal community.

A Federal Circuit special committee recommended that Judge Pauline Newman should be disciplined for refusing to comply with orders related to an investigation into her ability to perform her duties. The panel’s report, made public Aug. 4, provided significant new detail into the probe and the allegations that sparked it.

The investigation was already in the public eye in a way that’s unusual, since proceedings concerning the mental health of judges are often carried out discreetly. But that was not to be the case with Newman, who is known for her fiery dissents. The US Court of Appeals for the Federal Circuit, which Newman has served on since 1984, has jurisdiction over all appeals under US patent law.

The public release of such fine-grained details at this stage of a judicial disability probe is “unprecedented,” said Arthur Hellman, a professor at the University of Pittsburgh School of Law and an expert on the rules and laws around judicial ethics and disability.

He said he was surprised to see the report issued before the Federal Circuit’s full Judicial Council has decided whether to impose the recommended sanctions, which include a suspension of case assignments to Newman for a year—or until she cooperates with the investigation and agrees to undergo independent medical testing.

Newman’s lawyer and former clerk, Greg Dolin of the New Civil Liberties Alliance, said Newman was blindsided by the issuance of the report.

Newman and the judges on the special committee “were all in the same room together” Thursday, Dolin said, at a mediation hearing ordered as part of Newman’s lawsuit in the US District Court for the District of Columbia challenging the probe. Dolin said the report’s publication was never mentioned and he described the mediation as unsuccessful.

“With all respect to the committee, I think that this just goes to show that this is not an unbiased body,” Dolin said.

‘Heartbreaking’

For some observers of the powerful court, the details alleged in the 111-page report and the 200-plus pages of exhibits released with it were troubling.

Affidavits “describing various court members’ interactions with Judge Newman seem to provide a lot of backing for the claim that she’s experiencing some kind of issue, particularly the email chains showing repeated requests to answer the same (answered) question or denying she had said something she had said,” said Joshua Landau, senior counsel for innovation policy with the Computer and Communications Industry Association.

Alex Moss, executive director of the Public Interest Patent Law Institute, said the report “is heartbreaking to read” but convinced her that “the Federal Circuit has done the right thing in suspending Judge Newman’s bench assignments.”

Hellman said the report “makes a very strong and persuasive case that there’s something wrong.”

Other attorneys who came to Newman’s defense pointed to her very recent writing.

Though Newman was suspended from receiving new cases during the investigation, she continued to work on several cases to which she’d already been assigned.

Janice Mueller, co-founder of the Chisum Patent Academy, said there’s a “twisted irony” in the special committee recommending that Newman be precluded from sitting on any new cases just days after she “offered an important dissent” to the Federal Circuit’s opinion in the RealTime Data v. Array Networks.

Newman is well known for her often contrarian views, developed over the course of her long tenure at the Federal Circuit, and to which Mueller alluded.

“No other judge currently on the Federal Circuit provides Judge Newman’s historical perspective,” Mueller said. “The Special Committee’s recommendation to muzzle her flies in the face of the important insights she contributed in RealTime Data and many other dissents.”

Next Chapter

“Given the pending district court case and Judge Newman’s tenacity,” Moss said, “I fear this is far from settled.”

Dolin confirmed as much.

He said Newman is preparing to respond to and challenge the report’s release and conclusions.

“We’ll take our appeal to the National Judicial Disability and Conduct Committee,” he said “and we will continue with our litigation.”