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May 20, 2023

A special committee of Federal Circuit judges voted to sanction 96-year-old Judge Pauline Newman of the appeals court, over her refusal to cooperate with an investigation into her mental fitness.

The three-judge panel unanimously recommended suspending Newman’s case assignments for a year “or at least until she ceases her misconduct and cooperates such that the Committee can complete its investigation,” in a 111-page report that was released publicly on Friday morning along with more than 200 pages of exhibits.

PODCAST: Judge Newman Speaks: 96-Year-Old Fights Push to Oust Her

Three judges from the US Court of Appeals for the Federal Circuit, an influential court with exclusive jurisdiction over patent appeals, sit on the special committee: Chief Judge Kimberly A. Moore, Sharon Prost, and Richard G. Taranto.

If the full Federal Circuit Judicial Council adopts the recommendations it would mean that Newman, who has spent nearly four decades on the court, won’t be able to take part in any panels during that period. She was previously barred from hearing new cases and carrying out other judicial functions as part of the investigation into her fitness.

The committee’s report states that Newman refused to sit for an interview or undergo neurological evaluation and neuropsychological testing. As a result, they concluded they were stymied in their ability to assess whether she is suffering from a disability.

“Judge Newman’s conduct thwarting the Committee’s investigation cannot go unpunished and cannot be met with a minor sanction that a life-tenured judge might ignore,” the report concludes.

Newman has previously responded to the probe and to her being barred from receiving new case assignments by suing in the US District Court for the District of D.C. and seeking to have the disability investigation conducted by a panel of judges drawn from a different circuit court.

On Friday her attorney, Greg Dolin with the New Civil Liberties Alliance, objected to the release of the report and said Newman hadn’t been given time to respond or correct any inaccuracies in the document.

“We’ve never been hiding anything but to release something without giving Judge Newman an opportunity to respond is both inappropriate and again I think shows why this matter should’ve been transferred because this committee seems to have reached a predetermined result and has funneled all the evidence and all the information through that sieve to get to that result,” Dolin said.

The report says the investigation began after judges and court staff raised concerns about Judge Newman’s health.

In particular, it points to a heart attack Newman is said to have suffered in June 2021 and a “fainting spell” where she was unable to walk without assistance after oral arguments in May 2022. Newman has denied having had a heart attack and called the allegations around denied her health “fabrications and exaggerations.”

The report says that Newman refused to submit to medical testing by independent doctors selected by the special committee. It also describes interviews the committee took with court staffers who described troubling interactions with the judge

The committee said Newman responded to these allegations and characterized them in a brief as “minutia” and “petty grievances.”

It noted that Newman submitted her own neurologist’s report, but characterized it as another indication that Newman is having memory issues. Newman’s doctor, Ted Rothstein, reportedly found that “Judge Newman failed 80% of the memory related questions,” according to the committee.

The report states that the committee ultimately chose not to credit Rothstein’s analysis, in part because it contained internal inconsistencies and because Newman “refused to provide the Committee the cognitive test” the doctor used and “the information submitted to Dr. Rothstein and on which he relied.”

Dolin said the committee had mischaracterized the test.

The report also points to 20 interviews with court staff that suggested Newmon demonstrated “significant mental deterioration including memory loss, confusion, lack of comprehension, paranoia, anger, hostility, and severe agitation.”

In particular, the report states that Newman struggled with tasks like logging into the court’s computer network, and when staffers offered to help her “she has appeared ‘paranoid’ and insisted that her devices are hacked and bugged, sometimes by the Court itself.”

At the heart of the committee’s investigation is an employment dispute that bubbled up within Newman’s chambers.

The report says the issue began because a Newman clerk “felt empowered to call Judge Newman’s judicial assistant in the middle of the night to demand personal services for herself such as wake-up calls.”

The assistant eventually sought to address the issue through the court’s employment dispute resolution, or EDR, process. According to the report, the clerk “refused to agree to halt her midnight calls even temporarily.”

Newman, the report states, “failed to take any steps to rectify the matter as supervisor” and may have fanned the flames when “she sent an email to roughly 95 court staff exposing details of the confidential EDR matter.”

The assistant ultimately received a new job placement in the court outside of Newman’s chambers. Newman, however, expressed concern that he’d taken his work computer with him to his new work assignment, according to the report. She “became convinced that his computer had been stolen along with information from her chambers” despite repeated explanations from the court’s IT staff that that wasn’t the case.

On the morning of July 6, Newman emailed Moore asking for “the immediate return of the computer that was taken from my chambers,” according to an email chain filed as an exhibit with the report.

Moore responded that the computer had been scrubbed of any of Newman’s “chamber’s information” and she copied the clerk of court, the court’s IT director, and a help desk manager and asked them all to confirm this, which they did in quick succession.

More than four hours later on the same day, Newman emailed Moore again to ask, “Who has my chambers computer and its drive containing my files?”

After Moore and the IT director responded again to say the computer in question didn’t contain Newman’s files, Newman emailed them again at around 10 p.m. stating that the “computer was removed and has not been returned, despite my frequent requests.”

The thread continued the next day, with Newman sending nine more emails seeking the return of the computer as Moore and the clerk of court insisting that the computer doesn’t contain or have access to Newman’s files, which are stored on a network drive.

The last email in the exhibit was from Newman, who was unconvinced: “As well you know, the entire computer, drive and all, were removed from my chambers. Your clever dissembling is shameful. A court is supposed to represent justice, not trickery.”

Finally, the committee took issue with Newman’s pace in issuing opinions in recent years.

Newman’s supporters have said she’s always been one of the slower judges on the court when it comes to issuing opinions, attributing that to her being an extraordinarily careful writer.

The report says that even as Newman’s workload was significantly reduced, however, cases where she was assigned to write the opinion languished.

It concludes that she “took four times as long to write half the opinions while sitting on half the number of cases as her colleagues.”

The case is In re: Complaint, Fed. Cir., 23-90015, report and recommendation 8/4/23.

— With assistance from Riddhi Setty.

To contact the reporter on this story: Michael Shapiro in Dallas at [email protected]

To contact the editor responsible for this story: Adam M. Taylor at [email protected]

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